GITESH RANJAN BHATTACHARJEE, J.

( 1 ) THE petitioners herein are accused in Daspur Police Station Case No. 5 dated 17-8-88 (G. R. Case No. 159/1988) in respect of certain offences which fall in the category mentioned in S. 167 (5) (ii) of the Code of Criminal Procedure as it stands amended by the West Bengal Act 24 of 1988. Besides the present petitioners there are also other accused persons in the said case. During the pendency of the investigation the petitioners earlier moved this Court in its revisional jurisdiction assailing the continuation of the investigation. The revisional application was, however, disposed of by S. K. Guin, J. giving liberty to the petitioners to file application before the learned Sub-Divisional Judicial Magistrate, Ghatal under S. 167 (5) (ii) of the Code of Criminal Procedure. Accordingly, the petitioners filed application before the learned Magistrate for stopping the investigation of the case under S. 167 (5) (ii) of the Code and for discharging them. The learned Sub-Divisional Judicial Magistrate however by his order dated 4-2-92 permitted continuation of the investigation and refused to discharge the petitioners. Being aggrieved by the said order of rejection of the prayer for discharge under S. 167 (5) (ii) the petitioners have now moved this Court by this revisional application.

( 2 ) SECTION 167 (5) of the Cr. P. C. as it stands amended by the West Bengal Amendment Act runs thus :-"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 Cls. (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".

( 3 ) IT will thus be seen that in a case where Cl. (ii) of Sub-Sec. (5) of S. 167, Cr. P. C. is attracted, as here, and where in such a case the investigation is not concluded within three years from the date of arrest or appearance of the accused, the Magistrate is required to make an order stopping further investigation into the offence and to discharge the accused unless the Investigating Officer satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of three years is necessary. In this connection it may be noted here that in this case three years had already elapsed from the date of arrest or appearance of each of the petitioners but the investigation was not yet concluded. However it is yet within three years from the date of arrest of the other two accused who were subsequently arrested in connection with this case. The learned Magistrate, it seems, is of the view that where there are more than one accused in a case the period of three years for the purpose of S. 167 (5) (ii) shall be reckoned from the date of appearance or arrest of that accused who appeared or was arrested last in point of time.

( 4 ) THE question that fails for consideration of this Court in this connection is what will be the effect and application of S. 167 (5) where there are more accused than one in a case whose appearance or arrest took place on different dates. There is no difficulty in computing the period mentioned in the Sub-Sec. (5) of S. 167 where there is only one accused and obviously in such a case the prescribed period as mentioned in the said Sub-Section shall start run

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