Default discharge under section 167(5) cr.p.c
Ziaur Rahman
(Querist) 05 September 2021
This query is : Open
Based on source information, an F.I.R against the unknown person was registered under section 25(IB) r.w 35 Arms Act after the recovery of some arms and ammunition from the corridor of his premises when he was out of town. He was called by the police from another town and arrested in the said case through the FIR was against unknown. After the media trial and the hype in the local newspapers, the accused was granted bail. In West Bengal, as per the criminal amendment, in Arms Act cases within 2 years from the arrest of the accused person, the investigation must be completed. However, the investigation was not completed. He was also not discharged by default after the two years of his arrest and bail by the Magistrate. After about 3 years, the investigation officer submitted a prayer to the Magistrate to permit to continue the investigation and thereby enhanced the period of investigation, which the Magistrate did without informing the accused. After a week, the Investigating Officer submitted a charge sheet. The Charge Sheet has not been served upon the accused till now. I am not going into the merit of the case. Now should the accused file a default discharge application in the same court of Magistrate or should go before the District Judge challenging the illegality against the extension of the time for investigation and his non-discharge by default after completing the statutory period of 2 years from the date of his arrest? Kindly advise.
Dr J C Vashista
(Expert) 06 September 2021
Yes, the accused is entitled for discharge in terms of Calcutta High Court Rules on the subject, if it is there.
Pradipta Nath
(Expert) 06 September 2021
Have you not made petition u/s 167(5) R/w S. 227 before the Magistrate to stop investigation and release the alleged accused? Has the Learned Magistrate passed any order in this? What is the report of Prosecution in this matter and particularly on improvement in the investigation? What was the accused Advocate doing?
In case c/s is filed, file an application u/s 207 and contest it accordingly because the time extension for investigation is within the law.
P. Venu
(Expert) 06 September 2021
"He was also not discharged by default after the two years of his arrest and bail by the Magistrate."
It appears that the accused has not applied for default bail. Now that the charge-sheet has been filed, the issue is no longer relevant.
Ziaur Rahman
(Querist) 06 September 2021
Thank you for your valuable opinion. As for the conduct of the accused's lawyer, there was a true reason why he and others did not attend court due to Covid and virtual hearings. In the chambers, however, the police were at work, and the courts were in session. The Chief Judicial Magistrate gave the order to continue the investigation without the knowledge of the accused. In addition, the police officer has submitted a charge sheet, a copy of which has not been provided to the accused until now. Instead of blaming anyone, would it be better to accept the charge sheet and apply for the discharge, or would it be better to file the discharge petition for the investigation before accepting the Charge sheet that is time-barred and extended after 2 years and 7 months without justification by the Magistrate, i.e. after the arrest of the accused? Would it be better to file the discharge petition before the Chief Judicial Magistrate or District Judge in either case? I would appreciate your enlightenment.
K Rajasekharan
(Expert) 06 September 2021
It seems you cannot now challenge the order as the Magistrate had already granted his permission to the police to continue the investigation.
The only option now available to you is to defend the case as it proceeds, by seeking your rights as per the CrPC.
