P.K. Biswas, J.
1. This is an application under Section 482 of the Code of Criminal Procedure filed at the instance of one Anup Kumar Roy, petitioner herein seeking to quash the proceeding of G.R. Case No. 327 of 1981 now pending before the Court of learned Metropolitan Magistrate, 5th Court, Calcutta and which arose out of Section 'A' (Shyampukur P.S.) case No. 327 dated 29.9.81 under Sections 304/314/201/34 of the Indian Penal Code.
2. The short facts leading to the filing of the present revisional application are as under :-
The present petitioner was arraigned as an accused in connection with aforesaid case for commission of an offence punishable under Sections 304/314/201/34 of the Indian Penal Code allegedly committed by him in collusion with others.
3. In the aforesaid case, it was, inter alia, alleged that on 28.9.81 at about 7 P.M. Smt. Parul Rani Halder, aged about 25 years, widow of late Nirmal Chandra Halder, being conceived was admitted at Green Ways Nursing Home situated at 187B, A.P.C. Road, 1st floor, Calcutta-4 under Shyampukur Police Station, under Dr. Birendra Mohan Banerjee for causing abortion and she died due to miscarriage caused by Dr. Birendra Mohan Banerjee and in order to conceal the evidence, Dr. Birendra Mohan Banerjee with the help of his wife Smt. Mukti Banerjee and Dr. Anup Roy and Dipak Sharmacharjee removed the dead body of Parul Halder at Nimtala burning ghat on 29.9.81 early morning with the help of a van of Hindu Satkar Samity and got the dead body of Parul Halder cremated at Nimtola burning ghat with the false name of Parul Rani Halder as Parul Rani Devi after giving false address in the death certificate as well as in the death register and aforesaid Mukti Banerjee signed in the death Register as Chitra Mondal to conceal the evidence of admission of Parul Halder in the Nursing Home as well as her death.
4. It has been alleged by the petitioner that he is absolutely innocent and in no way connected with the aforesaid offence and he has been falsely tagged with the aforesaid case.
5. It was further alleged by the petitioner that he was arrested on 29.9.81 in connection with the aforesaid case and subsequently released on bail on 30.9.81 and as he investigating agency had failed to complete the investigation within a considerable period the petitioner was discharged from the aforesaid case by the learned Additional Chief Metropolitan Magistrate, Calcutta on 10.4.85 for non-submission of the charge sheet.
6. It has further been alleged that on 26.5.89, all on a sudden, the investigating agency after completion of the investigation submitted its report in final form, inter alia, alleging commission of an offence punishable under Sections 304/201/34 of the Indian Penal Code allegedly committed by the present petitioner and Smt. Mukti Banerjee.
7. Upon receipt of the said report, the learned Magistrate was pleased to issue process against the present petitioner and the petitioner on receipt of the same appeared before the Court of the learned Additional Chief Metropolitan Magistrate, Calcutta on 29.6.89 and was released on bail.
8. It has been alleged that since the investigation of this case was committed by the investigating agency in violation of the provision of Section 167(5) of the Code of Criminal Procedure as amended by West Bengal Act No. 24/88 without taking any prior permission from the Court of the learned Magistrate for extension of the period, the present petitioner preferred an application before the Court of the learned Metropolitan Magistrate, 5th Court, Calcutta before whom the case has been transferred praying, inter alia, for dropping of the case as well as discharge of the present petitioner from the said case.
9. But the aforesaid learned Court was pleased, by his order dated 27.5.94, to turn down the aforesaid prayer of the present petitioner holding inter alia, as the cognizance has already been taken, the application was premature and the petitioner was given a liberty to agitate the same point before the Court of the learned Sessions Judge before whom the case was to be committed.
10. Now being aggrieved by and dissatisfied with the continuance of the aforesaid proceeding on the basis of the report submitted by the police in utter violation of the provision of Section 167(5) of Criminal Procedure Code the present revisional application has been directed alleging therein that the investigating agency has taken extreme latitude in filing the report under Section 173(2) of the Cr. PC although it was incumbent upon them to take recourse to the provisions of Section 167(6) of Cr.PC for setting aside of the order of the learned Magistrate, yet, the case has been proceeded without doing that and been in violation of the mandates given by the Apex Court in connection with the concerned matter. Hence, they have come up for the quashing of the aforesaid proceeding.
