STATE OF WEST BENGALversusFALGUNI DUTTA AND ANOTHER

    A                         STATE OF WEST BENGAL

                                               v.
                         FALGUNI DUTTA AND ANOTHER
                                       MAY 5, 1993
    B
                     [A.M. AHMADI AND M.M. PUNCHHI, JJ.]
              Essentiol Commodities Act 1955-Sections 12A. 12M, 7(1) (a) (ii) read
        with Sections 167 (5), 262 to 265, Code of Criminal Procedure. 1973~.ffences
        u11der-Trial-S11111111ary way-Legislative imention.

    c       Essemiol Commodities Act, 1955-Section 12A-Special Court Whether
        empowered to exercise powers 1t!s. 167 (5), Code of Criminal Proced11re. 1973.

              Essential Commodities Act, 1955-Sections 7 (1) (a) {ii), 2A read with
        Section 167(5 ), Code of Criminal Proce[lure-Charge Sheet filed after expi1y of
        six months from the date of arrest of accused-Special Court's power to take
    D
        cognizance, II}' and punish-Scope of

               On 16.3.1984, the police raided the business premise and godown of the
        respondents and sized certain essential commodities which were stored there
        in contravention of certain orders issued under section 3 read with section 5
        of the Essential Commodities Act, 1955. On the same day the respondents
    E
        were arrested for th·e commission of an offence punishable under section 7(1)
        (a) (ii) of the Act. But chargesheet was submitted under section 173, Code of
        Criminal Procedure on 30.9.1986, after expiry of the period of six months.
        The Special Court constituted under section 12A took cognizance of the
        offence on 13.3.1987 on the basis of the charge-sheet.
    F
\             The respondent No. I moved an application before the Special Court to
        quash the proceeding since the case was triable as a summon case in \'iew of
        section 12AA (1) (t) of the Essential Commodities Act, sub-section (5) of
        Section 167 of Code of Criminal Procedure was attracted.

    G         Relying on the decision in Kanta Dey v. The State of West Bengal (1986)
        Calcutta Criminal Law Reporter 158, the Special Court rejected the applica-
        tion holding thatthe provision ofsection 167 (5) of the Code had no application
        to a case initiated for the commission of an offence punishable under section
        7(1) (a) (ii) of the Act.
    H
                                         570
      STA lE OF WEST BRNGAL v. FALGUNI DUTTA.                                571

     Respondents' revision application against the order of Special Court~ A
was allowed by Single.Judge of the High Court. The High Court relying on the
decision in Public Prosecutor, Higlt Court ofHyderabad v.Anjaneyulu, (1986)
Criminal Law Journal 1456, held that sub-section (5) of section 167 of the
Code stood attracted. On the High court quashing the prosecution, the
respondents were discharged. The present appeal by special leave was fded
by the State against the order of the High Court.                            B

      On the questions, 1 whether a Special Court constituted under "Section
12A of the Essential Commodities Act, 1955 is empowered to exercise powers
under section 167 (5) of the Code of Criminal Procedure, 1973 in relation to
an accused person forwarded to it under section 12AA (1) (b) of the Act and
(ii) whether a Special Court can take cognizance of the offenc~ and proceed
                                                                                       c
to try and punish the accused person, notwithstanding the fact that the
charge-sheet is fded after expit•y of the period of six months from the date of
arrest of the accused person?", partly allowing the appeal, this Court,

      HELD: 1.1. From the plain language of the provisions introduced by Act           D
18 of1981 the legislature desired to-ensure that all offences under the Act were
tried by the Special Court constituted under section 12A in a summary
manner applying the provisions of sections 262 to 265 of the Code and further
provided that in case of conviction the sentence shall not exceed two years,
bringing the offence within the definition of a summons-case under the Code.
Hut for the insertion of section 12A in its present form and section 12AA, the         E
offence under section 7 (I) (a) (ii) of the Act would ha\'e attracted the definition
of a warrant-case. (578-D)

