Kanti Roy, Ganesh Lal Moondra & Ors Vs. State of West Bengal & Anr
 INSC 240 (23
K.T. Thomas, S. Rajendra Babu Thomas J.
APPEAL NO. 476 OF 1998 [Arising out of SLP (Criminal) No. 1705 of 1997]
J U D
G E M E N T
judge bench has referred these cases to be decided by a larger bench upon a
contention that there is conflict between the ratio in State of West Bengal vs. Falguni Dutta and others [1993
(3) SCC 288] and that in Durgesh Chandra Shah vs. Vimal Chandra Shah [1996(1)
SCC 341]. The question relates to the interpretation of Section 167(5) of the
Code of Criminal Procedure as amended by the State of West Bengal.
167 of the Code of Criminal Procedure (for short the 'Code') fixes certain time
schedule for production of the arrested accused before the Magistrate, for
detention of the accused in custody after remand, for completion of
investigation into different offences and the consequential orders to be passed
in a case where such time schedule is not adhered to etc. West Bengal
Legislative Assembly has incorporated some amendmendments in sub-section (5)
and sub-section (6) of Section 167 of the Code as per West Bengal Act 24 of
1988. By such amendment those sub- sections now read as follows: - "(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 data 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.
Where any order stopping further investigation into an offence has been made
and the accused has been discharged under sun-section (5), the Session Judge
may, if he is satisfied, on an application made to him or otherwise, that
further investigation into the 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." The facts in the criminal appeal arising from Special Leave
Petition (Criminal) No.1609 of 1997 Nirmal Kanti Roy vs. State Of West Bengal
are the following: Appellant was involved as accused in an offence under
Section 409, Indian Penal Code. During investigation of the case he applied for
and got a pre-arrest bail order and surrendered himself before the Additional
Chief Judicial Magistrate, Sealdah on 18.3.1993 and was released on bail. As
the investigation was not completed within two years therefrom, he moved the
said Magistrate on 22.9.1995 for discharging him as provided in Section 167(5)
of the Code. The Magistrate dismissed the application pointing out that the
case was triable only by a Special judge under the West Bengal Criminal Law
Amendment (Special Court Act 1949) (For short 'the Special Court Act 1949') and
hence an order stopping investigation and the consequent discharge order under
Section 167(5) could be passed only by that Special Judge concerned. Appellant
challenge that order in revision before the High Court of Calcutta. A learned
Single Judge of the High Court, while dismissing the revision, held that the
Additional Chief Judicial Magistrate was competent to pass the order under
Section 167(5) of the Code despite ouster of his jurisdiction to try the
offence as per the Special Court Act 1949. Nonetheless, learned Single Judge
granted further time to the Investigating Officer, on an application filed by
him in that behalf as the said officer satisfied the High Court that he could
not complete the investigation within the time schedule on account of his
falling sick by jaundice.
was however filed within the extended time.
question raised is whether time could have been extended without the
Investigating Officer moving for such extension before the expiry of the
is no dispute that clause (iii) in Section 167(5) of the Code would apply to
the facts of this case as the offence under Section 409 I.P.C. was neither triable
by the Magistrate as a summons case nor exclusively triable by a Court of
sessions, but triable only by a Special Court in view of the Special Court Act
1949. There is also no dispute that the Charge-sheet was not submitted within
two years "from the date on which the accused was arrested or made his
appearance." This Court has held in State Of West Bengal vs. Pranab Ranjan Roy [JT 1998 (2)
SC 364] that:
words 'made his appearance' in Section 167(5) are used along with the preceding
words which by themselves form into a composite collection as thus: 'From the
date on which the accused was arrested or made his appearance. It must be noted
that the purpose of the sub- section is to impose a time schedule for
completion of investigation and such time schedule is to commence either 'from
the date of arrest of the accused or the date when he made his appearance in
Court." So the two years period mentioned in clause (iii) must be reckoned
from 18.3.1993 on which date the appellant surrendered himself in Court.
