Subrtapatra and ors. Vs. Director of Panchayat and ors. - Court Judgment

Excerpt:
- ordernisith kumar batbyal, j. 1. twenty-one criminal revisional application involving common question of law have been taken up together for orders here.1a. in criming revision no. 434, of 1994 (baidyanath bose and ors. v. state), the petitioner no. 1 is the branch manager of hooghly district central co-operative bank ltd., haripal branch. petitioner nos. 3 and 4 are cultivators. other petitioners are doing various works. on 8-4-1983 the chief accountant of hooghly district central co-operative bank ltd. lodged a complaint at chinsurah p. s. to the effect that the petitioner no. 2 along with the other petitioners committed cheating in respect of a huge sum of money by way of criminal conspiracy and forgery of documents. accordingly, chinsurah p. s. case no. 4, dated 8-4-83 was started.....

Judgment:
ORDER

Nisith Kumar Batbyal, J.

1. Twenty-one Criminal Revisional Application involving common question of law have been taken up together for orders here.

1A. In Criming Revision No. 434, of 1994 (Baidyanath Bose and Ors. v. State), the petitioner No. 1 is the Branch Manager of Hooghly District Central Co-Operative Bank Ltd., Haripal Branch. Petitioner Nos. 3 and 4 are Cultivators. Other petitioners are doing various works. On 8-4-1983 the Chief Accountant of Hooghly District Central Co-Operative Bank Ltd. lodged a complaint at Chinsurah P. S. to the effect that the petitioner No. 2 along with the other petitioners committed cheating in respect of a huge sum of money by way of criminal conspiracy and forgery of documents. Accordingly, Chinsurah P. S. Case No. 4, dated 8-4-83 was started under Sections 468/420/120B of the IPC The petitioners were granted anticipatory bail by the High Court and some of them surrendered before the Ld. SDJM of 17-6-83 and the rest on 25-6-83. The final report was submitted on 28-2-90. There was a protest-petition filed by the de-facto complainant. Ultimately the final report was not accepted and the Learned Magistrate directed re-investigation. Charge-sheet was submitted on 18-1-94 and the Ld. Magistrate took cognizance from that date. The contention of the petitioners is that as the amended provision of Section 167(5) of the Cr. P.C. came into effect on and from 2-5-1989 and as the IO merely prayed for time on 2-6-89, 30-8-89 and 17-9-93 and the Learned Magistrate mechanically allowed the prayers without application of mind, therefore, they were entitled to an order of discharge on the expiry of the stipulated period under the amended provisions of the Cr. P.C. Accordingly the petitioners have come before this Court for quashing the preceedings being GR Case No. 4 dated 8-4-83.

2. In Criminal Revision In Re: (Niranjan Pandit v. State), the petitioner No. 1 is the husband of the victim wife and the petitioners Nos.2 and 3 are the brothers of the accused-husband. The petitioner No. 4 is the sister of the husband and the petitioner No. 5 is his mother. It was alleged in the FIR filed on 24-4-89 that the wife had committed suicide by taking poison due to the mental and physical torture of the accused persons. The petitioner Nos. 1 and 2 were arrested on 24-8-89 and the petitioner No. 3 surrendered on 19-5-89 and the petitioner Nos. 4 and 5 on 6-6-89. Charge-sheet was submitted on 11-10-93 after discharge order was passed on 1-1-93. The Ld. Magistrate by order dated 11-3-94 has been pleased to hold that the court can take cognizance even after the expiry of the statutory period, in view of the reported decision of the apex Court of our land in State of West Bengal v. Falguni Dutta and Anr. 1993 C.Cr. LR (SC) 125. Being aggrieved by the said order of the Ld. Magistrate, the petitioners have come before this Court for quashing the proceedings.

3. In Criminal Revision In Re: (Bhabesh Ch. Barman v. State), the petitioner surrendered in the Court of the Ld. Special Judge under E.C. Act. Cooch-behar on 24-10-90 in connection with Mathabhanga PS Case No. 57 dated 24-10-90 under Section 7(1)(a)(ii) of the E.C. Act. Charge-sheet was submitted under the said Section on 27-4-93 and cognizance was taken on that date. The petitioner contends that as charge-sheet was submitted beyond six months from 24-10-90, there being no extension of the time for investigation according to law, he was entitled to an order of discharge on the expiry of the stipulated time. He has come before this court for quashing ECGR Case No. 11/90 now pending in the court of the Ld. Special Judge (E.C. Act.), Coach-behar.

