The magistrate must consider the progress of the investigation and the sufficiency of materials on record before discharging the accused under Section 167(5) of the Cr.P.C.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present revisional application has been preferred against an Order dated 07.01.2020 passed by the Learned Sessions Judge, Nadia in connection with Criminal Motion No. 61/2018, affirming the order dated 10.10.2018 passed by the Learned Additional Chief Judicial Magistrate, Tehatta, Nadia in G.R. Case No. 667 of 2012.

2. FACTS:-

The petitioner/State OF West Bengal’s case is that one Jhuma Mondal, daughter of Akhil Mondal, of Vill & P.O. - Betai Lalbazar, P.S.-Tehatta, Dist-Nadia, lodged a complaint on 14th May 2012 with the inspector-in-charge, Tehatta Police Station, alleging that on 13th May, 2012 at or about 7 o'clock in evening her grandfather Mono Mohan Mondal was returning from the house of her younger grandfather Subol Mondal. Her mother Saraswati Mondal who heard the shouting of her grandfather from near the house of Adhir Sarkar, ran to the spot and found that accused Hare Krishna Mondal, son of Kanchiram, being the opposite party herein, being aided and abetted by few other persons were forcibly taking away the victim Mono Mohan Mondal after gagging his mouth with cloth. The mother of the de-facto complainant could recognize the accused persons from the light of a torch and so narrated the fact to her. Thereafter the mother of the de-facto complainant tried to look for the victim but was unable to trace the victim. The victim remained untraced irrespective of the frantic search by the local people and the continuation of the investigation. The complaint/F.I.R. was recorded as Tehatta P.S. Case No. 328/12 dated 14.05.12 under Section 365 IPC, which was subsequently recorded as G.R. Case No. 667 of 2012 before Learned Additional Chief Judicial Magistrate, Tehatta, Nadia.

3. It is submitted by the State that though initially the police authority was conducting the case, subsequently, the case was handed over to the Criminal Investigation Department (CID), West Bengal and since then the investigation was continuing by the C.I.D. West Bengal. Statement of many witnesses have been recorded from which it appears that the opposite party had a grudge against the victim Mono Mohan Mondal, as the victim supported Subol Mondal, with whom the opposite party had a property dispute. Pre-existence of such dispute gives rise to the reasonable apprehension regarding the involvement of the opposite party in kidnapping the victim and causing harm to the victim. Though the investigation was pending since long, and had proceeded to a considerable extent, it could not be completed because of repeated change of the investigating officers due to transfers for administrative and other reasons. On 26th November 2013 a prayer was made by the investigating agency for adding Section 364 of Indian Penal Code with the original Section 365 of IPC.

4. Accordingly from time to time prayer was made before the Learned Magistrate for extension of time for completing the investigation and on all the occasions such prayer for extension of time was granted for a limited period. Last such extension was granted on 6th January 2018 for a period of two months for submission of final report. Thereafter the last I.O. of the case did not file any prayer for extension due to inadvertence, though the case had progressed considerably, albeit without any success in recovering the victim.

5. A writ-petition being W.P. No. 3250(w) of 2014 has been filed for issuance of direction upon the state authority for recovery and production of the victim. Such writ petition is still pending before the Hon'ble Court for final adjudication. The pendency of such writ petition was the other reason, for which also the extension of time was not prayed for, due to understanding and miscommunication.

6. As the time for submission of final report expired and no extension of such time was prayed for on behalf of the state, a petition u/s 167(5) of Cr.P.C. was filed on behalf of the opposite party/accused. Such petition was taken into consideration by the Lear