Arun Kumar Bose vs State of West Bengal

A.B. Mukherjee, J.—The revisional application has been filed to quash the proceeding pending before the Ld. Sub Divisional Judicial Magistrate. Howrah, arising out of Golabari Police Station Case No. 424 of 1991 under Sections 406 and 420.lPCbeingC.S.No. 238dated 3-12-1994 arising out of an FIR dated 5-10-91.

The case of the petitioner in short is that one time he was posted at District Fishery Officer, Howrah under the Department of Fishery, Government of West Bengal. From 1-12-86 to 5-5-90 following which he was transferred to 24-Parganas (South) in the same capacity. The complainant being the counterpart of the petitioner took over charge of the office of District Fishery Officer at Howrah. At the time of making over and taking over charge, no discrepancy was detected and the charge was taken by the complainant without any reservation.

On 5-10-1981 a written complaint was filed giving rise to the instant P. Case where it has been stated that as per the report of the Audit with regard to period from 1-1-89 to 31-3-91, there was a discrepancy amounting to defalcation of Government money to the extent of Rs. 9,12,383. It is also the petitioner''s case that during the material point of time he was suffering from Hepatitis of serious nature and was advised bed rest for three (3) months. He wanted to go on leave but the same was not allowed but he was asked to discharge his duties from the sick bed. Accordingly, he used to work from his sick bed and issued cheques. After the same was verified by the concerned officer of the said office and cleared on the basis of joint signatures of the petitioner and the cashier, there were some payments with regard to construction of fishermen''s huts and reclamation of tanks and such payments were made on the basis of certificates and recommendations made by the Engineering staff. The cheques are prepared and submitted to the petitioner as head of the office where upon he signed the same and they used to be encashed by the Accountantcum-Cashier following which payments were made. It is also his case that after he was advised to attend the office he checked all the accounts and submitted the same to the Audit Party and remarks made by later were explained and the Audit party was satisfied. In spite of that a complaint was filed out of grudge. The petitioner has raised the provisions of Section 167(5) Cr. P.C. and it has been averred in the petition that investigation was not concluded within the period of two years from the date of apprehension of the accused petitioner and as such the investigation ought to have been stopped.

The State being the O.P. did not enter appearance in spite of notice.

I have heard the Ld. Advocate appearing for the petitioner, he has relied on a decision reported in Abhinandan Jha and Others Vs. Dinesh Mishra, in support of his contention that charge sheet in a case supported by Police can be submitted by O.C. alone and not by anybody else. It is submitted that in the present case charge sheet was submitted by a Vigilence Officer and as such it is not maintainable and cognizance taken on the same is in accordance with law.

1 have carefully perused the relevant portions of the said judgment which deals with the power of the Magistrate on the report to be submitted by the Police following investigation of cognizable offence. It has been stated that there are options left to the Magistrate. He can either direct further Investigation if he is not satisfied about the investigation and the subsequent report or he may straightway take cognizance on the basis of such report if he discloses commission of a cognizable offence-even though the Police might have submitted a final report praying for discharge of the accused on the basis of commission of no offence, it has been stated that in no case can the Magistrate direct submissions of charge sheet in a particular case. In effect it deals with the power of the Magistrate vis-a-vis the authority of Police Officer Investigating the case. But it cannot be applied in the present case where chargesheet. in fact, was submitted by one Sub-Inspector of Police who at the relevant time was attached to the Vigilence Department. As such in my opinion there has not been any illegality in the submission of charge sheet.

It has also been argued that the case was started on 5-10-91 and chargesheet was submitted on 3-12-94 and during the intervening period there was no prayer from the I. O. praying lor enhancement of period for submission of report in final form. On a scrutiny of the Copy of the charge sheet attached to the re visional application it upppcars to me that the accused petitioner in fact, surrendred on 18-3-93. As such the period in terms of Section 167(5) Cr. P. C. is to be computed from the date of such appearance. Such period cannot be computed from the date of initiation of the proceeding namely, of filling the F. I. R. Therefore, the charge sheet has been submitted within the period. No other point was argued before me.

In the result, I do not find any infirmity or illegality in the criminal case arising out the impugned F. I. R. Accordingly, the revisional application stands dismissed.