LUTFAR RAHAMAN Vs. STATE

JUDGEMENT

(1.) This revisional application is directed against an order dated 27.8.1998 passed by the learned Sub-Divisional Judicial Magistrate, Sadar, Bankura in P.S. Case No. 110 dated 24.7.89. By the said order, the learned Magistrate placing reliance on the judgment of the Apex Court in the case of Durgesh Chandra Saha v. Bimal Chandra Saha, reported in 1996 C Cr LR (SC) 203 = 1996 Crl LJ 1137 took the view that as soon as the charge sheet was filed in that case after investigation, the question of stopping investigation or discharge of the accused under section 167(5) of Cr PC did not arise. Accordingly, the learned Magistrate rejected the application filed by the present petitioners for their discharge under section 167(5) of the Code after stopping of the investigation.

(2.) Mr. Mukherjee, learned counsel for the petitioner drew attention of this Court to the earlier order passed by another Bench of this Court on 14.2.96 in Crl. Revision No. 680 of 1993 in which a view was taken that after the stipulated period, if investigation is not concluded, the learned Magistrate was in obligation to discharge an accused under section 167(5) of the Code. The said revisional application was filed by one Madan Mohan Sarkar, figured as accused No. 3 in the charge sheet submitted by the Police after investigation in this case. Mr. Mukherjee also drew attention to the order dated 11.6.96 passed by the learned SDJM after filing of the charge sheet on receipt of the said order of the High Court passed in Crl. Revision No. 680 of 1993. The learned Magistrate after going through the direction issued by this Court in Crl. Rev. No. 680 of 1993 discharged few of the accused persons against whom charge sheet was filed. The present petitioner also moved the learned SDJM for his discharge under section 167(5) of the Code, but as it is indicated hereinabove, the prayer was rejected.

(3.) Mr. Mukherjee placing reliance on a decision of this Court in the case of Biren Pramanik & Ors. v. State of West Bengal reported in 2002(3) CHN 561 left the entire matter for consideration by this Court. However, he submitted that when few of the accused persons are already discharged under section 167(5) of the Code, the same benefit is to be given to the present petitioner in respect of self-same proceeding.