SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Uday Bhanu Sinha And Anr.-vs-State Of West Bengal And Anr. on 11 October, 1993

Calcutta High Court Uday Bhanu Sinha And Anr.-vs-State Of West Bengal And Anr. on 11 October, 1993
Equivalent citations:1994 CriLJ 1931
Author: A Dutta
Bench: A Dutta

ORDER

A.K. Dutta, J.

1. The petitioner-accused (hereinafter referred to as accused) by the instant Revisional Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter shortened into Code) has prayed the Court for quashing the relevant proceedings, being G.R. Case No. 968 of 1989, arising out of Belgharia P.S. Case No. 53 dated 16-3-89, before the learned Sub-Divisional Judicial Magistrate at Barrackpur on the ground of non-compliance of the amended provisions of Section 167(5) of the Code in the facts and circumstances stated therein.

2. The aforesaid relevant case under Section 498A, I.P.C., was started by the Belgharia P.S. on an F.I.R. being lodged by the informant Krishna Dey on the allegations made therein against the accused, on the injured Parmita being found with burn-injury on 16-3-89 at about 8 a.m., caused by fire in the chamber of the latrine of the house of the accused persons. On the basis of the said F.I.R. the accused were arrested by the police on 16-3-89 and they were produced before the learned S.D.J.M. on the following day. Since the injured had died in the hospital in the meantime, Section 306, I.P.C., was added on the prayer of the I.O. The accused Labanya was thereafter released on bail on 17-5-89 and the accused Uday Bhanu was also released on bail on 10-6-89. The investigation of the relevant case had not been completed within a period of three years from the date of arrest of the accused, and is continuing without any order from the learned Magistrate under the amended Section 167(5) of the Code. It is contended by the petitioners that it was incumbent upon the Magistrate to make an order for stopping further investigation in the relevant case and discharge them, in the aforesaid circumstances, which he did not do. Hence the instant Revisional Application for quashing the relevant proceedings.

3. Certain provisions of the Code of Criminal Procedure, 1973, including Sections 167 and 245, have been amended by the Code of Criminal Procedure (West Bengal Amendment) Act, 1988. The assent of the President was first published in the Calcutta Gazette, Extraordinary Part III, No. 548-L, dated 14-3-89. The aforesaid Amendment Act had come into force on and from 2nd day of May, 1989 under the relevant Notification issued by the State Government to that effect.

4. By the aforesaid Amendment Act, being West Bengal Act XXIV of 1988, Section 167 of the Code has been amended as follows:

“In Section 167 of the principal Act-

(a) for Sub-section (5), the following sub-section shall be substituted:

(5) If in respect of-

(i) any case triable 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 Session or a case under Chapter XVIII 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 period mentioned in this sub-section is necessary,

(b) in Sub-section (6), after the words “any order stopping further investigation into an offence has been made”, the words “and the accused has been discharged” shall be inserted.”

5. The aforesaid procedural enactment has clearly been enacted for the benefit of the accused, with the primary object of avoiding delay in trial, in consonance with the fundamental rights guaranteed under Article 21 of the Constitution.

6. In its plain language, plainly read, Section 167(5) of the Code gives a mandate to the Magistrate to make any order ‘ stopping further investigation into an offence and discharge the accused unless the officer making investigation satisfies him (Magistrate) that for special reasons and in the interest of justice the continuation of the investigation beyond the periods mentioned therein is necessary, obviously implying that the satisfaction the Magistrate must take place before the expiry of the periods mentioned in the aforesaid provision.

7. It would be pertinent to note in this context that it has been held in the decision in Jay Shankar Jha v. State, (1982) 1 Cal HN 24: (1982 Cri LJ 744) that in view of Section 167(5) of the Code, the investigation beyond the period of six months can be continued only if the officer making the investigation satisfied the Magistrate that for special reasons and in the interest of justice the continuation beyond the periods mentioned therein is necessary. The satisfaction of the Magistrate must take place before the expiry of the periods mentioned therein. The continuation of the investigation beyond the periods mentioned therein, in the absence of any prayer by the Investigating Officer that for special reasons and in the interest of justice the continuation of investigation beyond the specified periods was necessary, is illegal rendering the subsequent proceedings before the Magistrate without jurisdiction.

