Kalyan Kumar Das Vs. the State of West Bengal - Court Judgment

V.K. Gupta, J.

1, This reference shall endeavour to examine the true Import and scope of the State amendment carried out tn respect of section 167(5) of the Code of Criminal Procedure. 1973 (hereinafter Code, for short). Section 167(5) of the parent Code read as under:--

'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 or special reasons and in the Interests of justice the continuation of the investigation beyond the period of six months is necessary.'

2. By the Code of Criminal Procedure (West Bengal Amendment) Act 1986, which came into force with effect from 2nd May, 1989, sub-section (5) of section 167 of the Code was substituted by way of the aforesaid State amendment for the State of West Bengal. The substituted sub-section(S) In the State amendment reads as under:--

(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) theinvestigation is not concluded within a period of two years fromthe date on which the accused arrested or made his appearance.The Magistrate shall make an order stopping further investigationinto the offence and shall discharge the accused unless the officermaking the Investigation satisfied the Magistrate that for specialreasons and in the interests of Justice the continuation of theinvestigation beyond the periods mentioned in this sub-section isnecessary.'

3. 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. 27th January, 1989 was fixed as the date for examination of the accused in terms of section 251 of the Code. On this date an application was moved by the accused before the learned special Judge for quashing the proceedings and for an order of acquittal of theaccused on the ground that investigation of the case continued beyond the period of six months and such continuance being totally without Jurisdiction, the cognizance taken thereupon by the learned Judge was bad and hence the accused was entitled to an order of acquittal. The learned special Judge however vide order 28th February. 1989 rejected the aforesaid application of the accused. The accused filed a Criminal Revision Petition in this court which came up for consideration before a learned single Judge. The dates indicated below will give a preview of the relevant periods relating to the completion of the investigation beyond time and the filing of the case in the court etc.:--

Arrest of the Accused ..... 25.01.1988Registration of the case ..... 25.01.1988Submission of the charge-sheet ..... 12.10.1988Receipt of the charge-sheet bythe learned special Judge ..... 16.11.1988Cognizance by the learnedspecial Judge ..... 08.12.1988Filing of application by theAccused for acquittal/discharge ..... 27.01.1989Rejection of the applicationof the accused ..... 28.02.1989

4. It is not in dispute that an offence under section 7(1)(a)(ii) of the Essential Commodities Act, 1955 is triable as a summons case and therefore section 167(5) of the Code and the State amendment would have application to such a case,

5. Whereas the learned single Judge who had taken up for consideration the Criminal Revision Petition filed by the accused against the order of the learned special judge was of the view that section 167(5) of the Code did not, by itself and automatically amount to the stoppage of investigation beyond the period of six months from the date of the arrest of the accused and that it also did not, by itself and automatically result in the discharge of the accused under such a situation, he made this reference to this Full Bench because there were Single Bench, Division Bench and Special Bench Judgments taking contrary view. For our purposes we shall be referring to the Special Bench Judgment in the case of Saktisadhan Maji & Ors. v. State reported in 1994 C Cr Law Reporter (Cal) 137. In this Judgment the Special Bench was of the opinion that cognizance of the offence and the trial of an accused on the basis of investigation carried on and charge sheet submitted beyond the period of six months without any specific order from the Magistrate was bad and void. This Bench also took a view that without a specific order from the Magistrate for continuation of investigation beyond six months, the accused immediately at the expiry of six months acquired a right to be discharged from the case if the investigation was not completed and concluded within the period of six months. The Special Bench also was of the view and opinion that any cognizance or trial for an offence on the basis of investigation continued and charge-sheet filed beyond the period of six months, without an appropriate order from the Magistrate undersection 167(5) of the Code must be held as illegal and void on ground of failure of justice. This special Bench therefore was clearly of the opinion that.

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 107(5) of the Code, it comes to an automatic halt; and

2. the accused, on the expiry of six months period automatically would stand discharged from the case.

6. In other words the Special Bench was of the opinion, (by implication) that there is no need for the Magistrate nor was there any requirement of law, in terms of section 167(5) of the Code, for the Magistrate to pass any specific order stopping investigation or to make anyjudicial order discharging the accused and that the discharge of the accused was automatic in such an eventuality. In this reference accordingly, we shall have to re-examine the correctness of such interpretation put upon section 167(5) of the Code, by the Special Bench and to see if the view expressed by the Special Bench is in conformity with true scope and purview ofsecllon 167(5) of the Code.

7. The purpose behind enacting section 167(5) of the Code undoubtedly was to prevent the undesirable prolonging of the agony of an accused facing a criminal case seriously prejuclng his right to personal liberty. In its wisdom the legislature, while being conscious of the right of every person under Article 21 of the Constitution of india thought it fit and desirable to enact a salutary provision, such as section 167(5) of the Code for providing a mechanism so as to prevent the unnecessary and undesirable prolongation of the agony of a person facing a criminal case for an indefinite period.

8. If investigation in a case is not completed within a period of six months from the date on which the accused was arrested (here we are dealing only with a summons case, this analogy may apply appropriately to other classes of cases as well) or made his appearance, two consequences are provided for and contemplated in section 167(5) of the Code in the Stale amendment. These consequences are, firstly that the Magistrate shall make an order stopping further investigation into the offence and secondly that he shall discharge the accused. Either of these two consequences, or both of them of course are subject to the condition that the Magistrate, upon being satisfied that some special reasons exist and that the interests of Justice demand the continuation of the investigation beyond the period of six months, makes an order permitting the continuation of the investigation beyond the period of six months. The question which immediately arises for consideration, by way of first reaction, is whether the court, in 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. Section 173(2) of the Code lays down that every investigation shall be completed without any unnecessary delay and as soon as it is completed,the officer-in-charge of the Police Station shall forward to the Magistrate empowered to take congnlzance of the offence on the Police report, a report in the form prescribed by the Slate Government. The expression 'police report' has been defined in the Code to mean a report forwarded by a police officer to a Magistrate under sub-section(2) of section 173 of the Code. The only conclusion which thus emerges from a plain reading of section 173(2) of the Code is that the police is under an obligation, necessarily and inevitably, to submit the report to the court as soon as the investigation is completed. It therefore follows as a natural corollary that even in cases where investigation has been stopped by (he Magistrate in terms of section 167(5) of Code at the expiry of six months and thus it comes to an end, section 173(2) of the Code casts an obligation upon the police officer ln-charge of a police station to forward the report in the prescribed form. We do not see any thing under section 167(5) of the Code to suggest that if the investigation has not been completed within the period allowed in that section, the officer in-charge of police station can be consideration to be absolved of his responsibility and liability in filing the police report under section 173(2) of the Code on the stoppage of such investigation. If therefore the responsibility of filing the report under section 173(2) of the Code remains. It follows as a consequence that the cognizance has to be taken of such a report by the Magistrate, irrespective of the fact whether the investigation was stopped at the end of six months period. If therefore the Magistrate is bound to take cognizance of such a police report, the question which arises for consideration is as to whether the material collected in the course of such investigation till it was stopped by order of the Magistrate can be considered by the court to decide whether the accused is to be tried or not. It is in this light that we have to consider the limited question whether, along with the stoppage of investigation at the expiry of six months period the accused gets automatically discharged, or the Magistrate has to pass a Judicial order, in consideration of the material available before him based upon the investigation carried out during the period of six months.

