PRABHU NATH SINGH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application seeks to quash a proceeding under section 302/34, Indian Penal Code pending against the petitioner arising out of South Port Police Station Case No. 24 dated 25/1/1987. The petitioner is facing a trial Sessions Case No. 15(1) of 1991, before the learned Additional Sessions Judge, 11th Court, Alipore. The prosecution allegation is that on 25/1/1987 at about 5 a.m., 4/5 persons including the present petitioner in furtherance of their common intention to murder Ram Singh, husband of Smt. Arati Singh, assaulted him by means of brick bats, cemented slabs and other hard substances on the Road between Line No. 10 and 14 New Basra Line, Calcutta-43, as a result of which the said Ram Singh sustained multiple injuries on his person and expired at about 9 a.m. on the same day. The petitioner was, however, identified in the Test Identification Parade by the said Smt. Arati Singh. The petitioner, however, takes a plea that subsequent to his surrendering before the learned Sub-Judicial Magistrate, Alipore, the Investigating Officer had shown him to the said Smt. Arati Singh and as such it was possible for her to identify the petitioner in the Test Identification Parade. It may be recalled, however, that since May 21, 1987, the petitioner was on bail, anticipatory bail have been earlier granted to him by the learned Sessions Judge.

(2.) The point taken by the learned Advocate for the petitioner is that even though the petitioner was present before the learned Magistrate on 25/3/1988, 14/9/1988, 19/4/1989, 1/12/1989 & 28/6/1990, on each occasion the Investigating Officer prayed for time to submit the charge-sheet and time was granted by the learned Magistrate more or less as a routing affair. The learned Magistrate did not pass any order stopping further investigation. He also failed to discharge his due duty as enjoined in law by not discharging the accused under section 167(5) of the Code of Criminal Procedure, 1973, taking in view the Code of Criminal Procedure (West Bengal Amendment) Act, 1988 i.e. West Bengal Act. XXIV of 1988 which was published in the Calcutta Gazette on 14/3/1990 and came into operation on and from 2/5/1989. The Investigating Officer did not do anything on 28/6/1990 to satisfy the learned Magistrate that for special reasons and in the interest of justice, continuation of the investigation beyond the period prescribed in the statute was necessary and the learned Magistrate also did not express in his order passed on that for special reasons and in the interest of justice the continuation of the investigation beyond the period mentioned in the statute was necessary. As per amended provision of section 167(5) of the Code of Criminal Procedure as- it stood amended by the West Bengal Act XXIV of 1988, the investigation has to be concluded within a period of three years as otherwise the learned Magistrate shall make an order stopping further investigation into the offences and shall discharge the accused. The petitioner as such was entitled to be discharged from the case on the expiry of three years from the date of his first appearance.

(3.) It appeared from the record that the report under section 173 of the Code of Criminal Procedure was submitted by Police on 7/9/1990 and the learned Magistrate took cognizance on that date and by an order dated 28/12/1990 committed the case to the Court of Sessions.