STATE OF WEST BENGAL A

v. ---

..._

PRANAB RANJAN ROY

MARCH 6, 1998

[M.K. MUKHERJEE AND K.T. THOMAS, JJ.] B

• Code of Criminal Procedure, 1973-Section 167(5) (as amended by West Bengal Amendment Act No. 2411988)-Appearance of accused- Vakalatnama filed through Advocate-Application for return of documents c filed-Accused neither arrested nor surrendered before the Court-Application for discharge on the ground that chargesheet not filed within two years from the dale of appearance-Allowed-On appeal, Held, no physical appearance before the Court-Act of accused does not amount to his making appearance- Order of discharge set aside-Ss. 436, 437 Cr. P.C.

Words & Phrases : D

"'Making his appearance"-Meaning of in the context of section 167(5) Cr. P. C. (as amended by West Bengal Amendment Act No. 2411988).

According to the prosecution the respondent, Chief of Central Inland E Water Transport, Calcutta acquired assets disproportionate to his known sources of income and a case was registered against him under S. 13(2) read with S. 13(l)(e) of the Prevention of Corruption Act, 1988 on 27.8.1990.

Respondent filed a Vakalatnama and an application before the Special Judge through his Advocate on 29.2.1992 for return of certain documents. On

>- 4.5.1994 the Investigating Agency filed chargesheet against the respondent. F .,., When the respondent was summoned to appear against in the Court, he filed an application for discharge tinder section 167(5) of the Code of Criminal Procedure (West Bengal Amendment Act No. 24/1988) on the ground that chargesheet was not filed within two years from the date of his appearance.

The Special Judge allowed the plea and discharged the respondent. The G revision petition filed by the State was dismissed by the High Court. Hence the present appeal .

' ....

The contention of the appellant was that the respondent had not really appeared in Court on 29.2.1992 but his Advocate filed Vakalatnama on that date for making a plea for return of certain documents. It was further H 245

A contended 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.

The contention of the respondents was that if an accused has appeared through his Advocate that would be enough to make his appearance in Court B even if he was not physically present in the Court.

Allowing the appeal, this Court

HELD : I. I. The respondent has not made his physical appearance before the Special Judge at any time before the charge-sheet was laid. Hence C the bar contemplated in Section 167(5) of the Code of Criminal Procedure (West Bengal Amendment Act No. 24/1988) cannot be in_voked. The order of discharge is, therefore, set aside. [252-F)

I.2. The words "made his appearance" in Section 167(5) are used D along with the preceding words which by themselves from into a composite collocation 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 either "from the date of arrest of the accused or the date when he made his appearance in court." The respondent was not arrested at any time in connection with this case. Nor did he E surrender to the Court's custodial domain at any time. The respondent has only filed a Vakalatnama in the Court for making a plea for return of some documents. Thus the act of the respondent cannot amount to his making ·"appearance" in the Court and he cannot avail himself of the benefit envisaged in sec. 167(5) of the Code. [251-E)

F I.3. The word "appearance" in section 167(5) cannot be understood difforent from the same word used in Section 436 and 437 of the Code. In Section 436 of the Code, appearance of accused in baiiable offences is dealt with for the purpose of releasing him on bail. "When any person other then a person accused of a non-bailable offence is arrested or detained or appears G or is brought before a court. .. such person shall be released on bail. "In

section 437 of the Code, releasing an 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 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 H by •:ounsel because the very notion of bail presupposes restraint of the

STA TE OF WEST BENGAL v. P.R. ROY [THOMAS, J.] 247

accused and hence the person who wishes to be released on bail is to appear A and surrender before the Court. A person who is not under any sort of restraint does not require to be released on bail. (252-C-E)

Goodyear India Ltd. v. Union of India and Ors., JT, (1997) 3 SC 63 and Durgesh Chandra Saha v. Bimal Chandra Saha & Ors., [1996) 1 SCC 341, referred to.

Bourne v. Norwich Crema1orium Ltd., (1967) 2 All E.R. 576 and Bidie

v. Generral Accident, Fire and Life Assuramce, (1948) 2 All E.R. 995, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. C 270 of 1998.

From the Judgment and Order dated 19.12.96 of the Calcutta High Court in Crl. A. No. 2399of1995.

A.S. Nambir, T.C. Sharma, Ajay Sharma and P. Parmeswaran for the Appellant.

S.B. Sanyal, Pramod R. Roy, Abhijit Sengupta, A. Mukherjee and P.

Chowdhary for the Respondent.

The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

Respondent in this appeal was the Chief (Operation) of Central Inland Water Transport, Calcutta. Prosecution proceedings were laJJnched against F 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 bekire whom the charge-sheet was laid, discharged him under Section 167(5) of the Code of Criminal Procedure (West BP.ngal Amendment). A revision petition was preferred by the State before the High Court of Calcutta assailing the said order of discharge, but in vain. G 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 H

A the court of Special Judge on 29-2-1992 through an advocate praying for return a such documents. On the same day a vakalatnama was filed by his advocate in the Court. On 4-5-1994, the investigation agency submitted chargesheet against the respondent for offence under Section 13(2) read with Section 13(l)(e) of the Prevention of Corruption Act, 1988. When respondent was B summoned to appear in court he filed an application 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 C Court of Calcutta. It is that Judgment of the High Court which is in challenge now.

The respondent pleaded that his case falls under clause (iii) of the subsection (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 D that he should have been discharged.

Appellant sought to tide over the difficulty by 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 E 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.

F 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., G [ 1996] 1 sec 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 ratio 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

STATE OF WEST BENGAL v. P.R. ROY [THOMAS, J.] 249

case where investigation had been completed and charge-sheet had A 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 B Chandra Shah (supra). However, we do not think it necessary to consider that ., 4 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 C 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 E his "making appearance" in the court, its corollary is that he cannot avail hil)lself 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 by a Court of Session or a case under G Chapter XVIII of the Indian Penal Code ( 45 of 1860), the investigation is not concluded within a period of three years, or

(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 H

A 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 in the interests of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary."

B 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 C "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 I 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." D 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(!) the magistrate may issue a warrant or a summons E 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 his pleader. In Section 206 the magistrate is empowered to issue summons to the accused "requiring him either to appear F in person or by pleader."

Those are. instances 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 G Section 167(5) of the Code. The words "made his appearance" in that subsection 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 •hat words in a provision must not be understood merely by their ordinary meanings de hors the context in which such words are used. In Bidie

v. General Accident, Fire and life Assurance, (1948) 2 All E.R. 995 Lord H Greene has observed thus:

STATE OF WEST BENGAL v. P.R.ROY [THOMAS, .I.) 251

"The first thing one has to do, I venture to think, in construing words A in a section of an Act of Parliament is not to take those 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 B method of construing statutes 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 judge bench of this Court has in Goodyear India Ltd. v. Union of India and ors., JT (1997) 3 SC 63, made a reference to the observations of Stamp J. in Bourne v. Norwich Crematorium Ltd. (1967), 2 All E.R. 576 that:

"English words derive colour from those which surround them and sentences are not mere collections of words to be taken out of the D 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 E 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 of F 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 G 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 H

A 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 '.b- • 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 B not completed within the prescribed period. Or 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 Sections 436 and C 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 of a non-bailable offence is arrested or detained .... or appears or is brought before a court ... such person shall be released on bail." In the latter section, releasing an accused D 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 E 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.

F 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 G 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.

J.-. __

S.V.K.l.

Appeal allowed.