4. In Criminal Revision No. 654/94 (Asit Baran Rout v. State), the petitioners are Store-Keepers of different Grades in the W.B. State Electricity Board. Accused, Asit Baran and Bikash Bose were arrested on 19-9-89 for an offence under Sections 468/471/409/120B of the IPC read with Section 6(2) of the Prevention of Corruption Act and accused, Sunil Dey surrendered on 11-6-90. Charge-sheet was submitted on 24-5-91. It is alleged that there was no extension of time for investigation after the expiry of the stipulated period according to law. The revisionist, have come before this court for quashing the criminal revision being GR Case No. 1570 of 1982 in the Second Court of JM. Jalpaiguri.

5. In Criminal Revision No. 209/92 (Chittaranjan Bera v. State), the petitioner was arrested on 18-11-90 for an offence under Section 7(1)(a)(ii) of the E.C. Act and chargesheet was submitted on 26-7-91. There was no prayer, it is alleged, for extension of the time of investigation according to law after the expiry of the stipulated period of investigation. On 8-10-91, the petitioner made an application for discharging him under Section 167(5) of the Cr. PC. The Ld. Special Judge dismissed the petition on 11-11-91. Being aggrieved by the said order the petitioner has come before this Court for quashing the said order and the proceedings.

6. In Criminal Revision No. 400/94 (Smt. Chaity San.yal (Jash) v. State), the petitioner is Sales-Girl/Office Assistant of LPG. Section of Bandel Thermal Power Employees Co-operative Strores Ltd. On the complaint of the Secretary of the said Co-Operative, Megra PS Case No. 27 dated 29-1-90 was started under Section 408 IPC against her and she was arrested on 21-9-90. On 29-4-93, the learned Magistrate stopped further investigation and discharged the accused person. Against that two revisional applications being Criminal Misc. Case No. 932 and No. 933 of 1993 were filed in the Court of the Ld. Sessions Judge, Hooghly. The Learned Judge set aside the order of discharge and directed resumption of investigation. It has been contended that the Learned Sessions Judge acted with patent illegality and impropriety in passing the impugned order over-looking the mandatory provisions of Section 167(6) of the Cr. PC Hence the revisional application for quashing the criminal proceeding.

7. In Criminal Revision No. 1021/91 (Mantu Saha v. State), the petitioner, a registered Dealer of rice of Malda with three other Registered Dealers of rice used the godown owned by one Shri Tapan Saha. On 7-2-89, the Inspector of Police, EB. held a raid in the said godown. The Inspector required the petitioner to produce his Register and papers for physical verification, stocks etc. but the petitioner failed to produce the same. For violation of the previsions of West Bengal Declaration of Stocks and Price of Essential Commodities Order, 1977 and the West Bengal Rice & Paddy (Licencing and Control) Order, 1967, a case under Section 7(1)(a)(ii) of the E.C. Act was started and the petitioner was arrested on 7-2-89 in connection with Habibpur PS Case No. 7 dated 7-2-89. Chargesheet was submitted on 6-9-90. On 26-12-90, the Learned Judge, Special Court (E.C. Act), Malda took cognizance. On 27-3-91 the petitioner filed an application for dropping the proceedings for non compliance with the provisions of Section 167(5) of the Cr. PC. By his order dated 12-4-91, the Learned Judge rejected the prayer. According to the petitioner, the order is without jurisdiction as investigation could not proceed beyond six months' from the date of arrest without a proper order for extension of the period of investigation on the prayer of the IO Hence the revisionist has come to this court for quashing the criminal proceeding being DEB. GR Case No. 8/1989 now pending in the court of the Learned Special Judge, (E.C. Act), Malda.

8. In Criminal Revision No. 24 94/1994 (Amitava Mazurndar @ Gopal v. State), Section 'R' case No. 251 dated 29-7-89 was started against the petitioner under Section 409 IPC the petitioner was arrested on 30-7-89. An application under Section 167(5) Cr. PC was filed on behalf of the petitioner for discharge as the investigation was not completed within 3 years from the date of arrest. But that prayer was refused. Hence, the revisionist has come to this court for quashing the proceedings of GR Case No. 2489/ 89 now pending in the Court of the Learned Additional CJM., Sealdah.

