JUDGMENT
Gitesh Ranjan Bhattacharjee, J.:— The Criminal Revision No. 3 of 1991. relates to FIR No. 29 dated 20-6-87 of Jamuria P.S On 20-6-87 at about 22.15 hours one Bijoy Kumar, Sub-Inspector of Central Industrial Security Force (CISF) camp at Kunustoria, P.S Jamuria lodged a written complaint with the officer-in-charge, Jamuria Police Station, Dist. Burdwan alleging that on 19/20-6-87 while he along with CISF party, Kunustoria camp were on patrol duty for guarding against illegal trade/transportation of coal, they at about 00.30 hours noticed near Chanda More on P.T Road that the truck bearing no. WBG 4729, loaded with coal was proceeding towards Calcutta from Asansol side. The truck was stopped by the CISF party and 4 persons were found to be there in the truck including driver. The driver on being asked to produce relevant documents in support of the loaded coal stated that the documents were with the owner of the coal who was following behind. Since after waiting for sometime none appeared to produce the documents, the driver produced the loading advice, road challan/bill No. 45203 dated 10-6-87 issued by Manager Agent, Kapasara Colliery, Dist. Dhanbad (Bihar) in favour of Nemai Chand Ghosh, Ranaghat, Nadia (W.B). On being suspicious the CISF party asked the driver to take the truck at Kunustoria camp for verification and on the next day, i.e, 20-6-87 the said Sub-Inspector of CISF made an enquiry at Kapasara Colliery and came to know from the Agent of that Colliery that coal was loaded in the said truck at Kapasara Colliery under loading advice, road challan/road bill no. 65588 dated 19-6-87 issued in favour of Advisor, Security HQ ECL, Sanctoria. On further enquiry from the driver/khalasi it was revealed that coal was being transported and diverted with the connivance of Kalyan Kumar Mukherjee of M/s. A.T Enterprise, Transport Contractor and General Order Supplier of Jashidi and N.K Raghabhan, Advisor security HQ ECL, Sanctoria to district Nadia and that this practice was going on since long and some ECL employees were also involved in this smuggling ring. What is described above is based on the averments made in the written complaint lodged by the Sub-Inspector, CISF at the P.S on 20-6-87 at about 22.15 hours. In the written complaint it was also stated by the Sub-Inspector, CISF that offences under E.C Act and I.P.C were committed by diverting the coal to a wrong destination by forging documents. On the basis of the said written complaint the officer-in-charge of Jamuria P.S recorded the first information report, being FIR no. 29 dated 20-6-87 under sections 7(1)(a)(ii) of the E.C Act (Act X/55) and sections 468/471/120B I.P.C Ultimately on completion of investigation police submitted two charge-sheets, one being charge-sheet no. 61 dated 20-7-89 under section 7(1)(a)(ii) read with section 8 of the E.C Act and section 120-B IPC against 14 accused persons including the present petitioners and the other being charge-sheet No. 62 dated 20-7-89 under section 107/408/468/471/477A/419 IPC read with section 120-B IPC against them.
2. The facts in the Criminal Revision No. 2 of 1991 are more or less similar with certain distinguishing features. There also a truck bearing no. BPR 8911, loaded with coal, while moving towards Calcutta along G.T Road was stopped near Ranisar More on suspicion by the CISF party and on being asked the driver produced loading advice, road challan-cum-coal bill no. 65586 dated 19-6-87 issued by Manager, Kapasara Colliery in favour of Advisor security HQ ECL, Sanctoria and as per those documents the coal (soft coke) was to be delivered to Advisor security HQ ECL, at Sanctoria for distribution amongst the ECL employees staying at Sanctoria. As per the loading challan the coal should have been unloaded at Sanctoria but the driver after making a criminal conspiracy with others took the truck towards Calcutta and on being intercepted the driver and the khalasi revealed that they were advised to take the coal upto Punjabi More where further challan would be given to take it further and it was learnt that this practice of smuggling of coal with the connivance of Advisor, security HQ ECL, Sanctoria was going on for long and that some ECL employees were also involved in this smuggling ring. On the basis of the written complaint containing the allegations noted above the O.C, Raniganj P.S recorded the Raniganj P.S FIR No. 17 dated 20-6-87 under sections 7(1)(a)(ii) of the E.C Act and sections 479/411/120B IPC. Ultimately on completion of investigation police submitted two separate charge-sheets, in this case also, one being charge-sheet no. 93 dated 20-7-89 under section 7(1)(a)(ii) read with section 8 E.C Act, 1955 and section 120-B IPC against 13 accused persons including the present petitioners and the other being charge-sheet no. 94 dated 20-7-89 against the same set of accused persons under sections 407/408/477A/419 read with section 120-B IPC.
