Important Point
The words “made his appearance” in clause (iii) of Section 167(5) cannot be truncated from the particular context in which that expression is used. It is a salutory principle in the sphere of interpretation of statutory clauses that words in a provision must not be understood merely by their ordinary meanings dehors the context in which such words are used. So interpreted, words “made his appearance” means only physical appearance of the accused and not appearance by counsel.

Headnote:Criminal Procedure Code, 1973 -Section 167(5) as amended by West Bengal Act No. 24/1988-Prevention of Corruption Act, 1988 -Section 13(2) r/w Section 13(1) (e)-Offence under-Charge against respondent of acquiring assets disproportionate to his wealth-Case registered on 28.8.90-Respondent on 29.2.92 applying to Court through his counsel for return of certain documents-Charge-sheet for offence u/s 13(2) r/w Section 13(1)(e) of Act submitted on 4.5.94 and respondent summoned to appear in Court-Respondent filing an application u/s 167(5) of Code for his discharge on ground that charge-sheet was filed after expiry of 2 years from 29.2.92, date of his appearance in Court through counsel-Special Judge accepting plea of respondent and discharging him u/s 167(5) of Code-High Court concurred with judgment of Special Judge-Appeal by State-Words “made his appearance” in Section 167(5)(iii) of Code-Connotation of-It means physical appearance of accused and not appearance by counsel-Respondent had not made his physical appearance before Special Judge at any time before charge-sheet was laid-No question of invoking bar contemplated in Section 167(5)-Order of discharge passed by Special Judge and High Court is set aside.
       Held : The words “made his appearance” in sub-section (iii) of Section 167(5) of the Code cannot be truncated from the particular context in which that expression is used. It is a salutary principle in the sphere of interpretation of statutory clauses that words in a provision must not be understood merely by their ordinary meanings de hors the context in which such words are used. (Para 12)
       Further held : The words “made his appearance” in Section 167(5) are used along with the preceding words which by themselves form into a composite collocation 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.” It is pertinent to notice that the period of time is not commencing from the date of registration of the crime or the date of first information. Why the time is fixed to commence from the date on which “the accused was arrested or made his appearance”? The sublime idea is that the investigating agency who gets opportunity to question the accused under Section 161 of the Code cannot be permitted to dodge with or further prolong the investigation without special reasons and in the interest of justice. In other words, the sub-section aims at expeditious and effective completion of the investigation when once the accused concerned is available for interrogation by the investigating agency. What happens if a different interpretation is given to the words “made his appearance” in the sub-section? In a case where an accused is out of India he can send his vakalatnama duly attested from abroad to be filed in the court through his advocate and he can well remain without returning of India for the period mentioned in the sub-section, and thereafter claim the benefit of discharge from the offence on the ground that investigation was not completed within the prescribed period. On such a person even without going abroad can keep himself away from the court and claim the same benefit. We should desist from affording an interpretation which would lead to such inept consequences. In the aforesaid context a reference can be made to Sections 436 and 437 of the Code, which fall within Chapter XXXIII of the Code under the caption “Provisions as to bail and bonds”. In the former section appearance of accused in bailable offences is dealt with for the purpose of releasing him on bail. “When any person other than a person accused of a non-bailable offence is arrested or detained... or appears or is brought before a court..... such person shall be released on bail.” In the latter section, releasing an accused on bail in a non-bailable offence is dealt with. “When any person accused of, or suspected of, the commission of any non-bailable offence is arrested... or appears or is brought before a Court....... he shall be released on bail......”. The appearance mentioned in these sections can only mean physical appearance of the accused and not appearance by counsel because the very notion of bail presupposes restraint of the accused and hence the person who wishes to be released on bail is to appear and surrender before the court. A person who is not under any sort of restraint does not require to be released on bail. The word “appearance” in Section 167(5) cannot be understood different from the same word used in Sections 436 and 437 of the Code. In the present case, respondent has not made his physical appearance before the Special Judge at any time before the charge-sheet was laid. Hence there is no question of invoking the bar contemplated in Section 167(5) on the facts of this case. (Paras 13, 14, 15, 16)
       Consequently held : We allow this appeal and set aside the impugned judgment as well as the order of discharge passed by the Special Judge. (Para 17)

Judgment

Thomas, J.-Leave granted.

Respondent in this appeal was the Chief (Operation) of Central Inland Water Transport, Calcutta. Prosecution proceedings were launched against him under Section 13(2) of the Prevention of Corruption Act, 1988, on the allegation that he has acquired assets disproportionate to his known sources of income. But a Special Judge before whom the charge-sheet was laid, discharged him under Section 167(5) of the Code of Criminal Procedure (West Bengal Amendment). A revision petition was preferred by the State before the High Court of Calcutta assailing the said order of discharge, but in vain. Hence the State has filed this appeal by special leave.

2. Some relevant facts necessary for this appeal are the following:

The case against the respondent was registered on 27.8.1990. As the respondent desired to have some documents returned to him, he applied to the court of Special Judge on 29-2-1992 through an advocate praying for return of such documents. On the same day a vakalatnama was filed by his advocate in the Court. On 4.5.1994, the investigating agency submitted charge-sheet against the respondent for offence under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. When respondent was summoned to appear in court he filed an application on 13-7-1996 praying for his discharge under Section 167(5) of the Code (West Bengal Amendment) on the premise that he appeared in the Court on 29.2.1992 through his counsel and that no charge-sheet was filed till the expiry of two years from the said date of appearance. That plea was upheld by the Special Judge and respondent was discharged which was concurred with by a Single Judge of the High Court of Calcutta. It is that judgment of the High Court which is in challenge now.

3. The respondent pleaded that his case falls under clause (iii) of the sub-section (5) of Section 167 of the Code. According to him, since the investigation was not concluded within two years from 29.2.1992, the inevitable sequel is that he should have been discharged.

4. Appellant sought to tide over the difficulty by adopting three different alternative arguments before the High Court. First was, on the premise that the investigating officer has made an application before the Special Judge seeking permission to continue the investigation. Second was, that the time taken for obtaining the sanction to prosecute the respondent must be excluded from the period of two years mentioned in sub-section (5). Third was, that respondent had not really appeared in court on 29.2.1992 even by conceding that his counsel filed vakalatnama on that date for making a plea to return certain documents.

5. High Court has repelled all the three contentions. Learned counsel for the appellant did not canvass for the first two grounds before us, but confined to the third ground. However, we may state that when the SLP was taken up we felt initially that this case is squarely covered by the dictum enunciated by this Court in Durgesh Chandra Saha v. Bimal Chandra Saha & Ors.1. We, therefore, issued notice to the respondent calling upon him to show cause why the petition should not be disposed of in terms of the ratio in the above decision. This Court in that decision held thus:

“The language of Section 167 of the Cr.P.C. as amended by the West Bengal Act is quite clear in indicating that the said section is applicable only in a case where the investigation was still pending but not in a case where investigation had been completed and charge-sheet had been filed.”

6. The situation in this case also in the same in that the investigation was completed and charge-sheet was laid on 4-5-1994 and the accused claimed the right to get discharged only thereafter. Learned counsel for the respondent made an endeavour to distinguish the present case from the facts of Durgesh Chandra Shah (supra). However, we do not think it necessary to consider that contention now as this appeal can be disposed of on

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1998 Supreme(SC) 331

Cases Referred (2)