Important Point
There is no conflict between the ratio in State of West Bengal v. Falguni Dutta & Ors., 1993(3) SCC 288 and that in Durgesh Chandra Shah v. Vimal Chandra Shah 1996(1) SCC 341.

Judgment

Thomas, J.-Leave granted.

2. A two 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 v. Falguni Dutta & Ors.1 and that in Durgesh Chandra Shah v. Vimal Chandra Shah2. The question relates to the interpretation of Section 167(5) of the Code of Criminal Procedure as amended by the State of West Bengal.

3. Section 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 amendments 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 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.

(6) Where any order stopping further investigation into an offence has been made and the accused has been discharged under sub-section (5), he Sessions 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.”

4. The facts in the criminal appeal arising from Special Leave Peti­tion (Criminal) No. 1609 of 1997 Nirmal Kanti Roy v. 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 of 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 challenged 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