Dilip Roy vs State of West Bengal and Another

Siba Prasad Rajkhowa, J.—By this application filed u/s 482 of the Code of Criminal Procedure, the petitioner has come up before this Court in its revisional jurisdiction against the order dated 11th June, 1991 passed by the learned Additional Sessions Judge, 6th Court, Alipore in Criminal Motion No. 90/91 under Sections 397 / 399 of the Code of Criminal Procedure arising out of an order dated 2nd January, 1991 passed by the learned Sub-Divisional Judicial Magistrate at Alipore in G.R. Case. No. 2068/87 corresponding to Bhowanipore P.S. Case No. 329 dated 10.7.87 under Sections 467 / 468 / 471 / 420 of the Indian Penal Code. The facts of the proceeding in brief are that the Branch Manager of the Bank of Madura, Bhowanipore Branch lodged a complaint on 10-17-87 with the Bhowanipore Police Station alleging inter alia that the accused petitioner before me being the Clerk of the said Bank forged the Register of the said bank between the month of February and March 1987 on three occasions and misappropriated a sum of Rs. 30,000/- and cheated the bank in respect of the aforesaid money. On the basis of the said complaint a case was registered and numbered as 329 dated 10-7-87 under Sections 467 / 468 / 471 / 420 of the Indian Penal Code and subsequently the case was sent to the Court of the learned Sub Divisional Judicial Magistrate, Alipore subject to the submissions of the report in the final form. The accused petitioner was arrested on the same day i.e. on 10-7-87 and was released on bail on the following day.

As per amendment of Section 167(5) of the Code of Criminal Procedure by West Bengal Amendment Act 24 of 1988 the Investigating Officer is to conclude the investigation of a case falling under Chapter XVIII of the Indian Penal Code within a period of three years and if within that period of investigation is not concluded the Magistrate shall make an order stopping further investigation. In the case in hand the Investigating Officer could not conclude the investigation within a period of three years and on 2nd January, 1991 the Investigating Officer prayed before the learned Sub-Divisional Judicial Magistrate. Alipore for extension of time. But the learned Sub-Divisional Magistrate rejected the prayer as he did not find any merit in it. He relied upon the provision of Section 167(5)(iii) of the Code of Criminal Procedure, State Amendment. He stopped further investigation and discharged the accused.

Against that order passed by the learned Sub Divisional Judicial Magistrate, the State did not come up before any higher Court in revision. However, the defacto-complainant moved a revisional application under Sections 397 / 399 of the Code of Criminal Procedure Code before the learned Additional Sessions Judge, 6th Court, Alipore. By the order impugned dated 11-6-91 the learned Additional Sessions Judge allowed the application, set aside the order of discharge of the accused and directed the Investigating Officer to continue the investigation and to submit report in the final form within two months from the date of communication of the order to the Investigating Officer. Hence, this application before this Court by the accused-petitioner.

Mr. Chowdhury, learned Counsel for the petitioner, has submitted that the learned Additional Sessions Judge has erred in law in setting aside the order dated 2-1-91 passed by the learned sub Divisional Judicial Magistrate who had lawfully passed the order directing stoppage of further investigation and discharging the accused. Elaborating his argument the learned Counsel has placed reliance upon the provisions contained in Section 167(5) as amended by the West Bengal Amendment Act 24 of 1988. He has also fortified his argument by citing various decisions of this Court on this point.

For a proper appreciation of the provisions of law I quote here the whole passage of amendment to Sub-sections (5) of Section 167 of the Code of Criminal Procedure by the State Act 24 of 1988 :

(5) If, in respect of -

(i). any case trible by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or

(ii). any case exclusively triable by a Court of Sessions or a case under Chapter VXIII of the Indian Penal Code (45 of 1860), the investigation is not concluded within a period of three years, or

(iii). any case other than those mentioned in Clauses (i) and (ii), the investigation is not concluded within a period of two years, from the date on which the accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary

This amended provision came into operation on and from 2.5.89. Sections467 / 468/ 471/ 420 of the Indian Penal Code came within the ambit of Chapter XVIII of the Indian Penal Code. These are warrant cases and the procedure for trial of these cases is discussed in Chapter XIX of the Code of Criminal Procedure. As per sub-clause (ii) of Section (5) of Section 167 of the Code of Criminal Procedure as amended, the period prescribed for investigation is three years from the date of arrest. In the case in hand the accused was arrested on 10-7-87. So the permissible period for investigation came to an end on 10-7-1990. But the Investigating Officer did not conclude his investigation into the case within this period and on 2-1-91 the Investigating Officer prayed for extension of time. The learned Sub Divisional Judicial Magistrate rejected the prayer as he found no merit in it. However, it is clear from the impugned order of the learned Additional Sessions Judge that the Investigating Officer prayed for permission to continue investigation without assigning any special reason. As such it is understood the Investigating Officer prayed for extension before the learned Sub Divisional Judicial Magistrate simply as a routine duty.

As already mentioned, the defacto- complainant and not the State came up before the learned Additional Sessions Judge in revision and keeping in view the provisions of sub-clause (iii) of sub-section (5) of Section 167 of the Code of Criminal Procedure, he has justified the extension of time by observing that the order of the learned Sub Divisional Judicial Magistrate has occasioned a failure of justice as public money was involved and shocking fraud was alleged. So in exercise of his powers under Sections 397/ 399 of the Criminal Procedure Code he has passed the order impugned whereby he has set aside the order of the learned Sub Divisional Judicial Magistrate and gave directions as already adverted to.

