1998 Supreme(Cal) 285

High Court Of Calcutta
P. S. MISHRA, GITESH RANJAN BHATTACHARJEE, VINOD KUMAR GUPTA, NURE ALAM CHOWDHURY, BASUDEVA PANIGRAHI
KALYAN KUMAR DAS - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CRI. REV.  668  Of  1992
Decided On : 07/13/1998

The discharge of the accused in such cases is not an automatic act and that the Magistrate has to pass a judicial order, upon due application of mind and consideration of all relevant facts.

Headnote:

In an investigation of a summons case, the Magistrate shall make an order stopping further investigation into the offence 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 period of six months is necessary. If in respect of 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 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 satisfied 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.

Fact of the Case:

The accused Kalyan Kumar Das was arrested on 25th January, 1988 and on the same date a case was registered at Keshpur Police Station against him, being case No. 5 of 25th January, 1988 under section 7 (1) (a) (ii) of the Essential Commodities Act, 1955. On completion of the investigation, charge-sheet being CS No. 32 of 12th October, 1988 was submitted against the accused. This charge sheet was received by the learned Judge, Special Court, Midnapore, under the Essential Commodities Act on 16th November, 1988 and the cognizance thereupon was taken by the learned Special Judge on 8th December, 1988.

Finding of the Court:

1. Once the investigation is not completed within six months from the date of the arrest of the accused, unless the Magistrate passes a specific order in terms of section 167 (5) of the Code, it comes to an automatic halt; and 2. the accused, on the expiry of six months period automatically stands discharged from the case.

Issues: 1. Whether the Magistrate has the power to stop further investigation into the offence and discharge the accused? 2. Whether the discharge of the accused from the case at the expiry of six months period, if the investigation has not been concluded during this time is a matter of course? 3. Whether the cognizance of a case, where the Magistrate admittedly has not passed any order extending the time for completion of investigation beyond six months, can besides directing stoppage of investigation, entertain or act upon a charge sheet or police report submitted under section 173 (2) of the Code in such cases?

Ratio Decidendi: 1. The discharge of the accused in such cases is not an automatic act and that the Magistrate has to pass a judicial order, upon due application of mind and consideration of all relevant facts. 2. The material collected till such time as the investigation is stopped by order of the Magistrate passed under section 167 (5) of the Code is relevant and has to be taken into consideration by the Magistrate. 3. Every informant or every de facto complainant has a right of being heard, if as a result of stoppage of investigation or otherwise the Magistrate intends to drop the proceedings against the accused or is of the view that there is no case against the accused, or once we hold that the Magistrate under section 190 (1) (c) of the Code has the power to take cognizance notwithstanding the police report to the contrary, what follows is that discharge of the accused in such cases is not an automatic consequence or a mechanical act.

Final Decision: The reference made by the learned single Judge Mr. S. K. Tiwari in the case of Sakti Sadhan Majhi v. State of West Bengal, the matter was challenged by the State of West Bengal in the Supreme Court in SLP (Crl) No. 1242-1243/95. The Supreme Court on the basis of the judgment in State of West Bengal v. Falguni Dutta and Anr. (1993) 3 SCC Page 288 set aside the judgment of the Special Bench. Therefore, after the aforesaid judgment having been already set aside by the Supreme Court, it has now become academic to go into such question. Accordingly, the reference need not be answered in view of the Supreme Court judgment dated 9th August, 1997 in the above case.