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2001 DIGILAW 644 (CAL)

Rabindra Nath Chowdhury v. State

2001-10-05

Pradip Kumar Biswas

body2001
JUDGMENT Pradip Kumar Biswas, J.: This is an application under section 482 of the Code of Criminal Procedure, 1973, at the instance of the accused petitioner Rabindra Chowdhury and Anr, seeking to quash the Suri P.S. Case No. 30/92 dated 6.2.92 being G.R. Case No. 109 of 1992 now pending before the Sub-Divisional Judicial Magistrate, Suri, Birbhum. l2. The facts leading to the present revisional application may be summarized as follows:- One Tapan Kumar Ghosh, Inspector of Police, Bureau of Investigation lodged a complaint and on receipt of the same, Bureau of Investigation started a case under section 11A(1) (b) (c)(d) of the Bengal Amusement Tax Act, 1922 against the present petitioners and that was registered as G.R. Case No. 109 of 1992. The prosecution case, as alleged in the written complaint, is that petitioner No.1 was the licenced owner of 'Chaitali Cinema', Suri and the petitioner No. 2 is the manager of 'Chaitali Cinema', Suri and on 29.1.92 at about 13.35 hrs., complainant along with Inspector Sri Kumar Hazra, S.I. Samar Chandra Halder of Bureau of Investigation visited 'Chaitali Cinema', Suri, Birbhum and checked Daily Sales Register, Entertainment Tax Register and challons, some counterfoils of old tickets as well as current tickets etc.', and in course of checking, it was noticed by them that the cinema hall authority is very much reluctant to use 'date stamp’ in admission tickets. On checking of the counter-foils of sold tickets, it was also found that some of the tickets were under stamped and some used tickets appeared to have been used again. Readily, however, the amount of tax evasion could not be ascertained which may be finally determined after the production of 3 months' counter-foils of tickets by the cinema hall authority of 'Chaitali Cinema', Suri, Birbhum. 3. I.O. of this case after completion of the investigation in connection with Suri P.S. Case No.30/92 dated 6.2.92 under sections 11A(1) (b), (c), (d) of the Bengal Amusement Tax Act, 1922 submitted a charge-sheet No. 34 dated 1.4.93 against the accused petitioners. It has further been alleged in the petition that the learned Magistrate took congnizance on 4.3.92 and the charge-sheet was submitted on 1.4.93. It has further been alleged in the petition that the learned Magistrate took congnizance on 4.3.92 and the charge-sheet was submitted on 1.4.93. Upon looking into the certified copy of the order-sheet annexed with the record, it appears that on 4.3.92, one of the accused petitioners Surja Narayan Roy surrendered before the Court and on 8.1.93 upon prayer of the I.O., time was extended by the learned Magistrate for completing the investigation and on 5.4.93, upon receipt of the charge-sheet the learned Magistrate took congnizance. By filing this petition, the petitioners perhaps wanted to impress upon this court that although one of the accused petitioners appeared before the concerned court of learned S.D.J .M., Suri, Birbhum by way of surrender on 4.3.92, yet, the investigation in the concerned case which ought to have been completed within a period of 6 months, has not been completed prior to 1.4.93 and as such cognizance taken by the court on the basis of charge-sheet, not submitted within 6 months from the date of surrender of one of the accused persons of this case, was bad in law and utterly in violation of the settled position of law and as such the entire charge-sheet should be quashed being a nullity, and, therefore, further proceeding of this case will be surely a gross abuse of the process of law. Hence, this prayer, as aforesaid. 4. I have heard the learned counsel of the parties at length. The learned counsel appearing on behalf of the accused petitioners drawing my attention to an unreported decision dated 15th June, 1993 passed in connection with Criminal Revision No. 935 of 1993 (Ajit Kumar Roy and Anr. vs. State) has submitted before me that in the instant case, the charge-sheet has been submitted under sections 11A (1) (b), (c), (d) of the Bengal Amusement Tax Act, 1922 against these petitioners and others but the offence under section 11A of the aforesaid Act being punishable with imprisonment for 2 years or with fine which may extend to Rs. vs. State) has submitted before me that in the instant case, the charge-sheet has been submitted under sections 11A (1) (b), (c), (d) of the Bengal Amusement Tax Act, 1922 against these petitioners and others but the offence under section 11A of the aforesaid Act being punishable with imprisonment for 2 years or with fine which may extend to Rs. 300/- or with both, the investigation in this case was required to be completed within 6 months from the date of the arrest/surrender of at least one of the accused persons' of this case, namely Surja Narayan Roy, who surrendered on 4.3.92 and the charge-sheet in the instant case having been filed on 5.4.93, obviously the same was not completed within six months from the date of surrender i.e., 4.3.92 of accused Surja Narayan Roy. He has further submitted that in Criminal Revision No. 935 of 1993, similar situation arose when G.R. Bhattacharjee, J., had been pleased to quash the entire proceeding and discharged the accused petitioners of that case. It was, therefore, contended by him that in this case also the investigation not being completed within a period of six months from the date of surrender of the accused Surja Narayan Roy, the present proceeding has to be quashed and the accused persons involved in this case should have to be discharged. 