order stopping further investigation into the offence and the consequential
order of discharge are not intended to be automatic sequel to the failure to
complete investigation within the period fixed in the sub-section.
succeeding words in the sub-section confer power on the Court to refrain from
stopping such investigation if the Investigating Officer satisfies the
Magistrate of the fusion of two premises (1) that in the interest of justice it
is necessary to proceed with the investigation beyond the period shown in the
sub-section and (2) that there are special reasons to do so.
reading of sub-section (6) further shows that even in a case where the order
stopping investigation and the consequent discharge of accused has been made
that is not the last word on it because the sub-section opens another avenue
for moving the Sessions Judge. If the Session Judge is satisfied that
"further investigation into the offence ought to be made" he has the
power to allow the investigation to proceed. Hence we take the view that the
time schedule shown in Section 167(5) of the Code is not to be treated with
rigidity and it is not mandatory that on the expiry of the period indicated therein
the magistrate should necessarily pass the order of discharge of the accused.
Before ordering stoppage of investigation the magistrate shall consider
whether, on the facts of that case, further investigation would be necessary to
foster interest of criminal justice. Magistrate at that stage must look into
the record of investigation to ascertain the progress of investigation thus for
registered. If substantial part of investigation was by then over, the
magistrate should seriously ponder over the question whether it would be
conducive to the interest of justice to stop further investigation and
discharge the accused.
167(5) without West Bengal Amendment is only bereft of the duty cast on the
Court to discharge the accused. A two judge bench of this Court, while dealing
with the un-amended sub-section, has considered the situation where the
Magistrate stopped investigation on the expiry of six month. State of West bengal
vs. Falguni Dutta and another [1993(3) SCC 288] this Court held thus:- "If
the investigation has been stopped on the expiry of six months or the extended
period, if any, by the Magistrate in exercise of power conferred by sub-section
(5) of Section 167 of the Code, the investigation comes to an end and,
therefore, on the completion of the investigation Section 173(2) enjoins upon
the officer in charge of the police station to forward a report in the
is nothing in sub-section(5) of Section 167 to suggest that if the
investigation has not been completed within the period allowed by that
sub-section, the officer in charge of the police station will be absolved from
the responsibility of filing the police report under Section 173(2) of the Code
on the stoppage of the investigation.
the Special Court was competent to entertain the
police report restricted to six months' investigation and take cognizance on
the basis thereof." In Durgesh Chandra Saha vs. Bimal Chandra Saha and
Others [1996 (1) SCC 341] the situation considered was one relating to Section
167(5) of the Code as amended by the West Bengal Act. The two-judge Bench held
that the consequences envisaged in the sub-section would not befall a case
where investigation was completed and charge-sheet was laid, albeit it was only
after expiry of the period specified in the sub-section.
opinion there is no conflict between the aforesaid two decisions and the ratio
was applied on the factual position in each case. Nor is it at variance with
the view which we have expressed above.
fact situation in the other appeal, arising out of S.L.P. (Crl.) No.1705 of
1997 (Ganesh Lal Moondra & Others vs. S. Dasgupta and another), is different. In that case appellant was involved in an
offence under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 ('E.C.
Act' for short) for contravention of Clause 17 of the Textile Control Order,
1988. FIR in that case was longed on 27.8.1991. Appellant appeared in the court
on 26.11.1993, and was enlarged on bail on the same date. The charge sheet was
laid on 6.1.1995.
the investigation was completed before the expiry of two years from the date of
appearance of the accused and hence there is no scope for invoking the
consequences mentioned in Section 167(5)(iii) of the Code as per WB amendment.
But the contention advanced in that case before the High Court was that the
court has no jurisdiction to take cognizance of the offence in view of the bar
contained in Section 468 of the Code, which reads thus:
Bar to taking cognizance after lapse of the period of limitation. –
Except as otherwise provided elsewhere in this Code, no Court shall take
cognizance of an offence of the category specified in sub-section (2), after
the expiry of the period of limitation.
