Under Section 167 (5) of the Code of Criminal Procedure, in any case triable by a Magistrate as a summons-case, if 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 investigation beyond the period of six months is necessary. The provision unequivocally states that the Magistrate can stop investigation on contingency that the Investigating Officer has failed to satisfy the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. There cannot be any automatic order without anything else on expiry of a period of six months from the date of arrest.
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
CRR 3168 of 2012
I.A. No. CRAN/3/2014 (Old No. CRAN/4575/2014)
Kamal Ghosh & Anr. Vs. The State of West Bengal & Anr.
Before: Hon’ble Justice Sugato Majumdar
Judgment on : 23.03.2023
The instant application is filed under Section 401 read with Section
482 of the Criminal Procedure Code challenging the impugned orders dated
24.06.2011, 19.07.2011, 17.08.2011, 17.01.2012, 24.02.2012, 26.03.2012,
26.04.2012, 28.05.212, 28.06.2012, 16.07.2012 passed by the Chief
Metropolitan Magistrate in G. R. Case No. 191 of 2011 connected to
Section – H, Bowbazar Police Station Case No. 41 dated 16.01.2011 as well
as order passed by the Metropolitan Magistrate, 3rd Court dated 17.07.2012.
The nutshell of grievances of the present Petitioner are that, firstly the
Investigating Officer was allowed time beyond a period of six months in
terms of various impugned orders passed by the Chief Metropolitan
Magistrate without conforming to the provisions of Section 167 (5) of the
Criminal Procedure Code.
Secondly, it is also the grievance of the Petitioner that the fact of the
case does not disclose commission any offence which both the Chief
Metropolitan Magistrate and the Metropolitan Magistrate, 3rd Court failed to
consider.
Thirdly that after filing of charge sheet the Chief Metropolitan
Magistrate transferred the case to the Metropolitan Magistrate, 3rd Court for
taking cognizance without taking cognizance of the offence; the Metropolitan
Magistrate, 3rd Court, however, took cognizance of the offence in terms of the
order dated 17.07.2012 offending the provision of Section 190 of the Code of
Criminal Procedure.
Mr. S. N. Arefin appearing for the Petitioners submitted that under
Section 167 (5) of the Code of Criminal Procedure there is a specific time
limit of six months to conclude investigation, from the date of arrest. This
provision is applicable to the instant case, and the Magistrate is duty bound
to make an order stopping further investigation into the offence. This is not
done by the Chief Metropolitan Magistrate. The Chief Metropolitan
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Magistrate continued to allow time in a mechanical manner. Therefore,
according to him, the proceeding should be quashed. It is argued by the
learned Counsel for the Petitioners that the Chief Metropolitan Magistrate
committed an error is not taking cognizance of the offence and transferring
the same to the Metropolitan Magistrate for taking cognizance.
It is further submitted by him that the Chief Metropolitan Magistrate
failed to consider or apply the mind to understand that no prima facie case
is made out against the Petitioners; the allegations are baseless for which
the proceeding should be quashed.
Mr. Imran Ali appearing for the State submitted that there is no
infirmity in the proceeding so far as taking cognizance under Section 190 is
concerned. According to him, the Petitioner failed to make out a proper case
in this regard. He further submitted that Section 192 of the Code of
Criminal Procedure saves taking cognizance of the offence by the Magistrate.
According to him, the application should be rejected.
I have heard rival submissions.
Under Section 167 (5) of the Code of Criminal Procedure, in any case triable by a Magistrate as a summons-case, if 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 investigation beyond the period of six months is
necessary. The provision unequivocally states that the Magistrate can stop
investigation on contingency that the Investigating Officer has failed to
satisfy the Magistrate that for special reasons and in the interests of justice
the continuation of the investigation beyond the period of six months is
necessary. There cannot be any automatic order without anything else on
expiry of a period of six months from the date of arrest. The learned
Counsel for the Petitioner, at the time of hearing candidly admitted that no
step was taken or no petition was made before the Trial Court objecting to
the impugned orders extending time for investigation. The Petitioner was
silent at that time but suddenly the Petitioner woke up into the action after
filing of the charge sheet on completion of the investigation, clubbing several
actions against several courts together. Therefore, the objection regarding
extension of time at this belated stage is not sustainable.
Section 190 (1) provides that any Magistrate of First Class may take
cognizance of an offence upon receiving a) a complaint of facts which
constitutes such offence, b) upon a police report of such facts, c) upon
information received from any person other than Police Officer or upon his
own knowledge that such offence have been committed. This case squarely
falls within ambit of Section 190 (1) (b) of the Code of Criminal Procedure.
In terms of the specific provisions of the statute, any Magistrate is
empowered to take cognizance of the offence. Moreover, Section 460 (e) of
the Code provides that if any Magistrate who is not empowered by law to do
any of the following things entirely among others to take cognizance of an
offence under Clause a or Clause b of Sub-section (1) of Section 190
erroneously in good faith, proceeding shall not be set aside merely on that
ground. Therefore, even if it is assumed that there is an irregularity, the
same is saved of Section 460 (e) of the Code of Criminal Procedure.
Proceeding cannot be quashed.
So far as factual aspect of the case is concerned, consideration of
charge is yet to be done. The Petitioner can agitate before the Trial Court
that available materials do not disclose any offence. It is not that the
Petitioner is bereft of any remedy. He has remedy which he should exercise
at opportune moment, at the time of consideration of charge.
In nutshell, the instant revision application is not tenable and is
dismissed on merit. The Trial Court is to consider charge within a period of
one month from the date of receiving of this order.
The copy of this order may be sent to the Trial Court forthwith.
The instant criminal revision stands disposed of.
The instant revision is accordingly disposed of along with pending
application, if any.
(Sugato Majumdar, J.)
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