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2002 DIGILAW 650 (CAL)

Chandra Deo Prasad v. State of West Bengal

2002-10-01

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This revisional application is directed against the order dated 29th January, 1992 passed by the learned Additional Chief Metropolitan Magistrate, Calcutta in G. R. Case No. 1612 of1987 under section 167(5) of the Criminal Procedure Code. By this order the learned Magistrate discharge the accused person, Anil Kumar Jaiswal, on the ground that the Investigating Officer of the case had failed to submit any report in final form within the prescribed period, namely, within a period of two years from the date on which the accused was arrested. 2. Being aggrieved by that order the de facto complainant of the case, Chandra Deo Prasad, has preferred this revisional application challenging the said order as illegal and erroneous and liable to be set aside. 3. Mr. Basu, learned advocate appearing on behalf of the petitioner, has argued that the provisions of section 167(5) of Cr. P. C. will not be strictly applicable to this case in view of the reason that on the date on which the said impugned order was passed by the learned Magistrate, the learned I.O. had already held substantial part of his investigation and collected considerable materials against the accused and as per his report submitted before the court on the date prior to the date on which the order was passed he was about to complete the investigation and he had already obtained the learned Public Prosecutor's opinion in favour of filing of a charge-sheet under section 306 of the I.P.C. Mr. Basu draws my attention to the decision of the Apex Court on this question reported in the case of Nirmal Kanti Roy vs. State of West Bengal, 1998 SCC (Cr.) 1100. In this case also the concerned Magistrate discharged the accused under section 167(5) of Cr. P. C. for the reason that the I.O. had failed to complete the investigation within the prescribed period of two years from the date of arrest of the accused and passed an order stopping further investigation into the offence and discharging the accused. It was held by their Lordships that an order stopping further investigation into the offence and the consequential order of discharge were not intended to be automatic sequel to the failure to complete the investigation within the period fixed in the sub-section. It was held by their Lordships that an order stopping further investigation into the offence and the consequential order of discharge were not intended to be automatic sequel to the failure to complete the investigation within the period fixed in the sub-section. Their Lordships observed that a reading of sub-section (6) further shows that even in a case where order stopping investigation and the consequent discharge of the accused had been made, that was not the last word on it because subsection opened another avenue for moving the Sessions Judge and if the Sessions Judge was satisfied that further investigation into the offence ought to be made, he had the power to allow such investigation to proceed. Hence Their Lordships took the view that the time schedule show in section 167(5) of Cr.P.C. was not to be treated with rigidity and it was not 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 stoppage of investigation the Magistrate should consider whether on the facts of the case further investigation would be necessary to foster the interest of criminal justice and for that purpose the Magistrate was to look into the record of investigation to ascertain the progress of investigation thus far registered and if a substantial part of the investigation was found to' be over by then, 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. 4. In the present case the situation appears to be almost identical. 4. In the present case the situation appears to be almost identical. The order-sheet of the learned court below shows that on 17th January, 1992 after the Magistrate extended the date for investigation and fixed also the next date on which the I.O. had to submit the report without fail, subsequently a petition was field by the accused prying for an order discharging him on the ground that the investigation could not be completed within the prescribed period of two years from the date of his arrest and the learned Magistrate fixed a date for hearing of this petition and also for the purpose of submission of a report by the I.O. which was different from the date which he earlier fixed on that very date of the purpose of submission of report by the I.O. when none were present on behalf of the prosecution. This alteration in the fixation of date was behind the back of the prosecution and it is, therefore, clear that the I.O. having not been informed of this changed date which was pre-poned could not be in a position to file his report within that specified time. Therefore, from that point of view also it appears to be improper and unjust on the part of the learned Magistrate to pass an order stopping further investigation of the case and also discharging the accused on the date which was pre-poned by him to the ignorance of the other side, particularly when the concerned I. O. was completely in the dark as to such change in the programme. 5. That apart, the petition filed by the I.O. on 17th January, 1992 further shows that his investigation was on the verge of completion and he obtained the opinion of the District Public Prosecutor that a charge sheet should be filed against the accused under section 306 of IPC. The learned Magistrate did not consider this aspect of the matter and irrespective of such a petition from the I.O.'s and having been filed before him he did not take into consideration the same nor passed any order thereon. Apart from the ruling of the Apex Court mentioned above, under section 167(5) of Cr. The learned Magistrate did not consider this aspect of the matter and irrespective of such a petition from the I.O.'s and having been filed before him he did not take into consideration the same nor passed any order thereon. Apart from the ruling of the Apex Court mentioned above, under section 167(5) of Cr. P. C. itself, there is a clear provision to the effect that if the Investigating Officer can satisfy the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period prescribed herein is necessary, then that would provide as an exception to this amended provision of section 167(5) of Cr. P. C. Here the averment made by the I. O. in the abovementioned petition dated 17th January, 1992 were, in my opinion, sufficient for the purpose of regarding the reasons as special one and it was also to be deemed justifiable in the interest of justice and good conscience that the investigation should be allowed to be continued for sometime more as prayed for by the I. O. in the said petition. But the learned Magistrate having paid a deaf ear to such prayer of the I. O., in my opinion, mis-directed himself and committed a gross error of law. 6. Mr. Manna, learned advocate appearing on behalf of the opposite party No.2-accused, has emphasised that the judgment relied upon by Mr. Basu in the case of Nirmal Kanti Roy (supra) will not be applicable to this cae, since it cannot have any retrospective operation. As to that argument, Mr. Basu has contended that all judgments of the Apex Court should have retrospective operation unless it is specifically mentioned that the same will have prospective operation. In support of this contention Mr. Basu relied upon a ruling reported in 2000 SCC (Cri) 1056, wherein in the Head-Note 'g' it has been clearly enjoined that interpretation of a legal provision of a Code relates back to the date of law itself and it cannot be prospective because courts do not legislate and they only interpret the law. 7. Be that as it may, irrespective of whether this mandate of the Apex Court would be applicable retrospectively or not, it goes without saying that the provisions of the amended section 167(5) of Cr. 7. Be that as it may, irrespective of whether this mandate of the Apex Court would be applicable retrospectively or not, it goes without saying that the provisions of the amended section 167(5) of Cr. P. C. (West Bengal Amendment) themselves contained the enabling provisions for a Magistrate to extend the time of investigation beyond the prescribed period of two years if any special reason is made out by the I. O. and the learned Magistrate held that in the interest of justice the continuation of the investigation beyond such a period would be necessary. It is needless to repeat that the grounds made out in that petition of the I. O. dated 17th January, 1992 are sufficient to make out a special case for the purpose of extending the time for investigation and it can be said that in view of the averments made therein that it was in the interest of justice that some more time should be given to the I.O. for completing the remaining part of the investigation which was already on the verge of completion. The learned Magistrate having not considered this aspect of the matter has failed to exercise his discretion judiciously and the order passed by him stopping further investigation in such a serious case and discharging the accused suffers from gross illegality and impropriety. 8. In the result, therefore, the order cannot be sustained and must be set aside. The Officer-in-Charge of the concerned police station whall be directed to submit his report in final form without any further delay and a date shall be fixed for this purpose by the learned Magistrate. 9. The revisional application is accordingly allowed. 10. The cae becoming pretty old, the learned court below is directed to hear and dispose of the same as expeditiously as possible after the report in final form is submitted by the police. 11. Let urgent xerox certified copy of this order, if applied for, be given to the learned advocates for both parties as early as possible. Revisional application allowed.