9. Even though the first look at section 167(5) may suggest, by way of first impression that 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 yet if one looks at the scheme of the Code and the intention of the legislature, one finds that the legislature never intended that in every case the accused should get discharged automatically whenever an order stopping investigation at the expiry of six months period is passed by the Magistrate.

10. If one looks closely to the scheme of the Code, particularly with reference to the provisions contained in section 173(2), 190(1)(b) and 251 of the Code, what emerges is that even after the expiry of six months from the time of the arrest of the accused, even though the Magistrate has power to stop further investigation, discharge of the accused is neither an automatic act nor an inevitable consequence since it is a Judicial order which the Magistrate is required to pass on consideration of the relevant facts and circumstances. In the case of State of West Bengal v. Falguni Dutta & Another reported in 1983 C Cr L R (SC) 123 their Lordships of the Supreme Court have taken a definite view that even if the investigation has been stopped in a case in terms of an order passed under section 167(5)of the Code, responsibility, to file the report under section 173(2) still remains. It therefore clearly means that there is a duty cast upon the Magistrate to take cognizance of the case, tf such a report is filed and if the material accompanying the report suggests that the cognizance is required to be taken. Para 8 of that Judgment reads as under:--

'The takes us to the next question whether the Special Court can, besides directing stoppage of investigation, entertain and act on a charge sheet or a police report submitted under section 173(2) of the Code in such cases. The expression 'police report' has been defined under the Code to mean a report forwarded by a police officer to a Magistrate under sub-section(2) of section 173 section 2(r). Section 173 lays down that every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. It will thus be seen that the police report under section 173(2) has to be submitted as soon as the investigation is completed. Now, if the investigation has been stopped on the expiry of six months or the extended period, if any, by the Magistrate in exercise of power conferred by sub-section (5) of section 167 of the Code, the investigation conies to an end and, therefore, on the completion of the investigation section 173(2) enjoins upon the officer in charge, of the police station to forward a report in the prescribed form. There is nothing in sub-section (5) of section 167 to suggest that if the investigation has not been completed within the period allowed by that sub-section, the officer in charge of the police station will be absolved from the responsibility of filing the police report under section 173(2) of the Code on the stoppage of the investigation.'

11. In other words the material gathered together during the investigation, at least for the period of six months prior to the stoppage of the investigation by order of the Magistrate, shall be relevant to decide whether there is any basis or evidence connecting the accused with the commission of the crime and as to whether cognizance can be taken based upon such material against the accused by the court.

12. One may not here lose sight of the provisions contained in section 468 of the Code which prescribes a period of limitation for taking cognizance of cases. Cognizance of a case is required to be taken by the court, based upon a cumulative and conjunctive reading of the provisions contained in sections. 173(2), 190(1)(b) and 468 of the Code, read with section 251 of the Code. When while we are referring to these provisons. our purpose is to say that we intend to interpret section 167(5) in the State amendment by adopting a constructive approach and harmoniously along with other relevant provisions of the Code. We cannot interpret the Slate amendment in its isolation.

13. Another aspect of the matter, which is equally important and has a close bearing on some vital angels of the discussion is the right of an discussion is the right of an informant, the person who ledged the First information Report, and who thus set the investigation into motion, if and when a Magistrate decides not to take cognizance of the case. Similarly isthe right of an aggrieved party or the relative of a deceased Jn a murder case. Both these classes of persons have well defined rights, the former has the right of being issued notice before a Magistrate decides not to take congnizance so that he can be heard and, the latter has a right of hearing, even though he is not entitled to any notice, if similarly the Magistrate is of the view that cognizance is not to be taken in the case.

14. In this regard the observations of their Lordships of the Supreme Court in the case of Bhagwant Singh v. Commissioner of Police and Anr. reported in 1985 Criminal Law Journal 1521 have clearly recognised the right of the informant of persuading the Magistrate in not dropping the proceedings against the accused. The following observations in Bhagwant Singh's case, being very relevant for our purposes are extracted from para 4 of the judgment:--

'.....Where, in either of these two situatib1 ons the Magistratedecides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decided that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First information Report the informant would certainly be prejudiced because the First information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First information Report lodged by him is clearly recognized by the provisions contained in sub-section (2) of section 154, sub-section (2) of section 157 and sub-section (2)(ii) of section 173. It must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2) (i) of section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2) (1) of section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the policeon the First information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2) (i) of section 173 and if that be so, we do not see any reason way it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any Jurisdiction for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.'

15. What to speak of the right of informant, even with regard to the right of the injured person or a relative of the deceased, who may not be the informants, their Lordships held that these persons also had a right of hearing before a Magistrate may decided to drop the proceedings against the accused. Following observations in the same Judgment may be reproduced with advantage:--

'The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Criminal Procedure Code 1973 of from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, the may. In the exercise of his discretion, if he so thinks fit. give such notice, to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report.'

16. What therefore becomes clear is that if the Magistrate deckled to drop the proceedings and refuse to take cognizance of a case, a duty and obligation is cast upon him to issue a notice to the informant, the person who set the investigation machinery into motion by loading the FIR so that the informant can come to the court and make an attempt to persuade the Magistrate not to drop the proceedings. Once therefore the law recognizes the aforesaid right of the informant, and as we have seen above, even that right of the injured person or the relative of the deceased of being heard, if they choose to appear before the Magistrate, it cannot be argued that in every case, where the investigation has been stopped by order of theMagistrate under section 167(5), the discharge is an automatic and mechanical consequence. What follows therefore is that discharge is not either automatic or mechanical but the passing of the order of discharge, if any, has to be based upon consideration of the material available and has to be in the realm of the exercise of Judicial function, and by proper application of mind.

17. There is still another angle to the aforesaid view which we have taken. Even though under the scheme of the Code, a Magistrate has not power, expressly or impliedly conferred upon him by the Code, to call upon the police to submit a charged-sheet when the police has sent a report under section 169 of the Code that no case is made out against the accused for sending him up for a trial, yet the law does not certainly cast any obligation on the Magistrate to accept such a report, if he does not agree with the opinion formed by the police. In such a situation if the Magistrate suspects that an offence has been committed by the accused and that the police has not acted properly, not-withstanding the aforesaid referred opinion of the police, the Magistrate is entitled to take cognizance under section 190(1)(c) of the Code. Such a provision is intended to ensure that an offender is not allowed to go scot free and that justice is done. It therefore follows that a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commissioning the offence from a third party but also where he has knowledge or even suspicion that the offence has been committed. The following observations of the Supreme Court in the case of Abhinandan Jha & Ors. v. Dinesh Mishra reported in : 1968CriLJ97 are pertinent:--

'..... Under those circumstances, if he still suspects thatan offence has been committed, he is entitled, notwithstanding he opinion of the police, to take cognizance, under section 190(1)(c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and Justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either want only or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate lo take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under section 190(1)(c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed.....'