9. In Criminal Revision No. 2048 of 93 (Hashibur Rahman Khan v. State), the petitioner No. 1 was arrested on 19-11 -89 and the petitioner No. 2 obtained anticipatory bail on 8-1-90 and surrendered in court thereafter. The IO took time on several occasions to complete the investigation. On 5-2-93 there was no prayer for extension of time but the Magistrate suo motu extended time till 1.9-3-93, Chargesheet No. 36 dated 27-4-93 was filed and the Learned Magistrate took cognizance on 29-4-93. The revisionist has come before this court for an order of discharge and for quashing the proceeding as cognizance was taken beyond the stipulated period.

10. In Criminal Revision No. 2032/92 (Sk. Akbar Hossian v. State), the petitioner was arrested on 9-3-90 in connection with the Liluah PS Case No. 25 dated 26-2-90 under Sections 407/ 120B/414 IPC the Chargesheet was not submitted within two years from the date of arrest. On 2-7-92, the petitioner filed an application under Section 167(5) of the Cr. PC for discharge. The Learned Magistrate rejected the prayer. The petitioner has come before this Court for quashing the impugned order and the criminal proceeding.

11. In Criminal Revision No. 2440/93 (Motak Jadav v. State) the petitioners were arrested on 9-8-91 in connection with Howrah PS Case No. 172/ 91 under Section 407 IPC. The investigation was not completed within two years from the date of arrest. On 11-8-93 the petitioner filed an application under Section 167(5) Cr. PC for discharge before the Learned Magistrate on 23-9-93, the chargesheet under Section 407 IPC was filed, on 30-9-93, the Learned Magistrate rejected the prayer for discharge. It is alleged that there was no prayer for extension of the period of investigation by the IO beyond the prescribed period. So the revisionists have come before this court for quashing the criminal proceedings in GR Case No. 1788/91 now pending in the Court of the Ld. S. D. J. M., Howrah.

12. In Criminal Revision No. 175/94 (Tarak Chandra Mondal v. State), accused, Susama Bacher was arrested on 6-3-85 in connection with an offence under Sections 306/120B of the IPC. In connection with that case the petitioner Nos. 1,2 and 3 surrendered on 24-5-85. On 21-2-93 the IO submitted chargesheet. On 20-9-93, the petitioner Nos. 1 and 2 filed an application under Section 167(5) Cr. PC before the SDJM., Basirhat as the investigation could not be completed within the statutory period. There was no prayer by the IO for extension of time for investigation according to law, it is alleged. The Ld. Magistrate rejected the prayer for discharge. Hence the petitioners have come to this court for quashing the criminal proceeding.

13. In Criminal Revision Nos. 482, 483, 484 and 818 to 823 of 1992 the petitioner is Aditya Prasad Goswami. The nine revisional cases were filed by him against the State in connection with proceedings in GR. Case Nos. 212/78, 210/78, 1349/77, 213/78, 211/78, 215/78, 273/78, 216/ 78 and 214/78 in the Court of the Learned S.D.J.M., Jalpaiguri. The petitioner in this case is a retired employee of Relief & Rehabilitation Department, Office at Jalpaiguri. Different cases were started against him and others in the Kotwali PS of Jalpaiguri on the complaint of different persons alleged to be refugees on the ground that the accused persons by a conspiracy had cheated them by obtaining their signatures on blank papers and by not purchasing lands in the names of the de-facto complainants with the money provided for the purpose by the R & R Department of the State Government and by failing to give possession thereof. According to the de-facto complainants, the accused persons by mis-using their official position had misappropriated the entire amount though there was a show of registration of lands in favour of de-facto complainants. Cases were accordingly started against the accused persons including the petitioner in this case under Section 120B/420/409 IPC read with Section 82 of Registration Act and Section 5(2) of the Prevention of Corruption Act. The petitioners surrendered in Court on 20-3-78 in some of the cases and on different dates in the same year in other cases. On 25-11-91, the IO not having submitted any report in final form, the Ld. Magistrate suo motu granted time till 16-3-92. The contention of the petitioners in all the cases is that he is entitled to have an order of discharge in all the cases, in view of the mandatory provisions of Section 167(5) Cr. P.C. Hence this revisional applications.

