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1996 DIGILAW 469 (CAL)

State of West Bengal v. Pranab Ranjan Roy

1996-12-19

ASISH BARAN MUKHERJEE

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JUDGMENT The Revisional application has been preferred by the State of West Bengal against order dated 18.8.94 passed by the Judge, 3rd Special Court, Calcutta in Special Court Case No.7 of 1994 whereby the accused opposite party was discharged. 2. The facts which gave rise to the Special Court case in short is that the opposite party while functioning as Director (Operation) and subsequently as Chief (Operation), Central Inland Water Transport Corporation Ltd, during the period 18th December, 1982 to 31st August, 1990 committed criminal misconduct since he was found in possession of assets/properties to the tune of Rs. 3,39,725.63 p. which are disproportionate to his known sources of income indicating that the said sum was acquired by questionable means. After investigation charge-sheet was submitted on 4th of May, 1994 for offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. 3. The Special Court Judge following a hearing discharged the accused opposite party under Section 167(5) Criminal Procedure Code after coming to the conclusion that cognizance of the case was taken beyond the scope of law. 4. Bing aggrieved the present revisional application has been filed alleging that due to an erroneous exercise of judicial discretion the Special Court Judge assumed power which was not vested in him. It is the further case of the petitioner that cognizance was taken in accordance with law and that Section 167(5) Criminal Procedure Code bas no application so far as prosecution under Prevention of Corruption Act is concerned. It is also the contention that there was no appearance by the accused at a period of time so as to attract the operation of Section 167(5) Criminal Procedure Code. It is also the contention that the time taken for obtaining sanction should have been excluded for the computation of the period for the purpose of Section 167(5) Criminal Procedure Code by virtue of Section 470 Criminal Procedure Code. 5. I have heard the learned Advocates representing the petitioner as also the opposite party. The learned Advocate representing the petitioner has raised a number of objections in support of his contention that the impugned order of the learned Special Court Judge is not in accordance with law. 5. I have heard the learned Advocates representing the petitioner as also the opposite party. The learned Advocate representing the petitioner has raised a number of objections in support of his contention that the impugned order of the learned Special Court Judge is not in accordance with law. He has referred to appropriate provisions of Prevention of Corruption Act in order to bring home his point that the offence in question being exclusively triable by a Special Court, Section 167(5) Criminal Procedure Code which speaks of cases pending before the Judicial Magistrates cannot attract the operation of Section 167(5) Criminal Procedure Code. It is also his contention that Prevention of Corruption Act being a special law, Section 167(5) Criminal Procedure Code is not applicable. 6. On the other hand, it is contended by the learned Advocate appearing for the opposite party that the offence in question was, investigated by C. B. I. under the Special Police Establishment Act and since no procedure is prescribed dealing with Investigation Criminal Procedure Code shall govern such investigation. He also contended that in view of the provision of Section 5(1), Prevention of Corruption Act, Special Judge functions as Magistrate while exercising" power under the said Act As far as the scope of Section 470 Criminal Procedure Code is concerned, it is his contention that the said provision deals with the question of limitation on the point of taking cognizance of a case. According to him, it does Dot enhance the period prescribed under Section 167(5) Criminal Procedure Code as it is applicable in West Bengal by virtue of the West Bengal Amendment. It is also his contention that Section 470 Criminal Procedure Code appears in a Chapter of Criminal Procedure Code which deals with limitation for taking cognizanee for certain offences. 7. Learned Advocate for the opposite party has also relied on a number of decisions in support of his contention raised above. He has referred to a decision reported in (1) 1979(4) Supreme Court Cases page 5 in support of his contention that Special Judge created by Criminal Law (Amendment) Act, 1952 is a Magistrate having jurisdiction within the meaning of Section 167 to authorise detention of accused in police custody. It has been held in the said decision that Criminal Procedure Code is applicable when there is no conflict with the provisions of Criminal Law (Amendment) Act. It has been held in the said decision that Criminal Procedure Code is applicable when there is no conflict with the provisions of Criminal Law (Amendment) Act. Section 8 of the said Amendment Act empowers the Special Judge to take cognizance of offence without the accused being committed to him. It is held that in the event of a Special Judge, not having any power to exercise the power of remand of the accused produced before him or release him on bail, it will lead to an anomalous position. It has also been held that Section 3 of