18. Once therefore we hold that 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. In our view eventhough the State legislature used the expression 'shall discharge the accused' it did not intend that in all cases where the investigation is stopped under section 167 by the Magistrate, the discharge should be an automatic act. We are firmly of the opinion that discharge in such cases is not an automatic act and that the Magistrate has to make a positive order, upon due application of mind and consideration of all relevant facts. We have indicated our reasons in support of the view that we have taken. To summarise, we may say that in all cases where under section 107(5) of Code, if the Magistrate passes an order stopping investigation at the expiry of the six months period, the discharge of the accused is not an automatic act and that the Magistrate has to pass Judicial order, upon due application of mind and on consideration of all the relevant facts and other material available to him. It is only by this process that he can decide whether the accused has to be discharged or not. We also say that since there is a corresponding obligation upon the Magistrate to afford opportunity to the prosecution, the informant and the de facto complainant, no order of discharge can be passed without hearing them. We are also of the view that if the contention of the learned Advocate for the accused is accepted and if it is held that discharge is automatic, such interpretation upon the Slate amendment to section 167(5) shall render other provisions of the Code, including section 173(2). section 190(i) (c) and section 468 as nugatory. We also hold that in deciding the question whether the accused is to be discharged or not, 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.

19. The role to be played by the Magistrate in alt such situation will be of an adjudicatory authority, in the sense that the Magistrate would be required to adjudicate upon the issue judicially, objectively and fairly to decide whether in the situation as it might obtain, the investigation beyond six months should be stopped or allowed to continue and/or whether to discharge the accused, upon consideration of the material so far available or not to discharge the accused. The intention of the legislature, as is gatherable from a reading of the State amendment and other related provisions of the Code cannot be construed so as to obliterate the result or the conclusion of the investigation carried on for six months.

We answer the reference according.

N.A. Chowdhury, J.

I agree.

B. Panigrahi. J.

20. I have the occasion and privilege to go through the elaborate and erudite Judgment prepared by the learned Brother Mr. Gupla. J. and wish to add few sentences.

21. In the Reference the only question that has to be answered is whether in a case triable by a Magistrate as a Summons Case if investigation is not concluded within a period of six months, will culminate in automatic discharge of the accused or a duty has been cast upon the Magistrate to consider on the available materials to proceed further with the case. As per the Slate Amendment sub-section (5) of section 167 of the Code of Criminal Procedure any case triable by a Magistrate as Summons Case if investigation is not concluded within a period of six months from the date on whichthe accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence. But, however, the Magistrate on being satisfied that there are special reasons and in the interest of justice the continuation of investigation beyond the period mentioned in the sub-section may extend the time for completion of the investigation. In this regard the interpretation of sub-section (5) of section 167 of the Code of Criminal Procedure came for consideration before the Supreme Court in the case of State of West Bengal v. Pranab Ranjan Roy where the Supreme Court decided in the following manner:

'The words 'made his appearance' in section 167(5) are used along with the preceding words which by themselves form into a composite collocation as thus: 'From the date on which the accused was arrested or made his appearance'. It must be noted that the purpose of the subsection is to impose a time schedule for completion of investigation and such time schedule is to commence either 'from the date of arrest of the accused or the date when he made his appearance in court'. It is pertinent to notice that the period of time is not commencing from the date of registration of the crime or the date of first information. Why the time is fixed to commence from the date on which 'the accused was arrested or made his appearance'? The sublime idea is that the investigating agency who gets opportunity to question the accused under section 161 of the Code cannot be permitted to dodge with or further prolong the investigation without special reasons and in the interest of justice. In other words, the sub-section alms at expeditious and effective completion of the investigation when once the accused concerned is available for interrogation by the investigating agency'.

22. There may be some instances where an accused deliberately or intentionally avoids to attend the court and see that the time limit expires and thereafter takes a plea that the case cannot proceed since the time limit within which the investigation should have been completed has expired. Therefore, the legislature in its wisdom has provided that the limitation shall commence from the date of arrest or appearance in the court. In the instant case there is nothing to show on record as to when the accused was arrested. In such situation since the discharge is not automatic and the Magistrate shall have to go into the materials available before him, the accused cannot take a plea that the investigation should be stopped and he should accordingly be discharged. Identical question also was considered by the apex court in the case of Ganesh Lal Maondra & Ors. v. S. Dasgupta & another where the Supreme Court has decided in the following manner:

'The order stopping further investigation into the offence and the consequential order of discharge are not intended to be automatic sequel to the failure to complete investigation within the period fixed in the subsection. The succeeding words in the sub-section confer power on the court to refrain from stopping such investigation if the investigating Officer satisfies the Magistrate of the furslon of two premises (1) that in the interest of justice it is necessary to proceed with the investigation beyond the period shown in the sub-section and (2) that there are speical reasons to do so.A reading of sub-section (6) further shows that even in a case where the order stopping ivestlgatlon and the consequent discharge of accused has been made that is not the last word on it because the sub-section opens another avenue for moving the Sessions Judge. If the the Sessions Judge is satisfied that 'further investigation into the offence ought to be made' he has power to allow the investigation to proceed. Hence we take the view that the time schedule dhown in section 167(5) of the Code is not to be treated with rigidity and it is not mandatory that on the expiry of the period indicated therein the magistrate should necessarily pass the order of discharge of the accused. Before ordering stoppage of investigation the magistrate shall consider whether, on the facts of that case further investigation would be necessary to foster interest of criminal Justice. Magistrate at that stage must look into the record of investigation to ascertain the progress of investigation thus far registered. If substantial part of investigation was by then over, the magistrate should seriously ponder over the question whether it would be conductive to the interest of justice to stop further investigation and discharge the accused'.

23. On a careful reading of the Judgment quoted above it appears that the provisions of section 167(5) of the Code shall not, however, be treated with rigidity. It is not mandatory that immediately after expiry of the period indicated therein the Magistrate/court should necessarily pass the order of discharge of the accused. Before ordering stoppage of investigation the Magistrate shall consider whether in the facts of that case further investigation would be necessary to protect the interest of Justice.

24. In the aforesaid Judgment it has also been decided that as per section 7(1)(a)(ii) the punishment prescribed not more than two years by Special Judge under the West Bengal Special Courts Act, 1949. But since the main provision under section 7A(1)9(ii) of the Essential Commodities Act the punishment prescribed thereunder is upto seven years. The offence would not attract the bar of limitation under section 468 of the Code.

'The contention is that the aforesaid limit fixed by the Parliament would have the effect of altering the extent of punishment for the offence under section 7 of the E.C. Act to imprisonment for a period of two years. We cannot agree that the effect of the said proviso was to amend section 7 by making the offence punishable only up to two years. The effect of the proviso is to limit the jurisdiction of the Special Court in awarding sentence. That is different from understanding the extent of the sentence, whether the offence had been reduced by Parliament through a process other than amendment of the provision. One has to look at the punishing provision to know the extent of the sentence prescribed and not at the limit fixed for a particular court in the matter of awarding sentence; e.g. section 326 of the indian Penal Code deals with an offence punishable with imprisonment for life or with imprisonment for a term which may extend to 10 years. But that offence is triable by a Magistrate of first class, the upper limit of whose powers in the matter of awarding sentence is restricted by section 29(2) of the Code as 3 years. By reason of that section it cannot be assumed that the offence under section 326 IPC is punishable only with imprisonment for 3 years.As the offence under section 7A(1)9(ii) of the E.C. Act is punishable with imprisonment upto 7 years the offence would not attract the bar of limitation under section 478 of the Code. It is. therefore, unnecessary for us to consider whether the curative provision in section 473 of the Code should have been invoked'

25. Reference made by the learned single Judge Mr. S.K. Tiwarl in the case of Sakti Sadhan Majhi v. State of West Bengal, the matter was challenged by the Slate of West Bengal in the Supreme Court in SLP (Crl) No. 1242-1243/95 1242-1243/95 . The Supreme Court on the basis of the Judgment in Slate of Wast Bengal v. Falgunt Dutta & Anr. : [1993]3SCR570 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.