     1.2. The avowed object of these legislative changes was expeditious
disposal of offences under the Act by Special Courts employing summary
                                                                                       F
procedure and applying the p1·ovisions of the Code to such trials sa\•e as
otherwise provided. This enahled the Special Courts to take cognizance of the
offences under the Act without a formal order of commitment. (578-C)


      1.3. After the constitution of Special Courts all offences under the Act
have to be tried by that court in a summary ways by applying the provisions G
of sections 262 to 265 (both inclusive) of the Code. The prO\·iso places a fetter
on the power of the Court in the matter of passing a sentence on conviction,
namely, notwithstanding the tact that section 7(1) '(a ) (ii) prescribes a
punishment extending upto seven ~·cars and fine, Special Court shall not pass
a sentence of imprisonment for a term exceeding two years. It is this proviso
which attracts the definition of a summon case, the trial whereof must be H
    572                    SI ;PREME COURT REPORTS                       [1993] 3 S.C.R.


A   undertaken in accordance with the procedure outlined in Chapter· XX of the
    Code. (579-A-H)

           1.4. Section 167 (5) says that ifin an~· case triable as a summons-case, the
    in,·estigatioi1 is not concluded within a period of six months from the date on
    which the accused came to be arrested, the Magistrate shall make an order
B   stopping further inl'estigation into ·the offence unless the Magistrate, for
    special reasons and in the interest" of justice considers it neccssar~· to permit
    continuation of the im·estigation. (579-C)

         1.5.The ohject of sub-section clearly (5) of Section 167 is to ensure
    promr~t im·esti~ation into an offence triable as summons-case to a\;oid
c
    hardship and hari1ssment to the accused person. (646-C)

          1.6. The prosecution in <1uestion _)eing a summons-case triable in a
    ,Sumnmr~· manner as per procedure outlined in scctions262 to 265 of the Code,
    which in turn attract" the procedure meant for summons-case, it is oh\•ious
D   that the f)ower conferred b~· sub-section (5) of section 167 can be inw1ked b~·
    the Special Court b~· ''irtue of clause (c) of section 12AA (1) of the Act which
    in terms states that the Special Court ma~· exercise the same powers which a
    Magistrate may exercise under section 167 of the Code. Thus a special Court
    is expressly em1>owered by clause (c) of Section 12AA (1) to exercise the same
    powers which a Magistrate ·having jurisdiction to try a case may exercise
E   under section 167 ol'the Code in relation to an accused person who has been
    forwarded to him under that provision. (579-D)

         1.7. The High Court was right in concluding that section 167(5) of'the
    Code was attracted in the present case and the Special Court was entitled 'to
F   exercise the power conferred b~· that sub-section. (579-F)

          1.8. In the case of an offence punishable under section 7(1) (a) (ii) of the
    Act which is tried by a Special Court constituted under section 12A, the
    prol'ision of sub-section (5) of section 167 of the Code gets attracted if the
    im·estigation has not been completed within the period allowed hy that sub-
G   section. (582-F)

          1.9. The Special Court was competent to entertain the police report
    restricted to six months im•estigation and take cognizance on the basis
    thereof. Therefore. the Special Court is directed to proceed with the trial from
    that stage on \~ards and complete the same as early as possible in accordance
H
             STATE OF WEST BRNGAL v. FALGUNI DUTTA [AHMADl,J.]              573

with law. (582-G)                                                                      A

Kanta Dev v. The State oflVest Bengal, (1986) Calcutta Criminal Law Reporter
158=(1986) 1 CHN 267 and Babula! Agarwal v. State, (1987) 1 CHN 218, over-
ruled. (639-8-C)

Jnan Prakesh Agar.wala "·State of West Bengal, (1992)"1 CHN 218 and Public             B
Prosecutor, High Court of Hyderabad & etc. v. Ajnaneyu/11 and etc., (1986)
Criminal Law Journal 1456, approYed.

Hmsainara Kha moon & Ors. ''·Home Secretary, State of Bi/tar, Patna, (1979) 3
SCR 760, referred to. (639-H, 647-F)                                                   c
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.397 of
1993.

