Gitesh Ranjan Bhattachlujee, J. - (1.) A petition of complaint was filed by the Food Inspector before the Court below against the present petitioner under S. 16(1)(a)(i)/7 of the Prevention of Food Adulteration Act. The petitioner as accused appeared before the learned Magistrate in the said case on 14th July, 1986 and was released on bail. Such a complaint filed before the Magistrate comes within the ambit of the provisions of Ss. 244, 245 and 246, Cr. P.C. at the relevant stage. Section 244(1), Cr. P.C. provides that when in any warrant case instituted otherwise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. As the provisions of S. 245, Cr. P.C. are of vital importance in this case the said section, as it stands amended by the West Bengal Amendment Act of 1988, is reproduced below: 245. When accused shall be discharged 1. If, upon taking all the evidence referred to in S. 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. 2. Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 3. If all the evidence referred to in S. 244 are not produced in support of the prosecution within 4 years from the date of appearance of the accused, the Magistrate shall discharge the accused unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. Section 24.6(1) provides that if, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under the chapter to which the said section appertains which he is competent to try and could be adequately punished by him, he shall frame charge against the accused. In this case the petitioner filed an application before the learned Magistrate on 17th June, 1992 for his discharge under S. 245(3) of the Code of Criminal Procedure as all the prosecution witnesses as referred to in S. 244 were not produced within 4 years from the date of appearance of the petitioner. The learned Magistrate however by his impugned order dated the 2nd September, 1992 rejected the petition. Thereafter the petitioner has come up before this Court by his revisional application.
(2.) The point that has fallen for consideration of this Court at the first instance is whether the Magistrate can continue the proceeding even after 4 years from the date of appearance of the accused without framing charge unless the prosecution satisfies him before the expiry of the said period of 4 years under Sub-so (3) of S. 245 that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. It is argued on behalf of the petitioner that the Magistrate is under a statutory obligation to discharge the accused under S. 245(3), Cr. P.C. on the expiry of the said period of 4 years if all the evidence referred to in S. 244 are not produced in the meantime, and that, if not done earlier, the Magistrate is not entitled after the expiry of the said period of 4 years to consider whether upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. It is submitted by the learned Advocate of the petitioner that this interpretation is warranted by the logic of the similar interpretation which S. 167(5), Cr. P.C. as amended by the West Bengal Amendment Act has received from this Court. The West Bengal amendment of S. 167, Cr. P.C. prescribes specific periods, for different types of cases anti provides that if the police investigation in respect of any such case is not concluded within the prescribed period applicable to such a case 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 periodTs mentioned in this sub-section is necessary , (emphasis supplied). It has been interpreted by this High Court that the prayer or continuation of the investigation beyond the prescribed period must be made by the Investigating Officer to the Magistrate before the expiry of the prescribed period seeking permission for special reasons and in the interest of justice to continue the investigation beyond the prescribed period and the Magistrate may on such ground grant such permission, if at all, before the expiry of the prescribed period and not after such expiry (vide, Ali Hossain V. State of West Bengal, Ramkumar v. State, Jay Shankar Jha v. State, Rambriksh v. State and Pappa Rao v. State.
(3.) The reason that weighed with the court in giving the interpretation that any prayer for continuation of the investigation beyond the prescribed period and any permission in that respect must be made and given respectively before the expiry of the said period will be found in the following observation of a Division Bench of this Court in Ramkumarv. State. (supra): In such a case, S. 167(5) by its plain language, gives a mandate to the Magistrate to make an order stopping further investigation into the offence unless the officer can satisfy the Magistrate that continuation of investigation beyond the period of six months is necessary for special reasons and in the interest of justice. The power that has been given to the Magistrate to permit continuation of the investigation beyond the period of six months clearly envisages that it has to be exercised before the expiry of six months. That on the expiry of the said period the Magistrate cannot entertain any prayer to extend the period of investigation will be evident from the words the continuation of the investigation and beyond the period of six months is necessary appearing in sub-s. (5) Continuation of the investigationT in S. 167(5) may be read in contradistinction to further investigation appearing in S. 167(6). When so read continuation of the investigation pre-supposes an investigation which is in progress. Once the period of six months expires, the Magistrate by stopping the investigation brings an end to the investigation by the operation of sub-s. (5) of S. 167. If any prayer of the Investigating Officer is entertained after the expiry of said period and allowed, the investigation thereby will be re-opened and it will be further investigationT as envisaged under sub-so (6) of S. 167 and not continuation of investigation. Then again, to record a satisfaction that the investigation beyond the period of six months is necessaryT the Magistrate necessarily has to obtain the satisfaction before the expiry. It must therefore be held that any direction for continuation of the investigation given under S. 167(5) after the statutory period will be without jurisdiction. We thus see that the interpretation with Section 167(5), Cr. P.C. has received from this court has been extracted from the language and expression used by the legislature in the said section. The legislature in the said section clearly provided for stopping of investigation into offence if the investigation was not concluded within the specified period and had at the same time authorised the Magistrate to consider the question of continuation of the investigation beyond the prescribed period if the Investigating Officer could satisfy him that such continuation of investigation beyond the prescribed period was necessary for special reasons and in the interest of justice. In the perspective of the legislative concern, clearly expressed by the language used, that either the investigation into the offence has to be stopped on the expiry of the specified period or the continuation of the investigation beyond the specific period on special grounds has to be permitted to he Magistrate, this court has interpreted that the permission for continuation of the investigation will have to be sought and obtained before the expiry of the prescribed period. Before we bodily lift the interpretation ascribed to S. 167(5), Cr. P.C., in the context of the language used therein and before we apply such interpretation to S. 245(3), Cr. P.C. we will have to ascertain whether the language used in the said two sections are similar or identical so as to admit of one and the same interpretation for both the sections or whether there is difference in language and context of the two sections necessitating independent interpretation in each case suited to its own context. Section 245(3) does not at all speak of stopping or continuation of proceeding whereas S. 167 (5) speaks of stopping of investigation into the offence or continuation thereof. This visible difference between the texts of the two sections is itself a sharp pointer to the difference in the import of the two sections.;