26. In view of the above mentioned Supreme Court Judgments the legal position is no longer res integra to be considered by this court since it has been already settled by the apex court.

27. Therefore, considering the instant case from any angle it, however, cannot be construed that as per the State Amendment, sub-section (5) of section 167 of the Code, the discharge of the accused on failure to submit charge-sheet within the lime stipulated therein would be automatic.

P.S. Mishra, C.J.

28. I have the privilege of going through the Judgment by V.K. Gupta, J. and B. Panlgrahl, J. It is irresistible in sum to hold that in all cases where under section 167(5) of the Code, order stopping investigation at the expiry of six months' period is passed by the Magistrate, ' ihe accused is not discharged automalically. The Magistrate has to pass Judicial order after application of mind and upon consideration of all the relevanl facts and other material collected in course of investigation already held and forming part of the material for the reporl under section 173(2) of the Code of Criminal Procedure.

29. The purpose of section 167(5) of the Code is as lo impose a time schedule for completion of investigation and such lime schedule is to commence either from the date of the arrest of the accused or the date when he made his appearance in court. Gupla, J. has discussed all relevant aspects and taken pains to examine relevant provisions of law, scheme of investigation, report and cognizance for the above conclusions.

30. Panlgrahi, J. has supplemented the view taken by Gupta, J. The concluding paragraph in the Judgment of Panlgrahl, J. which is based on the order of the Supreme Court is SLP (Crl) No. 1242-1243 of 1995 notwithstanding, must pertinent views have been expressed by both Gupta, J. and Panlgrahl. J. on the purpose, object and scope of the provisions under section 167(5) of the Code. Supreme Court's order in SLP (Crl) 1242-43 of 1995 has not taken us beyond the statement of law in the Judgment of the Supreme Court in the case of State of West Bengal v. Falguni Dutta & Anr. : [1993]3SCR570 . However, having set aside the judgment of the Special Bench of this court by its order in SLP. (Crl) 1242-1243 of 1995, the Supreme Court has erased the effect of the said Judgment (Spectal Bench judgment in Shakti Sudan Manjhi v. The State, 1994 C.Cr.LR (Crl) 137).

31. Reference has been rightly answered by Gupta, J. Iagree with hisviews.

G.R. Bhattacharjee, J.

32. Criminal Revision 578/89 arises out of a case where the accused Kalyan Kr. Das was arrested on 2*5lh January, 1988 in connection with a case recorded at the police station under section 7(1)(a)(ii) of the Essential Commodities Act, 1955. On completion of investigation the police subsequently submitted charge-sheet against the accused on 12th October, 1988 under the said section of the B.C. Act and the Judge, Special Court (E.C. Act) took cognizance on that charge-sheet on 18th December, 1988. On 27th January, 1989 which was the date fixed for examination of the accused under section 251 Cr.PC the accused filed a petition before the learned Judge. Special Court (E.C: Act) for quashing the proceeding and for acquitting him on the ground that the investigation of the case continued for a period exceeding six months without jurisdiction in violation of section 167(5) Cr.PC and that the cognizance taken on the police-report submitted on the basis of such investigation is therefore bad and illegal. By his impugned order dated the 28th February, 1989 the learned Judge of the Special Court however rejected the said petition. It is against that order of rejection the petitioner has moved this court by filing this revisional application now under consideration. When the said revisional application came up for hearing before one of vis (G.R. Bhatlacharjee, J.) it was felt that the earlier decisions of this court in Ali Hossain v. The State 1979(1) CHN 210, Ram Brikhs v. The State, 1983 Cr.LJ 39 and Jay Sankar Jha v. State AIR 1982 Cr.LJ 744 needed reconsideration in view of the Supreme Court decision in H.N. Rishbud v. State of Delhi, : 1955CriLJ526 on the question of the effect of the illegal continuance of investigation without magisterial permission beyond the prescribed period on the congnlzance taken by court upon charge-sheet submitted on the basis of such investigation and on the proceedings subsequent thereto. This is how the matter has come up before this five-Judge Bench. In the meantime however the special Bench decision of this court in Sakti Sadhan Majhi v. State, 1994 C. Cr.LR 137 (a three-Judge Bench decision) has also come into the picture affirming the earlier view of this court in the above-noted cases that the cognizance and the subsequent proceedings are bad in law if the investigation leading to the submission of charge-sheet was continued beyond the prescribed period in violation of section 167(5) Cr.PC.

33. Criminal Revision C68/92 arises out of a case in which the accused surrendered before the Special Judge (E.C. Court) on 25th August, 1990 in connection with a PS case registered under section 7(1)(a)(ii) of the EC Act. During the continuance of the investigation the accused however filed an application before the learned Special Judge, E.C. Court for an order of stopping of investigation and discharge under section 167(5) Cr.PC on the ground that police had not yet submitted charge-sheet in the case and the investigation was yet continuing although more than six months had elapsed from the date of surrender of the accused before the E.C. Court The learned Special Judge E.C. Court allowed that application by stopping the investigation and releasing the accused by order dated 7.8.91. Against that order the defacto complainant filed the present revisional application in this court. The learned Single Judge while hearing that revisionalapplication, on being confronted by the Special Bench (a three-Judge Bench) decision of this court in Sakti Sadhan Majhi v. State, 1994 C. Cr.LR 137, felt the necessity of reconsideration of that decision by a larger Bench in view of the Supreme Court decision in the State of West Bengal v. Falguni Dutta, : [1993]3SCR570 . This is how this revlslonal application has also come up before this Full Bench.

34. What we are called upon to decide in these revlslonal cases is (1) whether the Single Bench decisions of this court in Ali Hossain (supra), Ram Briksh (supra), the Division Bench decision in Jay Sankar Jha (supra) and the Special/Bench decision in Sokti Sadhan Majhi (supra) have correctly laid down the law that the cognizance and the subsequent proceedings thereafter are bad, illegal and liable to be quashed where such cognizance was taken on the basis of a charge-sheet filed by the police by carrying on the investigation in the case beyond the period prescribed under section 167(5) Cr.PC without obtaining the necessary permission from the concerned Magistrate and (2) whether the two revlslonal cases now under consideration are required to be allowed or dismissed.

35. Here it is necessary to reproduce the provisions of original subsections (5) and (6) of section 167 of the Cr.PC and the amended provisions of the sub-sections as introduced by the West Bengal Amendment Act of 1988. Original sub-sections (5) and (6) of section 167 stood thus :

'167 (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 in necessary.

(6).Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may. If he is satisfied on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section(5) and direct further investigation to be made into the offence subject to such directions wllh regard to ball and other matters as he may specify.'