      From the Judgment and Order dated 11.7.90 of the Calcutta High Court in
Crl. Revision No. 1453of1987.                                                          D


        D.N. Mukherjee, D. Sinha and J.R. Das for the Appellant.

        Sukumar Gu.ha and A.K. Sengupta for the Respondents.
                                                                                       E
        The Judgment of the Court was delivered by

        AHMADI, J. Special leave granted.

      In this appeal by special leave two questions arise for our consideration,       F
namely, (i) whethera Special Court constituted under Section l 2A of the Essential
Commodities Act, 1955 (hereinafter called 'the Act') is empowered to exercise
powers under sub-section (5) of Section 167 of Code of Criminal Procedure, 1973
('the Code· for short) in relation to an accused person forwarded to it under clause
(b) of sub-section (l) of section 12AA of the Act? and (ii) whether a Special Court
can, notwithstanding the fact that the charge-sheet has been filed after the expiry    G
of the period of six months from the date of arrest of the accused person or the
extended period, take cognizance of the offence and proceed to try and punish the
accused person? These two questions arise in the backdrop of the following facts.

        A police party headed by an Inspector of Police raided the business premise
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    574                     SUPREME COURT REPORTS                           (1993) 3 S.C.R.


A   and godown of the respondents on March 16, 1984 and in the presence of
    respondent F~lguni Dutta seized certain essential commodities stored in contra-
    vention of certain orders issued under section 3 read with section 5 of the Act. The
    accused Falguni Dutta was arrested on the same day for the commission of an
    offence punishable under section 7(1) (a) (ii) of the Act but the charge-sheet was
    submitted after the expiry of the period of six months from the date of arrest oil.
B   September 30, 1986. The learned Judge presiding over the Special Court Consti-
    tute of under section l 2A of the Act took cognizance of the offence on March 13,
                                                                                              --
    1987 on the basis of the charge-sheet submitted under section 173 of the Code.
    Thereupon the accused persons moved an application before the learned Special
    Judge for quashing the proceedings on the ground that since the case was triable
    as a suilllhons-case in view of section l 2AA( 1) (f) of the Act, clause (5) of section
c   167 of the Code was attracted which enjoined thatthe proceedings be dropped. The
    learned Special Judge relying on a decision of a learned Single Judge of the High
    Court in Kanta Dev v. The State.of West Bengal (1986) Calcutta Criminal Law
    Reporter        158 =(1986) l CHN 267 rejected the application on July 24, 1987
    holding that the provision of section 167 (5) of the Code had no application to a
    case initiated for the commission of an offence punishable under section 7 (1) (a)
D
    (ii) of the Act. We may incidentally point out that the same view was expressed
    in Babula! Agatwal v. State (1987) I CHN 218. Being aggrieved by the rejection
    of the application the accused preferred a Revision Application to the High Court
    challenging the legality of the said order. A learned single Judge of the High Court
    placing reliance on a Division Bench decision of the High Court of Andhra
E   Pradesh in the case of Public Prosecutor, High Court of Hyderabad & etc. v.
    Anjaney11!11 and etc. (1986) Criminal Law Journal 1456] held that sub-section (5)
    of section 167 of the Code stood attracted and the learned Special Judge ought to
    have stopped the further investigation on the expiry of six months and ought to
    have discharged the accused. He, therefore, set aside the order of the learned
    Special Judge and also quashed the prosecution and discharged the accused. lt is
F   against this order of the High Court that the present appeal is preferred.

          We may incidentally mention that when the learned Single.Judge was
    disinclined to follow the earlier two decisions of other learned Single Judges of the
    High Court the proper course was to refer the matter to a Division Bench for
    decision. That, however, has now lost significance in view of the subsequent
G
    decision of the Division Bench in Jnan Prakash Aganvala v. State of West Bengal
    (1992) I CHN 213 taking a contrary view. In the said case the Division Bench has
    taken the view which the learned Single Judge has taken in the present case. We
    will deal with these decisions in some detail hereafter.


