Decided on May 02,2002



- (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 26/06/1992 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, Hooghlyon 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 XVIIl 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. "

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