the Criminal Procedure Code suggests that if the context otherwise requires the word 'Magistrate' may include Magistrates who are not specified in the Section. It has further been held that this along with the Section 32 of the General Clauses Act, if read together, the Special Judge can be held to be a Magistrate for the purpose of Section 167 Criminal Procedure Code. It bas specifically been held that although the words "Special Judge" are not mentioned in Section 167 Criminal Procedure Code, that would not exclude the Special Judge from being a Magistrate having jurisdiction to try Cases under Section 167 Criminal Procedure Code. 8. The conclusion arrived at by the Hon'ble Supreme Court in the aforesaid decision categorically comes in conflict with the submission made by the learned Advocate representing the petitioner which is to the effect that Special Judge being a creation of a special statute and there being nothing in Section 167 Criminal Procedure Code mentioning Special Judge specifically the provisions of Section 167(5) Criminal Procedure Code has got no application in connection with investigation and trial of an offence under Prevention of Corruption Act since the matter is a special statute. 9. So far as Section 470 Criminal Procedure Code is concerned, as I have stated earlier it appears in Chapter XXXVI dealing with limitation for taking cognizance of certain offences. Section 470 the matter of computing the period of limitation the period mentioned therein are to be excluded. It is true that in the matter of taking cognizance the time required for obtaining consent or sanction is to be excluded in terms of Section 470(3) Criminal Procedure Code. Section 470 Criminal Procedure Code is to be read along with Section 468 Criminal Procedure Code which deals with the commencement of the period of limitation. It is true that in the matter of taking cognizance the time required for obtaining consent or sanction is to be excluded in terms of Section 470(3) Criminal Procedure Code. Section 470 Criminal Procedure Code is to be read along with Section 468 Criminal Procedure Code which deals with the commencement of the period of limitation. The contingencies as described in Section 470 Criminal Procedure Act are to be taken into consideration in the matter of computing the period of limitation as mentioned in Section. 468 Criminal Procedure Code. But there is no provision in the Criminal Procedure Code of particularly anywhere in Chapter XXXVI of the said Code whereby the operation of Section 167 Cr. P. C bas been limited In other words, the provision as laid down in Section 167(5) Criminal Procedure Code as amended in its application with regard to West Bengal must come into play at the time of investigation of an offence. In the present case, the offence in question is not a Sessions triable offence and is not also the offence coming within the category of Section 167(5)(i) Criminal Procedure Code. On the other hand it squarely comes within the purview of Section 167(5)(iii) Criminal Procedure Code. Accordingly, the investigation is to be concluded within a period of two years from the date when accused or in the, event of more than one accused, one of them was either arrested or made his appearance in Court. In the present case, the admitted factual position is that on 29.2.92 the accused appeared in the Lower Court by filing a Vokalatnama for return of certain documents. It is contended by the learned Advocate for the petitioner that this is not the appearance within the meaning of Section 167(5) Criminal Procedure Code and as such the starting point for the purpose of computation cannot be taken from 29.2.92. On the other hand, it is argued on behalf of the opposite party that the accused made his appearance on 29.2.92 and as such investigation was required to be completed within two years from the said date. On the other hand, it is argued on behalf of the opposite party that the accused made his appearance on 29.2.92 and as such investigation was required to be completed within two years from the said date. In the present case investigation was completed with the submission of charge-sheet on 11.5.94 which is beyond the period of two yean from the initial date, namely, 29.2.92 incase the said date is taken to be the date of the appearance of the accused within the meaning of Section 167(5) Criminal Procedure Code. The learned Advocate for the petitioner contends that in the event of 29.2.92 being taken as the date of appearance, accused persons shall resort to an application for surrender in the lower Court and there after shall remain away on call. It is submitted that in this way the accused persons are likely to evade the provisions of law. In order to come to a decision on this point it is necessary to take into consideration the purport of Section 167(5) Criminal Procedure Code as amended in case of West Bengal and also the words used in the said amendment which shall be deemed to reflect the concern of the legislature in bringing this provision in the statute book. The purpose is obviously to make certain limitation of continuance of investigation which at times runs over years. Depending upon the nature of the offence such offences have been grouped under three heads with seperate periods within which investigation is required to be completed. At the same time, provision has been made empowering the