H         At the outset we deem it appropriate to notice the relevant provisions of the
              STATEOFWESTBRNGAL ''· FALGUNI DUTTA [AHMADl,J.]                       575

concerned statutes. The Act was enacted to provide, in the interest of the general        A
public for the control of production, supply and distribution of, and trade and
commerce in, certain commodities. Section 3, inter a/ia, lays down that if the
Central Government is of opinion that it is necessary or expedient so to do for
maintaining or incr~asing supplies of any essential commodity or for securing
their equitable distribution and availability at fair prices, it may, by order, provide
for regulating and prohibiting the production, supply and distribution thereof and        B
trade and commerce therein. By section 4 it is provided that an order made under
section 3, may, confer powers and impose duties upon the Central Government or
the State Government or officers and authorities of the Central Government or
State Government and may contain directions any State Govern~ent or to officers
and authorities thereof as to the exerdse of any such powers or the discharge of
any such duties. The Central Government is empowered by section 5 to direct that          C
the power to make orders or issue notifications under section 3, shall, in relation
to such matters and subject to such conditions, if any, as may be specified in the
direction, be exercisable, inter alia, by such State Government, as may be
specified in the direction. In exercise of the power so conferred certain orders were
issued by the State Government in regard to certain e.ssential commodities from           D
time to time. Section 7 prescribes the penalties for the contravention of any order
made under section 3. The relevant portion of section 7 with which we are
concerned reads as under :

               "7 (1)- If any person contravenes any order made under section 3,-
                                                                                          E
               (a) he shall be punishable,- ·

               (i) in the case of an order made with reference to 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
                                                                                          F

               (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 years and shall also be liable to fine.

      In the present case the accused came to be charged under section 7 (1) (a) (ii) G
of the Act. Having regard to the fact that the punishment prescribed for the said
offence extends to seven years and fine, the case would fall within the definition
of warrant-case under section 2(x) of the Code. This becomes evident if we read
the definitions of 'summons-case' and 'warrant-case' together. They are as under:
                                                                                          H
                                                                                            --
     576                    SUPREME COURT REPORTS                         [1993] 3 S.C.R.


A                  "2 (w) - Summons-case means a case relating to an offence, and
                   not being a warrant-case.

                   2(x)- Warrant-case means a case relating to an offence, punish-
                   able with death, imprisonment for life or imprisonment for a term
                   exceed{ng two years."
B
          ·However, by Amending Act 18 of 1981 the Legislature, for dealing more
     effectively with persons indulging in antisocial activities like hoarding and black-
     marketing and for combating the evil of inflationary prices, considered it neces-
     sary to make special provisions for a temporary period of five years (extended by
c    another five years), namely, to provide :

                   (i) for the control, in a summary way of all offences under the Act;
                   and

                  ·.(ii) for the constitution; for the purposes of such trial, of Special
D                   Courts, consisting of a Single Judge.

         To achieve this objective section 12A was amended with a view to empow-
   ering the State Government for the purpose of providing speedy trial of the
   offences under the Act to constitute as many Special Courts as may be necessary
E for such area or areas to be to be specified in the notification. Section l 2AA which
   too was inserted by the said Amending Act begins with a non-obstance clause and
   provides that all offences under the Act shall be triable only by the Special Court
   constituted for the area in which the offence was committed or where there are
   more Special Courts than one in such area by one of them as may be specified in
   this behalf by the High Court. Clause (b) of sub-section (1) of section 12AA next
F provides that where a person accused of or suspected of the commission of an
   offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-
   section (2A) of Section .167 of the Code, such Magistrate may authorise the
  -detention of such person such custody as he thinks fit for a period_ not exceeding
   15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in
   the whole where such Magistrate is an Executive Magistrate unless his detention
G for such period is unnecessary. Clause (c) of that sub-section is relevant for our
   purpose and may be extracted:

                   "(c) -The Special Court, may, subject to the provisions of clause
                   (d) of this Section, exercise, in relation to person forwarded to it
                   under clause (b ), the said power which a Magistrate having jurisdic-
H
                STi\ll':OfWESTBRNGAL v. FALGUNI'DUTIA [AHMADI,J.]                     577

               tion to Lry a case may exercise under section 167 of the Code in             A
               relation to an accused person in such case who has been forwarded
               to him under this section."

