The Court's discretion in entertaining belated applications for setting aside orders under S. 167(5) of the Criminal Procedure Code should not encourage laches on the part of the investigating agency.

1. In connection with a case registered under S. 304A of the India Penal Code by the Jagaddal Police Station on 10.12.1975, the petitioners were arrested and produced before the learned Sub-divisional Judicial Magistrate, Barrackpore on the same day. On the failure of the police to submit any report of investigation, the learned Magistrate by his order dated 25.6.1977, stopped the investigation in accordance with the provision of S. 167(5) of the Code of Criminal Procedure (hereinafter referred to as Code). The opposite party, the State of West Bengal filed an application under S. 167(6) of the Code on 23.6.1978 before the Sessions Judge, Alipore and by an order dated 21.9.1978 the learned Additional Sessions Judge, Alipore allowed the said application, vacated the order of the learned Magistrate and directed the Police to make further investigation into the offence. The above order of the learned Additional Sessions Judge is the subject matter of challenge in the instant Rule.

2. The only point that has been urged in support of this Rule is that the teamed Sessions Judge was not justified in entertaining the application filed under S. 167(6) of the Code after a lapse of one year in absence of any satisfactory explanation for such unusual delay.

3. It has been held by this Court in the case of the Superintendent & Remembrancer of Legal Affairs, West Bengal vs. N. Ranga Rao, 1978 CHN 255, that the Sessions Judge while exercising powers under S. 167(6) of the Code acts as a Court of original jurisdiction and not as a Court of revision. There is no period of limitation under the law for entertaining any application for exercise of such powers. But then, keeping in view the purpose for which S. 167(5) of the Code has been enacted, namely, to avoid delay in investigation and unnecessary harassment to the accused persons, the Sessions Court should not encourage any laches on the part of the investigating agency by entertaining belated application for setting aside such order. If the Court finds that there bas been an unusual delay and there is no satisfactory and reasonable explanation for the delay the application should be thrown out in limine.

4. It is of course true that this being not a rule of law but a rule of practice, based on sound and proper exercise of discretion there cannot be any inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the application. The question being one of discretion to be exercised ill the facts of each case, what would be a reasonable and satisfactory explanation can neither be rigidly formulated nor exhaustively enumerated. The principle on which the Court proceeds in refusing relief to the petitioner on grounds of laches or delay is that the rights which accrued to others should not be allowed to be disturbed by state and belated application.

5. Coming now to the facts of the instant case, it appears from the averment made in the application filed before the learned Sessions Judge, that the investigation of the case was practically completed on 29.4.1977 and the opinion of the learned Additional Public Prosecutor was obtained but due to some official paraphernalia the charge sheet could not be submitted on 25.6.1977, the dale fixed for the purpose. It has further been stated therein that the investigating officer came to know of the order passed by the learned Magistrate on 7.7.1977. It would thus appear that as far back as 29.4.1977 the investigation was complete and the investigating officer was aware of the order of the Magistrate on 7.7.1977. Surprisingly however the application was filed before the learned Sessions Judge after a lapse of 11 months. No ground has been disclosed in the application filed before the learned Judge as to the reasons for such unusual delay. It is not the case of the opposite party that after the order of the learned Magistrate was passed the investigating agency got some further clue regarding the offence which necessita