KAMAL DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS revisional application under Section 482 of Cr.P.C. is directed against the orders dated 3.8.92 and 25.8.92 passed by the S.D.J.M., Kalyani in G.R. No. 429/89 (arising out of Haringhata P.S. Case No. 94/89) on the ground that the same are erroneous, illegal and unsustainable. The case of the revisional applicant, in brief, is the Haringhata P.S. Case No. 94/89 dated 20.7.89 was started against the petitioners under Sections 302/34 I.P.C. The petitioners were arrested by Police in connection with this case on 1.8.89. The Investigating Agency failed to conclude the investigation within the period of 3 years from that date prescribed under Section 167(5) Cr.P.C. The period of 3 years from the date of arrest expired on 1.8.89, whereas the Investigating Agency filed a prayer before the Court of S.D.J.M. for extension of the period to conclude investigation on 3.8.92. Under the law such a petition ought to have been filed within the statutory period, that is, 30.7.92, but the learned Magistrate without taking into consideration this position erroneously allowed this prayer of the Investigating Officer and extended the time for submission of report in final form. Secondly, the order of the learned Magistrate allowing this prayer was bad for the further reason that the ground on which such extension of time was prayed for by the Investigating Agency was indefinite and ambiguous, inasmuch as, at one place of this petition it was made out that the investigation could not be concluded since the I.O. had been placed under suspension and had left his service without handing over the case diary to his successor while on another place of the petition it was stated that the I.O.'s report could not be prepared due to non-availability of the expert's report.

(2.) THE main point that falls for determination in this order is whether the learned Magistrate ought to have disallowed the prayer of the Investigating Agency for extension of the period of investigation and stopped further investigation of a case applying the provisions of Section 167(5) Cr.P.C. and discharged the accused-applicant. Section 167(5) Cr.P.C. as amended by the West Bengal Act lays down that if in any case exclusively triable by a Sessions Court the investigation cannot be concluded within the period of three years from the date of arrest of the accused, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigating satisfies the learned Magistrate that for special reasons and in the interest of Justice the continuation of the investigation beyond the period mentioned in the sub- section is necessary. It is the contention of Mr. Ganguly, the learned Advocate for the applicant that in this caes clearly the investigation was not completed within the prescribed period of three years from the date of the accused's arrest, i.e. 1.8.89. Nor any satisfactory ground for extension of the period of investigation as prayed for by the I.O. was made out, nor also any such petition was filed by him before the expiry of that period. Hence, according to Mr. Ganguly, there is no reason why the mandatory provisions of this section of the Code should not be straightaway applied to this case.

(3.) IN the instant case from the averments in the application itself it is ascertained that by the time when the prescribed period of three years expired the I.O. had already proceeded a lot having completely done the duties to be discharged from his end in the matter of the investigation of the case and was only waiting for the report of the chemical expert presumably to give a formal finishing touch to his report and submit it in final form before the Court. There can be no denying the fact that under such circumstances there were no laches on the part of the I.O., he having no control over the availability of the chemical expert's report in the absence of which his report in final form could not be submitted by any means. In that view of the matter the aforementioned judgment of the Apex Court will be applicable on all its fours to the facts of the present case. The period of three years from the date of arrest of the accused here appears to have expired on 31.7.92. By that date, the works to be done regarding investigation of the case from the side of the I.O. had no doubt been complete and the Investigating Agency was waiting for the report of the expert after receipt of which presumably his report in final form would be filed before the Court. In such circumstances, the provisions of the sub-section (5) of Section 167 will not be attracted. Had it been a case where at such point of time the I.O. failed to make any progress so far as his part of investigation was concerned, then, of course, there would have been an appropriate occasion for applying these provisions to save the accused persons from being victims of unjustifiably inordinate delay. But here, as has happened in the case under reference, a substantial part of the investigation had already been over in a serious case of murder. The fact that the prayer for extension of time filed by the Investigating Agency was made one or two days after the date of expiry of the prescribed period does not matter much. It was within the discretion of the learned Magistrate to condone this negligible delay when substantially the investigation had already proceeded a lot before the expiry of that period. Again, the fact that in the said petition side by side with the aforementioned ground it was also stated that the I.O. who actually did the work of investigation had been under order of suspension and left the service without handing over the case diary does not in any way diminish the reliability of the aforementioned ground because these are facts on record and they are by no means irreconcilable with each other. Both the facts may very well go hand in hand.