SMT. SWARNALATA SARKARversusSTATE OF WEST BENGAL AND ORS.

                         •
                    SMT. SWARNALATA SARKAR                                      A
                                     v.
                STATE OF WEST BENGAL AND ORS.

                               MAY 1, 1996
                                                                                B
              [M.M. PUNCHHI AND K.T. THOMAS, JJ.]


       Criminal Procedure Code, 197-'f-Section 245(3) as operative in the
State of West Bengal, by vim<e of West Bengal (Amendment) Act (24 of
1988)-Applicabiliry-Delay in disposal of complaint-A substantial part at-
t1ibutable to the accuse~W11ether accused would be entitled to the beneficial   C
employment of Section 245(3) of the Code-Held, No.

       The appellant filed a criminal complaint alleging commission of
offence u/S 494 r/w S 109 IPC, alleging that she was married to the second
respondent QR 6.12.1976, a son was born out of the wedlock and that her         D
husband, the second respondent married the third respondent on
15.9.1983, to which ceremony/proceeding the 4th, 5th & 6th respondents
illegally collaborated. The Magistrate issued process against the accused
respondents n/S 204 Cr.P.C. on basis of preliminary evidence as envisaged
u/S 200 of the Code, adduced by the appellant. An application was moved
by the accused n/S 340 Cr.P.C. requesting the Court to undertake an             E
enquiry as allegedly forgery had been committed on the record of the case
inasmuch as initially the date of marriage in the case papers was shown
as 6.11.1976 but was later over written as 6.12.1976 when the defence raised
the plea that no such marriage had taken place on 6.11.1976 between the
appellant and the 2nd respondent. The application was dismissed. The            F
accused filed revision against the order. Proceedings before the Trial
Magistrate were stayed. The application n/S 340 Cr.P.C. and the record of
the main case kept tossing from one court to another, no date was ever
fixed for production of witnesses. On 13.10.1993, the accused prayed that
the action as contemplated n/S 245(3) Cr.P.C. as operative in the State of      G
West Bengal, by virtue of West Bengal (Amendment) Act (24 of 1988),
ought to have been taken. The High Court qnashed the proceedings and
the accused respondents were discharged, holding that the delay had
occasioned from 24.4.1987 to 2.4.1990 at the instance of the accnsed
perso.ns, that the accused persons had appeared before the Magistrate on
different dates between 6.2.1984 and 30.3.1986 and the appellant could not      H
                                     119
    120                   SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A   show from the record that requirements or sub-section (3) or Section 245
    had been complied with. Hence this appeal.

          The appellant contended that the appellant could not be blamed for
    not producing evidence arter the appearance or the accused because of the
    dilatory tactics adopted by the accused in raking up a vexatious enquiry
B   u/S 340 Cr.P.C. when there existed preliminary evidence disclosing com·
    mission of offence.

          Allowing the appeal, this Court

C           HELD : The evidence of the complainant already recorded is
    'evidence' \\ithin the meaning of Section 245(3) of the Act, though the
    witnesses may not yet have been subjected to cross-examinati~n. It was the
    frequent interferences by the superior courts at the interlocutory stages
    relating to inquiry under Section 340 Cr.P.C., a topic which was alien to
D   the main case and of no importance that obstruction was caused towards
    the progress or the trial. It appears that the complaint was over-shadowed
    by those proceedings for which the appellant could never be blamed so as
    to lose her right to prosecute the complaint under sub-section (3) or
    Section 245 of the Code of Criminal Procedure. There was evidence already
    produced by the complainant disclosing commission of offences under
E   Section 494 read with Section 109 !PC. The accused could not have been
    allowed to take advantage of their own wrong and side-track the issue on
     a matter which apparently was a trifle insofar as date of marriage between
     the parties was concerned. The factum to be established was the marriage
     between the spouses, and the date of its performance was secondary. Thus
F    the accused deliberately delayed the matter and would not thus be entitled
     to the beneficial employment of Section 245(3) of Cr.P.C. It shall not be in
     the interest of justice to discharge the accused {Qr the conduct above
     exhibited. It is unnecessary to apportion the blame as to the delay in the
     disposal of the complaint except to state that a substantial part of the part
     of it was attributable to the accused. [123-F·H; 124-A·C]
G
         CRIMINAL APPELLATE JURISOICTION : Criminal Appeal No.
    1475 of 1995.