5. The learned counsel appearing for the opposite party/State in opposing the aforesaid claim of the petitioner, has submitted before me that earlier large number of decisions of Single Bench, Division Bench and Special Bench have been delivered covering the same field and taking contrary view and by now, the matter has almost been settled by the decision of the Full Bench of this Court as also by the decision of the Apex Court wherein it has been clearly laid down that as soon as there was an order for stoppage of investigation, the learned Magistrate is entitled to see police papers upto that date, and not to any other date after such stoppage was made. And it has been clearly held that in such eventuality, the discharge is not an automatic act nor an inevitable consequence and the learned Magistrate has to make a positive order upon due application of mind and consideration of all relevant facts and circumstances. And it has been clearly held that in such eventuality, the discharge is not an automatic act nor an inevitable consequence and the learned Magistrate has to make a positive order upon due application of mind and consideration of all relevant facts and circumstances. It this connection, he has further submitted that in the instant case, from the perusal of the order-sheet of the concerned case, it will be clear that one of the accused persons in this case surrendered before the court only on 4.3.92 and on a number of occassions, the I.O., prayed for time to submit report in final form and such prayer of the La. was allowed by the learned Court extending the time and ultimately the charge-sheet was submitted before the court on 5.4.93 and even in a situation like this the time schedule shown in section 167(5) of the Criminal Procedure Code is not to be treated with rigidity and it is not that mandatory that on the expiry of the period indicated therein, the Magistrate should necessarily pass the order of discharge of the accused and before ordering a stoppage of investigation, the Magistrate shall consider whether on the facts of the case, further investigation would be necessary or not. The learned Magistrate at that stage must, therefore, look into the record of investigation to ascertain the progress of investigation, thus, far registered. And if a substantial part 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. It has further been submitted by him that in the instant case, no such prayer for stoppage of investigation or consequent discharge of these accused petitioners was made before the learned Magistrate, and in such event, the learned Magistrate had no occassion, to ascertain the progress of investigation registered during the period of 6 months. It has, therefore, been contended on behalf of the O.P. that in view of the settled position of law as enunciated by the Apex Court as also by the Full Bench decision of this Court, hardly there is any merit in the revisional application filed by the petitioners praying for quashing of the present proceedings. 6. I have given my anxious consideration over the submissions made by the rival parties. 6. I have given my anxious consideration over the submissions made by the rival parties. Now, the question which comes up for my consideration is whether in the given situation prayer for quashing of the present proceeding, as sought for can be allowed or not. True it is, that earlier, in a situation like this, where the investigation was required to be completed within six months from the date of the arrest or from the date of the surrender of such accused persons and when investigation, as aforesaid, was not completed within a period of six months from the date of arrest or surrender, as the case may be, of the concerned accused persons and where cognizance was taken on the basis of the charge-sheet submitted after the expiry of the statutory period without obtaining permission of the court, the cognizance taken by the court was treated to be invalid and the entire proceeding was also quashed by different courts taking similar views. But, after the Full Bench decision of this court in Kalyan Kumar Das vs. State of West Bengal and Textile Commissioner vs. M/s. India Jute Industries Ltd., reported in 1998 C.CR. L.R. (Cal) 292 and also