14. The Learned Advocates appearing for the revisionists have argued that in view of the decision of this court reported in Sakti Sadan Maji v. State 1994 C.Cr. LR. Cal. 137 (SB), the new Subsection (5) Cr. PC, 1973 inserted by West Bengal Amendment Act 24/1988 shall not apply to investigations already concluded or completed before the commencement of the Amendment Act but shall apply to all investigations initiated before but not concluded on such date and thus pending on the date of commencement. It has also been argued that the cognizance of offence and trial thereof on the basis of investigation carried on and chargesheet submitted beyond the period fixed under Section 167(5) Cr. PC as amended without any order from the Magistrate under Sub-section (5) or from the Learned Sessions Judge under Sub-section (6) are bad and void. It has been further submitted their it was further laid down in that case that once the investigation is continued beyond the period fixed without an order for continuation of the investigation under Sub-section (5) or under Sub-section (6) of Section 167, the illegality or defect could not be cured or rectified by ordering any amount of re-investigation. It was further held in that case that the accused immediately acquires a right to be discharged from the case once the investigation is not concluded within the period fixed in Section 167(5) Cr.PC therefore, if the investigation in a case is in fact continued beyond that period without appropriate order under Sub-section (5) or under Sub-section (6) of Section 167, the right of the accused to have speedy trial as conferred under Sub-section (5) is immediately affected. The Learned Advocates have further submitted that the principles laid down in the case of State of West Bengal v. Falguni Dutta 1993.C.Cr. LR (SC) 125 had nothing to do with Section 167(5) of the Cr. PC as amended by West Bengal Act 24 of 1988. Therefore, the ratio decidendi laid down by our apex Court in Falguni Dutta's case can be easily distinguished. The learned Advocates appearing on behalf of the revisionists have submitted that in view of the clear decision of this High Court in Sakti Sadan Majhi's case (supra) the revisionists are all entitled to orders of discharge in the respective cases and the criminal proceedings should be quashed with effect from the respective dates on which the statutory period of investigation expired in these cases, there being no prayer for extension of time for investigation according to law.

15. The Learned Advocates appearing on behalf of the State Respondents have submitted that when the investigation has been stopped on the expiry of the stipulated period or extended period, if any, by the Magistrate in exercise of the powers conferred by Sub-section (5) of Section 167 of the Code, the investigation comes to an end and therefore on the completion of investigation, the Officer-in-Chargc of the Police Station is enjoined under Section 173(2) Cr. PC to forward a report in the prescribed form. There is nothing under 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 Cr. PC on the stoppage of investigation. The investigation done within the stipulated period from the date of the arrest of the accused is not rendered invalid, merely because the investigation is not completed and further investigation is stopped. Obviously, the Learned State Advocates have banked upon the principles laid down in Falguni Dutta's case (supra).

16. Before we take up for discussion the respective points urged by the Learned Advocates on both the sides it will be useful to have a close look at the text of the relevant Section as it stood before amendment and alter the amend-ment of 1988. Pre-amended text of Section 167(5) Cr. PC is as follows:--

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 interest of justice the continuation of the investigation beyond the period of six months' is necessary.

17. By the Code of Criminal Procedure (WestBengal Amendment) Act, 1988 whicli has come into force on and from 2-5-89, a new Sub-Section (5) has been substituted for the original Sub-section (5) of Section 167. The new subsection runs as follows:--

5. If in respect of --

i. Any case triable by a Magistrate as a summons case the investigation is not concluded with 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 interest of justice the contention of the investigation beyond the periods mentioned in this Sub-section is necessary.

