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High Court of Calcutta
A.M. Bhattacharjee, N.K. Batabyal & R. Bhattacharyya, JJ.
Shaktri Sadhan Majhi – Appellant
Versus
State of West Bengal – Respondent
Criminal Revision Nos. 265-267 of 1991
Decided On: May 14, 1993
CRIMINAL PROCEDURE - Code of Criminal Procedure (West Bengal Amendment) Act, 1988 - Section 167(5) - Retrospective operation - Investigation continued and charge-sheet filed beyond the period specified - Cognizance and trial - Legality.
Fact of the Case:
Two questions arose for consideration by the Special Bench: (i) whether the new sub-section (5) of section 167 of the Code of Criminal Procedure, 1973, introduced by the West Bengal Amendment Act, 1988, has retrospective operation and would govern all investigations initiated before the commencement of the said sub-section, and (ii) whether, taking cognizance of an offense on the basis of any investigation continued and a charge-sheet submitted beyond the period specified in that sub-section and the trial thereafter, without any order from the Magistrate for the continuation of investigation beyond the period, are bad and void.
Finding of the Court:
1. The new sub-section (5) of section 167 of the Code of Criminal Procedure, 1973, introduced by the West Bengal Amendment Act, 1988, has retrospective operation and would govern all investigations initiated before the commencement of the said sub-section, but would not apply to any investigation which has already been concluded by the submission of a charge-sheet or otherwise, before coming into force of the said sub-section. 2. Cognizance of offense and the trial thereof on the basis of investigation carried on and charge-sheet submitted beyond the period fixed under section 167(5), without any order from the Magistrate under that sub-section or from the Session Judge under sub-section (6) are bad and void.
Issues: 1. Whether the new sub-section (5) of section 167 of the Code of Criminal Procedure, 1973, introduced by the West Bengal Amendment Act, 1988, has retrospective operation and would govern all investigations initiated before the commencement of the said sub-section? 2. Whether, taking cognizance of an offense on the basis of any investigation continued and a charge-sheet submitted beyond the period specified in that sub-section and the trial thereafter, without any order from the Magistrate for the continuation of investigation beyond the period, are bad and void?
Ratio Decidendi: 1. The language of the new sub-section (5) of section 167 of the Code of Criminal Procedure, 1973, introduced by the West Bengal Amendment Act, 1988, clearly indicates that it is intended to apply to investigations which are not complete and can, therefore, be stopped. If the investigation is already completed, whether within the specified period or beyond the same, the Magistrate will have nothing to stop in respect of investigation and that being so, the sub-section on the face of it cannot apply to such an investigation already concluded before the coming into operation of the aforesaid sub-section. 2. Section 167(5) of the Central Code of Criminal Procedure, 1973, only deals with cases triable as summons cases and provides that if the investigation is not concluded within six months from the date on which the accused was arrested, the Magistrate must 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 interest of justice, investigation beyond that period is necessary. 3. The West Bengal Amendment Act of 1988 has gone a step further by providing in express words that on such stoppage of investigation, the Magistrate "shall discharge the accused". Under the West Bengal law, therefore, discharge of the accused must follow as a matter of course once an order is made stopping the investigation. 4. Once the investigation is continued beyond the period fixed without an order for continuation under sub-section (5) or an order under sub-section (6) of section 167, the illegality or the defect can no longer be cured or rectified by ordering any amount of reinvestigation. 5. Any cognizance or trial of an offence on the basis of an investigation continued and charge-sheet filed beyond the period fixed under Section 167(5), without an appropriate order from the magistrate under that sub-section or an order of the session judge under sub-section (6), must be held to be illegal and void on the ground of failure of justice.
Final Decision: Both the Revisional Applications succeed and the impugned criminal proceedings stand quashed and all the accused persons are discharged.
1. WE are speaking through different judgments, but not in different voices. My two learned brothers are delivering different, but not differing, judgments. On the whole, we are unanimous and my judgment has the concurrence of both of my learned brothers, Batabyal and Bhattacharyya JJ. Now to the matter.
2. BY the Code of Criminal Procedure (West Bengal Amendment) Act, 1988, which has come into force on and from the 2nd May, 1989, a new sub-section (5) has been substituted for the original sub-section (5) of section 167 of the code of Criminal Procedure, 1973. That new sub-section, substituted by the west Bengal Amendment Act as aforesaid runs as hereunder
"(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 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.
Two question that have arisen for consideration by this Special Bench are (i) whether the aforesaid sub-section (5) has retrospective operation and would govern all investigations initiated before the commencement of the said sub-section and (2) whether, taking cognizance of an off ice on the basis of any investigation continued and a charge-sheet submitted beyond the period specified in that sub-section and the trial thereafter, without any order from the Magistrate for the continuation of investigation beyond the period, are bad and void.
3. THE principles of interpretation of statutes, as has been pointed out by chandrachud. C. J. Sankalchand Seth (A. I. R. 1977 S. C. 2328 at 2336 ). with rules pulling in different directions have become a murky area and just as a case-law digest can supply an authority an almost any thinkable proposition, so also these principles have collected over the years divergent formulae which can fit in with any interpretation which one may choose to place. As pointed out by Lord Denning in his Discipline off Law (1979, page 9), "if you find a maxim or rule on your side, your opponent will find one on his side to counteract it". The plethora of rules and case-laws have now become so flabbergasting that instead of helping us in achieving clarity of certainty, they, more often than not, may land us in obfuscating. But certain rules of interpretation have nevertheless stood the test of time and have held the field for such a long time that they may be taken to be well settled. One such rule is that laws relating to procedure are generally retroactive in operation unless there is any contrary indication, either expressly or by irresistible implication, in the law itself. The authorities on this point, whether textual or judicial, are galore and reference, by the way, may be made to a rather recent decision of the Supreme Court in Gurbachan Singh vs. Satpal Singh (A. I. R. 1990 S. C. 209 at 219), where the following passage from Halsbury's Laws of England (4th Edition, Volume 44, page 574) has been Cited with approval:
"The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament".
4. WE are, however, satisfied that there are clear indications in sub-sectio
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