by the judgment of the Apex Court in Nirmal Kanti Roy vs. State of West Bengal and Ganesh Lal Mundra vs. S. Dasgupta and Ors., reported in 1998 C. CR. L.R. (SC) 216, it has become well settled position of law that the order of stopping further investigation into the offence and the consequential order of discharge are not intended to be the automatic sequel to the failure to complete investigation within the period fixed in section 167 (5) of the Criminal Procedure Code and the learned Magistrate had to pass judicial order upon due application of mind and on consideration of all relevant facts. It has also emerged from the aforesaid decision reported in 1998 C.CR. It has also emerged from the aforesaid decision reported in 1998 C.CR. L. R of 292 (supra) that there is nothing to indicate in section 167(5) of the Code that if the investigation has not been completed within the statutory period allowed in section 167(5) of the Criminal Procedure Code, the Officer-in-Charge of the Police Station can be considered to be absolved of his responsibility and liability in filing the police report under section 173(2) of the Code, even on the stoppage of such investigation and in a situation like that, it follows as a consequence that the congnizance has to be taken of such a report by the Magistrate, irrespective of the fact whether the investigation was stopped at the end of the six months' period. 7. In the instant case, the offence complained of is under sections 11A (1) (b), (c), (d) of the Bengal Amusement Tax Act, 1922 and the same is punishable with imprisonment for two years or with fine which may extend to Rs. 300/- or with both. It is, therefore, clear that as per provision of section 167(5) of the Criminal Procedure Code, the investigation in this case was required to be completed within six months from the date of arrest or surrender of the accused. In this particular case, accused Surja Narayan Roy, i.e., the petitioner No.2 of this case, surrendered before the concerned court on 4.3.92 and the charge-sheet No. 34 dated 1.4.93 was placed before the concerned court on 5.4.93. Obviously, therefore, the investigation in this case could not be completed within six months from the date of surrender i.e., on 4.3.92. It is also admitted position that in this case I.O., did not pray for extension of time for continuance of investigation beyond the period of six months. There is also no formal order passed by the concerned Magistrate stopping further investigation of this case after the expiry of six months on and from 4.3.92. The learned Magistrate has taken cognizance in this case on 5.4.93 on the materials available before him in the charge-sheet. There is also no formal order passed by the concerned Magistrate stopping further investigation of this case after the expiry of six months on and from 4.3.92. The learned Magistrate has taken cognizance in this case on 5.4.93 on the materials available before him in the charge-sheet. According to the settled position, the learned Magistrate was not authorized to peruse the documents with regard to securing of evidence or collection of any materials after expiry of six months from the date of surrender of one of the accused petitioners, namely, Surja Narayan Roy on 4.3.92 and the learned Magistrate was not also entitled or authorised to take cognizance after perusing the materials and papers of the case diary beyond the period of six months i.e., 31.8.92. It is not also clear from the materials available before this court that for taking cognizance in connection with this case, the materials upto which date was actually considered by the learned Magistrate as he was only entitled to see the police papers upto 31.8.92 and not to any other date after the expiry of 31.8. 92 i.e., after the expiry of six months' period on and from 4.3.92. 8. In a situation like this, taking of cognizance in connection with this case by the learned Magistrate, was plainly bad in law and is, therefore, liable to be set aside. Accordingly, cognizance taken by the learned Magistrate in connection with this case is set aside. However, this does not authorize me to quash the present proceeding as learned Magistrate had absolute right to proceed with the case in accordance with law upon perusal of the materials collected in connection with this case by the police upto 31.8.92. In view of the above position, the petitioner's prayer for quashing the present proceeding cannot at all be allowed and the learned Magistrate is directed to see the progress of the investigation as was made upto 31.8.92 and upon perusal of such papers, the learned Magistrate shall proceed in this case in accordance with law. 9. With the above observation, the mater is, thus, disposed of accordingly. Let a plain copy of this order be sent down to the learned Court below for information and necessary compliance with a direction to proceed in this case as expeditiously as possible. Appeal disposed of.