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2000 DIGILAW 192 (CAL)

Kamal Das v. State of West Bengal

2000-04-18

Malay Kumar Basu

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JUDGMENT Malay Kumar Basu, J.: This revisional application under section 482 of Cr.P.C. is directed against the orders dated 3.8.92 and 25.8.92 passed by the SDJM, Kalyani in G.R. No.429/89 (arising out of Haringhata P.S. Case No. 94/89) on the ground that the same are erroneous, illegal and unsustainable. The case of the revisional applicant, in brief, is that the Haringhata P.S. Case No. 94/89 date 20.7.89 was started against the petitioners under section 302/34 IPC. The petitioners were arrested by Police in connection with this case on 1.8.89. The investigating agency failed to conclude the investigation within the period of 3 years from that date prescribed under section 167(5) Cr.P.C. The period of 3 years from the date of arrest expired on 1.8.89, whereas the investigating agency filed a prayer before the Court of SDJM for extension of the period to conclude investigation on 3.8.92. Under the law such a petition ought to have been filed within the statutory period, that is, 30.7.92, but the learned Magistrate without taking into consideration this position erroneously allowed this prayer of the Investigating Officer and extended the time for submission of report in final form. Secondly, the order of the ld. Magistrate allowing this prayer was bad for the further reason that the ground on which such extension of time was prayed for by the investigating agency was indefinite and ambiguous, inasmuch as, at one place of this petition it was made out that the investigation could not be concluded since the I.O. had been placed under suspension and had left his service without handing over the case diary to his successor while on another place of the petition it was stated that the I.O.’s report could not be prepared due to non-availability of the expert's report. 2. The main point that falls for determination in this order is whether the learned Magistrate ought to have disallowed the prayer of the investigating agency for extension of the period of investigation and stopped further investigation of the case applying the provisions of section 167(5) Cr.P.C. and discharged the accused applicant. 2. The main point that falls for determination in this order is whether the learned Magistrate ought to have disallowed the prayer of the investigating agency for extension of the period of investigation and stopped further investigation of the case applying the provisions of section 167(5) Cr.P.C. and discharged the accused applicant. Section 167(5) Cr.P.C. as amended by the West Bengal Act lays down that if in any case exclusively triable by a sessions court the investigation cannot be concluded within the period of three years from the date of arrest of the accused, 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 learned Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period mentioned in the sub-section is necessary. 3. It is the contention of Mr. Ganguly, the learned Advocate for the applicant, that in this case clearly the investigation was not completed within this prescribed period of three years from the date of the accused's arrest, i.e. 1.8.89. Nor any satisfactory ground for extension of the period of investigation as prayed for by the I.O. was made out, nor also any such petition was filed by him before the expiry of that period. Hence, according to Mr. Ganguly, there is no reason why the mandatory provisions of this section of the Code should not be straightway applied to this case. 4. The provisions of this section have since been the subject matter of a series of scrutiny by the Apex Court in a host of cases. The position which is by now been settled is to be particularly found in its recent Division Bench judgement reported in 1998 C.Cr.L.R. SC 216 (Nirmal Kanti Roy vs. State of West Bengal with Ganeshlall Mundra & Ors. vs. S. Dasgupta & Ors.). The position which is by now been settled is to be particularly found in its recent Division Bench judgement reported in 1998 C.Cr.L.R. SC 216 (Nirmal Kanti Roy vs. State of West Bengal with Ganeshlall Mundra & Ors. vs. S. Dasgupta & Ors.). In this decision Their Lordships have laid down the principle that the orders stopping further investigation into an offence and the consequential order of discharge are not intended to be automatic sequel to the failure to complete investigation within the period fixed in this sub-section and the succeeding words in this sub-section confer power on the Court to refrain from stopping such investigation, if the Investigating Officer satisfies the Magistrate of the fusion of two premises, namely, en that in the interest of justice it is necessary to proceed with the investigation beyond the period shown in the sub-section and (II) that there are special reasons to do so. Their Lordships have taken the view that the time schedule shown in section 167(5) of the Code was not to be treated with rigidity and it was not mandatory that on the expiry of the period indicated therein the learned Magistrate should necessarily passed the order on the accused. On the contrary, before passing an order of stoppage of investigation the Magistrate shall consider whether on the facts of that case further investigation would be necessary to foster interest of criminal justice and the Magistrate at that stage must look into the record of investigation to ascertain the progress of investigation so far registered and if substantial part of investigation was by then over, the Magistrate should seriously ponder over the question whether it would be conducive to the interest of justice to stop further investigation and discharge the accused. 