8. It had similarly been held in the decision in Pappa Rao v. State, 1985 Cri LJ 546 that leave to continue the investigation beyond 180 days from the date of arrest in summons cases should be taken before the expiry of the said period. No Magistrate can proceed to try an accused on a charge-sheet submitted as a result of investigation continued in breach of the provisions of Section 167(5) of the Code.

9. It had further been held in the decision in Ram Kumar Keshori v. State, (1981) 2 Cal HN 173 : (1981 Cri LJ 1288) that after the expiry of the periods specified in Section 167(5) of the Code, the Magistrate cannot entertain any prayer to extend the preliminary investigation. Any direction for continuation of the investigation given under the aforesaid provisions after the statutory period would be without jurisdiction.

10. Since the aforesaid Amendment Act of 1988 has been enacted for the benefit of the accused with the primary object of avoiding delay in trial in consonance with the fundamental rights enshrined in Article 21 of the Constitution, it must be held in keeping with the aforesaid decisions that the satisfaction of the Magistrate under Section 167(5) of the Code must take place before the expiry of the periods mentioned therein. Any direction by the Magistrate to continue the proceedings after the aforesaid period without being satisfied by the officer making the investigation that for special reasons and in, the interest of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary, in breach of the provisions of Section 167(5), would clearly be without jurisdiction rendering the subsequent proceedings as well without jurisdiction.

11. A Special Bench of this Court in Shaktisadhan Majhi v. State, (1993) 2 Cal HN 154, has unanimously held that Section 167(5) of the Code has clearly directed that “the Magistrate shall make an order stopping further investigation into the offences and shall discharge the accused”; and this is a clear demonstration of the Legislative intention that it would apply to such earlier investigation which is not complete and can, therefore, be stopped. The new Sub-section (5) inserted by the West Bengal Amendment Act, 1988 shall not apply to the investigation already concluded or completed before the commencement of that sub-section, but shall nevertheless apply to all investigation initiated before but not concluded and is thus pending on the date of such commencement. Needless to slate that it would apply to such investigations initiated after such commencement.” The Special Bench has further held unanimously that “Cognizance of offence and the trial thereof on the basis of investigation carried on and charge-sheet submitted beyond the period fixed under Section 167(5) without any order from the Magistrate under that sub-section or from the Sessions Judge under Sub-section (6) are bad and void.”

12. The relevant case before the learned Magistrate appears to have been started by the police on 16-3-69. The petitioners-accused had also been arrested by the police in connection therewith on the same very day (16-3-89). The investigation of the case could not undeniably be concluded within a period of three years from the date of their arrest, and had been continuing on the date when the aforesaid Amendment Act had come into force on and from the 2nd day of May, 1989. There is nothing whatsoever on record to indicate that the officer making the investigation had ever made any endeavour to satisfy the learned Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period mentioned in Section 167(5) of the Code was necessary. The investigation of the relevant case could not have been allowed to continue as such. That being so, it was obligatory on the part of the learned Magistrate to make an order stopping further investigation into the offence and discharge the petitioners-accused in terms thereof. The continuation of the investigation beyond the period mentioned in the aforesaid provision without any order from the learned Magistrate thereunder must, therefore, be held to be illegal rendering the subsequent proceedings before the learned Magistrate without jurisdiction. The relevant proceeding is, accordingly, liable to be outright quashed.

13. In the premises above, the Revisional Application succeeds. The relevant proceedings be accordingly hereby quashed. The petitioners-accused be discharged from their respective Bail Bonds, if on bail.

14. Since the relevant proceedings, despite the nature and gravity of the allegations of bride burning made in the F.I.R., in the facts and circumstances stated therein, a serious offence against the society at large, had to be quashed and the accused had to be discharged for the failure of the Investigating Officer (for short I.O.) to conclude the investigation within the period specified in Section 167(5) of the Code, and also for having pointedly failed, neglected and ignored to seek order from the learned Magistrate to continue the proceedings thereafter in terms thereof, exhibiting total lack of diligence, care, and attention on his part in the matter, the learned Magistrate concerned shall, after scrutiny of the Case Diary of the relevant case and after giving the I.O. an opportunity of being heard, imdue exercise of his discretion, shall take up the matter with the appropriate Superior Police Authority for such appropriate action against the I.O., as may be deemed fit and proper.

15. Let the copy of the order be forthwith sent to the Court below for his information and compliance.

Main – Page

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link
MyNation Times Magzine


All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation