Back
High Court of Calcutta
G.R. Bhattacharjee, J.
Shyamal Kumar Chakraborty – Appellant
Versus
State Of West Bengal – Respondent
Decided On : Aug 14, 1992
CRIMINAL PROCEDURE CODE - SECTION 167(5) - SCOPE AND APPLICATION - RETROSPECTIVE EFFECT - INVESTIGATION OF COGNIZABLE OFFENCES - LIMITATION PERIODS - APPLICABILITY TO PENDING INVESTIGATIONS - INTERPRETATION - JUDICIAL MODULATION TO ENSURE EFFECTIVE IMPLEMENTATION - SAFEGUARDS FOR ACCUSED PERSONS' RIGHTS - CASE ANALYSIS.
Fact of the Case:
The petitioner, an accused in a criminal case, challenged the order of the Sessions Judge setting aside the Magistrate's order discharging him under Section 167(5) Cr.P.C. The Magistrate had discharged the petitioner after the investigation was not concluded within two years from his appearance before the court, as required by the substituted sub-section (5) of Section 167 Cr.P.C., which came into force during the pendency of the case. The main issue was whether the substituted sub-section (5) was applicable to investigations pending on the date it came into force.
Finding of the Court:
1. The substituted sub-section (5) of Section 167 Cr.P.C. is substantially a law of limitation and is ordinarily retrospective in operation unless there is an express provision or necessary intendment to the contrary. 2. The substituted sub-section (5) does not apply to cases where the investigation had already been concluded and charge-sheet submitted before its advent. 3. The substituted sub-section (5) applies to investigations pending on the date it came into force, even if the prescribed period of limitation had already expired before that date, as it refers to a situation or state of affairs for its application. 4. The application of the substituted sub-section (5) to pending investigations is warranted by the Supreme Court's decision in Rusten and Hornsby (I) Ltd. v. T. B. Kadam, which held that a statute may be applied retrospectively to a situation or state of affairs existing at the time of its enactment. 5. The substituted sub-section (5) should be applied in all its dimensions to pending investigations, including the opportunity for the investigating agency to pray for continuation of investigation beyond the prescribed period, to avoid truncated application and ensure effective implementation of the law.
Issues: 1. Whether the substituted sub-section (5) of Section 167 Cr.P.C. has retrospective effect? 2. Whether the substituted sub-section (5) applies to investigations pending on the date it came into force, even if the prescribed period of limitation had already expired before that date? 3. How to ensure the effective implementation of the substituted sub-section (5) in all its dimensions to pending investigations, including the opportunity for the investigating agency to pray for continuation of investigation beyond the prescribed period?
Ratio Decidendi: 1. The substituted sub-section (5) of Section 167 Cr.P.C. is substantially a law of limitation and is ordinarily retrospective in operation unless there is an express provision or necessary intendment to the contrary. 2. The substituted sub-section (5) refers to a situation or state of affairs for its application, and pending investigations afford such situation or state of affairs, thereby attracting the application of the said provisions. 3. The application of the substituted sub-section (5) to pending investigations is warranted by the Supreme Court's decision in Rusten and Hornsby (I) Ltd. v. T. B. Kadam, which held that a statute may be applied retrospectively to a situation or state of affairs existing at the time of its enactment. 4. The substituted sub-section (5) should be applied in all its dimensions to pending investigations, including the opportunity for the investigating agency to pray for continuation of investigation beyond the prescribed period, to avoid truncated application and ensure effective implementation of the law.
Final Decision: The impugned order of the Sessions Judge was set aside, and the investigation against the accused was quashed. The accused was discharged.
1. THE petitioner herein is an accused in G. R. Case No. 389 of 1980 under Section 406 I. P. C, of the Court of the learned Sub-Divisional Judicial Magistrate, Krishnanagar, Nadia. That case relates to Kotwali P. S. Case No. 3 dated 1-2-1980. The police investigation into the case was not completed even in April, 1990. In the meantime, the Code of Criminal Procedure (West Bengal Amendment) Act, 1988 came into force with effect from the 2nd May, 1989. Assent of the President of India to the said act was published in the extra-ordinary Calcutta Gazette dated 14th March, 1989. Sub-section (2) of section 1 of the said Amendment Act provides that it shall come into force on such date as the State Government may, by notification in the official gazette, appoint. The Amendment Act, as noted above, was accordingly brought into force with effect from the 2nd May of 1989. Section 4 of the said Amendment Act substitutes sub-section (5) of section 167 cr. P. C. by a new sub-section (5) which runs thus :
"(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 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".
Prior to the above substitution sub-section (5) of section 167 Cr. P. C. stood thus:
"(5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, from the date on which the accused was arrested, 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".
2. AN offence punishable under section 406 I. P. C. in respect of which the investigation was going on against the petitioner on the date on which the aforesaid substituted provisions of sub-section (5) of section 167 came into force falls within the category mentioned in clause (iii) of the said substituted sub-section (5) and the period of limitation for concluding the investigation in such a case is two years from the date of arrest or appearance of the accused in case the said substituted sub-section (5) becomes applicable to the case. On an application submitted by the petitioner accused the learned Magistrate by his order dated 17-4-90 discharged the petitioner under section 167 (5) Cr. P. C. as the investigation could not be yet completed although two years had already elapsed since the petitioner appeared before the learned Magistrate on 19-3-90 after he was granted anticipatory bail. The learned Sessions Judge, however, set aside the order of the learned Magistrate mainly on the ground that the Amendment Act. 1988 has no retrospective effect and therefore the investigation in this case would not be affected by the substituted provisions of sub-section (5) of section 167. The primary question which awaits decision of his court on this revisional application is whether the substituted sub-section (5) of section 167 Cr. P. C. is attracted to this case. Before the said West Bengal Amendment Act came into force the sub-section (5) of Section 167 Cr. P. C, was applicable only to cases triable as summons case and t
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