Mr. Chowdhury, learned Counsel for the petitioner, has submitted that the learned Additional Sessions Judge has wrongly exercised his jurisdiction under Sections 397 / 399 of the Code of Criminal Procedure, and according to him this was in clear violation of the decisions handed down by this Court. He has relied on 1981 Criminal Law Journal 1288 (Ram Kumar Keshori vs. The State). A Division Bench of this Court prescribed over by Monoj Kumar Mukherjee, J (as His Lordship then was) has discussed the provisions of Section 167(5) and (6) of the Criminal Procedure Code in respect of summons case where the investigation is to be concluded within a period of six months and has observed that :-

Once the period of six months expires, the Magistrate by stopping the investigation brings an end to the investigation by the operation of sub-section (5) of Section 167. If any prayer of the Investigating Officer is entertained after the expiry of the said period and allowed, the investigation thereby will be reopened and it will be ''further investigation'' as envisaged under sub-section (6) of Section 167, and not continuation of investigation. Then again, to record a satisfaction that the investigation ''beyond the period of six months is necessary'', the Magistrate, necessarily has to obtain the satisfaction before the expiry. It must, therefore, be held that any direction for continuation of the investigation given u/s 167(5) after the statutory period will be without jurisdiction.

The same principle was followed by the aforesaid Division Bench of this Court in the case of Jay Sankar Jha vs. The State, reported in 1982 CrLJ. This Court has thus repeatedly impressed upon the fact that the satisfaction of the Magistrate must take place before the expiry of the period allowed by the provision of law for conclusion of the investigation. This time tested principle was echoed by a learned Single Judge of this Court in the case of Ram Bikash Jadav vs. State, reported in 1983 Crl.L.J.

Mr. Chakraborty, learned Counsel for the State, has, however, submitted that the learned Sessions Judge or the learned Additional Sessions Judge can interfere in the order of a Magistrate stopping further investigation in exercise of his powers under sub-section (6) of Section 167 of the Criminal Procedure Code. This sub-section lays down that where any order stopping further investigation into an offence has been made and the accused has been discharged under sub-section (5). the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into an offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify. As such, according to Mr. Chakraborty, learned Additional Sessions Judge was justified in setting aside the order of the learned Magistrate and then directing extension of time for conclusion of the investigation. His further submission is that while exercising powers under sub-section (6) of Section 167, the Court of the sessions Judge is to be treated as the Original Court. In support of his contention he has relied upon a Single Bench decision of this Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Nasina Ranga Rao, reported in 82 CWN 407 : 1978 CHN 255. Monoj Kumar Mukherjee, J (as His Lordship then was) speaking for the Court has observed that the very fact that the provision of Section 167(6) was enacted indicates that the powers under this provision was meant to be exercised by the Sessions Judge as a Court of original Jurisdiction and that this necessarily means that the Sessions Judge was required to consider the grounds raised in the application to satisfy himself whether further investigation should be made into the offence and give his own reason for acceptance or rejection of such grounds. However, on careful reading of this ruling and comparing the two rulings already cited above I do not find any conflict in all these rulings. In the case before me the defacto complainant invoked the revisional powers of the learned Additional Sessions Judge u/s 397 / 399 of the Code of Criminal Procedure. There is no whisper in that order that the defacto complainant invoked the power of the learned Additional Sessions Judge under sub-section (6) of Section 167 of the Code of Criminal Procedure. Moreover, it is the considered view of this Court that the Investigating Officer must apply before the Magistrate for extension of time within the statutory period i.e. within the period of six months in a case triable by a Magistrate as a summons case and within a period of three years in a case exclusively triable by a Court of Sessions or a case coming under Chapter XVIII of the Indian Penal Code. Whatever may be the special reasons, a prayer of the Investigating Officer cannot be entertained by the Court which is beyond the period enjoined by law.

Mr. Dasgupta, learned Counsel appearing for the defacto complainant, has submitted that although the learned Magistrate has the power to stop further investigation, yet he is not competent to pass an order discharging the accused. In support of his contention he has cited a decision of the Kamataka High Court in Gadbah Co-operative Textile Mills Ltd. and Ors. vs. State of Kamataka, reported in 1988(2) Crimes 972. In this case a learned Single Judge of the Karnataka High Court has held the view that stopping further investigation is different from discharging the accused and so the learned Counsel has submitted that the learned Magistrate was not justified in discharging the accused. I am, however, not convinced with the submissions of the learned Counsel for the defacto complainant. The wording of the West Bengal State Amendment Act is very clear on this point. I have already quoted that State Amendment Sub-Clause (iii) clearly states that the magistrate shall make an order ''stopping further investigation into the offence and shall discharge the accused''.

In view of my aforesaid discussions, I hold that the learned Additional Sessions Judge was not justified in setting aside the order dated 2-1-91 passed by the learned Sub Divisional Judicial Magistrate. In the result, this revisional application is allowed, the impugned order dated 11-6-91 passed by the learned Additional Sessions Judge Alipore is set aside and the order passed by the learned Sub Divisional Judicial Magistrate on 2-1-91 is upheld.