      Sub-clause (d) provides that no court other than the Special Court or the High
Court shall release an accused on bail. Sub-clause (f) of this sub-section is also
relevant and reads as under :                                                               B

               "(f) All offences under this Act shall be tried in a summary way and
               the provisions of sections 262 to 265 (both inclusive) of the Code
               shall. as far a~ may be, apply to such trioal;
                                                                                            c
               Provided that in the case of any conviction in a summary trial under
               this section it shall be lawful for the Special Court to pass such
               sentence of imprisonment for a term not exceeding two years."

      It will thu$ be seen that while the penalty provided for an offence under
sectiC':t 7( l) (a) (ii) extends to seven years and fine, by virtue of clause (t) of sub-   D
section (1) of section l2AA if the offence is tried in a summary way applying the
provisions of sections 262 to 265 of the Code the penalty would be restricted by
the proviso to a maximum of two years, which would, it is argued, bring the case
within the meaning of a 'summons-case' as defined in section 2(w) of the Code,
thereby attracting sub-section (5) of section 167 of the Code. It would be
                                                                                            E
advantageous to reproduce sub-section (5) of section 167 of the Code, It reads as
under:

               "If in any case triable by a Magistrate· as a summons-case, the
               investigation is not concluded within a period o{six months from
               the date on which the accused was arrested, the Magistrate shall             F
               make an order stopping further investigation into the offence unless
               the officer making the investigation satisfies the Magistrate that for
               special reasons and in the interest of justice the continuation of the
               investigation beyond the period of six months is necessary."

      To complete reference to the provisions of the Act we may also state that G
section lOA posits that notwithstanding anything contained in the Code, every
offence punishable under the Act shall be cognizable and non-bailable. Section 11
provides that cognizance of an offence under the Act shall be taken only on a
written report. Section l 2AC makes the provisions of the Code applicable to
proceedings before a Special Court unless otherwise provided. These, in brief, are
                                                                                   H
      578                    SUPREME COURT REPORTS                          (1993) 3 S.C.R.


 A    the relevant provisions of the Acl and the Code with which we are concerned.

            It may here be mentioned that section l 2A was first inserted by Amendment
      Act of 1964. It then empowered the Central Government to specify any order under
      section 3 to be a special order the contravention whereof may be tried summarily
      to which the provisions of sections 262 to 265 of the Code were. made applicable.
 B    The proviso stipulated that in the case of conviction in a summary trial it shall be
      lawful for the Magistrate to pass a sentence of imprisonment not exceeding one
      year, Subsequently by Amendment Act 18of1981, section 12A was substituted
      by the present provisions and new sections l 2AA to l 2AC were inserted. The
      avowed object of these legislative changes was expeditious disposal of offences
      under the Act by Special Courts employing summary procedure and applying the
 c    provisions of the Code to such trials save as otherwise provided. This enabled the
      Special Courts to take cognizance of the offences under the Act without a ~onnal
      order of commitment. It thus becomes clear from the plain language of the
      provisions introduced by Act 18 of 1981 that the legislature desired to ensure that
      all offences under the Act were tried by the Special Court Constituted under
 D    Section I2A in a summary manner applying the provisions of sections 262 to 265
      of the Code and further provided that in case of conviction the sentence shall not
      exceed two years, bringing the offence within the definition of a summons-case
      under the Code. But for the insertion of section l 2A in its present form and section
       l 2AA, the offence under section 7 (l) (a) (ii) of the Act would have attracted the
      definition ofa warrant-case. It is, therefore, obvious that the Amending Ac.t 18 of
 E    1981 has brought about a substantial change.                                 '

