Holding

A magistrate may pass an order under Section 167(5) of the CrPC even when the offence is triable only by a Special Court, and may, at its discretion, permit investigation to continue beyond the prescribed period if the investigating officer demonstrates special reasons, while the proviso to Section 12‑AA of the Essential Commodities Act limits only the sentencing power of the Special Court and does not reduce the maximum punishment under Section 7, so the limitation bar of Section 468 does not apply.

Summary

The Supreme Court considered two appeals: one under Section 409 IPC where the appellant sought discharge under Section 167(5) of the CrPC after the two‑year investigation period expired, and another under Section 7(1)(a)(ii) of the Essential Commodities Act concerning the limitation bar under Section 468 of the CrPC. It held that the Additional Chief Judicial Magistrate is competent to pass an order under Section 167(5) even when the offence is triable only by a Special Court, and may, at its discretion, allow investigation to continue beyond the statutory period if the investigating officer shows special reasons and interest of justice. The Court further clarified that the proviso to Section 12‑AA of the Essential Commodities Act limits only the sentencing power of the Special Court and does not reduce the maximum punishment under Section 7, which remains up to seven years, so the limitation bar of Section 468 does not apply. The Court found no conflict between the earlier decisions of Falguni Dutta and Durgesh Chandra Saha. Both appeals were dismissed.

Issues considered

Whether a magistrate can pass an order under Section 167(5) of the CrPC when the offence is triable only by a Special Court under the West Bengal Special Court Act.
Whether the time schedule in Section 167(5) is mandatory or can be extended on special reasons and interest of justice.
Whether the Sessions Judge can vacate a discharge order under Section 167(6) and direct further investigation.
Whether the proviso to clause (f) of Section 12‑AA(1) of the Essential Commodities Act limits the substantive punishment under Section 7 to two years.
Whether the offence under Section 7(1)(a)(ii) of the Essential Commodities Act attracts the limitation bar of Section 468 of the CrPC.
Whether there is a conflict between the rulings in State of West Bengal v. Falguni Dutta and Durgesh Chandra Saha regarding Section 167(5).

Legislation cited

Code of Criminal Procedure, 1973s. 167(5), s. 167(6), s. 173(2), s. 468
Essential Commodities Act, 1955s. 12-AA(1), s. 7(1)(a)(ii)
Indian Penal Code, 1860s. 409

Subjects

Section 167investigation time limitmagistrate jurisdictionSpecial CourtEssential Commodities Actlimitation periodSection 468discharge of accusedextension of investigationsentencing jurisdiction

Judgment

NlRMAL KANTJ ROY ETC. A
v.
ST ATE OF WEST BENGAL ETC.

APRIL 23, 1998

[M.M. PUNCHHI, CJI., K.T. THOMAS AND B
S. RAJENDRA BABU, JJ.]

Code of Criminal Procedure, 1973 :

S.167(5)(6) as amended by West Bengal Act 24 of 1988-0~der of C
Magistrate stopping investigation and discharging accused-Held, is not
intended to be automatic equal to failure to complete investigation within
prescribed period-Power is conferred on Magistrate to refrain from passing
the order if Investigating Officer satisfied him that in interest of justice it is
necessary to proceed with investigation beyond the prescribed period and D
there are special reasons to do so-Indian Penal Code, 1860-S 409-West
Bengal Criminal Law Amendment (Special Court) Act, 1949.

Code of Criminal Procedure, 1973/Essential Commodities Act, 1955:

S.468/ss. 7(/)(a)(il), I 2A 12AA(l) proviso-Offence punishable under E
s. 7.E C Act-Bar to taking cognizance after lapse of period of limitation-
Jurisdiction of Special Court to award sentence only upto 2 years-Held, is
different from understanding the extent of sentence-Offence u/s 7(I)(a)(ii) is
punishable with imprisonment which may extend upto 7 years and would not
attract bar of limitation under s. 468 of the Code.
F
The appellant in Criminal Appeal No. 475 of 1998, who was involved
in case under s.409 IPC in the State of West Bengal, surrendered himself
before the Additional Chief Judicial Magistrate on 18.3.1993 and was released
on bail, on 22.9.1995 he filed an application before the Magistrate for
discharging him under s.167(5) of Code of Criminal Procedure, 1973 on the G
ground that the investigation was not completed within two years of his
appearance before the court. The Magistrate dismissed the application on the
ground that the case was triable only by a Special Judge under the West
Bengal Criminal Law Amendment (Special Court) Act, 1949 and, therefore,
an order under s.167(5) could be passed only by the Special Judge concerned.
In a revision application filed by the appellant, Single Judge of the High H
1147
1148 SUPREME COURT REPORTS (1998] 2 S.C.R.

