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Superintendent and Remembrancer of Legal Affairs Vs. Nasima Ranga Rao - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1978CriLJ1830
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentNasima Ranga Rao
Excerpt:
- .....for the accused-opposite party.3. according to mr. roy, the application that was filed before the learned sessions judge was one under section 167(6) of the cr. p.c., 1973 (hereinafter referred to as the code) and not under section 397 read with section 399 of the code, and the learned judge failed to appreciate the distinctive powers under the said two provisions. such failure on the part of the learned sessions judge, according to mr. roy, has resulted in miscarriage of justice as under the provisions of section 167(6) the learned sessions judge was obliged to treat the application filed before him by the petitioner as an original application to be considered on its own merits and not as a re-visional application.4. mr. chakravorty, the learned advocate appearing for the opposite.....
Judgment:
ORDER

Monoj Kumar Mukherjee, J.

1. This revwional application at the instance of the State of West Bengal is directed against an order dated 29-6-76 passed by Shri D. K. Banerjee, Sessions Judge, Purulia in Criminal Revision No. 18 of 1976. Facts relevant for the purpose of disposing of the present Rule may be stated as follows:

For a Railway accident that occurred on 12-8-75 the accused opposite party was arrested being one of the drivers of the engine involved in the accident but there being injuries on his person, he was admitted to the hospital. A case under Sections 294/304A of the I.P.C. and 101 of the Indian Railways Act was started against the accused on 13-8-75 by Prrulia G. R. Police Station and on his discharge from hospital the accused was produced before the learned Judicial Magistrate, Purulia on 17-8-75 and was released on bail. The case was adjourned from time to time to enable the police to submit their report of investigation and on 14-2-76 on the prayer of the investigating officer, time was extended till 1-4-76 for submission of report in final form. On the date so fixed, that is, on 1-4-76 no report was submitted by the investigating officer and the learned Sub-Divisional Judicial Magistrate, Purulia stopped the proceeding in accordance with the provisions of Section 167(5) of the Cr. P.C. as the case instituted against the accused was triable by a Magistrate as a summons case and more than six months had elapsed from the date of apprehension of the accused. The petitioner thereafter moved the Sessions Judge against the said order, but without any success. The above order of the Sessions Judge now forms the subject-matter of challenge in the present Rule.

2. I have heard Mr. Roy, the learned Advocate for the petitioner as also Mr. Chakravorty, the learned Advocate appearing for the accused-opposite party.

3. According to Mr. Roy, the application that was filed before the learned Sessions Judge was one under Section 167(6) of the Cr. P.C., 1973 (hereinafter referred to as the Code) and not under Section 397 read with Section 399 of the Code, and the learned Judge failed to appreciate the distinctive powers under the said two provisions. Such failure on the part of the learned Sessions Judge, according to Mr. Roy, has resulted in miscarriage of justice as under the provisions of Section 167(6) the learned Sessions Judge was obliged to treat the application filed before him by the petitioner as an original application to be considered on its own merits and not as a re-visional application.

4. Mr. Chakravorty, the learned Advocate appearing for the opposite party on the other hand contended that in exercising the powers under Section 167(6) of the Code the learned Sessions Judge was required to consider the materials appearing on the record and for that purpose, the reasons which weighed with the learned Magistrate in passing the order under Section 167(5) of the Code and therefore, the order of the learned Sessions Judge, as passed, cannot be said to be illegal and without jurisdiction, more particularly when he has given ample reasons for his refusal to exercise the powers conferred by Section 167(5) of the Cr. P.C.

5. In the instant case, learned Magistrate, in absence of any prayer of the investigating officer for extension of the time for investigation was statutorily obligated to stop the investigation and no exception can be taken to the order so passed by the learned Magistrate and the learned Sessions Judge was fully justified in observing that the order of the learned Magistrate was legal and valid. The above finding by itself, however, is not sufficient to dispose of the Rule as the principal point to be decided is whether the power conferred on the Sessions Judge under Sub-section (6) of Section 167 is only to revise the order of the Magistrate or a power given to the Sessions Judge to exercise his own discretion on the application filed before him. To decide this point, it would be profitable to refer to the power of revision of the Sessions Judge under Section 397 of the Code vis-a-vis the powers conferred under Section 167(6) of the Code, Under the former, the Sessions Judge may call for and examine the records of any proceeding before any inferior criminal court situate within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceeding of such inferior Court. In other words, while exercising revisional powers the superior Court has only to satisfy itself on the basis of the materials already on record whether the order of the inferior Court is correct, proper and legal and in so doing, the revisional Court does not act as a Court of original jurisdiction. Sub-section (61 of Section 167 of the Code in its terms reads as follows:

Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may. if he is satisfied, on an application 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.

6. The above sub-section makes it abundantly clear that if an application 5s filed before the Sessions Judge, he may if he is satisfied, order for further investigation by vacating an order passed by a Magistrate stopping proceeding under Section 167(5) of the Code. In my view, this Sub-section (6) empowers the Sessions Judge to direct further investigation on his own satisfaction on an application filed before him, notwithstanding the fact that such application was not earlier filed before the Magistrate, If that was not the intention of the Legislature in enacting Sub-section (6) of Section 167 of the Code, such a provision was not at all necessary as the Sessions Judge by virtue of Section 397 of the Code could always exercise power of revision against an order under Section 167(5) of the Code. The very fact that the provision of Section 167(6) was enacted indicates that the power under this provision was meant to be exercised by the Sessions Judge as a Court of original jurisdiction. This necessarily means that the Sessions Judge was required to consider the grounds raised in the application to satisfy for himself whether further investigation should be made into the offence and give his own reasons for acceptance or rejection of such grounds.

7. That the learned Judge was also aware of this position would be evident from the fact that the learned Judge has observed in the impugned order that the prosecution has failed to satisfy him that further investigation into the offence ought to be made. Unfortunately, however, the learned Judge has not given any reason for rejecting the different contentions raised by the petitioner in its revisional application in support of its prayer for an order directing further investigation. Though such summary rejection, without giving any reason is not violative of any statutory provision, such manner of disposal deprives this Court from the opportunity to detect errors, if any, of the inferior Court. The interest of justice and fairplay requires that an indication must be given by the inferior Court of its views on the different grounds raised by the petitioner in its application, Had the reasons for his unwillingness to act according to Section 167(6) of the Code been given by learned Judge, this Court would have been in a position to ascertain whether the learned Judge was justified in rejecting the application of the prosecution.

8. In that view of the matter, the order of the learned Sessions Judge cannot be sustained and is liable to be set aside.

9. In the result, the application succeeds and the Rule is made absolute. The order of the learned Sessions Judge dated 29-6-76 passed in Criminal Revision No. 18 of 1976 is herby set aside and the case is remitted back to the learned Sessions Judge to dispose of the same after hearing the parties in accordance with law and in light of the observations made hereinbefore,

10. Let the records be sent down immediately.


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