3. The petitioners in both the revisional proceedings have challenged all the charge-sheets submitted by police and prayed for quashing the same. Neither in any of the FIRs nor in any of the charge-sheets it is disclosed as to what order was violated so as to attract the provisions-of section 7 of the Essential Commodities Act. What is mentioned in this connection in FIR is diversion of coal to a different destination. It is argued by the learned Advocate for the petitioners that the coal in both the cases being soft coke coal and such coal having been the decontrolled by the appropriate orders of the Government no offence punishable under section 7(1) E.C Act has been committed even if it is assumed that such coal was being diverted to a different destination. In this connection, the learned Advocate for the petitioners attracted my attention to the Government of India, Ministry of Steel & Mines, notification being SO No. 2181 published in the Gazette of India Extraordinary dated 18-6-1964. It appears that by that notification issued in exercise of the powers conferred by clauses 12-A, 12-C and 12-D of the Colliery Control Order, 1945 as continued in force by section 16 of the Essential Commodities Act, 1955, the Central Government lifted the ban on transport, diversion, purchase, acquisition, etc. of soft coke certain other categories of coal. Similar notification was also issued under SO No. 2426 dated 24-7-1967 inter alia in respect of coking coal not required for metallurgical consumers. In view of such notification the mere allegation that the soft coke coal, although lifted under valid authority from a colliery in Bihar was being diverted to a different destination in West Bengal would not make out a case of violation of para-12B of the Colliery Control Order, 1945 or for that matter, any provision of the Essential Commodities Act and that being so, patently section 7(1)(a)(ii) or section 8 E.C Act is not attracted in these cases. It is however argued by the learned Advocate for the State that after the advent of the Coal Mines (Nationalisation) Act, 1973 the aforesaid decontrol notifications are not effective nor applicable. In this connection, he referred to sections 3, 11 and 28 of the Coal Mines (Nationalisation) Act, 1973. The said section 3 inter alia speaks of transfer of the right, title and interest of the specified coal mines to the Central Government free from all incumbrances. Section 11 of the said Act makes provisions relating to management etc. of coal mines. Obviously the provisions of these sections have no clash with the aforesaid decontrol orders issued by the Government. The only other provision of the Coal Mines (Nationalisation) Act, 1973 referred to by the learned Advocate for the State in this connection is section 28. The said section says that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Act or in any decree or order of any court or tribunal or other authority. The learned Advocate for the State however could not point out any provision of the said Act in respect of which the aforesaid Government notifications could be said to be inconsistent. The argument of the learned Advocate for the State that the aforesaid Government orders are or the Colliery Control Order, 1945 itself is no more applicable after the advent of Coal Mines (Nationalisation) Act, 1973 is therefore found to be untenable. The provisions of the E.C Act not being attracted to the allegations made, the charge-sheets submitted in both the cases under section 7(1)(a)(ii) E.C Act are found liable to be quashed for that reason alone. The other points raised by the learned Advocate for the petitioners in this connection, are therefore not required to be considered.