A Court held that the Magistrate was competent to pass the order u/s 167(5)
of the Code despite ouster of his jurisdiction to try the offence by the Special
Court Act, However, the Single Judge, on an application by the Investigating
Officer, granted him further time to complete the investigation. The appellant
challenged the order in the present appeal. Meanwhile the charge-sheet was
laid in the case within the extended time.
B
The appellant in Criminal Appeal No. 476 of 1998 was prosecuted
under s. 7(l)(a)(ii) of Essential Commodities Act, 1955. He appeared in the
court on 26.11.1993 on which date he was enlarged on bail. The charge-sheet "1
was laid on 6.1.1995. The appellant challenged before the High Court the
C order by which the court took cognizance on the ground that the court had
no jurisdiction to take cognizance of the offence in view of the bar contained
in s.468 of the Code. The High Court dismissed the petition holding that the
offence under s.7 of the E.C. Act was punishable with imprisonment for a
term not exceeding 2 years and the period of limitation wa·s three years from
the date of offence. Aggrieved, the appellant filed the appeal.
D
Since interpretation ofs.167(5) of the Code, as amended by the State
:....
of West Bengal, was relevant for deciding these appeals and a two Judge
Bench of this Court felt that there was conflict between the ratio in Falguni
Datta 's case and that of Durgesh Chandra Saha**, the Bench referred these
E appeals for decision by a larger Bench.

In Criminal Appeal No. 475 of 1998 it was contended for the appellant
that time could not have been extended without the Investigating Officer
moving for such extension before the expiry of the period provided under
s.167(5) of the Code.

F For the appellant in Criminal Appeal no. 476of1998 it was contended
that since the case was triable in a summary manner by the Special Court r
constituted. under s.12-A of the E.C. Act, in view of the proviso to clause (I)
of s.12AA(l) of the Act the sentence of imprisonment would not exceed two
years and this limit fixed by the Parliament would have the effect of altering
G the extent of punishment of the offence u/s 7 of the E.C. Act to imprisonment
for a period of two years.

Dismissing the appeals, this Court.

HELD : I.I. The High Court was right in holding that the Additional
H Chief Judicial Magistrate was competent to pass order under s.167(5) of the
N.K. ROYv. STATE OF WEST BENGAL I i49
Code of Criminal Procedure, 1973 in the case giving rise to Crl. Appeal No. A
475for1998. Clause (iii) in Section 167(5) of the Code would apply to the
facts of the case, as the offence under Section 409 I.P.C. was neither triable
by the Magistrate as a summons case nor exclusively triable by a Court of
Session, but triable only by a Special Court in view of the West Bengal
Criminal Law Amendment (Special Court) Act, 1949. The two years period B
mentioned in clause (iii) must be reckoned from the date on which the
accused was arrested or made his appearance. The appellant surrendered on
18.3.1993 and the charge-sheet was not submitted within two years from that
date. (1153-A-B; DJ

