SHYAMAL KUMAR CHAKRABORTY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner herein is an accused in G. R. Case No. 389 of 1980 under Section 406 I. P. C, of the Court of the learned Sub-Divisional Judicial Magistrate, Krishnanagar, Nadia. That case relates to Kotwali P. S. Case No. 3 dated 1-2-1980. The police investigation into the case was not completed even in April, 1990. In the meantime, the Code of Criminal Procedure (West Bengal Amendment) Act, 1988 came into force with effect from the 2nd May, 1989. Assent of the President of India to the said act was published in the extra-ordinary Calcutta Gazette dated 14th March, 1989. Sub-section (2) of section 1 of the said Amendment Act provides that it shall come into force on such date as the State Government may, by notification in the official gazette, appoint. The Amendment Act, as noted above, was accordingly brought into force with effect from the 2nd May of 1989. Section 4 of the said Amendment Act substitutes sub-section (5) of section 167 cr. P. C. by a new sub-section (5) which runs thus :

(2.) AN offence punishable under section 406 I. P. C. in respect of which the investigation was going on against the petitioner on the date on which the aforesaid substituted provisions of sub-section (5) of section 167 came into force falls within the category mentioned in clause (iii) of the said substituted sub-section (5) and the period of limitation for concluding the investigation in such a case is two years from the date of arrest or appearance of the accused in case the said substituted sub-section (5) becomes applicable to the case. On an application submitted by the petitioner accused the learned Magistrate by his order dated 17-4-90 discharged the petitioner under section 167 (5) Cr. P. C. as the investigation could not be yet completed although two years had already elapsed since the petitioner appeared before the learned Magistrate on 19-3-90 after he was granted anticipatory bail. The learned Sessions Judge, however, set aside the order of the learned Magistrate mainly on the ground that the Amendment Act. 1988 has no retrospective effect and therefore the investigation in this case would not be affected by the substituted provisions of sub-section (5) of section 167. The primary question which awaits decision of his court on this revisional application is whether the substituted sub-section (5) of section 167 Cr. P. C. is attracted to this case.

(3.) BEFORE the said West Bengal Amendment Act came into force the sub-section (5) of Section 167 Cr. P. C, was applicable only to cases triable as summons case and the period of limitation for conclusion of the investigation from the date of the arrest of the accused in such a case was six months. The magistrate was however empowered to allow the investigation even beyond the period of six months if the Investigating Officer could satisfy him that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months was necessary. There was no period of limitation for other cases, namely, cases which were not triable as summons case. The substituted provisions enacted by the Amendment Act made no change in the period of limitation for conclusion of investigation in respect of cases triable as summons case. The change in respect of the provision relating to summons case was that under the former provision the date from which the period of limitation was to start was marked as the date on which the accused was arrested but under the substituted sub-section this date has been marked as the date on which the accused was arrested or made his appearance. The other change in respect of the provision concerning summons procedure case is that while under the former provision of sub-section (5) the Magistrate on expiry of the period of six months was required to stop further investigation, in the substituted sub-section besides passing the order stopping further investigation the Magistrate is required further to pass an order discharging the accused.