Saligram Ahir vs The State

S.P. Das Ghosh, J.—This revisional application at the instance of the accused-petitioner, Saligram Ahir, is for quashing the proceedings of G.R. Case No. 1574 of 1978 (the case being subsequently numbered as G.R. 922 of 1979) pending in the court of the learned Metropolitan Magistrate, Fourteenth Court, Calcutta. On 24-6-78, a petition was filed in the court of the Additional Chief Metropolitan Magistrate, Calcutta for sending it to the O. C, Burrabazar P.S. to investigate into the complaint under Sec. 156 (3) Cr. P.C. That written petition contained allegation of offences under Sees. 448, 144, 150, 506, 427 and 114 I.P.C. That petition was sent by the learned Chief Metropolitan Magistrate, Calcutta on 24.6.78 to the O. C, Burrabazar, P.S. for taking appropriate steps in accordance with law under Sec. 156 (3) Cr. P.C. On the basis of that petition, a F.I.R. was drawn up on 28.6.78 under Sees. 448/144/150/427/506/ 114 I.P.C. against the accused-petitioner, Saligram Ahir, and four others. The accused-petitioner, Saligram, and two others were produced in custody in the court of the Additional Chief Metropolitan Magistrate, Calcutta on 29-6-78 and were released on bail. Subsequently, challan was submitted by the police against the accused-petitioner on 26-3-79 under Sec. 341 I.P.C. There was a prayer for discharge of the other accused persons of the case. Accordingly, four other accused persons were discharged on 26-3-79. The learned Chief Metropolitan Magistrate, Calcutta took cognizance of the offence under Sec. 341 I.P.C. against the accused-petitioner on 26-3-79 and sent the case to Sri K.K. Kundu, learned Metropolitan Magistrate, Fourteenth Court, Calcutta for disposal. Four witnesses were examined and cross-examined in the case by 13-7-81 and the case was fixed for P. Ws. on 24-9-81. In the meantime, this revisional application has been filed for quashing the proceedings in the G.R. Case No. 1574 of 1978 on 21-9-81 on the ground that the cognizance taken in this case was not proper for violation of the mandatory provisions in Sec. 167(5) Cr. P.C.

Mr. Sanyal, appearing for the accused-petitioner, has argued that as the case was triable as a summons case and as the charge-sheet was submitted in this case on 26-3-79 after expiry of about nine months from 28-6-78, when the accused petitioner was arrested, without any order of the learned Magistrate for continuation of investigation beyond the period of six months from the date of arrest of the accused-petitioner the cognizance taken by the learned Chief Metropolitan Magistrate, Calcutta on 26.3.79 is illegal and the proceedings or the G.R.case are to be quashed. In support of tnis contention, Mr. Sanyal has refer-red to the case of Jay Sankar Jha vs. State=1982 Cr. L.J. 744 and the case of Ram Kumar v. State = 1981 Cr. L.J. 1288. It is now well-settled, in view of these two Division Bench decisions of this Court, that where, in a summons case, the investigation continues beyond the period of six months from the date of arrest of the accused it is obligatory on the Magistrate to stop further investigation, even though no objection is raised in the matter by the accused. On the basis of these two Division Bench decisions of this Court, the proceedings in the G.R. Case No. 1574 of 1978 (the case being subsequently numbered as G.R. Case No. 922 of 1979) are to be quashed, provided the case was triable as a summons case when the petition under Sec. 156 (3) Cr. P.C. was filed in the court of the learned Additional Chief Metropolitan Magistrate, Calcutta on 24-6-78. Mr. Sanyal has referred to the decision of this Court in the case of Ram Kumar 1981 Cr. L.J. 1288 to the effect that so long as the initial investigation continues in respect of a case exclusively triable by a Magistrate as a summons case, Sec. 167(5) Cr. P.C. will operate even though subsequent investigation discloses that the case is a case triable under the warrant procedure. The contention of Mr. Sanyal is that in view of this Division Bench decision of this Court in the case of Ram Kumar (1981 Cr.L.J. 1288), the proceedings of the G.R. case are to be quashed, even though the challan has been filed subsequently in the case under Sec. 341 I.P.C. This contention cannot be accepted. In the case of Ram Kumar (1981 Cr.L.J. 1288) the case which was initially registered by the police under sec. o or the west Bengal Anti-promeering Act, 1958, was triable as a summons case. subsequently, in that case mere was an application by the Investigating Omcer to add an offen-ce under See. 7(i)(a)(ii) of the Essential Commodities Act. This application was allowed by the learned Magistrate. The accused of tliat case was arrested on 23-12-78 and. investigation of that case was not concluded within a period of six months from that date. As such, it was held in the case of Ram Kumar that subsequent disclosure of a case triable as a warrant case, during investigation, does not alter the position that if the. case, when at first registered by the police, was triable as a summons case, further investigation in the case was to be stopped by the learned Magistrate on the basis of the mandatory provisions in Sec. 167(5) Cr.P.C. It was also held in the case of Ram Kumar that any direction for continuation of the investigation of such a case, initially triable as a summons case and subsequently turning out to be a warrant case during investigation, after the statutory period of six months mentioned in Sec. 167(5) Cr. P. C, will be without jurisdiction.

