MONOJ KUMAR MUKHERJEE, J. - (1.) THIS revwional application at the instance of the State of West Bengal is directed against an order dated 29 -6 -76 passed by Shri D. K. Banerjee, Sessions Judge, Purulia in Criminal Revision No. 18 of 1976. Facts relevant for the purpose of disposing of the present Rule may be stated as follows: For a Railway accident that occurred on 12 -8 -75 the accused opposite party was arrested being one of the drivers of the engine involved in the accident but there being injuries on his person, he was admitted to the hospital. A case under Sections 294/304A of the I.P.C. and 101 of the Indian Railways Act was started against the accused on 13 -8 -75 by Prrulia G. R. Police Station and on his discharge from hospital the accused was produced before the learned Judicial Magistrate, Purulia on 17 -8 -75 and was released on bail. The case was adjourned from time to time to enable the police to submit their report of investigation and on 14 -2 -76 on the prayer of the investigating officer, time was extended till 1 -4 -76 for submission of report in final form. On the date so fixed, that is, on 1 -4 -76 no report was submitted by the investigating officer and the learned Sub -Divisional Judicial Magistrate, Purulia stopped the proceeding in accordance with the provisions of Section 167(5) of the Cr. P.C. as the case instituted against the accused was triable by a Magistrate as a summons case and more than six months had elapsed from the date of apprehension of the accused. The petitioner thereafter moved the Sessions Judge against the said order, but without any success. The above order of the Sessions Judge now forms the subject -matter of challenge in the present Rule.
(2.) I have heard Mr. Roy, the learned Advocate for the petitioner as also Mr. Chakravorty, the learned Advocate appearing for the accused -opposite party. According to Mr. Roy, the application that was filed before the learned Sessions Judge was one under Section 167(6) of the Cr. P.C., 1973 (hereinafter referred to as the Code) and not under Section 397 read with Section 399 of the Code, and the learned Judge failed to appreciate the distinctive powers under the said two provisions. Such failure on the part of the learned Sessions Judge, according to Mr. Roy, has resulted in miscarriage of justice as under the provisions of Section 167(6) the learned Sessions Judge was obliged to treat the application filed before him by the petitioner as an original application to be considered on its own merits and not as a re -visional application.
(3.) MR . Chakravorty, the learned Advocate appearing for the opposite party on the other hand contended that in exercising the powers under Section 167(6) of the Code the learned Sessions Judge was required to consider the materials appearing on the record and for that purpose, the reasons which weighed with the learned Magistrate in passing the order under Section 167(5) of the Code and therefore, the order of the learned Sessions Judge, as passed, cannot be said to be illegal and without jurisdiction, more particularly when he has given ample reasons for his refusal to exercise the powers conferred by Section 167(5) of the Cr. P.C.;