18. It is clear from above that in the substituted Sub-Section a duty is cast upon the Magistrate not only to stop further investigation on the expiry of the stipulated period but also an obligation to discharge the accused unless the Officer making investigation satisfied the Magistrate that for special reasons and in the interest of justice the continuation of investigation beyond the prescribed time was necessary. The West Bengal Amendment Act has thus conferred upon the accused persons a right to obtain an order of discharge under certain circumstances which was not there in the unamended Act of 1973. This particular legal angle did not crop up for decision in Falguni Dutta's case (supra) but this point was elaborately discussed and considered in the Special Bench case cited above. What happened in Falguni Dutta's case (supra) was that a police party raided the business premises and godown of the respondents on 16-3-84 and seized certain essential commodities stored in contravention of certain orders issued under Section 3 read with Section 5 of the E.C. Act and arrested accused Falguni Dutta but the charge-sheet was submitted after the expiry of six months. The Learned Special Judge took cognizance of the offence on 13-3-1987 on the basis of chargesheet submitted under Section 173 of the Cr. PC when the accused persons filed an application before the Ld. Special Judge for quashing the proceeding on the ground that since the case was triable as a summons case in view of Section 12AA(1) (f) of the Essential Commodities Act. Section 167(5) of the Cr. PC was attracted which enjoined that the proceedings be dropped but the said application was rejected. Being aggrieved by the said order the accused preferred a revisional application to the Calcutta High Court when the said order was set aside and the proceeding was quashed. Thereafter an appeal was taken to the Hon'ble Supreme Court. Relevant portion of the judgment of the apex Court runs as follows at page 131 of the reported decision:--

8. That takes us to the next question whether a Special Court can, beside directing stoppage of investigation, entertain and act on a chargesheet or a police report submitted under Section 173(2) of the Code in such case. 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 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 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 subsection (5) of Section 167 to suggest that if the investigation has not been completed within the period allowed by that Sub-section, the Qfficer-in-Charge of the Police Station will be absolved from the responsibility of filingthe police report under Section 173(2) of the Code on the stoppage of the investigation. The High Court of Andhra Pradesh rightly observed in paragraph 13 of the judgment as under:--

Under the new Code in addition to definition for 'Investigation' in Section 2(h), a separate definition for 'Police Report' is given of 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 on which a court is to take cognizance. The report cannot now be 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 during the period of six months or enabling the court to stop in the filing of police report under Section 173(2). If the investigation do not during the period of six months discloses an offence, a police report may be founded on it and the court can take cognizance on the same'. In Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 108 : 1979 Cri LJ 1052 this court held that the investigation done during the period of six months is not rendered invalid, merely because the investigation is not completed and further investigation is stopped. The exact words used are '...in such a case the Magistrate is bound to make an order stopping further investigation and in that event, only two courses would be open; either the police must immediately proceed to file a charge-sheet, if the investigation conducted till then warrants such a course or if no case for proceedings against the undertrial prisoner is disclosed by the investigation the undertrial must be released forthwith from detention.

We, therefore, concur with the view taken by the Andhra Pradesh High Court in this regard.

19. In this connection it may be stated that in the Andhra Pradesh decision affirmed by the apex court of our land, the words 'shall discharge the accused' as introduced by the West Bengal Amendment Act could not fall for consideration. Therefore, that decision cannot be said to have given a quietus to the legal point which is involved in our case. The Section interpreted by the apex court in Falguni Dutta is case (supra) is 167(5) of the Cr. P.C. But the Section 167(5) of the Cr. PC after the West Bengal Amendment Act, 1988 is different in its content from Section 167(5) of the Cr. PC of the unamended Criminal Procedure Code, 1973, though the numerical number of both the Sections is the same. Therefore, a mechanical application of the principles laid down in Falguni Dutta's case (supra will lead to a conclusion which will render the words used j in the West Bengal Amendment Act, 1988 otiose.

20. In this view of the matter, I hold that the principles laid down in Falguni Dutta's case (supra) cannot govern the field where the provisions of Section 167(5) Cr. PC as amended by West Bengal Amendment Act, 1988 apply. Hence in all the cases before this Court where cognizance was taken on the basis of investigation continued and chargesheet filed beyond the period specified in Section 167(5) without any order from the Magistrate under Sub-section (5) or from the Judge under Sub-section (6), the proceedings must be quastied and the revisional i applications be allowed.

