SAMIUL SK. Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) I have heard the learned Advocate representing the petitioners as also the learned Advocate for the State. The short fact given rise to the present revisional application is that on 16.2.1991 some of the petitioners were brought under arrest and produced in Court in connection with the offences including one under section 307, IPC. On 16.3.1995 the attention of the learned S.D.J.M., Malda was drawn to the fact that the I.O. did not file report in final form though he was required to do so within three years from the date of arrest of the accused in terms of section 167(5), Cr.P.C. as amended its application in West Bengal. The learned Magistrate inspite of the attention being drawn and in spite of there being prayer for discharge of the accused, acceded to the prayer of the learned A.P.P. and directed the I.O. to submit report in final form while adjourning the case on 20th April, 1995. On 1.4.1995 cognizance was taken on the basis of the charge-sheet by the learned S.D.J.M. The learned Advocate appearing for the petitioners has drawn my attention to the cases reported in Shrinorain Sureka v. State of West Bengal, 1997 Calcutta Criminal Law Reporter (Cal) 186 : 1996(2) Cal HN 362 and also Anwar @ Answar @ Ansar Rahaman v. State, 1997 Calcutta Criminal Law Reporter (Cal) 394. In support of his contention, he submits that in the absence of the investigation period being extended beyond the period of three years before the expiry of such period following an order from the learned Magistrate, continuance of investigation was bad in law and as such at the end of three years to be computed from 16.2.1991, the petitioners ought to have been discharged. He has also drawn my attention to the manner in which cognizance of the case was taken on 1.4.1995 by the learned S.D.J.M., inasmuch as it is not apparent from the record whether statement and documents were before the learned S.D.J.M., in terms of section 173(5), Cr.P.C. at the time of taking cognizance.

(2.) THE learned Advocate appearing for the State on the other hand has drawn my attention to the decision reported in Durgesh Chandra Saha v. Bimal Chandra Saha and others, 1996 Calcutta Criminal Law Reporter (SC) 203. In support of his contention he states that once the charge-sheet has been submitted and action has been taken by the learned S.D.J.M. section 167(5), Cr.P.C. cannot come into play. As such accused petitioners cannot claim to be discharged.

(3.) THE second point is also clear from the above decision inasmuch as statement and documents as mentioned in section 175(5) Cr.P.C. must be before the learned Magistrate at the time of taking cognizance. It has been mentioned in good number of decisions that taking of cognizance is not routine matter and there must be application of judicial mind on scrutiny of the aforesaid papers before taking cognizance.