The single judge bench of Justice Sugato Majumdar of the Calcutta High Court in the case of Kamal Ghosh & Anr. Vs The State of West Bengal & Anr. held that Section 167 (5) of the Criminal Procedure Code unequivocally states that the Magistrate can stop the investigation on contingency that the Investigating Officer has failed to satisfy the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. There cannot be any automatic order without anything else on expiry of a period of six months from the date of arrest.
Brief facts:
The factual matrix of the case is that the Chief Metropolitan Magistrate granted time to the investigating officer beyond the period of six months without adhering to the provisions of Section 167 (5) of the criminal procedure code. Also, after the charge sheet was filed, the case was transferred to the Metropolitan Magistrate. However, the Metropolitan Magistrate took cognizance of an offense without confirming with the provisions of Section 190 of the code of criminal procedure.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that as per Section 167 (5) of the criminal procedure code, there is a specific timing limit of six months to conclude the investigation, from the date of arrest. The Magistrate was duty-bound to stop the investigation, however, the same was not done by the Chief Metropolitan Magistrate. Furthermore, it was contended that the Chief Metropolitan Magistrate failed to consider that no prima facie case is made out against the Petitioners.
Contentions of the State:
The learned counsel appearing on behalf of the State contended that there is no infirmity in the proceedings when it comes to taking cognizance under Section 190. According to him, Section 192 of the Code of Criminal Procedure does not require the Magistrate to take cognizance of the offence.
Observations of the court:
The Hon’ble High Court observed that section 167 (5) of the code of criminal procedure clearly indicates that the Magistrate has the right to stop an inquiry if the Investigating Officer is unable to persuade the Magistrate that further investigation beyond the first six-month period is required for specific reasons and in the interests of justice. When passing a period of six months from the date of the arrest, there cannot be any automatic order without anything else.
Furthermore, the learned counsel of the Petitioner admitted candidly throughout the hearing that no action was done and no petition was filed with the Trial Court objecting to the contested orders extending the time for investigation. When the inquiry was finished and the charge sheet was filed, the petitioner remained silent at the time but abruptly woke up to the action and joined many actions against various courts.
The court noted that the case falls within the ambit of Section 190 (1) (b) of the code of criminal procedure. Each Magistrate has the authority to take cognizance of the offence in accordance with the specific provisions of the statute. Furthermore, Section 460 (e) of the Code states that a proceeding cannot be dismissed based only on the fact that a magistrate erroneously took cognizance of an offence under Clause a or Clause b of Sub-section (1) of Section 190 while acting in good faith. Thus, Section 460(e) of the Code of Criminal Procedure is preserved even if it is assumed that there is an irregularity. Proceedings cannot be quashed.
The decision of the court:
With the above direction, the court dismissed the Petition and directed the Trial Court to consider the charge within a period of one month.
Case Title: Kamal Ghosh & Anr. Vs The State of West Bengal & Anr.
Case No: CRR 3168 of 2012 and I.A. No. CRAN/3/2014 (Old No. CRAN/4575/2014)
Coram: Hon’ble Mr. Justice Sugato Majumdar
Advocate for the Petitioner: Mr. S. N. Arefin, Mr. Partha Chakraborty, and Ms. Disha Sukla.
Advocate for the State: Mr. Imran Ali, Ms. Debjani Sahu.
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