RAJ KUMAR KOTHARI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revision petition is directed against the order dated 26.5.1981 passed by the Judicial Magistrate, 7th Court. Alipore in G.R. Case No. 367 of 1977 rejecting the accused-petitioner's application for stopping the investigation on the ground that the charge-sheet was submitted on 21.7.1978 which was long after six months from the date of the accused's surrender on 1.2.1977.

(2.) The learned Magistrate appears to have taken the view that sub-section (5) of section 167 contemplates arrest and not surrender and that in case the accused-petitioner surrendered before the learned Magistrate on 1.2.1977 sub-section (5) of section 167 was not attracted. On this view the learned Magistrate rejected the application and fixed the date for evidence of this case as cognizance had already been taken by him in the meantime.

(3.) The learned Advocate appearing on behalf of the petitioner has submitted two grounds for setting aside the impugned order and for quashing the proceeding. It is submitted that the present petitioner appeared before the Officer-in-Charge, Behala Police Station on 30.1.1977 at 12 noon and he produced his driving licence, scooter, tax token and insurance certificate and these things were seized by the police under a seizure list on that date. It is submitted that when during investigation the petitioner who was named in the F.I.R. as an accused surrendered before the police he shall be deemed to have been arrested by the police and when the charge-sheet has been submitted long after six months from that date the submission of charge-sheet and taking of cognizance by the learned Magistrate was illegal and consequently the proceeding should be quashed and he should be discharged. The second submission of the learned Advocate for the petitioner is that when the petitioner surrendered before the learned Magistrate on 1.2.1977 he should be deemed to have been arrested and because of such surrender sub-section (5) of section 167 has been clearly attracted.