Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
PETITIONER:
STATE OF WEST BENGAL
Vs.
RESPONDENT:
PRANAB RANJAN ROY
DATE OF JUDGMENT: 06/03/1998
BENCH:
M.K. MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Thomas, J.
Leave granted.
Respondent in this appeal was the Chief (Operation) of
Central Inland Water Transport, Calcutta. Prosecution
proceedings were launched against him under Section 13(2) of
the Prevention of Corruption Act, 1988, on the allegation
that he has acquired assets disproportionate to his known
sources of income. But a Special Judge before whom the
charge-sheet was laid, discharged him under Section 167(5)
of the Code of Criminal Procedure (West Bengal Amendment). A
revision petition was preferred by the State before the High
Court of Calcutta assailing the said order of discharge, but
in vain. Hence the State has filed this appeal by special
leave.
Some relevant facts necessary for this appeal are the
following:
The case against the respondent was registered on
27.8.1990. As the respondent desired to have some documents
returned to him, he applied to the court of Special Judge on
29-2-1992 through an advocate praying for return o such
documents. On the same day a vakalatnama was filed by his
advocate in the Court. On 4-5-1994, the investigation agency
submitted charge-sheet against the respondent for offence
under Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act, 1988. When respondent on 13-7-
1996 praying for his discharge under Section 167(5) of the
Code (West Bengal Amendment) on the premise that he appeared
in the Court on 29-2-1992 through his counsel and that no
charge-sheet was filed till the expiry of two years from the
said date of appearance. That plea was upheld by the Special
Judge and respondent was discharged which was concurred with
by a Single Judge of the High Court of Calcutta. It is the
Judgment of the High Court which is in challenge now.
The respondent pleaded that his case falls under clause
(iii) of the sub-section (5) of Section 167 of the Code.
According to him, since the investigation was not concluded
within two years from 29-2-1992, the inevitable sequel is
that he should have been discharged.
Appellant sought to tide over the difficulty by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
adopting three different alternative arguments before the
High Court. First was, on the premise that the investigating
officer has made an application before the Special Judge
seeking permission to continue the investigation. Second
was, that the time taken for obtaining the sanction to
prosecute the respondent must be excluded from the period of
two years mentioned in sub-section (5). Third was, that
respondent had not really appeared in court on 29-2-1992
even by conceding that this counsel filed vakalatnama on
that date for making a plea to return certain documents.
High Court has repelled all the three contentions.
Learned counsel for the appellant did not canvass for the
first two grounds before us, but confined to the third
ground. However, we may state that when the SLP was taken up
we felt initially that this case is squarely covered by the
dictum enunciated by this Court in Durgesh Chandra Saha v.
Bimal Chandra Saha & ors. [1996(1) SCC 341]. We, therefore,
issued notice to the respondent calling upon him to show
cause why the petition should not be disposed of in terms of
the ration in the above decision. This Court in that
decision held thus.
"The language of Section 167 of the
CrPC as amended by the West Bengal
Act is quite clear in indicating
that the said section is applicable
only in a case where the
investigation was still pending but
not in a case where investigation
had been completed and charge-sheet
had been filed."
The situation in this case also is the same in that the
investigation was completed and charge-sheet was laid on 4-
5-1994 and the accused claimed the right to get discharged
only thereafter. Learned counsel for the respondent made an
endeavour to distinguish the present case from the facts of
Durgesh Chandra Shah (supra). However, we do not think it
necessary to consider that contention now as this appeal can
be disposed of on a decision regarding the third ground
mentioned above.
Shri S.B. Sanyal, learned senior counsel argued for the
respondent that if an accused has appeared through his
advocate that would be enough to make his appearance in
court even if he was not physically present in the Court.
Shri A.S. Nambiar, learned Senior Counsel contended for the
appellant that appearance of an accused in the court means
his surrender to the process or control of the court, in
which case the court would either release him on bail or
remand him to custody.
We may point out that respondent was not arrested at
any time in connection with this case. Not did he surrender
to the court’s custodial domain at any time. However, it
is not disputed that respondent has filed a vakalatnama in
the court on 29.2.1992, for making a plea for return of some
documents. If that act of the respondent on the said date
cannot amount to his "making appearance" in the court, its
corollary is that he cannot avail himself of the benefit
envisaged in the provision concerned.
Section 167(5) of the Code as amended by Section 4 of
the West Bengal Act No.24/1988, reads thus:
"(5) If, in respect of-
(i) any case triable by a
Magistrate as a summons case, the
investigation is not concluded
within a period of six months, or
(ii) any case exclusively triable
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
by a Court of Session or a case
under Chapter XVIII of the Indian
Penal Code (45 of 1860), the
investigation is not concluded
within a period of three years, of
(iii) any case other than those
mentioned in clauses (i) and (ii),
the investigation is not concluded
within a period of two years, from
the date on which the accused was
arrested or made his appearance,
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 that for special reasons
and n the interests of justice the
continuation of the investigation
beyond the periods mentioned in
this sub-section is necessary."
When construing the word "appearance" in the above sub-
section we have to look at the context in which it is used.