21. In Criminal Revision Case No. 400 of 1994 (Chaity Sanyal v. State), the statutory period expired on 28-1-92 and on 23-4-93 the orders stopping further investigation was passed by the learned S. D. J. M. That order was reversed by an order of the Learned Sessions Judge on 7-12-93. It has been submitted that so long as Clause (6) as amended by West Bengal Amendment Act, 1988 exists, it is withinthe power of the learned Sessions Judge to pass the order for re-investigation in a particular case for ends of justice though there is a restriction on continuation of investigation under Clause (5) of Section 167, Cr. PC. Clause (6) of Section 167 pr. PC has also been amended by the West Bengal Amendment Act, 1988 by the introduction of the words 'and the accused has been discharged' after the words 'where any order stopping further investigation into an offence has been made' in the opening word of that sub-section. Sub-section (6) authorises a Sessions Judge to vacate the order of the Magistrate stopping investigation and discharging the accused passed under Sub-section (5) and direct its continuance if he is satisfied that the continuation is necessary in the interest of justice and there are special reasons for such extension. A Sessions Judge by refusing the application as under Sub-section (6) must give reasons in support of such order of refusal. It has been held in Nashina's case 1978 Cr LJ 1830 that the order under Section 167(6) must be a speaking order. The relevant portion of the order of the Learned Additional Sessions Judge in Criminal Misc. Case Nos. 932-933/93 (cover by one judgment) reads as follows:--

It appears from the order-sheet of the G. R. case that the complaint was received on 29-1-90 and the OP was produced before the learned Magistrate on the same date and under the provisions of the amended sub-section the chargesheet was required to be filed by 28-1-92. It appears from the record that since 28-1-92, the Learned S Magistrate suo motu granted time for submission of chargesheet which would go to show that the Learned Magistrate had the intention to continue the investigation. The Learned Magistrate on 29-1-93 received a prayer from the 10 who took charge of investigation subsequently and again the same 10 submitted a prayer on 21-4-93 for further extension of time. On 21-4-93 OP also filed a prayer for her discharge and on 23-4-93 the Learned Magistrate passed the impugned order whereby he opined that the IO did not make out any convincing grounds in his petition dated 21 -4-93 for extension of time.

22. On examination of the petition of 10 it appears that he mentioned that for a proper inves-tigation, examination of documents and vouchers is required for which he would require sometime. Now, it is also clear from the case record that the Learned Magistrate did not exercise its power under Section 167(5) justafterthe expiry of two years and even the OP slept over her right till 21-4-93. From the trend of the order sheet I have, however, reason to believe that the Learned Magistrate did not act properly by rejecting the petition of 10 only because when he granted time uncalled for since January, 1991, there cannot be any legal bar for him to consider the prayer of IO 21-4-93 and to afford some time for completion of investigation.

23. Thus after considering the submissions of both sides and in view of the documents of the case, I hold that it is a fit case where this court must exercise its power in Sub-section (6) of Section 167 of the Cr. PC to draw the curtain over discussion it is relevant to mention that I have been encouraged by the recent decision of the Hon'ble S.C. as reported in 1993 SCC 185 (State of West Bengal v. Falguni Dutta) in granting the prayer of the petitioner'. It is clear that the Learned Sessions Judge held that the Learned Magistrate had no justification to refuse the prayer for extension of time as he granted time uncalled for since January, 1991. Thereafter, the Learned Sessions Judge has held that it is a fit case where court should invoke its power under Sub-section (6) of Section 167 without any discussion about the special reasons and the interests of justice. It appears that the Learned Sessions Judge did not satisfy himself on the twin grounds of special reasons and interest of justice. He satisfied himself about the impropriety of the order of the Learned Magistrate as the Learned Magistrate had suo motu allowed time sometime in January, 1991. Therefore the pre-condition for invoking the special jurisdiction conferred upon the Learned Sessions Judge which is an original jurisdiction were not fulfilled. Basically the provisions of Section 167(5) and (6) emanate from the right of speedy trial as adumbrated under Article 21 of our Constitution.

