SURESH JHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Aggrieved by an order passed by the Learned Additional Chief Judicial Magistrate, Serampore rejecting the petitioners' application under Section 167 (5) of the Code of Criminal Procedure (West Bengal Amendment) in connection with Uttarpara Police Station Case No. 135 of 2007 dated May 6, 2007 under Sections 307/120B/34 of the Indian Penal Code and under Sections 25/27 of the Arms Act, the instant criminal revisional application has been moved before this Court.

(2.) The Learned Counsel appearing on behalf of the petitioners submitted before this Court that the petitioners being arrested in connection with Uttarpara Police Station Case No. 135 of 2007 on May 7, 2007 were produced before the Learned Additional Chief Judicial Magistrate, Serampore. According to him since the offences involved are sessions triable cases and as the investigation was not concluded within three years from the date of their arrest, i.e. on May 6, 2010, they are entitled to discharge and the impugned order whereby the Learned Magistrate rejected their prayer for discharge being absolutely illegal and without jurisdiction, is liable to be set aside. On the other hand, the Learned Counsel for the State produced the Case Diary and submitted that although the investigation was completed long back and a prima facie case for commission of offence punishable under the Arms Act was made out during the investigation, awaiting sanction from the appropriate authority the charge-sheet could not have been filed earlier.

(3.) It is well settled the discharge of an accused in terms of provisions of Section 167 (5) of the Code of Criminal Procedure on the ground that chargesheet has not been submitted by the police within the statutory period is not an automatic and it is for the Court concerned to see from the materials, so far, collected, whether are sufficient or not, to connect the accused with the commission of the alleged offences. It was also well settled that even where the investigation has been stopped by an order passed under Section 167 (5) of the Code because the same has not been completed within the statutory period, still the duty of the police to submit charge-sheet does not absolve. Even then police has to submit charge-sheet and it is for the Court to see whether on the evidentiary materials collected by the police during investigation the accused can be proceeded with or not. In this connection the observation of the Hon'ble Apex Court in paragraphs 7 and 8 in the case of Nirmal Kanti Roy Vs. State of West Bengal, reported in 1998 SCC (Cri) 1100 would be very relevant; 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 on 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. (para 7) 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 S. 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 investigation 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 must look into the record of investigation to ascertain the progress of investigation thus for registered. If substantial part of investigation was by then 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. Para 8. It is also to be very relevant to refer the observation of the Hon'ble Supreme Court in paragraphs 8, 10 and 11, in the case of Kalyan Kumar Das Vs. The State of West Bengal, reported in 1998 (2) CHN 136; If investigation in a case is not completed within a period of the months from the date on which the accused was arrested (here we are dealing only with a summons case, this analogy may apply appropriately to other classes of cases as well) or made his appearance, two consequences are provided for and contemplated in section 167(5) of the Code in the State amendment. These consequences are, firstly that the Magistrate shall make an order stopping further investigation into the offence and secondly that he shall discharge the accused. Either of these two consequences, or both of them of course are subject to the condition that the Magistrate, upon being satisfied that some special reasons exist and that the interests of justice demand the continuation of the investigation beyond the period of six months, makes an order permitting the continuation of the investigation beyond the period of six months. The question which immediately arises for consideration, by way of first reaction, is whether the Court, in a case where the Magistrate admittedly has not passed any order extending the time for completion of investigation beyond six months, can besides directing stoppage of investigation, entertain or act upon a charge-sheet or police report submitted under section 173(2) of the Code in such cases. Section 173 (2) of the Code lays down that every investigation shall be completed without any unnecessary delay and as soon as it is completed, the officer-incharge of the Police Station shall forward to the Magistrate empowered to take cognizance of the offence on the Police report, a report in the form prescribed by the State Government. The expression police report has been defined in the Code to mean a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173 of the Code. The only conclusion which thus emerges from a plain reading of Section 173(2) of the Code is that the police is under an obligation, necessarily and inevitably, to submit the report to the Court as soon as the investigation is completed. It therefore follows as a natural corollary that even in cases where investigation has been stopped by the Magistrate in terms of section 167 (5) of the Code at the expiry of six months and thus it comes to an end, section 173(2) of the Code casts an obligation upon the police office-in-charge of a police station to forward the report in the prescribed form. We do not see anything under section 167 (5) of the Code to suggest that if the investigation has not been completed within the period allowed in that section, the officer-in-charge of police station can be considered to be absolved of his responsibility and liability in filing the police report under Section 173(2) of the Code on the stoppage of such investigation. If therefore the responsibility of filing the report under section 173(2) of the Code remains, it follows as a consequence that the cognizance has to be taken of such a report by the Magistrate, irrespective of the fact whether the investigation was stopped at the end of six months period. If therefore the Magistrate is bound to take cognizance of such a police report, the question which arises for consideration is as to whether the material collected in the course of such investigation till it was stopped by order of the Magistrate can be considered by the Court to decide whether the accused is to be tried or not. It is in this light that we have to consider the limited question whether, along with the stoppage of investigation at the expiry of six months period the accused gets automatically discharged, or the Magistrate has to pass a judicial order, in consideration of the material available before him based upon the investigation carried out during the period of six months. (para 8) If one looks closely to the scheme of the Code, particularly with reference to the provisions contained in sections 173(2), 190(1)(b) and 251 of the Code, what emerges is that even after the expiry of six months from the time of the arrest of the accused, even though the Magistrate has power to stop further investigation, discharge of the accused is neither an automatic act nor an inevitable consequence since it is a judicial order which the Magistrate is required to pass on consideration of the relevant facts and circumstances. In the case of State of West Bengal vs. Falguni Dutta & Another reported in 1993 C. Cr. L. R. (SC) 123 their Lordships of the Supreme Court have taken a definite view that even if the investigation has been stopped in a case in terms of an order passed under section 167(5) still remains. It therefore clearly means that there is a duty cast upon the Magistrate to take cognizance of the case, if such a report is filed and if the material accompanying the report suggests that the cognizance is required to be taken. Para 8 of that judgment read as under:- That takes us to the next question whether the Special Court can, besides directing stoppage of investigation, entertain and act on a chargesheet or a police report submitted under section 173(2) of the Code in such cases. The expression 'police report' has been defined under the Code to mean a report forwarded by a police officer to a Magistrate under subsection (2) of section 173 section 2(r). Section 173 lays down that every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. It will thus be seen that the police report under section 173(2) has to be submitted as soon as the investigation is completed. Now, 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 sub-section (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-charger of the police station will be absolved from the responsibility of filing the police report under section 173(2) of the Code on the stoppage of the investigation. (para 10) In other words the material gathered together during the investigation, at least for the period of six months prior to the stoppage of the investigation by order of the Magistrate, shall be relevant to decide whether there is any basis or evidence connecting the accused with the commission of the crime and as to whether cognizance can be taken based upon such material against the accused by the Court. (para 11)