4. In respect of the charge-sheet No. 62 dated 2.0-7-89 the learned Advocate for the petitioners submitted that sections 407/408/462/471/477A/419 IPC in respect of which the said charge-sheet has been submitted are not attracted in this case. It may be mentioned here that charge-sheet has been submitted under those sections read with section 120-B IPC and certain employees of Colliery and officials have also been made accused in the charge-sheet submitted. A good number of documents have been seized and a large number of witnesses have also been examined during investigation. In the circumstances, without going through those materials it is not possible to arrive at any conclusion whether the charges levelled against the accused persons under those sections including the charge of conspiracy are warranted or not. And that can be examined only at the appropriate stage when the trial court will take up the matter for consideration of charge and at that time the petitioners will get ample opportunity to argue before the learn ed trial court that in view of the materials no framing of charge is warranted under any of the sections relied upon by the prosecution. In this connection, it may also be pointed out that in the revisional application nothing is mentioned separately as to for what specific reason the separate charge-sheet filed under different sections of the Indian Penal Code should be quashed.
5. The charge-sheet No. 94 dated 20-7-89 submitted in respect of offences punishable under sections 407/408/477A/419 read with section 120-B IPC has however a different aspect which requires consideration. As we have seen in that case the FIR was lodged under section 7(1)(a)(ii) of the E.C Act and sections 379/411/120B IPC. sub-section (5) of section 167 of the Code of Criminal Procedure as substituted by the West Bengal Act 24 of 1988 requires investigation to be concluded within the specified time limits in respect of different offences mentioned therein and it is provided that if the investigation is not concluded within such time as mentioned therein 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 for special reasons and in the interest of justice that the continuation of the investigation beyond the period mentioned therein is necessary. In the present case, admittedly no such permission was sought for or obtained for continuation of investigation. Since, as we have seen, the FIR in this case was lodged under sections 379/411/120B IPC and section 7(1)(a)(ii) of the E.C Act and since the period prescribed under section 167(5) Cr.P.C for conclusion of investigation in respect of the offences under sections 379/411/120B IPC is two years from the date of arrest of the accused, the period available to the investigating officer for conclusion of the investigation of the case without obtaining any permission of the Magistrate is two years notwithstanding the fact that the period available for investigation in respect of an offence under section 7(1)(a)(ii) of the E.C Act, if considered alone, is only six months. There is no gainsaying that when a composite investigation is commenced and continued in respect of offences under different provisions of law the period available to the investigating officer under section 167(5) Cr.P.C for completion of the composite investigation will be the period which is the longest of the different periods available under the said section 167(5). for the different offences under investigation. That being so, the investigation in this case should have completed within two years from the date of arrest of accused. But as we have seen in this case the charge-sheet was submitted on 20-7-89 being charge-sheet No. 94 i.e, one month after the expiry of the period of two years from the date of arrest of accused, but no permission was taken for continuation of the investigation beyond the prescribed period.
6. In this connection, the learned Advocate for the State submitted that in this case although the FIR was lodged under sections 479/411/120B IPC yet the charge-sheet after completion of investigation was submitted under sections 407/408/477A/419 IPC and that the period prescribed under section 167(5) Cr.P.C for completion of investigation in respect of those offences is three years and as such the charge-sheet was submitted in that case well within the prescribed period of investigation. The learned Advocate for the petitioner on the other hand submitted that in determining the period applicable for completion of investigation what has to be considered is the allegation made in the FIR and not the allegation made in the charge-sheet. In my opinion, the submission of the learned Advocate for the petitioner in this respect is correct. Section 167(5), so far as stopping of investigation is concerned, comes into play and has to be given effect at a stage when the investigation has not yet been concluded. Therefore at the stage when section 167(5) has to come up for consideration in connection with the question of stopping of investigation, the investigation not yet having been concluded, the end product of the investigation will be unknown and rather a matter of speculation or guess at that stage. Therefore, there is no question of taking an unknown factor into consideration at the stage when section 167(5) is required to be invoked for imposing stoppage of investigation. Consequently at that stage only the allegations made in the FIR are to be considered