11. I have heard the learned counsel appearing for the petitioner as also the learned P.P. at length over this issue.
12. The learned advocate appearing for the petitioner has submitted before me that here in this case, the case was started on 29.9.81 and the present petitioner was also arrested on the same day, but since in the concerned case, the police could not submit charge-sheet within the statutory period the petitioner was discharged, by the concerned Court for not filing the charge-sheet, on 10.4.85. It has further been submitted by him that although it is now clear that there is nothing in Sub-section 5 of Section 167 to suggest that if the investigation had 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 of Criminal Procedure on the stoppage of the investigation and, yet, in such a situation, the concerned Court was competent to entertain the police report restricted to investigation within the statutory period and to take cognizance on the basis thereof. But, here in this case, although the instant case was started on 29.9.81, yet, for non-filing of the charge-sheet within the statutory period, the accused petitioner was discharged by the concerned Court on 10.4.85, even after that the investigating agency did not take any action under Sub-section 6 of Section 167 of the Code of Criminal Procedure by approaching the Sessions Judge praying for vacating the order made under Sub-section 5 and to allow the investigating agency to proceed with the investigation of this case in terms of the order passed under Section 167(6), but here without doing that straightway the investigating agency has filed the charge-sheet on 26.5.89 almost after a lapse of about 4 years from the date of discharge and such action of the prosecution is neither permissible and nor warranted under law and the concerned Court also was not justified in taking the cognizance on the basis of such charge-sheet submitted much beyond the statutory period inasmuch as this has clearly violated the mandate of the Apex Court also as held in case of Nirmal Kanti Roy v. The State of West Bengal reported in 1988(3) Criminal Law Journal 3282.
13. The learned P.P. placing reliance on the ratio of the aforesaid decision and specially placing his reliance to the principles, as enunciated by the aforesaid decision paragraphs 7 and 8, has submitted before me as per the aforesaid decision, the Court has every right to look into the materials collected by he investigating agency within the statutory period and here also, upon such available materials, there is certainly enough materials to proceed in connection with this case against the present accused person and as such quashing as prayed for is not permissible.
14. I have given my anxious consideration over this submissions made by the parties in connection with this case and I have also gone through the judgment of the Apex Court reported in 1988(3) CRLJ 3282 (supra) and reading the aforesaid judgment with meticulous care, I find that although it has been held in the aforesaid judgment that the order of 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 Sub-section (5) and the aforesaid sub-section confers power on the Court to refrain from stopping such investigation if the investigating officer satisfied the Court of the fusion of two premises.
1. That in the interest of justice it is necessary to proceed with the investigation beyond the period shown in Sub-section 5,
2. There are special reasons to do so. In the aforesaid judgment, it was further held that Sub-section 6 of Section 167 further shows that even in a case where the order of stopping investigation and the consequent discharge of the 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 Sessions Judge is satisfied that 'further investigation into the offence ought to be made' he has the power to allow the investigation to proceed.
15. Ultimately, it was held by the Apex Court in the aforesaid judgment that the time schedule shown under 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 learned Magistrate should necessarily pass orders of the 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. The Magistrate at that stage must look into the records of the investigation to ascertain the progress of the investigation thus far registered. If substantial part of the investigation was by then over, the Magistrate should seriously ponder over the question, whether it would be conducive to the interest of justice to stop further investigation and discharge the accused.
16. But, here in this case on the available materials, I find that the investigating agency although started the case on 29.5.81, yet, they did not take any step to satisfy the concerned Court by filing application that in the interest of justice it is necessary to proceed with the investigationbeyond the period shown in the sub-section and that there were special reasons to do so before the discharge of this accused person on 10.4.85 and after discharge the investigating agency also did not approach the Sessions Judge under Sub-section 6 praying for vacating the aforesaid order passed by the learned Magistrate and/or to allow them to proceed with further investigation of this case and without doing that the investigating agency straightway has come up with a charge-sheet after a lapse of little more than 4 years from he date of discharge of the aforesaid accused in connection with this case.
17. I am afraid that such latitude is neither permissible nor warranted in any event upon the facts and circumstances of this case and the aforesaid decision, in my humble opinion, does not authorise the investigating agency to take such latitude in filing the charge-sheet under such circumstances without taking recourse to Sub-section (6) of Section 167 of Cr.PC. In that view of the fact, I am unable to accept the contention of the learned Public Prosecutor here and accordingly, I hold that in the instant case, the Court should not have acted on the charge-sheet filed in connection with this case on 26.5.89 which is much beyond the entire admissible statutory period, even as per the amended provision of the West Bengal Amendment Act 24 of 1988.
18. So, cognizance taken by the concerned Court on such charge-sheet is absolutely void and cannot at all be acted upon and therefore, the continuation of the proceeding against the present petitioner on the basis of the aforesaid cognizance is absolutely untenable in law and the aforesaid proceeding so far as it relates to the present petitioner should be quashed.
19. In view of what I have stated above, I hold that the present proceeding in G.R. Case No. 327 of 1981 pending before the Court of learned Metropolitan Magistrate, 5th Court, Calcutta should be quashed.
The aforesaid proceeding is therefore, quashed.
The Revisional Application is thus disposed of accordingly.
Let a copy of this order be forwarded to the concerned Court for information and necessary compliance.