1. On the basis of an enquiry and audit report relating to Chinsurah Police Ration Stores a suo motu F.I.R. was registered on 26th June, 1992 for the commission of offences punishable under Sections 409, 467 and 120B of the Indian Penal Code against the respondents. One of the accused persons, namely, Shyamal Kumar Ghosh, constable No. 2271, surrendered before the learned sub-divisional judicial magistrate, Sadar, Hooghly on 10.12.1992 and was released on bail. All the respondents are police personnel who were alleged to have misappropriated store's material meant for the police personnel. As the investigation could not be completed within the statutory period, the investigating officer applied on 5.12.1995, for extension of time which was allowed. A prayer for further extension of time for completing the investigation was allowed by the judicial magistrate vide his order dated 9.4.1996. It appears that the respondents thereafter filed an application praying for being discharged in terms of Section 167(5) of the Code of Criminal Procedure. The said application was rejected by the judicial magistrate vide a detailed order dated 18.4.1996. Aggrieved by the rejection of their application for being discharged, the respondents filed a revision petition in the court of additional sessions judge, first court, Hooghly, who partly allowed the revision petition and after setting aside the order of the judicial magistrate, directed him to decide whether or not the proceedings be stopped and respondents be discharged under Section 167(5) of the Code. Not satisfied even with the order of the additional sessions judge, the respondents approached the High Court by way of writ petition filed under Article 227 of the Constitution of India, praying for setting aside the orders passed by the judicial magistrate as also the additional sessions judge, Hooghly. The High Court allowed the petition filed by the respondents and discharged them after holding that as the mandatory provisions of Sub-section (5) of Section 167 of the Code of Criminal Procedure had not been complied with, the further investigation was uncalled for. Feeling aggrieved by the aforesaid order, the state is before us in this appeal by way of special leave.
2. Mr. Tapash Chandra Ray, learned senior counsel has drawn our attention to the West Bengal amendment made in Section 167(5) of the Criminal Procedure Code. No representation is made on behalf of the respondents despite calls.
3. Section 167(5) of the Criminal Procedure Code provides:
"If, in respect of-
(i) any case triable by a magistrate as a summon 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 satisfies 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."
4. A perusal of the record shows that when the investigation could not be completed within the statutory period, the investigating officer filed an application before the magistrate praying for extension of time for the reasons stated therein, Vide his order dated 5.12.1995, admittedly passed before the expiry of the statutory period, the learned magistrate allowed the application and permitted the investigating officer to complete the investigation by 9.4.1996. As the investigation could not be completed even by that time, another application was filed for extension of time which was allowed by the magistrate vide his order dated 9.4.1996 permitting the investigation to be completed by 18.9.1996. It appears that the respondents did not challenge the orders of the magistrate dated 5.12.1995 and 9.4.1996. They filed a separate application on 10.4.1990 praying for stopping further proceedings and discharging them. In his detailed order the magistrate rejected their application and allowed the investigation to be completed within the time earlier allowed. For permitting the investigation to be completed within the extended period the learned magistrate took note of the circumstances which were considered reasonable for not completion of the investigation within the statutory period. The petition filed by the respondents in the High Court under Article 227 of the Constitution was in fact, a second revision petition which was allowed by the High Court apparently ignoring the reasons assigned by the magistrate in the light of the amended provisions of Sub-section (5) of Section 167 of the Code of Criminal Procedure as applicable to the State of West Bengal.
The non-completion of the investigation within the statutory period did not automatically amount to the closer of investigation and the discharge of the accused persons. The magistrate has a right to order stopping further investigation or allow the investigation to be completed within such further period as may be specified for special circumstances and in the interest of justice. The High Court obviously could not find any fault in the exercise of the magistrate and set aside his order in a routine manner.
5. When such a situation came before this Court in Nirmal Kanti Roy v. State of W.B. , the Court after referring to the amended provisions of the Code "of Criminal Procedure as applicable to the State of West Bengal held:
"A reading of Sub-section (6) further shows that even in a case where the order stopping investigation 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 sessions judge is satisfied that "further investigation into the offence ought to be made" he has the power to allow the investigation to proceed. Hence, we take the view that the time schedule shown 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 conducive to the interest of justice to stop further investigation and discharge the accused.
Section 167(5) without West Bengal amendment is only bereft of the duty cast on the court to discharge the accused. A two-judge bench of this Court, while dealing with the unamended sub-section, has considered the situation where the magistrate stopped investigation on the expiry of six months. In State of W.B. v. Falguni Dutta , this Court held thus:
"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 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. Therefore, the special court was competent to entertain the police report restricted to six months' investigation and take cognizance on the basis thereof."
In Durgesh Chandra Saha v. Bimal Chandra Saha the situation considered was one relating to Section 167(5) of the Code as amended by the West Bengal Act. The two-judge bench held that "the consequences envisaged in the sub-section would not befall a case where investigation was completed and Charge-sheet was laid, albeit it was only after expiry of the period specified in the subsection."
6. The ratio laid down in Nirmal Kanti Roy's case (supra) is squarely applicable to the facts of the present case as well. At this stage, Mr. Tapash Chandra Ray, learned senior counsel appearing for the appellant-state informed us that the investigation has since been completed and the final report in terms of Section 173 of the Code of Criminal Procedure has been filed before the trial magistrate.
7. In view of the above, the present appeal is allowed and the impugned order is set aside. The trial magistrate is directed to proceed with the case and decide it on merits, treating the final report as having been filed within the time.