Decided on July 28,1995


Referred Judgements :-



- (1.)This revisional petition has been taken out by the accused of G. R. Case No. 1047 of 1981 arising out of Raipur, P. S. Case No. 15 dated 24-9-81 registered for the offence under Section 409 of the I.P.C. and has been directed against an order dated 8-2-93, whereby the prayer under Section 167(5) of the Cr. P.C. for stopping further investigation in the case and for the discharge of the accused/petitioner was rejected.
(2.)The main thrust of the instant case revision is based on the provision of law laid down under sub-Section (5) of Section 167 of the Cr. P.C. as amended by Section 4 of the Code of Criminal Procedure (West Bengal Amendment) Act, 1988. The amendment as made under Section 167(5) of the Cr. P.C. enjoins upon the Magistrate that in a case like the present one, which has been registered; for the offence under Section 409 of the I.P.C., if 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 of stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for a special reasons and in the interest of justice the continuation of the investigation beyond the period as mentioned above is necessary. It may be added that Section 167(6) further provides that any order stopping further investigation into an offence has been made under S. 167 (5), the Sessions Judge may, if he is satisfied on an application made to him or otherwise that further investigation into the offence ought to be made, vacate the order made under Section 167(5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
(3.)In the above back drop of the legal proposition what is relevant in the instant case to be noticed is that after the F.I.R. was lodged as long back as on 24-9-81, the petitioner accused was granted anticipatory bail by an order dated 22-12-81 of this Court passed in Criminal Miscellaneous Case No. 1768/81 with a direction that in the event of the petitioner being arrested in connection with the instant case he will be released on bail subject to the condition that he will meet the Investigating Officer of the case as and when required. This order was communicated td the concerned Magistrate i.e., the Sub-Divisional Judicial Magistrate, Bankura on 16-1-81. The petitioner/accused entered appearance in this case before the said Magistrate while surrendering himself there with a petition for bail on 24-9-86, when it was observed by the Magistrate that in view of the anticipatory bail it would not be just and proper to accept surrender of the accused in the Court before receipt of the charge-sheet. The order was obviously with regard to the bail petition. Be that as it may, the surrender or the appearance of the petitioner/accused before the Magistrate on 24-9-86 would be deemed to be a definite compliance of the appearance' as contemplated under Section 167 (5) of the Cr. P.C. It would be further relevant to point out that the beneficial aspect of stopping the further investigation and discharge of the accused was then not available, because the amendment to that effect under Section 167(5) of the Cr. P.C. came into force only with effect from 2-5-89 as per the West Bengal Amendment Act, 1988. Therefore, no question then arise in the instant case of stopping the investigation or discharging the accused by lapse of two years from the date of his surrender on 24-9-86. This is for the simple reason that even after a lapse of two years i.e., on 23-9-88 the benefit as provided by the amendment was not available.

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