Investigating Officer to satisfy the Magistrate that for special reason and in the interest of Justice continuation of investigation beyond the stated period is necessary. Therefore, in a complicated case or in case of investigation or an offence which the Investigating Officer needs more time than prescribed by law he is at liberty to make appropriate petition before the concerned Magistrate and the latter if satisfied about the genuineness of the reason, be is at liberty to extend the said period on such period from time to time. The learned Advocate for the petitioners submits that in the present case Investigating Officer prayed for sanction on 16.9.93 and the said sanction order was issued on 17.3.94 and it reached the I. O. on 21st of March, 1994. The learned Advocate for the petitioners submits that in the present case Investigating Officer prayed for sanction on 16.9.93 and the said sanction order was issued on 17.3.94 and it reached the I. O. on 21st of March, 1994. Obviously, in a situation like this it was incumbent for the investigating Officer to make an appropriate prayer before the learned Special Judge or the learned Magistrate as the case may be to extend the time for investigation Slating the circumstances for which investigation could not be completed within time. But in the present case, no .such prayer was made and obviously the question of extension of time by the learned Judge did not arive. Section 167(5) Criminal Procedure Code also gives a mandate on the Magistrate to stop further investigation and to discharge the accused persons as soon as the period mentioned therein is over. Therefore, the provision of Section 470 Criminal Procedure Code which might be one of the reasons for making a prayer before the Magistrate for extending the time for investigation is no answer to the provision5 of Section 167(5) Criminal Procedure Code which is mandatory on the Magistrate as also the Special Judge whose position is also that of a Magistrate while dealing with a Special Court case. 10. The not question obviously will be whether the steps taken by the accused on 29.2.92 can be equated with "made his appearances" within the meaning of Section 167 (5) Criminal Procedure Code. It appears from the impugned order that the learned Special Court Judge on a perusal of the Lower Court record found that on 29.2.92 the accused appeared before the Court by filing the Vokalatnama and on the same date he also prayed for return of certain documents. The learned Special Judge has also criticised the action of the learned C. M. M. since he did not take the accused in custody even though there was nothing on record to show that he did not physically appear before the Court. Since there was no order directing for personal appearance of the accused to that stage it was taken for granted that on 29.2.92 the accused actually made his appearance in the Court below. Since there was no order directing for personal appearance of the accused to that stage it was taken for granted that on 29.2.92 the accused actually made his appearance in the Court below. On this point the learned Advocate for the opposite party has relied on a decision reported in (2) 1996 Calcutta Criminal Law Reporter 184 where the question of appearance for the purpose of Section 167 (5) Criminal Procedure Code was considered by this Court with reference to a number of decisions of different Courts including the Supreme Court. The conclusion drawn by this Court in consideration of different decisions as also the provisions of law when ............ to the present case leads to the irresistable, conclusion that 29.2.92 shall be taken to be the date of appearance of the accused for the purpose of Section 167(5) Criminal Procedure Code. Since investigation was not concluded in a period of two years from that date and in the absence of any move being taken by the Investigating Officer for extending the said period and in the absence of any order to that effect by the concerned Magistrate continuance of investigation beyond the statutory period violates a mandatory provision of the Criminal Procedure Code and as such investigation carried on after the said period as also the submission of charge-sheet beyond the period are void in the eye of law. Since the concerned Magistrate did not stop the proceeding and discharge the accused in terms of the said provision of law, the learned Judge Special Court is within his rights to apply the said provision when the matter was brought to his notice at the instance of the accused opposite party by resorting to an application to that effect. 11. Regarding the apprehension in the mind of the interpretation of Section 167(5) Criminal Procedure Code will open a flood gate of corruption cannot be accepted. The right of a citizen granted under Article 21 of the Constitution which finds reflection in Section 167(5) Criminal Procedure Code as amended in case of West Bengal must be respected and this salient provision of law cannot be allowed to be trampled by sweet will of the investigating machinery who does not even care to take any appropriate steps in appropriate times for extension of the period of investigation in a deserving case. In the result, I am of opinion that the impugned order is absolutely in accordance with law and there is no reason to interfere with the same. Accordingly the Revisional application stands dismissed on contest.