24. Speedy trial as such is not a fundamental right guaranteed under the Constitution. It is necessary for protection of personalliberty in a broader sense. Maneka Gandhi's case (AIR 1978 SC 597) has ushered in great change in the judicial attitude towards the protection of personal liberty after the nightmarish experience of the years 1975-77. A new dimension has been added by this decision to our legal perception of Article 21 of the Constitution. A fair trial implies a speedy trial. Section 167(5) Cr. PC 1973 is a step towards realisation of this goal. The W. B. Amendment Act (Act 24 of 1988) has gone a step further to concretise this goal in respect of more classes of cases than coming within the sweep of the mother Act. A restrictive interpretation put on the amended Act will only take away what is sought to be given under the liberalised view emerging from the celebrated decision referred to above. It is now an established proposition that the expression 'personal liberty' would not mean merely the liberty of the body, i.e. freedom from physical restraint or freedom from confinement within the bounds of a prison; in other words it means not only freedom from arrest and detention, false imprisonment or wrongful confinement, but means more than that. The term is not used in a narrow sense but has been used in Article 21 as a compendious term to include within it all those varieties of rights of a person which go to make up the personal liberty of man. In Kharak Singh v. Uttar Pradesh AIR 1963 SC 1295 : 1963 (2) Cri. LJ 329 even night domiciliary visits by Police were held to be constituting infringement of personal liberty. A procedure which is unreasonable, harsh and prejudicial to the accused cannot be in consonance with Article 21. (Superintendent & Remembrancer, Legal Affairs, W.B. v. S. Bhowmick AIR 1981 SC 917 : 1981 Cri. LJ 341. The protection of Article 21 extends to all persons accused of offences, under trial prisoners, convicts undergoing sentences etc.

25. The investigation of a case against a person cannot roll on for years in and years out. A halt should be cried somewhere. It was enacted under Section 167(5) Cr. PC that in respect of a particular class of offence investigation must stop at a particular point of time. The W. B. Amendment Act (24 of 1988) has extended the sweep of its ambit and has cast a duty upon the Magistrate to discharge the accused from the case. Clearly the provisions are meant for protection of personal liberty under Article 21 of our Constitution. The protection which has been given to the citizens under Section 167(5) of the Cr. PC can, therefore, be taken away only in accordance with the Precedure established by law. If the protection is taken away not in accordance with law, then that position will be clearly unlawful and undefendable. Therefore, the order of the Learned Sessions Judge under Section 167(6) Cr. PC cannot be sustained being vilative of the right of speedy trial under the Constitution.

26. A forwords need the said about the computation of the stipulated period as mentioned in Section 167(5) of the Cr. PC. When there are more than one accused persons in a case, generally they are not arrested on the same date or they do not surrender before the court on the same date. In such cases the question may arise from which date the counting of the period of stipulated time will begin. In Dilip Kumar Das v. State of West Bengal 1992 C. Cr. LR (Cal.) 350 : 1993 Cri. LJ 837 it has been held by a Single Judge of this court that Section 167(5) of the Cr. PC does not admit of any individualised approach. Its application where it apply, is rather total and composite. It provides for its stopping of investigation not in respect of any particular accused but in respect of the offence itself, the benefit of each ensures to all the accused persons whether in custody or on bail, whether recently arrested or arrested long back, whether identified or unidentified, whether known or unknown, whether apprehended or absconded. The operation of the provisions of Sub-section (5) of Section 167 starts as soon as an accused person appears or is arrested and the period mentioned in the said Sub-section will be computed from that date. Thus subsequent arrest or appearance of any other accused will have no bearing on the continuing operation of the provisions of the said sub-section. So when the period prescribed in the said sub-section any reference to any particular offence expires on the basis of the computation from the date of appearance or arrest of an accused, the accused who was arrested or who appeared in the first point of time, the Magistrate is required to step further investigation into the offence which means that there will not be any further investigation not only in respect of the offence but also in respect of any accused in consonance with that offence unless, of course, there are special reasons for allowing continuation of the investigation beyond the prescribed period in accordance with law. This view is in consonence with the principles that in the realm of criminal jurisprudence a criminal court takes cognizance of the offence and not of the individual offenders. (Vide Raghubans Dubey v. State of Bihar AIR 1967 SC 1167). Therefore, I find no reasons to depart from the view taken by this court in Dilip Kumar Das's case (supra). In the cases at hand several accused persons have surrendered before the court on several dates. The computation of the stipulated time under Sub-section (5) of Section 167, Cr. PC in all these cases should accordingly be made from the arrest or surrender of the first accused persons in the respective cases.

27. In view of the discussions made above, it is held that all the criminal revision applications referred to above succeed and the orders of further investigations or taking of cognizance beyond the prescribed period in all the cases are quashed. The revision petitioners are discharged from the respective cases and further investigations are stopped. The revisional applications are thus disposed of. This judgment covers all the 21 cases.