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2024 DIGILAW 771 (CAL)

Amar Chandra Das v. State of West Bengal

2024-04-09

BISWAROOP CHOWDHURY, TAPABRATA CHAKRABORTY

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JUDGMENT : Biswaroop Chowdhury, J.: 1. This is an application under Section 439 of the Code of Criminal Procedure filed by the petitioner, who is an accused in Mekhliganj P.S case No. 340 of 2023 dated 12-10-2023 and is in custody in connection with that case for a period of about 171 days. 2. It is the contention of the petitioner that he was arrested on 12-10-2023 and produced before the Learned Additional Chief Judicial Magistrate Mekhliganj Cooch Behar on 13-10-2023. The case was instituted under Section 428/468 of the Indian Penal Code, read with Section 14A/14C of Foreigners Act. It is further contended that the statutory period for filing charge sheet under Section 167(2) of the Code of Criminal Procedure is 60 days and although 60 days from his arrest was completed on 12-12-2023 but no charge-sheet was submitted. It is also contended that on 07-12-2023 on the prayer of investigating officer the Learned Additional Chief Judicial Magistrate at Mekhliganj by an order dated 18-01-2024 extended the period of investigation and filing of charge-sheet for another 60 days. The petitioner contends that on18.01.2024 he applied for statutory bail under Section 167(2) of the Code of Criminal Procedure before the Learned Additional Chief Judicial Magistrate at Mekhliganj but the same was rejected. Petitioner further contends that he is innocent person and there is no chance to abscond or tamper with the evidence. 3. Heard Learned Advocate for the petitioner and Learned Advocate for the opposite party state of West Bengal. Perused the petition filed and the materials in the case diary. 4. Learned Advocate for the petitioner submits that his client is an innocent person, and is falsely implicated in this case. Learned Advocate further submits that although his client is entitled to statutory bail but the same was refused. Learned Advocate also submits that there is no chance to abscond or tamper with the evidence if released on bail. 5. Learned Advocate for the opposite party State of West Bengal objects the grant of bail. It is submitted by the Learned Advocate that the time for completion of investigation was extended by the Learned Magistrate hence the Petitioner is not entitled to statutory bail. It is also submitted that there are materials against the petitioner showing his involvement. 6. 5. Learned Advocate for the opposite party State of West Bengal objects the grant of bail. It is submitted by the Learned Advocate that the time for completion of investigation was extended by the Learned Magistrate hence the Petitioner is not entitled to statutory bail. It is also submitted that there are materials against the petitioner showing his involvement. 6. ‘Now with regard to the issue of statutory bail which is before us it is necessary to consider the relevant provision of Section 167 of the Code of Criminal Procedure Section 167 of the Code of Criminal Procedure provides as follows: S-167 Procedure when investigation cannot be completed in twenty four hours. 1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57 and there are grounds for believing that the accusation or information is well founded, the officer in charge of the Police Station or the Police officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and at the same time forward the accused to such Magistrate. 2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody, as such Magistrate think fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that:- a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall not authorize the detention of the accused person in custody under this paragraph for a total period exceeding:- i) Ninety days where the investigation relates to an offence punishable with death, imprisonment for life, and imprisonment for a term of not less than ten years. ii) Sixty days, where the investigation relates to any other offence and on the expiry of the said period of ninety days or sixty days as the case may be the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of chapter XXXIII for the purposes of that chapter.’ 7. Upon plain reading of the provisions contained in Sub-Section 1 and 2 of Section 167 of the Code of Criminal Procedure it will be clear that although a Magistrate has power to extend the time for completion of investigation as the Magistrate thinks fit in the interest of justice but in no case the Magistrate can authorize detention beyond 90 days if the offence alleged is punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years and in any other case if the investigation is not complete within 60 days. Investigation may continue even after an accused is released on bail. Thus there is no scope to keep the accused in detention beyond the statutory period in the event of non-completion of investigation. In the instant case although petitioner is implicated under the Foreigners Act apart from Section 420 and 468 IPC there is no scope to keep the accused in detention beyond the statutory period in the event of non-completion of investigation. In the instant matter petitioner is implicated under Section 14A/14C of the Foreigners Act and the said statute does not provide any specific period for the completion of investigation in any offences under it nor does the statute provide any special power to the Magistrate to authorize detention of accused beyond the period as provided under law for completion of investigation. In the absence of specific provision in the Foreigners Act with regard to period of investigation, the provision contained in Section 167(2) of the Code of Criminal Procedure shall apply. As the petitioner is implicated in an offence under Section 14A/14C the of Foreigners Act, the minimum punishment of which is 2 years and maximum punishment is 8 years and punishment under 420 and 468 of IPC is also 7 years, the investigation ought to have been completed within 60 days. As the petitioner is implicated in an offence under Section 14A/14C the of Foreigners Act, the minimum punishment of which is 2 years and maximum punishment is 8 years and punishment under 420 and 468 of IPC is also 7 years, the investigation ought to have been completed within 60 days. From the date of arrest of an accused in the event order of detention is required to be passed it has to be passed upon complying Section 167(2) CrPC. The non release of the petitioner on bail for non completion of the investigation within 60 days of arrest although such petition was filed amounts to violation of right under Article 21 of the Constitution of India. 8. The Hon’ble Supreme Court in the case of Satender Kumar Anil VS Central Bureau of Investigation reported in AIR 2022 S.C. 3386 observed as follows: “Section 167(2) was introduced in the year 1978, giving emphasis to the maximum period of time to complete the investigation. This provision has got a laudable object behind it, which is to ensure an expeditious investigation and a fair trial, and to set down a rationalized procedure that protects the interests of the indigent sections of society. This is also another limb of Article 21. Presumption of innocence is also inbuilt in this provision. An investigating agency has to expedite the process if investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic, as held by this court in M. Ravindran V. Directorate of Revenue Intelligence, (2021)2 SCC 485 : ( AIR 2020 SC 5245 ):.” 9. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic, as held by this court in M. Ravindran V. Directorate of Revenue Intelligence, (2021)2 SCC 485 : ( AIR 2020 SC 5245 ):.” 9. Upon considering the facts of the case and the provisions laid down in Section 167(1) and (2) of the Code of Criminal Procedure, and judicial pronouncements we are of the view that the Learned Magistrate erred in law by refusing to release the petitioner on statutory bail on account of non-completion of investigation within a period of sixty days from the date of arrest of the petitioner as the petitioner is still in custody, simply on the ground that period of investigation is extended by two months. Thus the order passed by the Learned Magistrate cannot be sustained. 10. Hence the prayer for bail made by the Petitioner is allowed. The Petitioner be released on bail with 2 sureties of Rs. 10,000/- each, one of which must be local subject to the satisfaction of Learned Additional Chief Judicial Magistrate Mekhliganj. The petitioner shall inform the address where he would be residing to the officer-in-charge New Jalpaiguri Police Station immediately and shall meet the said officer once in a fortnight until further orders. He should also attend Court on all dates fixed and shall not do any act prejudicial to trial.