State of West Bengal v. Praneb Ranjan Roy JT, (1998) 2 SC 364, relied C
on.
1.2. But the time schedule shown in Section 167(5) of the Code is not
to be treated with rigidity and it is not mandatory that on the expiry of the
period indicated therein the Magistrate should necessarily pass the order of
discharge of the accused. The order stopping further investigation into the D
offence and the consequential order of discharge are not intended to be
automatic sequel to the failure to complete investigation within the period
· fixed in the sub-section. The succeeding words in the sub-section confer
power on the court to refrain from stopping such investigation if the
Investigating Officer satisfies the Magistrate of the fusion of two premises;
(1) that in the interest of justice it is necessary to proceed with the E
investigation beyond the period shown in the sub-section; and (2) that there
are special reasons to do so. The Magistrate must ascertain the progress
of investigation; and if substantial part of investigation is over, he should
seriously ponder over the question whether it would be conducive to the
interest of justice to stop further investigation and discharge the accused.
11153-G-E; HJ F
1.3. Besides, Sub-section (6) of s. 167 further shows that even in a
case where the order stopping investigation and the consequent discharge
of accused has been made, if the Sessions Judge is satisfied that "further
investigation into the offence ought to be made "he has the power to allow
the investigation to proceeci. 11153-FJ G
2. The effect of the proviso to clause (I) s.12 AA(l) of Essential
J. Commodities Act, 1955 is to limit the jurisdiction of the Special Court in
awarding sentence and not to amend s. 7 by making the offence punishable
only upto two years. That is different from understanding the extent of the
sentence. Whether the offence had been reduced by Parliament th~ough a H
1150 SUPREME COURT REPORTS (1998] 2 S.C.R.

A process other than amendment of the provision one has to look at the
punishing provision to know the extent of the sentence prescribed and not
at the limit fixed for a particular court in the matter of a1"'arding sentence.
The assumption made by the High Court that the offence under Section 7 of
the E.C Act is punishable with imprisonment for a term not exceeding 2
B years is on an erroneous basis, because the offence under Section 7(l)(a)(ii)
is punishable with imprisonment which may extend upto 7 years, and, therefore
the offence would not attract the bar of limitation under Section 468 of the
-Code. [1156-F-H; 1157-B-D)

Ram Chandra Pansari v. State of Bihar, (1989) Cr!. Law Journal
C (1988) = Patna Law Journal Report 623, approved.

3.1. There is no conflict between the decisions of this Court in Falguni
Datta* and Durgesh Chandra Saha** and the ratio was applied on the
factual position in each case. In Falguni Datta this Court held that there was
nothing in sub-section (5) of Section 167 to suggest that ifthe investigation
D had not been completed within the period allowed by that sub-section the
officer-in-charge of the police station would be absolved from the responsibility
of filing the police report under Section 173(2) of the Code on the stoppage
of the investigation. Therefore, the Special Court was competent to entertain
the police report restricted to six months investigation and take cognizance
on the basis thereof. Whereas in Durgesh Chandra Saha the situation
E considered was one relating to Section 167(5) of the Code a~ amended by the
West Bengal Act. The Court held that the consequences envisaged in the
sub-section would not befall a case where investigation was completed and
charge-sheet was laid, albeit it was only after expiry of the period specified
in the sub-section. [1154-D-F)
F
*State of West Bengal v. Falguni Dutta and Another, [1993) 3 SCC 288
and **Durgesh Chandra Saha v. Bimal Chandra Saha and others, [1996) l
sec 341, explained and affirmed.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
G 475 of 1998 Etc.

From the Judgment and Order dated 19 .3 .97 of the Calcutta High Court
in Crl. R. No. 2463of1995. ,...

Milion Mukherjee and Ranjan Mukherjee for the Appellant in Crl. A. No.
H 475198.
N.K. ROY v. STATE OF WEST BENGAL [THOMAS, J.} 1151
Ms. Indra Sawhney for the Appellant in CrLA. No. 476/98. A
Tapas K, Ray and A. Subba Rao for the Respondent in Crl.A. No. 475-
476/98.

N.N. Goswami, S.K. Dwivedi, T.C. Sharma and Ashok K. Srivastava, for
the Respondent in Crl.A. No. 476/98 for Union of India. B
The Judgment of the Court was delivered by
,...
THOM~S J., Leave granted.