for determining the prescribed period applicable in the particular case for conclusion of investigation. There is no doubt that it may so happen that during the investigation in respect of an offence alleged in the FIR certain facts and materials may transpire to the investigating officer indicating or reasonably giving rise to a suspicion that some other graver offence not mentioned or indicated in the original FIR for which a longer period of investigation has been prescribed under section 167(5) than the period prescribed for the offence originally mentioned in the FIR, has been committed. In that case the investigating officer has an option to apply to the Magistrate, as is at times done, to add certain new section or sections in the FIR for investigation and in that event if the Magistrate, on consideration, allows the prayer for addition of any new section in the FIR the investigating officer would get the benefit of the period prescribed for conclusion of investigation in respect of such newly mentioned offence if such period is longer than the prescribed period applicable to the investigation for the offence originally recorded in the FIR. But in the present case, no such prayer for addition of any new section in the FIR was made before expiry of the prescribed period applicable to the investigation for the offences originally mentioned in the FIR. That being so, the investigation should have been concluded within two years on the basis of the allegations made in the FLR. Such a course not having been adopted it is not tenable now to argue that although the investigation could not be concluded within the longest period prescribed for offences mentioned in the FIR yet the charge-sheet ultimately submitted relates to certain offences for which a longer period is available for conclusion of investigation and the charge-sheet has been filed within that period. Now the question is whether the cognizance taken by the learned Magistrate upon the charge-sheet submitted after the expiry of the period applicable to the case for completion of investigation under section 167(5) on the basis of the investigation which was continued, without the permission of the learned Magistrate, beyond the prescribed period applicable to the case is bad in law and the proceeding is liable to be quashed for that reason.
7. In the recent, decision of the Supreme Court in State of West Bengal v. Falguni Dutta, 1993 C Cr LR (SC) 123, section 167(5) Cr.P.C as it stood before the amendment introduced by the West Bengal Act 24 of 1988 fell for consideration. The Supreme Court held that in the case where cognizance was taken by the Special Court on the basis of the police report i.e, charge-sheet submitted under section 173(2) of the Code after the expiry of the period prescribed under sub-section (5) of section 167, the court was competent to entertain the police report restricted to six months investigation and take cognizance on the basis thereof. In that decision the Supreme Court approved the view taken by the High Court of Andhra Pradesh in Public Prosecutor, High Court of A.P, Hyderabad v. Anjaneyulu, 1986 Cr LJ 1456 that the introduction of section 167(5) in the Code, cannot have the effect of invalidating the investigation done within the prescribed period or enabling the court to stopping the filing of the police report under section 173(2) and if the investigation done during the prescribed period discloses an offence, a police report may be founded on it and the court can take cognizance of the same. The Supreme Court in the said decision in Falguni Dutta also took note of its earlier decision in Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 108 where it was held that the investigation done within the prescribed period is not rendered invalid merely because the investigation is not completed and further investigation is stopped. The exact words used in Hussainara Khatoon v. Home Secretary, State of Bihar (supra) in this connection, are:
“…………… in such a case the Magistrate is bound to make an order stopping further investigation and in that event, only two courses would be open: either the police must immediately proceed to file a charge-sheet, if the investigation conducted till then warrants such a course, or if no case for proceeding against the undertrial prisoner is disclosed by the investigation, the under trial must be released forthwith from detention.”
8. The Supreme Court in the State of West Bengal v. Falguni Dutta in interpreting the original sub-section observed at page 132 (ibid) that ‘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 173(2) of the Code on the stoppage of the investigation’. In the original sub-section (5) of section 167 there was only direction for stopping further investigation but in the substituted sub-section (5) of section 167 a further provision has been inserted that ‘the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused’. The provision for an order for discharge of the accused on stopping further investigation was not there in the original sub-section (5) of section 167. One may feel inclined to think that an order for discharge of the accused is a necessary corollary to the order for stopping the investigation and even when there was no express provision in the original sub-section (5) of section 167 in that respect it was yet incumbent on the Magistrate to pass an order for discharge of the accused after the investigation was stopped.