38. After the introduction of the West Bengal Amendment by the Amendment Act, 1988 the said sub-sections, so far as the State of West Bengal is concerned now run thus :--

'167 (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.

(6).Where any order stopping further investigation into an offence has been made and the accused has been discharged under sub-sections (5), the Sessions Judge may. If he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.' .

37. It has been observed by this court in Dilip Kr. Dos v. State of West Bengal. 1992 C.Cr.LR (Cal.) 350. 1993 Cr.LJ 837, etc. that the provision in 167(5) Cr.PC for stopping the investigation and for discharge of the accused where the investigation could not be completed within the prescribed period has been enacted with the wholesome object of putting pressure on the investigating agency for completing the investigation without undue prolongation and also for protecting the accused from undue harassment of facing a lethargic investigation of indefinite duration. The Supreme Court also in paragraph 7 of the decision in the State of West Bengal v. Falguni Dutta (supra) observed thus :--

'.....Therefore, the Special Court can stop further investigationinto the offence if the investigation is not concluded within a period of six months from the day of arrest of the accused person unless for special reasons and in the interests of justice the continuation of the investigation beyond that period is necessary. In the present case the officer making the investigation had not sought the permission of the Special Court to continue with the investigation even after the expiry of six months. The object of this sub-section clearly is to ensure prompt investigation into an offence triable as summons-case to avoid hardship and harassment to the accused person.'

38. The above observations of the Supreme Court not only highlight the purpose for which section 167(5) has found place in the statute book, namely, to protect the accused from the undue harassment of facing a prolonged investigation without justification, but also brings out the clear import of the language of section 167(5) that if in any case the investigating officer requires more time for completing the investigation it will be for him to seek and obtain permission from the Magistrate and for that purpose he will have to satisfy the Magistrate that for special reasons and in the _ interests of Justice continuation of the investigation beyond the proscribed period in necessary. It is not for the Magistrate to direct suo motu that the investigation be continued, but it is for the investigation officer to move the Magistrate and obtain order for continuation of the investigation by satisfying him that such an order is necessary not for any unspecified or common-place reason but 'for special reasons and in the interests of justice'.

39. In paragraph 8 of the said decision in Falguni Dutta (supra) the Supreme Court made the following observations :--

'Thai takes us to the next question whether the special court can. besides directing stoppage of investigation, entertain and act on a charge-sheet or a police report submitted under section 173(2) of the Code in such cases. The expression 'police report' has been defined under the Code to mean a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173 section 2(r). Section 173 lays down that every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a p'ollce report, a report in the form prescribed by the State Government. It will thus be seen that the police report under section 173(2) has to be submitted as soon as the investigation is complete. Now, if the investigation has been stopped on the expiry of six months or the extended period, if may, by the Magistrate in exercise of power conferred by sub-section (5) of section 167 of the Code, the investigation comes to an end and, therefore, on the completion of the investigation section 173(2) enjoins upon the officer-in-charge of the police station to forward a report in the prescribed form. There is nothing in sub-section (5) of section 167 to suggest that if the investigation has not been completed within the period allowed by that sub-section, the officer-in-charge of the police station will be absolved from the responsibility of filing the police report under section 173(2) of the Code on the stoppage of the investigation.'

40. In the said paragraph of the said decision the Supreme Court also approved the following observation of the Andhra Pradesh High Court in paragraph 13 of the decision in Public Prosecutor, High Court of Hyderabad, 1986 Cr.LJ 1-156 :--

'............. Under the new Code in addition to definition for 'investigation'In section 2(h) a separate definition for 'police report' is given by section 2(R). This coupled with the newly introduced sub-section (5) of section 167 brings out the distinction between investigation by the police and the police report an which a court is to take cognizance. The report cannot now to said to be an integral part of investigation. The introduction of section 167(5) in the Code cannot have the effect of invalidating the investigation done within the period of six months or enabling the court to stopping the Tiling of police report under section 173(2). If the investigation done during the period of six months discloses on offence, a police report may be founded on it and the court can take cognizance of the same.'

The apex court in Falgunl Dutta held that the concerned court was competent to entertain the police report restricted to the investigation covered by the prescribed period and take cognizance on that basis.

41. The legal position as is flowing from the Supreme Court decision in Falgunl Dutta is that even if an incomplete investigation is stopped under section 167(5) Cr.PC yet the investigating officer is required to submit his report to the Magistrate thereafter under section 173(2) on the basis of theInvestigation done before it was stopped under section 167(5), and if the investigation done during the period prescribed under section 167(5) discloses an offence a police report may be founded on it and the court can lawfully take cognizance of the same on the basis of such police report. On the otherhand if insplte of the expiry of the period prescribed under section 167(5) the Magistrate inadvertently falls to record any order stopping the investigation and the investigating officer also unauthorlsedly continuous the investigation beyond the prescribed period without obtaining the required permission from the Magistrate and ultimately submits a police report under section 173(2) the Magistrate can yet lawfully take cognizance on such police report restricted to the investigation done during the prescribed period. There is no question of quashing the cognizance or the subsequent proceedings. In Durgesh Chandra. v. Bimal Chandra, 1996 Cr.LJ 1137 the Supreme Court was faced with the specific question about the effect of non-compliance of section 167(5) as amended in West Bengal upon the case at its trial stage and it has been observed thus by the Supreme Court :--

'8. After giving our anxious consideration to the respective submission of the learned counsel appearing for the parties it appears to us that the language of section 167(5) Cr.PC as amended by the West Bengal Act is quite clear in indicating that the said section is applicable only in a case where the investigation was still pending but not in a case where investigation had been completed and the charge-sheet has been filed. It appears to us that section 167(5) Cr.PC as amended is intended to ensure speedy completion of investigation within the time frame specified therein, otherwise to face an order of discharge of the accused against whom investigation without any Just cause to the satisfaction of the court has been kept pending. Where investigation has been completed, a different situation, not contemplated under section 167(5) Cr.PC emerges. We may indicate here that if criminal case is kept pending for a very long time without any Just cause thereby seriously affecting the guarantee under Article 21 against deprivation of personal liberty, the law if well settled that the court, in an appropriate case may quash the criminal proceeding as indicated in the Constitution Bench decision of this court in A.R. Antulay's case. Hence, unnecessary liberal construction of section 167(5), Cr.PC with a view to protect the right against the deprivation of personal liberty as contended by Mr. Chosli is not called for.'

42. In view of the above mentioned two decisions of the Supreme Court, one in Palguni Dutta [supra] and the other on the West Bengal amendment of section 167(5) in Diirgnsli Chandra v. Blmat Chandra (supra) it is evident that the decision of the Special Bench of this court in Shaktisadhan Majhi v. State (supra), so far as it holds that the cognizance and all subsequent proceedings are bad in law and liable to be quashed where such cognizance is taken on the basis of a charge-sheet submitted after continuing the investigation beyond the prescribed period without obtaining any permission from the Magistrate under section 157(5), is not a good law. Such is therefore the case also in respect of the decisions of this court in AW Hossain. Ram Briksh and Jay Shankur Jha (supra) so far as this particular point is concerned. The Criminal Revision case No. 578/89 in which thecognizance and the post-cognizance proceedings have been sought to be quashed on the ground of non-compliance of section 167(5) therefore must fall on the authority of aforesaid two Supreme Court decisions, and the trial must now proceed in accordance with law.

