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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

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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

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    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

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    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

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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.