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2009 DIGILAW 200 (CAL)

Murarilal Agarwalla v. STATE OF WEST BENGAL

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment :- P.S. DATTA, J. (1) The application being no. CRR 352/91 under section 482of the Cr.p.c. was filed on 11th February 1991 by the petitioner, an accused in connection with Enforcement Branch Case No. GR Case No. 29/85 corresponding to Hirapur PS Case No. 3 dated 6th June 1985 under section 7(1)(a)(ii) of the Essential Commodities Act 1955 now pending before the learned Judge, Special Court (EC Act, Asansol) for quashing of the proceeding on the ground that the learned Judge continuation of the proceedings beyond the statutory period of time. (2) This is the sole ground agitated before this court in support of the application. I have heard Mr. Swapan Banerjee, learned Advocate appearing for the petitioner and Mr. Avijit Auddy, learned Advocate appearing for the State of West Bengal. (3) On 5th June 1985 and 6th June 1985 a raid was conducted in the godown of the petitioner who was a proprietor of M/s. Muralilal Jugal Kishore and partner of M/s. Darakaprasad Vudarmal and Darakaprasad Vudarmal. The petitioner and his partners were running business of kerosene oil at Burnpur under Hirapur PS. It was found that they were carrying on in a clandestine manner the said of business of kerosene oil and engaged in black marketing and mal practice for illegal profit. The raid was conducted in the godown. They were asked to produce license to deal with kerosene oil, stock and rate board, stock register, daily sale register, credit memo book, cash memo book, weekly return, allotment chart and other documents by issuing two notices under para 15 (c) of the West Bengal Kerosene Control Order 1968. The extensive search revealed glaring discrepancies. It appeared that the petitioner secretly stored in the underground tank kerosene oil which he could not account for. machine and it was fond that total quantity of 14281 ltrs. Of kerosene oil was kept in 72 barrels while the other quantity of 188 ltrs. of kerosene oil was found as dead stock inside the underground tank which could not be pumped out. Thus FIR was lodged for violation of the condition of license under the W.B.K. Control Order 1968, para 12(1), 12(2) (2) thereof para 3(2) of West Bengal Declaration of Stock and Prices of Essential Commodities Order 1977 and thereby committed offence punishable u/s 7(1)(a)(ii) of Act x/55. Thus FIR was lodged for violation of the condition of license under the W.B.K. Control Order 1968, para 12(1), 12(2) (2) thereof para 3(2) of West Bengal Declaration of Stock and Prices of Essential Commodities Order 1977 and thereby committed offence punishable u/s 7(1)(a)(ii) of Act x/55. The petitioner and some other accused persons were arrested and produced before the learned Judge, Special Court under the EC Act on 7.6.85 and subsequently released on bail. Certain orders of the learned Judge, Special Court have been produced to show that at subsequent stage warrant of arrest was issued against the accused persons. (4) Mr. Banerjee, learned Advocate for the petitioner submitted that in violation of section 167(5) Cr.p.c. and without the authority of the learned Judge, Special Court extending the period of investigation the police submitted charge sheet which must not be entertained and is liable to be quashed. (5) Mr. Banerjee refers to the decision in Nirmal Kanti Roy Vs. State of West Bengal reported in 1998 C.Cr.L.R. (SC)216 and submitted that it was incumbent upon the learned Judge to look into the record of investigation to ascertain the the Magistrate should seriously consider the question whether it would be conducive in the interest of justice to stop further investigation or not. The decision in Biren Pramanik Vs. State of West Bengal reported in 2002 C.Cr.L.R. Cal 790 which followed Nirmal Kanti Roys case has also been cited. Thus it is prayed that the accused may be discharged. (6) Mr. Avijit Addya, learned Advocate appearing for the state of West Bengal submitted that the revisional application does not reveal that any prayer was at all made before the learned Judge in the court below praying for discharge under section 167(5) Cr.p.c. and the petitioner has not produced copies of the orders of the learned Judge of the relevant period so as to consider whether the learned Judges attention was drawn in this aspect of the matter by the IO or any order of was passed on this court. Mr. Addya submitted that there was filed a writ petition sometime in the year of 1985 being no. CO 17649(w)/85 in connection with this case and an interim order was passed but that was subsequently vacated. Mr. Addya submitted that there was filed a writ petition sometime in the year of 1985 being no. CO 17649(w)/85 in connection with this case and an interim order was passed but that was subsequently vacated. It is not known (a) when and on which day the writ application was filed, (b) on which day interim order was passed (c) what was the nature of the interim order and (d) on which day the writ application was disposed of. If there was any order of the writ court stopping investigation into the offence for certain period of time or until disposal of the writ application, then definitely the benefit of sub-section (5) of section 167 Cr.p.c. cannot be made writ court and of the writ application. (7) The authority of Nirmal Kanti Roy is the law as it now stands at present. Their Lordships of the Supreme Court observed as follows : "The question raised is whether time could have been extended without the Investigating Officer moving for such extension before the expiry of the period." "There is do dispute that clause (iii) in section 167(5) of the Code would apply to the facts of this case as the offence under section 409, IPC was neither triable by the Magistrate as a summons case nor exclusively triable by a court of Session, but triable only by a Special Court in view of the Special Court Act, 1949. There is also no dispute that the charge sheet was not submitted within two years "from the date on which the accused was arrested or made his appearance". This court has held in State of West Bengal V Pranab Ranjan Roy, JT (1998) 2 SC 364 : [1998 C.Cr.LR(SC) 224] that : "The words made his appearance in section 167(5) are used