43. The situation in criminal revision No. 668/92 is different and needs separate and different consideration. There the investigation was yet continuing without permission beyond the prescribed period in violation of section 167(5) and it was at that stage the court on an application of the accused stopped the investigation and released the accused by applying section 167(5).

44. in the statement of objects and reasons accompanying the bill proposing certain amendments to the Criminal Procedure Code. 1973 including section 167(5) for West Bengal, as published in the Calcutta Gazette, Extraordinary, dated the 25th April, 1985 it is stated inter alia, that 'in order to expedite investigations in the pro-trial and pro-commitment proceedings ..... It is also necessary to make suitable amendments in the relevant sections' of the Code of Criminal Procedure. The difference between the circumstances warranting an order of discharge under section 167(5) and section 245(3) Cr.PC has been elaborately discussed in the decision of this court in Suresh Prasad Shaw v. State of West Bengal, 1994 C.CrLR (Cal.) 97. 1994 (1) CHN 415, etc. A study of the amended provisions of section 167(5) in the light of the object behind the amendment and in the light of the Supreme Court decisions and observations referred to above will make it clear that on the expiry of the period prescribed under section 167(5) a statutory fight accrues in favour of the petitioner to obtain an order from the Magistrate stopping the investigation' and also discharging him unless the investigating officer satisfies the Magistrate that for special reasons and in the interests of Justice continuation of investigation beyond the prescribed period is necessary. It has also to be pointed out here again that the purpose of sub-section (5) of section 167 is to protect the accused from harassment by unduly prolonged investigation. This being a remedial provision it must be interpreted in such a manner as can suppress the mischief and advance the remedy and not the other way round. Keeping that in view it has also to be noticed that the language of sub-section (5) of section 167 casts a positive duty and responsibility upon the Magistrate to make an order stopping further investigation into the offence and discharge the accused on the expiration of the period prescribed therein, if the investigation has not been concluded yet, without waiting for any application or prayer from the accused. The language used in this connection is 'the Magistrate shall make an order'. He is not required to waft for being moved by the accused for passing an order to that effect. It is his own statutory responsibility to pass an order in the matter. This duty or responsibility of the Magistrate is however subject to the ridder '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 mentioned in this subsection is necessary'. Here the language used is very clear of the legislative intent that the responsibility is upon the investigating officer to satisfy the Magistrate at the appropriate stage about the necessity of continuing the investigation beyond the prescribed period and that too, for certainstatutorlly specified reasons. It is not for the Magistrate to suo motu start an enquiry without being moved by the investigating officer at the appropriate time, as to whether the continuation of the investigation beyond the prescribed period is necessary for statutorily specified reasons. Having regard to the object and the language of section 167(5) and to the decisions of the Supreme Court relevant for the purpose as noted above it is evident that immediately at the expiry of the prescribed period the Magistrate has to pass an order stopping further investigation and simultaneously discharge the accused unless the investigating officer, at least at that point of time, if not earlier, has satisfied the Magistrate about the necessity of continuing the investigation beyond the prescribed period. The words 'and shall discharge the accused' as used in the amended section 167(5) adds an imperative and pointed dimension to the situation obtaining at that stage requiring the Magistrate not only to stop the investigation but also to simultaneously discharge the accused. The responsibility being with the 1.O to satisfy the Magistrate about the necessity of continuing the investigation beyond the prescribed period--not for any common place reason but for special reasons in the interests of justice--any prayer for extension of time will have to be made by the 1.O, in view of the language used in sub-section (5). before the expiry of the prescribed period inasmuch as once the prescribed period is over there will be no scope for the Magistrate subsequently to pass any order for continuing investigation. That is the consistent view which has been taken by this court in a number of earlier decisions, such as AH Hossain v. State of West Bengal (1979) 1 CHN 210, Ramkumar v. State, 1981 Cr.LJ 1288. Jay Shankar Jha v. State, (1982) 1 CHN 24, Ram Brikhs v. State 1983 Cr LJ 39, and Pappa Rao v. State. (1985) 1 CHN 1, and this view seems to be the correct and preferable view which will maintain the cherished balance between the right of the accused to obtain under the legislative mandate an order of discharge on the expiry of the prescribed period under section 167(5) thereby securing protection against oppressively lethargic investigation and also an antecedent opportunity to a vigilant 1.O. to obtain a forerunning order from the Magistrate for continuation of investigation beyond the prescribed period in a suitable case if he can, upto the onerous standard laid down by the legislature, satisfy the Magistrate before the expiry of such period about the necessity of continuing the investigation beyond that period. The situation that after the expiry of the prescribed period the 1.O. loses the opportunity to obtain permission of the Magistrate for continuing the investigation beyond the prescribed period is also matched by the situation emerging from the decision of the Supreme Court in Durgesh Chandra v. Bimaf Chadra (supra) that the right of the accused to obtain an order of stopping the investigation and of discharge under section 167(5) also ceases to exist the moment the charge-sheet is submitted after continuing the investigation without permission beyond the prescribed period. If it is assumed that it was the intention of the legislature that the l.O. could make a prayer for continuing the investigation beyond the prescribed period at any distant or subsequent point of time after the expiry of that period in that case the entire matter will be virtually left to the mercy of the investigating officer thereby frustrating the very basic purpose of section 167(5) aimed at putting pressure on the investigation agency either to complete the investigation within the prescribed lime on pain of closure of investigation and discharge of accused or Lo seek and obtain permission at the right stage to conlinue the investigation. That the legislature wanted the Magistrate to pass an order slopping the investigation and discharging the accused on the expiry of the prescribed period where the I.O did not come forward to satisfy the Magistrate within time that continuation of investigation was yel necessary is also evident from the fact that the legislature has kept the door open for the investigation agency to approach the Sessions Judge under subsection (6) of section 167 for obtaining order to make further investigation in a fit case even after the expiry of the prescribed period. It therefore cannot be said that if for any unavoidable reason or for any lapse on the part of the i.O it did not become possible for him to-approach and satisfy the Magistrate at the appropriate time about the necessity of continuing the investigation beyond the prescribed period, all chances of further investigation; is lost. The investigating agency may yet avail the opportunity of further investigation by taking recourse to section 167(6).