The facts of the case of Ram Kumar are to be distinguished from the facts of the present case inasmuch as the petition filed on 24-6-78 under Sec. 156 (3) Cr.P.C. contained allegations of criminal intimidation under Sec. 506 I.P.C. As already stated, the F.I.R. drawn up in this case on the basis of that petition, Was under Sees. 448/144/150/427/506/114 I.P.C, The necessary averments regarding the alleged offence under Sec. 506 I.P.C. made in paragraph 9 of that petition under gee. 156(3) Cr.P.C. to the effect that the accused person, viz., the accused-petitioner and others also formed an unlawful assembly on 20-6-78 to shout intimidating slogans against the owners and tenants of premises no. 153, Rabindra Sarani, Calcutta, putting threats of assault, grievous hurt and even murder with clubs and daggers in hand, if any steps were taken against them in the court.

Mr. Sanyal has referred to the case of G. Chunder Sen v. Gour Chunder 23a-nikya ILR 15 Call 672 and has argued that on tne basis of these averments in paragrapn 9 of that petition under Sec. 156(3) Cr. P. C, no case under Sec. 506 I.P.C. could be made out. It is ar-'' gued that as there is nothing to show that alleged threat mentioned in paragraph 9 of that petition was communicated to the owners of premises no. 153, Rabindra Sarani, Calcutta, no case under Sec. 506 I.P.C. can stand. This contention cannot be accepted on the basis of the petition under Sec. 156(3) Cr.P.C. (hereinafter referred to as the petition of complaint for the sake of convenience). It is stated in paragraph 1 of the petition of complaint that the complainant Sukla alias Mahua Ganguly filed the complaint on behalf of the owners of the premises no. 153, Rabindra Sarani, Calcutta. It is stated in paragraph 2 of the petition of complaint that the complainant had been duly authorised in writing to file the complaint. In paragraph 9 of the petition of complaint, it is stated that the complainant reported the unforeseen developments on the date of the occurrence to the O.C., Burrabazar P.S. In these circumstances, it cannot be stated at this stage without completion of recording of evidences, as to whether the alleged threat mentioned in paragraph 9 of the petition of complaint was communicated or not: to the owners of the premises no. 153, Rabindra Sarani, Calcutta. Sec. 506 I.P.C. consists of two parts, if a case fails under Pari; U to sec. 506 I.P.C., it will be a warrant, case. When there are averments in paragraph 9 of the petition of complaint about alleged threat to cause grievous hurt and even murder, the case, as initially registered by the police by drawing up the F.I.R. on the basis of the petition of complaint, cannot be stated to be a case triable as a summons case. It is a different thing altogether if, in the course of investigation of this case by the police, the police finds a prima facie case only under Sec. 341 I.P.C. against the accused-petitioner. "The point of time to be considered for invoking the provisions of Sec. 167(5) Cr.P.C. in a police case is the time when the case is initially registered by the police and not the time when the challan or charge-sheet is submitted by the police after completing the investigation in the case. As the case, initially registered by the police, was triable as a warrant case in view of inclusion of Sec. 506 I.P.C. in the F.I.R. on the basis of the averments in the petition of complaint, containing allegations so as to attract Part II to Sec 506 I.P.C, the provisions of Sec. 167(5) Cr.P.C. cannot be attracted in this case for quashing the proceedings in the G.R. case No. 922 of 1979 for submission of challan in the case on 26-3-79 after the arrest of the accused-petitioner on 28-6-78. The revisional application fails. The ad interm stay granted on 21-9-81 is vacated. The Rule is discharged.