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1997 DIGILAW 175 (CAL)

Pradip Ghosh alias Nilu v. State of West Bengal

1997-04-11

Vidya Nand

body1997
JUDGMENT Vidya Nand, J. This revisional application has been filed for quashing the proceeding in G.R. No. 842 of 1992 pending before the learned Additional Chief Judicial Magistrate, Sealdah, South 24-Parganas corresponding to Sec. N. Case No. 114 dated 18.4.92 under s. 304 of the IPC. 2. The petitioner Pradip Ghosh alias Nilu was arrested and produced before the learned Additional Chief Judicial Magistrate in connection with the aforesaid case for the offence u/s. 304 IPC on 18.4.92 and the C.S. was submitted on 17.2.96. The instant Case is a Sessions triable case and the investigation in the instant case could not completed within 3 years from the date of arrest of the accused-petitioner, i.e., before 17.4.95 and as such as submitted it was the bounden duty of the Magistrate to make an order stopping the investigation and discharging the accused under the provisions of s. 167 (5) of the Code of Criminal Procedure, 1973 as amended by West Bengal Act 24 of 1988, which came in force on 2nd May, 1989. The amended provisions are as follows :- "(5) If, in respect of- (i) any case triable by a Magistrate as a summon case, the investigation is not concluded within a period of six months, or (ii) any case exclusively triable by a Court of Session or a case under Chapter XVIII of the Indian Penal Code (45 of 1860), the investigation is not concluded within a period of three years, or (iii) any case other than those mentioned in clauses (i) and (ii), the investigation is not concluded within a period of two years, from the date on which the accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary." 3. In the instant case as the C.S. was submitted long after three years the petitioner was entitled for discharge and stopping further investigation on the completion of the statutory period of three years as before the end of the completion of statutory period of three years, i.e., before 17.4.95 the officer making the investigation did not file any petition for continuation of the investigation with special reason beyond the specified statutory period. As a matter of fact no petition was filed within three years and as such the petitioner is entitled for getting the proceeding quashed. 4. The learned lawyer appearing on behalf of the State relied on a decision as reported in AIR 1996 SC 740 (Durgesh Chandra Saha vs. Bimal Chandra Saha and Ors.) respondents which is as follows :- "After giving our anxious consideration to the respective submission of the learned counsel appearing for the parties it appears to us that the language of s. 167 (5) of Cr. PC as amended by the West Bengal Act is quite clear in indicating that the said section is applicable only in a case where the investigation was still pending out not in a case where investigation had been completed and the charge-sheet has been filed. It appears to us that s. 167 (5) as amended, is intended to ensure speedy completion of investigation within the time frame specified therein otherwise to face an order of discharge of the accused against whom investigation without any just cause to the satisfaction of the Court has been kept pending. Where investigation has been completed, a different situation, not contemplated under s. 167 (5), Cr. PC emerges. We may indicate here that if criminal case is kept pending for a very long time without any just cause thereby seriously affecting the guarantee under Art. 21 against deprivation of personal liberty, the law is well settled that the Court, in such circumstances may quash the criminal proceeding as indicated in the Constitution Bench decision of this Court in A.R. Antulay's case. Hence, unnecessary liberal construction of s. 167 (5), Cr. PC with a view to protect the right against deprivation of personal liberty as contended by Mr. Ghosh is not called for." (Para 8) 5. Relying on the said paragraph he has further submitted that C.S. has been submitted in this case on 17.2.96 so the proceeding should be quashed. Hence, unnecessary liberal construction of s. 167 (5), Cr. PC with a view to protect the right against deprivation of personal liberty as contended by Mr. Ghosh is not called for." (Para 8) 5. Relying on the said paragraph he has further submitted that C.S. has been submitted in this case on 17.2.96 so the proceeding should be quashed. The learned lawyer appearing on behalf of the accused has also relied on the said decision of the Hon'ble Supreme Court and submitted that in the opinion of the Hon'ble Supreme Court s. 167 (5) Cr. PC as amended, is intended to ensure speedy completion of the investigation within the time frame specified therein otherwise to face an order of discharge of the accused against whom investigation without any just cause to the satisfaction of the court has been kept pending. He has, therefore, submitted that as C.S. was submitted on 17.2.96, i.e., after three years after the accused was arrested and not within the statutory period of three years as provided under the amended provisions of 167 (5) Cr. PC, the prosecution must suffer an order of discharge of the accused against whom investigation without any just cause to the satisfaction of the court has been kept pending after the said prescribed period of three years. He has also submitted that the first sentence of the aforesaid decision appearing in paragraph 8 of the same should be read in the light of the facts of the case mentioned. In paragraph 2 of the said decision wherein it is mentioned that a complaint was lodged by the appellant in Gaighata Police Station on 15th March, 1984 and on the said complaint a police case No. 11 of 15th March, 1984 was initiated and C.S. was submitted u/ss. 148/149/307/326/302 IPC on 8th February, 1988 against respondent No. 1-10 in the said case in which the Sub-Divisional Magistrate took cognizance on 23rd July, 1988. He further contended that not only the said investigation was complete before the West Bengal Amendment Act, amending the provisions of s. 167 (5) came into force on 2nd May, 1989 but cognizance was also taken before that and so the facts of the two cases are different and as such the principle enunciated in first sentence of para 8 of the said decision of the Supreme Court has no application in this case. It appears that the learned lawyer appearing on behalf of the accused was right in making the above submission before me. He has also rightly submitted that the second sentence appearing in paragraph 8 of the aforesaid decision of the Supreme Court supports his contention that s. 167 (5) Cr. PC as amended, is intended to ensure speedy completion of investigation within the time frame specified therein otherwise to face an order of discharge of the accused against whom investigation without any just cause was allowed to remain pending after the prescribed period of three years. 6. In view of the discussions made above I am of the opinion that the accused-petitioner is entitled to get the benefit of the West Bengal Amendment and as such the process against the petitioner are liable to be quashed. The revisional petition is allowed. In the result, the proceedings stand quashed and the accused stand discharged. Revisional application allowed. Proceeding quashed.