45. In the case involved in the criminal revision 668/92 the accused surrendered before the Special Judge, B.C. Court and was granted bail by such court, but the investigation was not completed within six months thereafter nor was any charge-sheet submitted and the accused filed an application after a lapse of one year for discharge under section 167(5) Cr.PC when no charge-sheet had yet ben filed. The learned Special Judge heard that application in presence of the learned Advocate for the State as well as the learned Advocate for the accused both of whom also addressed him during the hearing. The objection to the application under section 167(5) that was taken before the learned Special Judge on behalf of the State was that section 167(5) would not apply in a proceeding under section 7(1)(a)(ii) of the E.C. Act before the Special Judge empowered under the said Act to try such case according to the summary procedure as a summons-case. The learned Special Judge however did not accept that contention raised on behalf of the Stale and held that section 167(5) Cr.PC would apply even to such a proceeding. In this rcvlslonal proceeding before the High Court against that order the dcfacto-complalnant raised two points, one in the original revlslonal application and the other in the supplementary affidavit filed in this revistonal proceeding. These two points are (1) that section 167(5) Cr.PC does not apply to the proceeding before a Special Judge, E.G. Act in respect of an offence punishable under section 7(1)(a)(ii) E.C. Act, and (2) since the accused surrendered before the Special Judge and was not arrested, section 167(5) would not apply in the case. As regards the first point of objection it has since been held in the decision in Falgun Dutta (supra) by the Supreme Court that section 167(5) Cr.PC applies also to a proceeding before the Special Court tinder E.C. Act in respect of an offence punishable under section 7(1)(a)(ii) of the Act. As regards the other point as to whether an accused who is not arrested, but who surrenders before the court during the continuance of the investigation would be entitled to the benefit of section 167(5), the language of the West Bengal Amendment is so clear that if leaves no scope for any confusion in the matter. In the West Bengal Amendment of section 167(5) the relevant expression is 'from the date on which the accused was arrested or made his appearance'. Therefore the sub-section itself envisages not only a case where the accused is arrested but also a case where an accused makes his appearance before the court by surrendering in the court. Consequently section 167(5) obviously applies to this case.

46. Evidently, the investigation continued beyond the prescribed period without obtaining any permission from the concerned court under section 167(5) and therefore rightly the learned court below, on the application of the accused, passed an order stopping investigation and releasing the accused under section 167(6). In the context of the original provisions in section 167(5) Cr.PC the Supreme Court in paragraph 8 of the decision in Hussamara Khatoon v. State of Bihar. : 1979CriLJ1052 observed that'... In such a case the Magistrate is bound lo make an order stopping further investigation and in that event, only two courses would be open: either the police must immediately proceed lo file a charge-sheet. If the investigation conducted till then warrants such a course, or if no case for proceeding against the under trial prisoner is disclosed by the investigation, the under trial prisoner must be released forthwith from delention'. it may be reiterated here that the Supreme Court was considering in that decision the original section 167(5) Cr.PC and not the West Bengal Amendment of the same which, as we have seen, contains in that context the additional words 'and shall discharge the accused'. There is no doubt, having regard lo the language and object of section 167(5) that immediately on the expiry of the prescribed period the Magistrate has a responsibility and obligation to pass an order, even suo motu. stopping the investigation and discharging the accused if the investigation lias not been completed and this he has lo do without walling for any application from the accused for discharge or for any application from the 10 to permit continuation of investigation. Since this responsibility has been laid on the Magistrate which he has to discharge even by acting suo motu in the matter, the onus of the investigating officer to satisfy the Magistrate that for special reasons and in the interest of Justice the investigation may be permitted to continue beyond the prescribed period will have lo be discharged by the investigation Officer, if he wants to take the benefit of that provision, at or before the time when the Magistrate is statutory required to pass an order slopping investigation and discharging the accused under section 167(5). Even in a case where the Magistrate due to oblivion or for not being moved by the accused fails to make an order slopping investimation and discharging the accused immediately on the expiry of the prescribed-period, that does not give rise to a benefit or right in favour of the investigating officer to approach the Magistrate at any fulure point of lime at his leisure subsequent to the expiry of the prescribed period for such permission with or without retrospective effect of for ex post facto permission for the purpose of defeating the right which has already accrued and matured in favour of the accused but which was inadvertently not given effect to by the Magistrate at the appropriate time. Any such latitude, if granted lo the 1O. lo approach the Magistrate at any time at his leisure for ex post facto permission lo regularise the illegal investigation done beyond the prescribed period without permission or for prospective permission to continue the invesligation will defeat the very purpose of section 167(5) and in that case the enforcement of the said provision will be left to the vagary of the 10 pampered by the inaction on the part of the Magistrate to discharge his statutory responsibility under section 167(5) at the appropriate time. Certainly if the Magistrate fails to discharge his responsibility to stop the investigation and discharge the accused under section 167(5) at the appropriate time the accused can subsequently approach the Magistrate for such an order before the charge-sheet is filed but that will not give the iO an opportunity to pray for extension of time to the Magistrate at that stage after he has already missed that opportunity which was available to him at the appropriate stage earlier. Similarly even if the Magistrate by oblivion fails to respond to his responsibility at the appropriate time to pass an order stopping investigation and discharging the accused the right of the accused to approach the Magistrate for such an order survives thereafter only during the illegal continuance of the investigation beyond the prescribed period and not further beyond and his right to enforce the relief available under section 167(5) lapses and becomes extinct as soon as the investigating officer flies charge-sheet in the case, in view of the decision of the Supreme Court in Durgesh Chandra v. Bimal Chandra (supra).

47. It is also the inescapable conclusion emerging from the object and language of the section 167(5) and the relevant Supreme Court decisions that the order for stopping the investigation and discharging the accused is a composite one-stage or same-stage order. It is not that at one stage the Magistrate will Just pass an order stopping the investigation and will thereafter at a subsequent stage pass an order of discharge of accused under section 167(5). It is also not at all envisaged by section 167(5) that while the Magistrate may pass an order stopping investigation, he will yet have the liberty not to pass an order of discharge of accused under section 167(5) or to refuse discharge insplte of stopping the investigation. If an order stopping investigation is warranted under section 167(5) it cannot be consciously deferred as that will amount to a conscious act of frustrating the letter and spirit of the legislative mandate and the purpose behind it, nor can the Magistrate say that 'I will stop the investigation but, shall not discharge the accused at the same '. Stopping of investigation and discharge of accused cannot be split up and treated as two phases of a phenomenon, far less as two independent phenomena of section 167(5). 'They must go hand in hand. 'Discharge' envisaged in sub-section (5) is not a discharge on merit but is a statutory discharge on the fulfilment of the conditions mentioned therein and is an inseparable projection of the statutory consequence of stopping of investigation. To say that even after stopping the investigation under sub-section (5) the Magistrate will have to yet consider subsequently and separately whether an order of discharge is warranted and may even refuse discharge under the said sub-section on consideration of merit insplte of stopping of investigation is a proposition which will not only be contrary to the letter and spirit of the sub-section but will also be inconsistent with the import of the observation of the Supreme Court in Paragraph 8 of the decision in Durgesh Chandra v. Bimal Chandra 1996 Cr LJ 1137 which I have quoted earlier where the Supreme Court has recorded that'......... section 167(5) Cr.PC as amended is intended to ensure speedy completion of investigation within the time frame specified therein, otherwise to face an order of discharge of the accused ......'

48. The question of giving any notice or opportunity of hearing to the first informant at that stage also does not arise in a case where the Magistrate is exercising his Jurisdiction under section 167(5). It is true that in view of the decisions of the Supreme Court in Bhagwant Singh v. Commissioner of Police, : 1985CriLJ1521 , Union Public Service Commissioner v. S. Papaloh, JT 1997 (8) SC 24. RupanDeolBazazv. KPSGIU, 1996 Cr.LJ 381 the Magistrate is required to give notice and hearing to the first informant where he decides not to proceed against an accused, but it has also to be noticed from a reading of those decisions that the question of giving notice and hearing to the first informant only arises when the Magistrate on receipt of police report under section 173(2) considers the question of taking cognizance thereon and decides to drop the proceeding as a whole or against some persons mentioned in the first information report. Those decisions of the Supreme Court have no application to a situation where no police report or charge-sheet has yet been submitted, in all those cases the Supreme Court was considering the question whether on receipt of police report the first informant should be given notice and hearing if the Magistrate decides not to proceed against the accused. The following observation of the Supreme Court in paragraph 4 of the decision in Bhagwant Singh V. Commissioner p/ Police (supra) makes the point clear:

'There can, therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under sub-section (2) (I) of section 173, the Magistrate is not inclined to take cognizance of the offence and issue process the informant must be given an opportunity of being heard so that he can make his submissions to pursued the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2) (1) of section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.'