A two judge bench has referred these cases to be decided by a larger C
bench upon a contention that there is conflict between the ratio in State of
West Bengal v. Falguni Dutta and others, [1993] 3 SCC 288 and that in
Durgesh Chandra Shah v. Vimal Chandra Shah, [1996] 61 SCC 341. The
question relates to the interpretation of Section 167(5) of the Code of Criminal
Procedure as amended by the State of West Bengal.
D
Section 167 of the Code of Criminal Procedure (for short the 'Code')
fixes certain time schedule for production of the arrested accused before the
Magistrate, for detention of the accused in custody after remand, for completion
of investigation into different offences and the consequential orders to be
passed in a case where such time schedule is not adhered to etc. West Bengal
Legislative Assembly has incorporated some amendments in sub-section (5) E
and sub-section (6) of Section 167 of the Code as per West Bengal Act 24
of 1988. By such amendment those sub-sections now read as follows : -

"(5) If, in respect of-

(i) any case triable by a Magistrate as a summons case, the F
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 XVIII of the Indian Penal Code (45 of 1860), the investigation
is not concluded within a period of three years, or
G
(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 H
)L'

1152 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A the interests of justice the continuation of the investigation beyond
the periods mentioned in this sub-section is necessary.

(6) Where any order stopping further investigation into an offence
has been made and the accused has been discharged under sun-
section (5), the Session Judge may, ifhe is satisfied, on an application
B made to him or otherwise, that further investigation into the offence
ought to be made, vacate the order made under sub-section (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."

c The facts in the criminal appeal arising from Special Leave Petition
(Criminal) No.1609of1997 Nirmal Kanti Roy v. State a/West Bengal, are the
following: Appellant was involved as accused in an offence under Section
409, Indian Penal Code. During investigation of the case he applied for and
got a pre-arrest bail order and surrendered himself before the Additional Chief
D Judicial Magistrate, Sealdah on 18.3.1993 and was released on bail. As t!ie
investigation was not completed within two years therefrom, he moved the
said Magistrate on 22.9. 1995 for discharging him as provided in Section 167(5)
of the Code. The Magistrate dismissed the application pointing out that the
case was triable only by a Special judge under the West Bengal Criminal Law
Amendment (Special Court Act 1949) (For short 'the Special Court Act 1949')
E and hence an order stopping investigation and the consequent discharge
order under Section 167(5) could be passed only by that Special Judge
concerned. Appellant challenge that order in revision before the High Court
of Calcutta. A learned Single Judge of the High Court, while dismissing the
revision, held that the Additional Chief Judicial l\fagistrate was competent to
F pass the order under Section 167(5) of the Code despite ouster of his
jurisdiction to try the offence as per the Special Court Act 1949. Nonetheless,
learned Single Judge granted further time to the Investigating Officer, on an
application filed by him in that behalf as the said officer satisfied the High
Court that he could not complete the investigation within the time schedule
on account of his falling sick by jaundice. Charge-sheet was however filed
G within the extended time.

The question raised is whether time could have been extended without
the Investigating Officer moving for such extension before the expiry of the
period.

H There is no dispute that clause (iii) in Section 167(5) of the Code would

\.
N.K. ROY v. STATE OF WEST BENGAL [THOMAS, J.] 1153
l apply to the facts of this case as the offence under Section 409 J,P.C. was A
neither triable by the Magistrate as a summons case nor exclusively triable
by a Court of sessions, but triable only by a Special Court in view of the
Special Court Act 1949. There is also no dispute that the Charge-sheet was
not submitted within two years "from the date on which the accused was
arrested or made his appearance." This Court has held in State of West Bengal B
v. Pranab Ranjan Roy, JT (1998) 2 SC 364 that:

"The words 'made his appearance' in Section 167(5) are used along
with the preceding words which by themselves form into a composite
collection as thus : 'From the date on which the accused was arrested
or made his appearance. It must be noted that the purpose of the sub- C
section is to impose a time schedule for completion of investigation
and such time schedule is to commence either 'from the date of arrest
of the accused or the date when he made his appearance in Court."

So the two years period mentioned in clause (iii) must be reckoned from
18.3.1993 on which date the appellant surrendered himself in Court. D
The order stopping further investigation into the offence and the
-"' consequential order of discharge are not intended to be automatic sequel to
the failure to complete investigation within the period fixed in the sub-section.
The succeeding words in the sub-section confer power on the Court to refrain
from stopping such investigation if the Investigating Officer satisfies the E
Magistrate of the fusion of two premises (I) that in the interest of justice it
is necessary to proceed with the investigation beyond the period shown in
the sub-section and (2) that there are special reasons to do so.