along with the preceding words which by themselves form into a composite collocation as thus : Form the date on which the accused was arrested or made his appearance. It must be noted that the purpose of the sub-section is to impose a time schedule for completion of investigation and such time schedule is to commence either from the date of arrest of the accused or the date when he made his appearance in Court". It must be noted that the purpose of the sub-section is to impose a time schedule for completion of investigation and such time schedule is to commence either from the date of arrest of the accused or the date when he made his appearance in Court". So which date the appellant surrendered himself in court." "The order stopping further investigation into the 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 the sub-section. The succeeding words in the sub-section confer power of the court to refrain from stopping such investigation if the Investigating Officer satisfies the Magistrate of the fusion of two premises (1) that in the interest of justice it is necessary to proceed with the investigation beyond the period shown in the sub-section and (2) that there are special reasons to do so. A reading of sub-section (6) further shows that even in a case where the order stopping investigation and the consequent discharge of accused has been made that is not the last word on it because the sub-section opens another avenue for moving the Sessions Judge. If the Sessions Judge is satisfied that "further investigation into the offence ought to be made" he has the power to allow the investigation to proceed. Hence we take the view that the time schedule shown in section 167(5) of the Code is not to be treated with rigidity and it is not mandatory that on the expiry of the period indicated therein the Magistrate should necessarily pass the order of discharge of the accused. Before ordering stoppage of instigation the Magistrate shall consider whether, on the facts of that case, further investigation would be necessary to foster interest of criminal justice. Magistrate at that stage thus for registered. If substantial part of investigation was by them 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." " Section 167(5) of West Bengal Amendment is only bereft of the duty cast on the Court to discharge the accused. A two Judge Bench of this Court, while dealing with the unamended subsection, has considered the situation where the Magistrate stopped investigation on the expiry of six month. State of West Bengal V Falguni Dutta and Anr. A two Judge Bench of this Court, while dealing with the unamended subsection, has considered the situation where the Magistrate stopped investigation on the expiry of six month. State of West Bengal V Falguni Dutta and Anr. (supra) this court held thus : "If the investigation has been stopped on the expiry of six months or the extended period, if any, by the Magistrate in exercise of power conferred by subsection (5) of section 167 of the Code, the investigation comes to an end and, therefore, on the completion of the investigation section 173(2) enjoins upon the officer in charge of the police station to forward a report in the prescribed form. There is nothing in sub-section (5) of section 167 to suggest that if the investigation has not been completed within the period allowed by that sub-section, the officer in charge of the police station will be absolved form the responsibility of filing the police report under section 173(2) of the Code on the stoppage of the investigation. Therefore, the Special Court was competent to entertain the police report restricted to six months investigation and take cognizance on the basis thereof." (8) Upon hearing the learned Advocates for the parties it appears to me that this is for the first time that the High Court has been moved upon an application under section 482 Cr.p.c. for discharge of an accused on the ground that there was no compliance with the provision of section 167(5) Cr.p.c. At no point of time does it appear that the learned Judge in the Trial Court was ever moved drawing the attention to this question and any order was sought for discharge of the accused. The accused was arrested on 6th June 1985. The position of the record of the learned Judge during the first six months after arrest and production of the accused is not made known to this court. Certain orders which were passed in January 1986 and onwards have been passed and the said orders revealed abscondance of the accused persons and subsequent appearance of few of them. The position of the record of the learned Judge during the first six months after arrest and production of the accused is not made known to this court. Certain orders which were passed in January 1986 and onwards have been passed and the said orders revealed abscondance of the accused persons and subsequent appearance of few of them. In my opinion it is the learned Judge in the Trial Court who was the competent person to speak on facts and come to an opinion as to whether there was order of stoppage of order of investigation or not, whether learned Judge extended the period of investigation either suo motu or on the prayer of the IO or not or whether having regard to the decision in Nirmal Kanti Roy discharge was or was not found to be automatic. Still the authority rests with the learned Judge to decide if he would deem it proper having regard to the duration of the investigation to discharge the accused or proceed with the trial of the case. When investigation or substantial part thereof was completed was to be looked into by the learned Trial Court. Was it conducive when a stature enables an accused to seek for discharge the trial court has to exercise its discretion judiciously with due regard to the authority in Nirmal Kanti Roy. Had it been found that the learned Judge has passed any order against him, the petitioner could have approached the court to invoke the inherent jurisdiction under section 482 Cr.p.c. (9) In the circumstances, I dismiss the revisional application with direction to the learned Judge to decide the question as raised here as expeditiously as possible preferably within two months from the date of communication of the order. (10) A copy of the order shall be sent to the learned Judge, Special Court (EC Act), Asansol.