         From the Judgment and Order dated 30.8.94 of the Calcutta High
H   Court in Crl.R. No. 1971 of 1993.
           SWARNJ\LATASARKAR "·STATE [PUNCHHI, J.]                    121

     S.N. Mehta, K.K. Nigam, P. Misra, D.N. Mukherjee, Dilip Sinha, J.R.     A
Das for Sinha & Das, Raj Kumar Gupta for Rajesh, (H.P. Sharma) for
AN. Bardiyar for the appearing parties.

      The Judgment of the Court was delivered by

     PUNCHHI, J. This appeal by special leave is against the judgment        B
and order dated 30th August, 1994 of the High Court of Calcutta in
Criminal Revision No. 1971 of 1983, whereby proceedings in a criminal
complaint filed by the appellant were quashed.

      The case of the appellant is that she was married to the second
respondent Sharnbhu Nath Sarkar on 6.12.1976. A son was born out of the      c
wedlock on 20th November, 1977. The marriage between the spouses
statedly was not smooth. On 15.9.1983, the second respondent married the
third respondent before the Registrar of Marriages, to which
ceremony/proceeding the 4th, 5th and 6th respondent, illegally col-
laborated. The appellant having come to know of the second marriage filed    D
a criminal complaint on 4.4.1984 before the Judicial Magistrate, Basirhat,
24 Parganas, alleging commission of offence, under Section 494 read with
Section 109 !PC. Preliminary evidence as envisaged under Section 200 of
the Code of Criminal Procedure was adduced by the appellant whereafter
the learned Magistrate issued process against the accused-respondents in     E
exercise of powers under Section 204 Cr.P.C. The husband-second respon-
dent appeared before the Court on 3.4.1985, and so did the other accused
one after the other, either before or after the aforesaid date.

      While so, on 12.9.1986, an application was moved by the accused
under Section 340 of the Code of Criminal Procedure requesting the Court     F
to undertake an inquiry as allegedly forgery had been committed on the
record of the case inasmuch as initially the date of marriage in the. case
papers was shown as 6.11.1976 but was later over-written to 6.12.1976 from
6.11.1976, because the defence had raised the plea that no such marriage
on 6.11.1976 had taken place between the appellant an.cl the. 2nd respon-
dent. It was therefore suggested thatthe complainant be found guilty of      G
the forgery punishable under Section 193 !PC. The appellant's counsel did
not deny the over-writing but stated that the marriage in fact had taken
place on 6.12.1976 and had mistakenly been described as if having taken
place on 6.11.1976 and it was unknown who made the over-writing. The
defence insisted that offence under Section 193 !PC had been committed.      H
    122                  SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A   The complainant denied the interpolation. While enquiry was going on,
    proceedings in the main case stood suspended under court orders. The




B
    learned Magistrate dismissed the application on 25.2.1987.

          The accused took the matter in revision before the Court of Sessions,
    Aliporc against the order <lated 25.2.1987. Proceedings before the trial
    Magistrate were stayed and the record was called. The appeal was allowed
                                                                                  1
    and the order of the learned Magistrate was set aside remitting the case
    to another Magistrate requiring it to dispose of the application under
    Section 340 Cr.P.C. afresh. The record of Trial Magistrate was thus sent
    back.
c          The succeeding Magistrale completed the enquiry on 19.2.1988,
    which was again subjected to appeal before the Court of Session. Again
    the file of the Trial Court was summoned by the Court of Session. Since
    the application under section 340 Cr.P.C. and the record of the main case
    kept tossing from one court to another, no date was ever fixed by the
D   learned Magistrale for production of witnesses and the case was kept fixed
    for appearance and order on various dates till 13.10.1993. On that date
    grievance was voiced by the accused that the action as contemplated under
    section 245(3) of the Code of Criminal Procedure as operative in the State
    of West Bengal, by virtue of West Bengal (Amendment) Act (24 of 1988),
E   ought to have been taken. The said Section 245 together with Sub-section
    3 reads as follows :

            "245. WHEN ACCUSED SHALL BE DISCHARGED - (1) If,
            upon taking all the evidence referred to in Section 244, the
            Magistrate considers~ for reasons to be recorded, that no case
F           against the accused has been made out which, if unrebutte<l, would
            warrant his conviction, the Magistrate shall discharge him.