A reading of sub-section ( 6) further shows that even in a case where
the order stopping investigation and the consequent discharge of accused F
has been made that is not the last word on it because the sub-section opens
another avenue for moving the Sessions Judge. If the Session Judge is
satisfied that "further investigation into the offence ought to be made" he has
the power to allow the investigation to proceed. Hence we take the view that
the time schedule shown in Section 167(5) of the Code is not to be treated G
with rigidity and it is not mandatory that on the expiry of the period indicated
therein the magistrate should necessarily pass the order of discharge of the
accused. Before ordering stoppage of investigation the magistrate shall
consider whether, on the facts of that case, further investigation would be
necessary to foster interest of criminal justice. Magistrate at that stage must
look into the record of investigation to ascertain the progress of investigation H
I 154 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A thus for registered. If substantial part of investigation was by then over, the
magistrate should seriously ponder over the question whether it would be
conducive to the interest of justice to stop further investigation and discharge
the accused.

Section 167(5) without West Bengal Amendment is only bereft of the
B duty cast on the Court to discharge the accused. A two judge bench of this
Court, while dealing with the un-amended sub-section, has considered the
situation where the Magistrate stopped investigation on the expiry of six
month. State of West bengal v. Falguni Dutta and another (1993] SCC 288
this Court held thus :-

c "If the investigation has been stopped on the expiry of six months or
the extended period, if any, by the Magistrate in exercise of power
conferred by sub-section (5) of Section 167 of the Code, the
investigation comes to an end and, therefore, on the completion of the
investigation Section 173(2) enjoins upon the officer in charge of the
D police station to forward a report in the prescribed form. There is
nothing in sub-section(5) of Section 167 to suggest that if the
investigation has not been completed within the period allowed by
that sub-section, the officer in charge of the police station will be
absolved from the responsibility of filing the police report under
Section I 73(2) of the Code on the stoppage of the investigation.
E Therefore, the Special Court was competent to entertain the police
report restricted to six months' investigation and take cognizance on
the basis thereof."

In Durgesh Chandra Saha v. Bimal Chandra Saha and Others, (1996]
I SCC 341 the situation considered was one relating to Section 167(5) of the
F Code as amended by the West Bengal Act. The two-judge Bench held that
the consequences envisaged in the sub-section would not befall a case where
investigation was completed and charge-sheet was laid, albeit it was only
after expiry of the period specified in the sub-section.

in our opinion there is no conflict between the aforesaid two decisions
G
and the ratio was applied on the factual position in each case. Nor is it at
variance with the view which we have expressed above.

The fact situation in the other appeal, arising out of S.L.P. (Cr!.) No.1705
of 1997 Ganesh Lal Moondra & Others v. S. Dasgupta and another, is
H different. In that case appellant was involved in an offence under Section
N.K. ROY v. STATE OF WEST BENGAL [THOMAS, J.] 1155
7(1)(a)(ii) of the Essential Commodities Act, 1955 ('E.C. Act' for short) for A
contravention of Clause 17 of the Textile Control Order, 1988. FIR in that case
was lodged on 27 .8.1991. Appellant appeared in the court on 26.11.1993, and
was enlarged on bail on the same date. The charge sheet was laid on 6.1.1995.

Obviously the investigation was completed before the expiry of two
years from the date of appearance of the accused and hence there is no scope B
for invoking the consequences mentioned in Section 167(5)(iii) of the Code
as per WB amendment. But the contention advanced in that case before the
High Court was that the court has no jurisdiction to take cognizance of the
offence in view of the bar contained in Section 468 of the Code, which reads
thus : c
"468. Bar to taking cognizance after lapse of the period oflimitation.-
(1) Except as otherwise provided elsewhere in this Code, no Court
shall take cognizance of an offence of the category specified in sub-
section (2), after the expiry of the period of limitation.
D
(2) The period of limitation shall be -

(a) six months, if the offence is punishable with fine only;

(b) One year, ifthe offence is punishable with imprisonment for a term
not exceeding one year;
E
(c) three years, if the offence is punishable with imprisonmen< for a
term exceeding one year but not exceeding three years."

[Sub-section (3) is not relevant here.]