9. A Special Bench of this court in Saktisadhan Majhi v. The State, 1993 (II) CHN 154, after considering the decisions of the Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar (supra) and H.N Rishbud v. State of Delhi, AIR 1955 SC 196, etc. has held that the West Bengal Amendment Act of 1988 has clinched the question by express words used in the substituted sub-section (5) and that while section 167(5) of the Central Code only provides for an ‘order stopping further investigation into the offence’, section 167(5) as substituted by the West Bengal Amendment Act, 1988 has gone a step further by providing in express words that on such stoppage of investigation, the Magistrate shall discharge the accused’. In this connection, it has been observed by the learned Chief Justice in Saktisadhan Majhi v. The State that (after this West Bengal Amendment Act, there will be no scope under the West Bengal law to follow the course suggested in Hissainara Khatoon (supra) of filing a charge-sheet after the stoppage of investigation ………..’. The Special Bench of this court in the said decision has held that cognizance taken by the court on the basis of a charge-sheet filed after the expiry of the period of the investigation prescribed under section 167(5) without any order from the Magistrate and the proceeding based on such cognizance is bad in law. Since the decision of the Supreme Court in State of West Bengal v. Falguni Dutta (supra) is based on section 167(5) CrPC as it stood before West Bengal amendment and since the decision of the Special Bench of this court in Saktisadhan Majhi v. The State (supra) relates to interpretation of section 167(5) as it stands after the amendment made by the West Bengal Amendment Act, I am bound by the decision of the Special Bench of this court on the point in Saktisadhan Majhi v. The State (supra). Following the said decision of the Special Bench, I therefore hold that the charge-sheet no. 94 filed under sections 407/408/477A/419 IPC after the expiry of the period prescribed for investigation as applicable to the case without obtaining permission of court for continuation of investigation beyond the prescribed period is bad in law and the cognizance taken thereon as well as the proceeding based on such cognizance is also bad and are liable to be quashed.
10. It was argued by the learned Advocate for the petitioners that in this case the CISF party intercepted the truck and took the same to their camp along with some of the accused persons, made enquiries thereafter and then produced the accused and the truck before the officer-in-charge of Jamuria P.S It was submitted by him that since the CISF officers are not authorised to make any seizure or arrest the entire proceeding is bad in law and the same should therefore be quashed. In this connection the learned Advocate for the petitioners relied upon the decision of the Supreme Court in K.L Subhayya v. State of Karnataka, AIR 1979 SC 711. That was a case relating to prosecution under the Mysore Excise Act. There a search was made by an officer who was not authorised to make the search in view of the provisions of sections 53 and 54 of the Mysore Excise Act. The prosecution in that case was started on the basis of the search and recovery made by an officer who was not authorised to do the same. The Supreme Court held that non-compliance of the provision of section 54 rendered the entire search without jurisdiction and as a logical corollary, vitiated the conviction. In our present case however, the situations are totally different. Here the seizure was made by the police and the arrest was also made by the police on production by the CISF party. On suspicion the CISF party intercepted and detained the truck and the accused persons and thereafter produced them before police after preliminary enquiry. The proceeding in this case was started by the police on the basis of FIR and the seizure and arrest was also made by the police who are authorised to act in the matter. The mere fact that the CISF party suspected commission of offence and on such suspicion detained the truck and the accused persons and produced them before the police for taking appropriate action under the law has got nothing to do with the legality or propriety of the seizure, arrest and investigation by the police in accordance with law. In the present case the CISF party did nothing wrong for which it can be held that the entire investigation or the proceeding is vitiated. I therefore do not accept this aspect of the argument of the learned Advocate for the petitioners. There is also nothing wrong if any partner of a firm is prosecuted for individual commission or individual participation in the commission of an offence.
11. In the result for reasons elaborately discussed above, the proceedings which were started and which are continuing on the basis of the impugned charge-sheet Nos. 61 and 93, both dated 20-7-89 under the Essential Commodities Act are hereby quashed and the proceedings continuing on the basis of the charge-sheet No. 94 dated 20-7-89 under sections 407/408/477A/419 read with section 120-B IPC is also hereby quashed. The proceedings continuing on the basis of the charge-sheet no. 62 dated 20-7-89 under sections 407/408/468/471/477A/419 read with section 120-B IPC however do proceed in accordance with law. The revisional applications stand disposed of accordingly.
Revisional applications disposed of accordingly.
K.P