The period of limitation shall be –
six months, if the offence is punishable with fine only;
One year, if the offence is punishable with imprisonment for a term not
exceeding one year;
three years, if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years." [Sub-section (3) is not
appellant challenged the order by which the court took cognizance of the
aforesaid offence the High Court proceeded on the assumption that the offence
under Section 7 of the E.C. Act is punishable with imprisonment for a term not
exceeding 2 years and therefore found that the period of limitation is 3 years
from the date of offence. But the aforesaid assumption made by the High Court
is on an erroneous basis because the offence under Section 7(1)(a)(ii) is
punishable with imprisonment which may extend up to 7 years. That sub-clause is
(1) If any person contravenes any order made under section 3, - (a) he shall be
punishable,- (i) in the case of an order made with reference to clause (h) or
clause (I) of sub-section (2) of that section, with imprisonment for a term
which may extend to one year and shall also be liable to fine, and (ii) in the
case of any other order, with imprisonment for a term which shall not be less
than three months but which may extend to seven years and shall also be liable
to fine." Appellant endeavoured in the High Court to show that the said
offence is punishable only up to two years, on the strength of the proviso to
clause (f) in Section 12-AA(1) of the E.C. Act. That section stipulated that
when a Special Court is constituted under Section 12-A
for any area, therefore all offences under the E.C. Act committed within that
area shall be triable by that Special Court.
Clause (f) of Section 12-AA(1) says that all such offence shall be tried in a
summery manner. The proviso that clause read thus:
that in the case of any conviction in a summery trial under this section, it
shall be lawful for the Special Court to pass a sentence of imprisonment for a
term not exceeding two years." The contention is that the aforesaid limit
fixed by the Parliament would have the effect of altering the extent of
punishment for the offence under Section 7 of the E.C.
imprisonment for a period of two years. We cannot agree that the effect of the
said proviso was to amend section 7 by making the offence punishable only up to
two years. The effect of the proviso is to limit the jurisdiction of the Special Court in awarding sentence.
is different from understanding the extent of the sentence, whether the offence
had been reduced by Parliament through a process other than amendment of the
provision. One has to look at the punishing provision to know the extent of the
sentence prescribed and not at the limit fixed for a particular court in the
matter of awarding sentence; e.g.
326 of the Indian Penal Code deals with an offence punishable with imprisonment
for life or with imprisonment for a term which may extend to 10 years. But that
offence is triable by a magistrate of first class, the upper limit of whose
powers in the matter of awarding sentence is restricted by Section 29(2) of the
Code as 3 years. By reason of that Section it cannot be assumed that the
offence under Section 326 IPC is punishable only with imprisonment for 3 years.
Division Bench of the Patna High Court had occasion to consider the same
question whether the offence under Section 7 of E.C. Act is punishable only up
to two years on account of Section 12-AA of that Act and consequently whether a
case relating to that offence became a summons case. In Ram Chandra Pansari vs.
State of Bihar 1989 Crl.
Journal 1988 = Patna Law Journal Report 623, learned Judges negatived this
contention. We quote, with approval, the following passage from the said
maximum sentence of 7 years as provided under Section 7 of the Act and the
proviso to clause (f) to section 12AA imposing a limit of 2 years imprisonment
on the power of the Special Judge has to be harmoniously construed and I do not
find any difficult in the same. The offence continues to attract the maximum
sentence of 7 years. But the Special Judge trying the case does not have the
jurisdiction to impose a sentence of more than 2 years. This does not mean that
the offence itself is punishable by 2 years. It only means that although the
offence is punishable by 7 years but the trial court cannot give a sentence
beyond 2 years and if this construction is given then both section 7 and the
proviso to clause (f) to section 12AA get their full play." AS the offence
under Section 7A(1)9(ii) of the E.C. Act is punishable with imprisonment up to
7 years the offence would not attract the bar of limitation under Section 468
of the Code. It is, therefore, unnecessary for us to consider whether the
curative provision in Section 473 of the Code should have been invoked.
result we dismiss both the appeals.