            (2) Nothing in this section shall be deemed to prevent a Magistrate
            from discharging the accused at any previous stage of the case if,
            for reasons to be recorded by such Magistrate, he considers the
G
            charge to be groundless.

            (3) If the evidence referred to in Section 244 are not produced in
            support of the prosecution within four years from the date of
            appearance of the accused, the Magistrate shall discharge the
H           accused unless the prosecution satisfies the Magistrate that upon
           SWARNALATASARKAR v. STATE [PUNCHHI,J.]                       123

        the evidence already produced and for special reasons there is A
        ground for presuming that it shall not be in the interest of justice
        to discharge the accused."

       The High Court became seisen of the prayer for quashing in exercise
of its revisional jurisdiction. It opined that the delay had occasioned from
                                                                               B
24.4.1987 to 2.4.1990 at the instance of the accused persons. It was further
opined that the accused persons had appeared before the learned
Magistrate on different dates between 6.2.1984 and 30.3.1986. Section
245(3) of the Code of Criminal Procedure was noticed to have come into
force on 2.5.1989. Thus counting the years it was held that the appellant
could not show from the record that requirements of Sub-section (3) of         C
Section 245 had been complied with. The proceedings therefore were
quashed, and the accused-respondents were discharged. Hence this appeal.

       A critical look at Sub-section (3) of Section 245 would show that if
all the evidence referred to in Section 244 is not produced in support of D
tbe·prosecution within four years from the date of the appearance of the
accused, the Magistrate shall discharge the accused unless the prosecution
satisfies that on the basis of the evidence already recorded and for other
special reasons that it will not be in the interest of justice to discharge the
accused. The counsel for the appellant on the strength of the decision of
this Court in Santosh De v. Arc/Illa Guha, [1994] 2 SCC 420 contends that E
the appellant could not be blamed for not producing evidence after the
appearance of the accused because of the dilatory tactics adopted by the
accused in raking up a vexatious enquiry under Section 340 Cr.P.C. and
then to be faulting that no evidence was produced, when there existed
preliminary evidence disclosing commission of offence. The expressed view F
of this Court is that the evidence of the complainant already recorded is
'evidence' within the meaning of Section 245(3) of the Act, though the
witnesses may not yet have been subjected to cross-examination. It was the
frequent interferences by the superior courts at the interlocutory stages
relating to inquiry under Section 340 Cr.P.C., a topic which was alien to
the main case and of no importance that obstruction was caused towards G
the progress of the trial. It appears that the complaint was over-shadowed
by those proceedings for which the appellant could never be blamed so as
to lose her right to prosecute the complainant under sub-section (3) of
Section 245 of the Code of Criminal Procedure. There was evidence
already produced by the complainant disclosing commission of offences H
    124                  SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A   under Section 494 read with Section !09 !PC. The accused could not have
    been allowed to take advantage of their own wrong and side-track the issue
    on a matter which apparently was a trifle insofar as the date of marriage
    between the parties was concerned. The factum to be established was the
    marriage between the spouses, and the date of its performance was secon-
    dary. Thus it appears to us that the accused deliberately delayed the matter
B
    and would not thus be entitled to the beneficial employment of Section
    245(3) of the Code of Criminal Procedure. It shall not be in the interest of
    ju5tice to discharge the accused for the conduct above exhibited. It is
    unnecessary to apportion the blame as to the delay in the disposal of the
    complaint except to state that a substantial part of it was attributable to
c   the accused.

          As a result, this appeal is allowed, the judgment and order of the
    High Court is set aside and the matter is put back to the file of the learned
    Magistrate having jurisdiction, directing it to undertake the trial and con-
    clude it as expeditiously as possible.
D
    R.A.                                                       Appeal allowed.