              The position in law as emerging after the amendment of the Act by Act 18
       of 1981 is crystal clear, namely, that on the constitution of special Courts all
       offences under the Act are triable only by the Special Court for the Area in which
       the offence has been committed. Section 12AA (I) (b) provides that where a
   F
       person accused of an offence under the Act is forwarded lo a Magistrale under sub-
       section (2) or sub-section (2A) of section 167 of the Code, such Magistrale is
       empowered to authorise the detention of such person in such custody as he thinks
       fit for a period not exceeding 15 days in the whole where such Magistrale is a
       Judicial Magistrate and 7 days in the whole where he is Executive Magistrale .
. 'G . Clause (c) of that sub-section provides that the Special Court may exercise in
       relation to the person forwarded to it under clause (b), the same power which a
       Magistrate having jurisdiction to try a case may exercise under section 167 of the
       Code in relation to. an accused person in such case who has been forwarded to him
       under that section. Section l 2AC says that the provisions of the Code shall apply
        to proceedings before a Special Court save as otherwise provided in the Act. A
                        of
   H conjoint reading these provisi-ons makes it clear that after the constitution .of
         STA TE OF WEST BRNGAL v. FALGUNI DUTTA [AHMADl.J.J                     579

~   Special Courts all offences .under the Act have to be tried by that court in a A
    summary way by applying the provisions of sections 262 to 265 (both inclusive)
    of the Code·. The proviso places a fetter on the power of the Court in the matter of
    passing a sentence on conviction, namely, that notwithstanding the fact that
    section 7 (1) (a) (ii) prescribes a punishment extending upto seven years and fine,
    Special Court shall not pass a sentence of imprisonment for a term exceeding two
    years. It is this proviso which attracts the definition of a summons-case, the trial B
    whereof must be undertaken in accordance with the procedure outlined in Chapter
    XX of the Code. Chapter XXI of the Code deals with Summary Trials. Section 262
    of the Code which outlines the procedure for summary trials in terms states that
    the procedure specified in the Code. for the trial of summons-case shall be
    followed, except otherwise provided. Section 167 (5) says that ifin any case triable
    as a summons-case, the investigation is not concluded within a period of six
                                                                                           c
    months from the date on which the accused came to be arrested, the Magistrate
    ~hall make an order stopping further investigation into the offence unless the .•
    Magistrate, for special reasons and in the interests of justice considers it necessary
    to permit continuation of the investigation. The prosecution in question being a
    summons-case triable in a summary manner as per procedure outlined in sections D
    262 to 265 of the Code, which in turn attracts the procedure meant for summons-
    case, it is obvious that the power conferred by sub-section (5) of section 167 can
    be invoked by the Special Court by virtue of clause (c) of section I 2AA (I) of the
     Act which in terms states that the Special Court may exercise the same powers
     which a Magistrate may exercise under section 167 of the Code. Thus a special
     Court is expressly empowered by clause (c) of section 12AA (I) to exercise the E
    same pewers which a Magistrate having jurisdiction to try a case may exercise
    under section 167 of the Code in relation to an accused person who has been
    forwarded to him underthatprovision. We have, therefore, no mannerof doubt that
    the High Court was right in concluding that section 167 (5) of the Code was
    attracted in the present case and the Special Court was entitled to exercise the
    power conferred by that sub-section. That being so the view taken by the Division F
    Bench of the Calcutta High Court in the case of Jnan Prakash (supra) insofar as
    it relates to the application of section 167 (5) to an offence under section 7 (I) (a)
    (ii) of the Act triable by the Special Court constituted under section I 2A of the Act
    cannot be doubted. That is also the view of the High Court of Andhra Pradesh in
    the case of Public Prosecwor, High Court of Hyderabad (supra). Therefore, the
                                                                                           G
    Special Court can stop further investigation into the offence if the investigation is
    riot concluded within a period of six month from the day of arrest of the accused
    person unless for special reasons and in the interest of justice the continuation of
    the investigation beyond that period is necessary. In the present case the officer
    making the investigation had not sought the permission of the Special Court to
    continue with the investigation even after the expiry of six months. The object of ff .
    580                    SUPREME COURT REPORTS                          (1993) 3 S.C.R.


