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2014 DIGILAW 969 (PAT)

Bishwanath Singh v. State Of Bihar

2014-09-10

ASHUTOSH KUMAR

body2014
ORDER Heard Mr. Rakesh Kumar Samarendra, learned counsel for the petitioner and Mr. Jharkhandi Upadhyay, learned A.P.P. for the State. By the present application, the order dated 22.05.2009, passed by the learned Chief Judicial Magistrate, Sasaram in Forest Case No. 254 of 2001, rejecting the prayer made on behalf of the petitioner for stoppage of proceedings under the provisions of Section 165 of the Code of Criminal Procedure has been refused. Petitioner has further questioned the order dated 18.05.2011 which has been passed by the learned Additional Sessions Judge-cum-F.T.C.- II, Rohtas at Sasaram in Criminal Revision No. 139 of 2009 whereby the order passed by the learned Chief Judicial Magistrate, Sasaram referred to above has been sustained. A prosecution report was submitted on 26.09.2001 alleging that on 25.09.2001, a tractor loaded with stone chips was found by the informant during the course of patrolling. The driver of the tractor, on seeing the forest authorities, left the place of occurrence leaving behind the tractor and trolley. The tractor was seized for violation of the provisions of Sections 33, 41 and 42 of the Indian Forest Act, 1927 (Bihar Amendment, 1990) read with Sections 2 and 3 of the Forest Conservation Act of 1980. This preliminary report gave rise to Forest Case bearing Forest Case No. 254 of 2001. It has been submitted on behalf of the petitioner that after coming to know of such a case, he surrendered before the Court of the learned Chief Judicial Magistrate, Rohtas on 04.10.2001, when he was admitted to bail on the same day. Till date, it has been submitted that no complete report of the prosecution has been filed. Under such circumstances, an application under Section 167 (5) of the Code of Criminal Procedure was preferred on behalf of the petitioner. The aforesaid petition was dismissed by order dated 22.05.2009. A revision against the said order of refusal to stop the investigation, also was dismissed by order dated 18.05.2011 as stated earlier in this order. Both the orders are impugned in the present petition. The aforesaid petition was dismissed by order dated 22.05.2009. A revision against the said order of refusal to stop the investigation, also was dismissed by order dated 18.05.2011 as stated earlier in this order. Both the orders are impugned in the present petition. Submission on behalf of the petitioner is that Section 33 of the Indian Forest Act 1927 deals with the penalty for acts in contravention of notification under Section 30 or rules framed under Section 32 of the Act of 1927 as per the Bihar State Amendment and the same is punishable with imprisonment for a term of six months which may extend to two years or with fine of Rs. 1,000/- which may extend to Rs. 5,000/- or with both. Similarly, section 42 of the Indian Forest Act is also punishable for the same period of sentence and fine. As such, the offences would come under the category of a summons case within the meaning of Section 2 (w) of the Code of Criminal Procedure. Section 2 (h) defines investigation which includes all the proceedings under the Code of Criminal Procedure for collection of evidence conducted by a Police Officer or by any person (other than Magistrate) who is authorized by a Magistrate in this behalf. In forest case, trial is conducted under the provisions of the Code as per Section 67 of the Indian Forest Act, 1927 and the said amendment made under Bihar Act, 9 of 1990. This makes it very clear that in a Forest case, provisions of Section 167(5) would apply. Now coming to the facts of the case, the tractor was stopped on 25.09.2001. The petitioner surrendered on 04.10.2001. If no charge sheet is submitted within a period of six months thereafter, under the provisions of Section 167(5), the Magistrate is required to make an order stopping further investigation into the offence. The same could only be refused when the investigating officer satisfies the Magistrate that for special reasons and in the interest of justice, the continuance of investigation beyond the period of six months is necessary. The same could only be refused when the investigating officer satisfies the Magistrate that for special reasons and in the interest of justice, the continuance of investigation beyond the period of six months is necessary. To appreciate the contention of the petitioner, Section 167(5) and (6) have to be seen :- Section 167 (5) “If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence 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 period of six months is necessary”. Section 167 (6) “Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify”. Section 167(5) of the Code fixes a certain time schedule for completion of investigation and consequential order to be passed in a case where such time schedule is not adhered to. There is no dispute that the provisions of Section 167(5) of the Code would apply to the facts of the case as offences are of such a nature that it has to be tried by a Magistrate as a summons case. There is also no dispute that till date charge sheet has not been submitted. It appears rather strange that in a case of this kind charge sheet has not been submitted for good 13 years. Let it be further noted that the order stopping further investigation into the offence is not an automatic sequel to the failure to complete investigation within the period of six months from the date of arrest/remand. The later part of the sub-Section 5 of Section 167 gives power to the Court to refuse such stoppage of investigation if the investigating officer satisfies the Court that the interest and special reasons require an extension of time to the investigating agency. The later part of the sub-Section 5 of Section 167 gives power to the Court to refuse such stoppage of investigation if the investigating officer satisfies the Court that the interest and special reasons require an extension of time to the investigating agency. No such prayer has been made by the prosecution for any further extension of time. In that view of the matter, there was no option left before the learned Magistrate but for stopping the investigation in the case. However, since the provisions of Section 167(5) do not entrust the responsibility to the Magistrate for discharging the accused and what is permitted is only stoppage of investigation, no order of discharge could have been passed. However, the order of the learned Magistrate not stopping the investigation is not in consonance with law and is therefore, set aside. The learned Revisional Court though, sustained the order of the learned Magistrate but directed the petitioner to raise the issue of limitation under Section 468 of the Code of Criminal Procedure, when, after the submission of the charge sheet, the Court would proceed to take cognizance of the offence. The part of the revisional order, which sustained the order passed by the learned Chief Judicial Magistrate, is therefore, set aside. Since stoppage of investigation is the only order which could be passed under Section 167(5), there is no reason why the Investigating Agency would be precluded from submitting its report under Section 173 on the basis of investigation concluded so far and no further. In case such a report is submitted, it would be acted upon, on its own merits, by the Court below. In such an eventuality, the petitioner would be entitled to raise objections of limitation as defined/enshrined under Section 468 of the Code of Criminal Procedure. To simplify the order, it is hereby directed that the investigation in the case be stopped. In case the investigating agency submits a report under Section 173, the Court of learned Chief Judicial Magistrate would, act upon it in accordance with law after giving an opportunity to the petitioner to raise the issue of limitation. Thus the order of learned Chief Judicial Magistrate, Sasaram dated 22.05.2009 set aside; the order of the learned Revisional Court is modified to the extent that the observation given in the last part of the order is sustained. The application is partially allowed.