Decided on November 09,1983

STATE Respondents


- (1.) ONE Sri Provat Kumar Mukherjee filed an application before the learned Additional Chief metropolitan; Magistrate, Calcutta, on 21,11. 79 alleging commission of offences under sections 78 and 79 of the Trade and merchandise Marks Act, 1958 (hereinafter referred to as the Act) by Shankarlal shaw, the petitioner in this Rule, and praying for an order under Section 155 (2) Cr. P. C. for investigation into the same. The prayer was allowed and after completion of investigation the Police submitted charge sheet against the petitioner. The learned additional Chief Metropolitan Magistrate took cognizance upon the said charge sheet and transferred the case to the learned metropolitan Magistrate, 14th Court, Calcutta, for disposal. Before the transferee magistrate an application was filed on behalf of the petitioner praying for his discharge on the ground that the cognisance that was taken of the offences under sections 78 and 79 of the Act, which were triable by one Magistrate as summons case was bad as the cognisance was taken on a charge sheet which was submitted beyond the period of six months from the date of his surrender in Court in breach of section 167 (5) Cr. P. C. The learned Magistrate rejected the said prayer being of the, view that "arrest" of the accused envisaged u/s. 167 (5) Cr. P. C. could not be equated with his, "surrender". Aggrieved thereby the petitioner moved this instant revisional application and obtained the present Rule.
(2.) SECTION 167 (1) Cr. P. C. speaks, of the procedure to be followed by the police when a person is arrested and detained in custody. Under sub-section (1) whenever a person is arrested and detained in custody and the investigation cannot be completed within a period of 24 hours, the police has to forward the accused to the nearest Judicial Magistrate. That the 'arrest' and 'detention in custody' referred to in section 167 (1) mean arrest and detention in custody by the police, would be evident from the words "shall at the same time forward the accused to such Magistrate", appearing therein and the words "the Magistrate to whom an accused person is forwarded under this section" appearing in sub-section (2 ). Sub-sections (2), (3) and (4) of section 167 relate to the powers of the magistrate to detain such an accused in custody, the nature of custody and release of the accused on bail instead of detention. Sub-section (5) casts a duty upon the magistrate to stop further investigation in any case triable by him as summons case, where investigation is not completed within a period of six months from the date on which the accused was "arrested", unless, the Investigating Officer can persuade the learned Magistrate to pass necessary orders permitting investigation beyond the period of six months. Read in the context of subsections (1) and (2) therefore, It is abundantly clear that the word "arrest" appearing in section 167 (5) Criminal Procedure code refers to arrest by the police. Arrest of a person by Police cannot therefore be equated with the voluntary surrender or appearence in a Court of law.
(3.) FOR the foregoing discussions it must be held that the benefit of sub-section (5)of section 167 Cr. P. C, is available only to an accused who has been arrested by the police and not to an accused who surrenders in Court. The application, accordingly, fails and the Rule is discharged. Rule discharged;

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