A   this sub-section clearly is to ensure prompt investigation into an offence triable as
    sununons-case to avoid hardship and harassment to the accused person. Both the
    High Courts of Calcutta and Andhra Pradesh have taken the view that after the
    amendment of the Act by Act 18 of 1981 and the introduction of section 12AA the
    power conferred on the Magistrate under section 167 (5) of the Code is exercisable
    by the Special Court constituted under section l 2A of the Act.We also concur with
B   the High Court of Calcutta that the two decisions rendered by the learned Single
    Judges of that Court earlier in point of time did not lay down the correct law.
    Similarly the Division Bench of the High Court of Andhra Pradesh was also right
    in holding that sub-section (5) of section 167 of the Code would be applicable to
    prosecutions under the Act triable by the Special Court.

c         That t<Ikes,us to the next question whether the Special Court can, besides
    directing stoppage of investigation, entertain and act on a charge-sheet or a police
    report submitted under section 173 (2) of the Code in such cases. The expression
    'police report' has been defined under the Code to mean a report forwarded by a
    police officer to a Magistrate under sub-section (2) of section 173 [section 2).
D   Section 173 lays down that every investigation under Chapter XII shall be
    completed without unnecessary delay and as soon as it is completed, the officer-
    in-charge of the police station shall forward to a Magistrate empowered to take ·
    cognizance of the offence on a police report, a report in the form prescribed by the
                                                                                             .,_
    State Government. It will thus be seen that the police report under section 173(2)
    has to be submitted as soon as the investigation is completed .. Now, if the
E    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 Coqe, 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 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
F   completed within the period allowed by that sub-section, the officer-in-charge of
    the police station will be absolved from the responsibility offiling the police report
    under section 173(2) of the Code on the stoppage of the investigation, The High
    Court of Andhra Pradesh rightly observed in paragraph 13 of the Judgment as
    under:
G
                   "Under the new Code in addition to definition for 'investigation' in
                   section 2(h), a separate definition for 'police report' is given by
                   section 2(r). This coupled with the newly introduced sub-section (5)
                   of section 167 brings out the distinction between investigation by
                   the police and the police report on which a court is to take
H                  cogniiance. The re~rt cannot now be said to be an integral part of
          STA1E OF WEST BRNGAL v. FALGUNI DUTTA [AHMADI,J.]                   581

               investigation. The introduction of section 167 (5) in the Code,            A
               cannot have the effect of invalidating the investigation done within
               the period of six m9nths or enabling ~e court to stopping the filing
               of police report under section 173 (2). If the investigation done
               during the period of six months discloses an offence, a police report
               may be founded on it and the court can take cognizance of the
               same."                                                                     B

      In Hussainara Kltantoon & Ors. v. Home Secretary, State of Bihar, Pama
[ 1979) 3 SCR 760 this Court held that the investigation done within the period of
six months is not rendered invalid merely because the investigation is not
completed and further investigation is stopped. The exact words used are :
                                                                                          c
               " ..... in such a case the Magistrate is bound to make an order
               stopping further investigation in that event, only two courses would
               be open: either the police must immediately proceed to file acharge-
               sheet, if the investigation conducted till then warrants such a course,
               or if no case for proceeding against the under trial prisoner is           D
               disclosed by the investigation, the undertrial must be released
               forthwith from detention."

       We, therefore, concur with the view taken by theAndhra Pradesh High Court
in this regard.
                                                                                          E
      In the result we partly allow this appeal. While we agree with the view taken
by the High Court of Calcutta that in the case of an offence punishable under
section 7(1) (a) (ii) of the Act which is tried by a Special Court constituted under
section 12A, the provision of sub-section (5) of section 167 of the Code gets
attracted ifthe investigation has not been completed within the period allowed by         F
that sub-section but we find it difficult to sustain that part of the order of the High
Court by which the order of the Special Court taking cognizance of the offence on
the police report, i.e., charge-sheet submitted under section 173 (2) of the Code
came to be quashed. We set aside that latter part of the order and hold that the
Special Court was competent to entertain the police report restricted to six months
investigation and take cognizance on the basis thereof. We, therefore, direct that        G
the Special Court will proceed with the trial from that stage onwards and complete
the same as early as possible in accordance with law.

VPR.                                                         Appeal partly allowed.