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1995 Supreme(Cal) 259
High Court Of Calcutta
NRIPENDRA KUMAR BHATTACHARYYA
ARDHENDU SARKAR - Appellant
Versus
SUBHAS CHANDRA CHOWDHURY - Respondent
CRI. REV. 716 Of 1993
Decided On : 07/19/1995
ANAND GUPTA, ARUNABHA JANA, ARUP CHATTERJEE, ASHIM ROY, BALAI CHANDRA ROY, DILIP DUTTA, HIMANSHU DE, RANJAN ROY, Samar Basu
The power of the Sessions Judge under Section 167(6) of the CrPC to order further investigation is independent of the power under Section 167(5) and is not controlled by the time limit specified in Section 167(5). The only test for ordering further investigation under Section 167(6) is the satisfaction of the Sessions Judge that further investigation is necessary.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 167(5), 167(6) - FURTHER INVESTIGATION - SCOPE AND POWER OF SESSIONS JUDGE - POWER TO ORDER FURTHER INVESTIGATION UNDER SECTION 167(6) IS INDEPENDENT OF SECTION 167(5) - NO TIME LIMIT SPECIFIED IN SECTION 167(6) FOR COMPLETION OF FURTHER INVESTIGATION - ORDER DIRECTING FURTHER INVESTIGATION WITHOUT SPECIFYING TIME LIMIT IS NOT ILLEGAL - ARTICLE 21 OF THE CONSTITUTION OF INDIA - RIGHT TO SPEEDY TRIAL - NOT VIOLATED BY ORDER FOR FURTHER INVESTIGATION UNDER SECTION 167(6) IN THE INTEREST OF JUSTICE.
Fact of the Case:
The accused, an employee of a Government Undertaking, was alleged to have misappropriated a sum of Rs. 13.85 lakhs by making false entries in the company's books. A police complaint was lodged and a charge-sheet was submitted within the statutory period of 2 years. However, the Magistrate discharged the accused under Section 167(5) of the Code of Criminal Procedure (CrPC) as the investigation was not completed within the stipulated time. The Managing Director of the company filed an application before the Sessions Judge under Section 167(6) of the CrPC seeking vacation of the Magistrate's order and permission for further investigation. The Sessions Judge allowed the application and directed further investigation.
Finding of the Court:
The High Court held that the power of the Sessions Judge under Section 167(6) of the CrPC to order further investigation is independent of the power under Section 167(5) and is not controlled by the time limit specified in Section 167(5). The only test for ordering further investigation under Section 167(6) is the satisfaction of the Sessions Judge that further investigation is necessary. The Court further held that the order of the Sessions Judge directing further investigation without specifying a time limit is not illegal as there is no such time limit specified in Section 167(6). The Court also held that the order for further investigation under Section 167(6) in the interest of justice does not violate the accused's right to speedy trial under Article 21 of the Constitution of India.
Issues: 1. Whether the Sessions Judge has the power to order further investigation under Section 167(6) of the CrPC independently of Section 167(5). 2. Whether the order of the Sessions Judge directing further investigation without specifying a time limit is illegal. 3. Whether the order for further investigation under Section 167(6) violates the accused's right to speedy trial under Article 21 of the Constitution of India.
Ratio Decidendi: 1. The power of the Sessions Judge under Section 167(6) of the CrPC to order further investigation is independent of the power under Section 167(5) and is not controlled by the time limit specified in Section 167(5). 2. The order of the Sessions Judge directing further investigation without specifying a time limit is not illegal as there is no such time limit specified in Section 167(6). 3. The order for further investigation under Section 167(6) in the interest of justice does not violate the accused's right to speedy trial under Article 21 of the Constitution of India.
Final Decision: The High Court dismissed the revision petition filed by the accused challenging the order of the Sessions Judge directing further investigation.
( 1 ) THE petitioner by this revision under Section 482 of the Code of Criminal Procedure has challenged the legality, propriety and correctness of Order No. 6 dated 2-2-1993 passed by the learned District and Sessions Judge, However, in Crl. Misc. No. 574 of 1992, whereby the learned District and Sessions, Judge, Howrah, upon an application of one Subhas Chandra Chowdhury, Managing Director of M/s. National Iron and Steel Company Limited, allowed the prayer of the said Managing Director of the said Company and directed further investigation into the matter after vacating the order dated 16-5-1992 passed by the learned S. D. J. M. Howrah, in G. R. Case No. 2298, of 1988 whereby the learned Magistrate ordered stoppage of investigation and discharged the accused under Section 167 (5) of the Code of Criminal Procedure. The learned District and Sessions Judge passed that order under sub-Section (6) of Section 167 of the Code of Criminal Procedure.
( 2 ) A short resumption of the fact is that the accused was an employee and acted as a cashier in the Company, namely, M/s. National Iron and Steel Company Limited, a Government Undertaking (which term will be REFERRED TO hereinafter as 'the Company' ).
( 3 ) IT was alleged that in his capacity as cashier of the Company the accused withdrew huge sums of money from Bank but he did not post the same in the cash book or posted a lesser amount in the cash book than the amount that was drawn from the Bank. The amount was not entered into the relevant account ledger and thereby the accused has dishonestly misappropriated a total sum of Rs. 13. 85 lakhs by such false entry causing huge loss to the State Exchequer. '
( 4 ) ON 17-12-1988 a representative of the Company lodged an information with the Bally Police Station on which Bally Police Station Case No. 18 dated 17-12-1988 was registered against the accused petitioner herein for an offence under Section 409 of the Indian Penal Code. On that Police Station Case G. R. Case No. 2298 of 1988 was started in the Court of the learned S. D. J. M. , Howrah. The accused petitioner was arrested on 17-12-1983 and granted bail by the said learned Magistrate on 22-12-1988.
( 5 ) THOUGH the investigation of the case proceeded, the charge-sheet was submitted within the stipulated period as stipulated under sub-Section (5) of Section 167 of the Code of Criminal Procedure. The period is 2 years under the said sub-Section.
( 6 ) ON 16-5-1992 the investigating officer prayed for extension of further time to complete the investigation of the case but the learned S. D. J. M. , Howrah, in his order dated 16-5-1992, inter alia, observed that the statutory period had already expired and the ground stated in the petition of the investigating officer was not at all satisfactory and on such finding he rejected the prayer for extension of time to complete the investigation and ordered stoppage of further investigation and discharged the accused.
( 7 ) AFTER lapse of 4 months therefrom on 25-9-1992 the Managing Director of the said Company made an application before the learned District and. Sessions Judge, Howrah praying inter aila, for vacating the order of the learned S. D. J. M. , Howrah directing stoppage of further investigation and discharging the accused under sub-Sec. (5) of S. 167 of the Code of Criminal Procedure which order was made on 16-5-92 and also permitting the investigating officer to further investigate into the offence in exercise of his power under sub-Sec. (6) of S. 167 of the Code of Criminal Procedure.
( 8 ) AFTER hearing the parties and considering the materials on record, the case diary and other allied materials, the learned District and Sessions Judge, Howrah by his order No. 6 dated 2-2-1993 in Crl. Misc. Case No. 574 of 1992 vacated the order of the learned S. D. J. M. , Howrah dated 16-5-1992 and directed the investigating agency to make further investigation of the case and to submit the report in th