When appellant challenged the order by which the court took cognizance F
of the aforesaid offence the High Court proceeded on the assumption that the
offence under Section 7 of the E.C. Act is punishable with imprisonment for
a term not exceeding 2 years and therefore found that the period of limitation
is 3 years from the date of offence. But the aforesaid assumption made by
the High Court is on an erroneous basis because the offence under Section
7(l)(a)(ii) is punishable with imprisonment which may extend up to 7 years. G
That sub-clause is extracted below :

"7. Penalties.- (1) If any person contravenes any order made under
section 3, -

(a) he shall be punishable- H
1156 SUPREME COURT REPORTS [1998] 2 S.C.R.

A (i) in the case of an order made with reference to clause (h) or clause
(I) of sub-section (2) of that section, with imprisonment for a term
which may extend to one year and shall also be liable to fine, and

(ii) in the case of any other order, with imprisonment for a term which
shall not be less than three months but which may extend to seven
B years and shall also be liable to fine."

Appellant endeavoured in the High Court to show that the said offence
is punishable only up to two years, on the strength of the proviso to clause
(f) in Section 12-AA(l) of the E.C. Act. That section stipulates that when a
Special Court is constituted under Section 12-A for any area, therefore all
C offences under the E.C. Act committed within that area shall be triable by that
Special Court. Clause (f) of Section 12-AA(l) says that all such offences shall
be tried in a summery manner. The proviso that clause read thus:

"Provided that in the case of any conviction in a summery trial under
D this section, it shall be lawful for the Special Court to pass a sentence
of imprisonment for a term not exceeding two years."

The contention is that the aforesaid limit fixed by the Parliament would
have the effect of altering the extent of punishment for the offence under
Section 7 of the E.C. Act to imprisonment for a period of two years. We
E cannot agree that the effect of the said proviso was to amend section 7 by
making the offence punishable only up to two years. The effect of the proviso.
is to limit the jurisdiction of the Special Court in awarding sentence. That is
different from understanding the extent of the sentence, whether the offence
had been reduced by Parliament through a process other than amendment of
the provision. One has to look at the punishing provision to know the extent
F of the sentence prescribed and not at the limit fixed for a particular court in
the matter of awarding sentence; e.g. Section 326 of the Indian Penal Code
deals with an offence punishable with imprisonment for life or with iiy.prisonment
for a term which may extend to 10 years. But that offence is triable by a
magistrate of first class, the upper limit of whose powers in the matter of
G awarding sentence is restricted by Section 29(2) of the Code as 3 years. By
reason of that Section it cannot be assumed that the offence under Section
326 !PC is punishable only with imprisonment for 3 years.

A Division Bench of the Patna High Court had occasion to consider the
same question whether the offence under Section 7 of E.C. Act is punishable
H only up to two years on account of Section 12-AA of that Act and
N.K. ROY v. STATE OF WEST BENGAL [THOMAS, J.) 1157

consequently whether a case relating to that offence became a summons case. A
In Ram Chandra Pansari v. State ofBihar 1989 Crl. Law Journal 1988 =Patna
Law Journal Report 623, learned Judges negatived this contention. We quote,
with approval, the following passage from the said decision :

"The maximum sentence of 7 years as provided under Section 7 of the
Act and the proviso to clause (f) to section 12AA imposing a limit of B
2 years imprisonment on the power of the Special Judge has to be
harmoniously construed and I do not find any difficulty in the same.
The offence continues to attract the maximum sentence of 7 years. But
the Special Judge trying the case does not have the jurisdiction to
impose a sentence of more than 2 years. This does not mean that the C
offence itself is punishable by 2 years. It only means that although
the offence is punishable by 7 years but the trial court cannot give
a sentence beyond 2 years and if this construction is given then both
section 7 and the proviso to clause (f) to section l 2AA get their full
play."
D
As the offence under Section 7A(1)9(ii) of the E.C. Act is punishable
with imprisonment up to 7 years the offence would not attract the bar of
limitation under Section 468 of the Code. It is, therefore, unnecessary for us
to consider whether the curative provision in Section 473 of the Code should
have been invoked. In the result we dismiss both the appeals.
E
R.P. Appeals dismissed.