49. Where however the statutory provisions, namely, section 167(5) Cr.PC itself requires. In the particular circumstances, to pass an order stopping investigation and discharging the accused with a view to protecting the accused from undue harassment of prolonged investigation without justification, there is no question of giving notice or heating to the first informant, firstly because no police report under section 173(2) is at all forthcoming at that stage and secondly because if the requirement of notice and hearing even before submission of the charge-sheet or police report is inducted at that stage of section 167(5) that will frustrate the very purpose of that provision inasmuch as notice and hearing after the expiry of the prescribed period will itself consume a considerable period thereby keeping the matter pending which would amount to ushering in a situation wholly contrary to the letter and spirit as well as the very purpose of section 167(5).

50. The position therefore boils down to this that where the investigation officer has not satisfied the Magistrate on statutorlly required special reasons (as distinct from mere common-place reasons) about the necessity of continuing the investigation beyond the prescribed period the Magistrate is duty bound to pass order, even suo motu, under section 167(5) Cr.PC stopping the investigation and discharging the accused immediately after the expiry of the period prescribed under section 167(5) and if the Magistrate falls to discharge that responsibility the accused can certainly move the Magistrate thereafter lor passing (.he order stopping the investigation and discharging the accused in which case also the Magistrate must pass such order by rectifying his earlier inaction in the mailer of passing the appropriate order immediately after the expiry of the prescribed period, but of course not after the charge-sheet has been submitted. It has also to be noted against here that after the expiry of the prescribed period the investigating officer will have no opportunity to approach the Magistrate for permission under section 167(5) with or without retrospective effect or for ex post facts permission to continue the investigation beyond the prescribed period if he has not earlier obtained such order within lime. If section 167(5) is so interpreted as to give a leisurely liberty to the iO to approach the Magistrate at any time even after the expiry of the prescribed period--no matter whether soon after or long after such expiry--for permission to continue the investigation, in that case the relief purportedly sought to be given to the accused by the legislature on the expiry of the prescribed period will prove to be illusory for all practical purposes and the iO will be free from any urge to complete the investigation expedltiously thereby frustrating the intended impact of section 167(5). Such an interpretation will revert will revert the entire position back to square I (one).--a situation that itself necessitated legislative intervention in the form of making a pressure-charged provision like section 167(5), yet leaving a scope tor the investigating agency to take recourse to sub-section (6) in a fit case. Section 167(5) therefore must be so interpreted as to make it frullful and not nugatory. Again the accused also would lose the opportunity of having an order of slopping investigation and discharging him under section 167(5) if the Magistrate did not pass such order inadvertently in time and the accused also failed to move the Magistrate for such order due to his ignorance or . for whatever other reason might it be, and in the meantime the charge-sheet has been submitted, because at that stage section 167(5) becomes a spent up entity for operational purpose.

51. It is also needless to mention that discharge of the accused under section 167(5) does not amount to acquittal in view of the explanation to section 300 Cr.PC and therefore if at any subsequent stage the investigating officer submits charge-sheet and the Magistrate lakes cognizance being restricted to the investigation carried on during the prescribed period, there will be no bar for the court to enforce the appearance or production of the accused by issuing suitable process after taking cognizance although he might have been earlier discharged under sectlon-167(5). The question as to how the Magistrate has to act on receipt of a police report for the purpose of cognizance has been dealt with in several decisions of the Supreme Court, such as. Abhinandan Jha v. Dinesh Mishra, : 1968CriLJ97 , Raghubans Dubey v. State of Bihar. 1967 Cr.LJ 1081, fthagwant Stngh v. Commissioner of Police, : 1985CriLJ1521 etc. but we are not concerned with that question here because the whole exercise under section 167(5) with which we are concerned now is an exercise wholly anterior to the submission of the chargesheet or police report and therefore the question as to what the Magistrate has to do after he receives a police report need not trouble us in this case as the question of exercise of Jurisdiction under section 167(5) is totally different and separate from the question of exercise of Jurisdiction after receiving the charge-sheet or police report. In the present case the learned court below was therefore wholly Justified and rather imperatively required to pass the impugned order in favour of the accused under section 167(5) Cr.PC as the investigation was not concluded within the prescribed period, no police report was submitted yet and no permission was ever sought for or obtained by the i.O to continue the investigation beyond the prescribed period. It has also to be pointed out here that the order of discharge required to be passed under section 167(5) Cr.PC may have different consequences in different circumstances, viz, it will mean release or discharge of the accused from bail bond if he was on bail at that time or it will mean release or discharge from custody if he was in custody at that time. That question also need not trouble us in the present case. The learned Special Judge in the present case has passed an order stopping the investigation and releasing the accused. May be that it was a slightly loose choice of phraseology on the part of the court below to use the word 'release' in this context instead of the statutory word 'discharge'. But a mere use of a synonymous or cognate phraseology--(both 'release' and 'discharge' having a common dictionary meaning 'to set free')--will not make the order bad when the particular order has been purportlngly passed within the ambit of the particular statutory provision, clearly projecting the connotation inhering in the provision. The word 'release' used by the learned court below in this case obviously means and connotes 'discharge* as used in section 167(5). Take an illustration where an authority passes an order 'rejecting' an application when the statutory provision says that he may 'disallow' the application. It can not possibly be argued that the order is bad simply because it has used the word 'rejected' instead of the word 'disallowed'. Similar is the position here also. There is therefore no reason to interfere with the impugned order in this revislonal application because that is the only order which was lawfully warranted in the circumstances of the case at that stage or even earlier. That order however did not debar recourse to sub-section (6) of section 167 or submission of police report under section 173(2) Cr.PC in accordance with law. Be that as it may, the impugned order, for reasons elaborately discussed, is a good and valid order and there is no reason for this court to interfere in this matter at this stage. Accordingly both the revislonal cases are dismissed.

13.7.78. In view of the majority opinion of the court and the concurrent view of The Chief Justice, V. K. Gupta J. N. A. Chowdhury J. and Basudev Panigrahi J. the above revislonal applications have to be ordered in the light of the Judgment of V. K. Gupta J. Contra view of Bhattacharjee J. being the minority view will not be applicable until the majority view holds the field. All revislonal applications shall, accordingly, be placed before the appropriate Bench for being ordered in terms of the Judgment of the majority of the court

P. S. Mlshra CJ.

V. K. Gupta, J.

N. A. Chowdhury, J.

Basudeva Panigrahl, J.

G.R. Bhattacharjee, J.

52. The above observations, with the due respect, are not warranted as my Judgment may be operative on points not covered by or dealt with in majority Judgment.