5. In the instant case from the averments in the application itself it is ascertained that by the time when the prescribed period of three years expired the I.O. had already proceeded a lot having completely done the duties to be discharge from his end in the matter of the investigation of the case and was only waiting for the report of the chemical expert presumably to give a formal finishing touch to his report and submit it in final form before the Court. There can be no denying the fact that under such circumstances there were no laches on the part of the I.O. he having no control over the availability of the chemical experts report in the absence of which his report in final form could not be submitted by any means. In that view of the matter the aforementioned judgment of the Apex Court will be applicable in all its forms to the facts of the present case. The period of three years from the date of arrest of the accused here appears to have expired on 31.7.92 by that date. The works to be done regarding investigation of the case from the side of the I.O. had no doubt been complete and the Investigating Agency was waiting for the report of the expert after receipt of which presumably his report in final form would be filed before the Court. In such circumstances the provisions of the sub-section (5) of section 167 will not be attracted. Had it been a case where at such point of time the I.O. failed to make any progress so far as his part of investigation was concerned, then, of course, there would have been an appropriate occasion for applying these provisions to save the accused persons from being victims of unjustifiably inordinate delay. But here, as has happened in the case under reference, a substantial part of the investigation had already been over in a serious case of murder. 6. The fact that the prayer for extension of time filed by the Investigating Agency was made one or two days after the date of expiry of the prescribed period does not matter much. It was within the discretion of the learned Magistrate to condone this negligible delay when substantially the investigation had already proceeded a lot before the expiry of that period. Again the fact that in the said petition side by side with the aforementioned ground it was also stated that the I.O. who actually did the work of investigation had been under order of suspension and left the service without handing over the case diary does not in any way diminish the reliability of the aforementioned ground because these are facts on record and they are by no means irreconcilable with each other. Both the facts may very well go hand in hand. 7. Both the facts may very well go hand in hand. 7. In another earlier decision of the Apex Court reported in 1996 Cr.L.J. 1137 (S.C.) (Durgesh Chandra Saha vs. Bimal Chandra Saha) it has been held that section 167(5) is intended to ensure speedy completion of investigation within the time frame specified therein, but where the investigation has been completed, a different situation not contemplated under that section emerges and unnecessarily liberal construction of that section with a view to protecting the right against deprivation of personal liberty is not called for. In the instant case from the petition of the investigating agency filed before the Magistrate praying for extension of time it transpires that the investigation on the part of the I.O. had been for all practical purposes completed and the only thing left to be done was to collect the report of the expert. 8. Hence if in such a case the further investigation is stopped by the Magistrate then that will not be in consonance with the letter and spirit of section 167(5) Cr.P.C. In the first place, the Magistrate and a substantial part of the investigation has been over and secondly the Investigating Officer satisfied the Magistrate that there were special reasons for which the continuation of investigation beyond the prescribed period was necessary. That being so, the provisions of section 167(5) cannot be attracted in a case of this nature for stopping further investigation, or for that matter, discharging the accused persons. On the other hand, the exceptions to the section as enunciated under the aforementioned judgments of the Apex Court will apply here with full force. 9. In the result, therefore, there is no merit in the revisional application under consideration and the same be dismissed. The impugned order of the Court below is hereby affirmed. Interim orders be vacated. Revisional application dismissed.