In other contexts the same word "appearance" may have
different connotations or at least different shades of
meaning e.g. Order 9 Rules 6 and 8 of the Code of Civil
Procedure prescribe the consequence when the plaintiff or
defendant in a suit does not "appear". Order 41 Rule 17 of
that Code deals with the consequence when appellant in an
appeal does not "appear". In all such instances "appearance"
would include appearance by advocate because it is made so
clear in Order 3 Rule 1 of the Code that any appearance
required by law to be made in any court may be made "by the
party in person, or by his recognised agent or by his
pleader on his behalf."
Even under the Code of Criminal Procedure the word
"appear" of "making appearance" can include appearance
through the advocate without the accused concerned
physically presenting himself in certain situations. For
example, Section 204 speaks about the magistrate’s power to
issue summons and in clause (b) of sub-section (1) the
magistrate may issue a warrant or a summons for causing the
accused to be brought or "to appear at a certain time before
such magistrate". In Section 205, it is made clear that when
a magistrate issues summons, he may dispense with the
personal attendance of the accused and permit him to appear
through this pleader. In Section 206 the magistrate is
empowered to issue summons to the accused "requiring him
either to appear in person or by pleader." Those are
instance where appearance made through pleader can as well
be regarded as appearance of the accused.
But the above principle cannot be carried forward to
the situation in Section 167(5) of the Code. The words "made
his appearance" in that sub-section cannot be truncated from
the particular context in which that expression is used. It
is a salutary principle in the sphere of interpretation of
statutory clauses that words in a provision must not be
understood merely by their ordinary meanings de hours the
context in which such words are used. In Bidie vs. General
Accident, Fire and Life Assurance, [1948 (2) All E.R. 995]
Lord Greene has observed thus:
"The first thing one has to do, I
venture to think, in construing
words in a section of an Act of
Parliament is not to take those
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
words in vacuo, so to speak, and
attribute to them what is sometimes
called their natural or ordinary
meaning. Few words in the English
language have a natural or ordinary
meaning in the sense that they must
be so read that their meaning is
entirely independent of their
context. The method of construing
statues that I prefer is not to
take particular words and attribute
to them a sort of prima facie
meaning which you have to displace
or modify. It is to read the
statute as a whole and ask oneself
the question: ‘In this state, in
this context, relating to this
subject matter, what is the true
meaning of the word?’"
A three judges bench of this Court has in Goodyear
India Ltd. VS. Union of India and ors. [JT 1997 (3) SC 63]
made a reference to the observations of Stamp J. in Bourne
vs. Norwich Crematorium Ltd. [1987 (2) E.R. 378] that:
"English words derive colour from
those which surround them and
sentences are not mere collections
of words to be taken out of the
sentence, defined separately by
reference to the dictionary or
decided cases."
The words "made his appearance" in Section 167(5) are
used along with the preceding words which by themselves form
into a composite collocation as thus: "From the date on
which the accused was arrested or made his appearance." It
must be noted that the purpose of the sub-section is to
impose a time schedule for completion of investigation and
such time schedule is to commence either "from the date of
arrest of the accused or the date when he made his
appearance in court." It is pertinent to notice that the
period of time is not commencing from the date of
registration of the crime or the date of first information.
Why the time is fixed to commence from the date on which
"the accused was arrested or made his appearance"? The
sublime idea is that the investigating agency who gets
opportunity to question the accused under Section 161 of the
Code cannot be permitted to dodge with or further prolong
the investigation without special reasons and in the
interest of justice. In other words, the sub-section aims at
expeditious and effective completion of the investigation
when once the accused concerned is available for
interrogation by the investigating agency.
What happens if a different interpretation is given to
the words "made his appearance" in the sub-section? In a
case where an accused is out of India he can send his
vakalatnama duly attested from abroad to be filed in the
court through his advocate and he can well remain without
returning to India for the period mentioned in the sub-
section, and thereafter claim the benefit of discharge from
the offence on the ground that investigation was not
completed within the prescribed period. On such a person
even without going abroad can keep himself away from the
court and claim the same benefit. We should desist from
affording an interpretation which would lead to such inept
consequences.
In the aforesaid context a reference can be made to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
Sections 436 and 437 of the Code, which fail within Chapter
XXXIII of the Code under the caption "Provisions as to bail
and bonds". In the former section appearance of accused in
bailable offences is dealt with for the purpose of releasing
him on bail. "When any person other than a person accused on
bail in a non-bailable offence is dealt with. "When any
person accused of, or suspected of, the commission of any
non-bailable offence is arrested ... or appears or is
brought before a Court ... he shall be released on bail
...". The appearance mentioned in these sections can only
mean physical appearance of the accused and not appearance
by counsel because the very notion of bail presupposes
restraint of the accused and hence the person who wishes to
be released on bail is to appear and surrender before the
court. A person who is not under any sort of restraint does
not require to be released on bail. The word "appearance" in
Section 167(5) cannot be understood different from the same
word used in Sections 436 and 437 of the Code.
In the present case, respondent has not made his
physical appearance before the Special Judge at any time
before the charge-sheet was laid. Hence there is no question
of invoking the bar contemplated in Section 167(5) on the
facts of this case.
In the result, we allow this appeal and set aside the
impugned judgment as well the order of discharge passed by
the Special Judge. We direct the Special Judge to proceed
with the case and dispose it of in accordance with law.