Dev Vs. Archna Guha  INSC 81 (3 February 1994)
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Hansaria B.L. (J)
1994 SCR (1) 549 1994 SCC (2) 420 JT 1994 (1) 413 1994 SCALE (1)423
Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- Leave granted in
SLP (Crl.) Nos. 983 of 1990 and 483 of 1992.
No. 3811 of 1990 are, preferred against the judgment of the Division Bench of
the Calcutta High Court in Archana Guha v. Ranjit (alias Runu) Guha Niyogil
dated March 5, 1990 while Criminal Appeal No. 97 of 1994 [arising from SLP (Crl.)
No. 483 of 1992] is directed against the order of a learned Single Judge in
Criminal Revision No. 1003 of 1991 dated October 4, 1991.
respondent, Smt Archana Guha filed a private complaint in August 1977 against
five police officers alleging that they had tortured her in the torture cell of
the Police Headquarters at Lal Bazar (Calcutta) in July 1974. She has set out in detail the manner in which she was
tortured in her complaint. On September 30, 1974 she was detained under Section 3 of the Maintenance of Internal
Security Act, 1971 and released on May 3, 1977. Other members of her family too
were similarly detained. They were released on June 21, 1977.
(1990) 1 CHN 281 ** Of the five accused, three are dead. The two surviving
accused are the appellants herein 424 4.On the private complaint filed by Smt Guha,
the learned Magistrate directed issue of summons to the accused police
officials. On November
5, 1977 the appellants
herein surrendered before the learned Magistrate. By an order dated December 20, 1978, the learned Magistrate committed
the accused to stand trial before a sessions court for offences under Sections
325, 330, 331 and 509 read with Section 34 IPC. The accused-police officials
filed a criminal revision against the order of committal which was allowed by
the Division Bench of the Calcutta High Court on May 13, 1980. The High Court held the order of committal bad. It
directed the learned Magistrate to try the said case as a warrant case. The
reasons for which the matter could not proceed thereafter from 1980 up to now,
beyond the examination-in-chief of the complainant (Smt Guha), is graphically
set out in the opening paragraphs of the judgment of Shri Sunil Kumar Guin, J.
in his judgment in Criminal Revision No. 1003 of 1991 as well as in the
judgment of the Division Bench, both of which are subject- matters of these
appeals. We do not think it necessary to reproduce the same except to say that
it is largely due to the various proceedings taken by the accused in various
superior courts on many an issue. For example, six years were spent on the
question whether Shri A.P. Chatterjee, Advocate can appear for the complainant.
The matter was fought up to this Court from 1981 to 1987. In this connection,
we may also refer to the particulars mentioned in para 9 of the judgment of the
Division Bench in Archana Guha v. Ranjit Guha Niyogil.
may now set out the facts relating to the appeals before us. We shall first
take up the Criminal Appeal No. 97 of 1994 arising from SLP (Crl.) No. 483 of
19921. This appeal is directed, as already stated, against the order of the
learned Single Judge dated October 4, 1991
in Criminal Revision No. 1003 of 1991. The said order was made in a revision
filed by the accused-police officials against the order of the learned
Metropolitan Magistrate, Seventh
Court, Calcutta dated April 3, 1991 whereunder the learned Magistrate dismissed the application
filed by the accused under Section 245(3) of the Criminal Procedure Code. Sub-
section (3) was inserted in Section 245 by the West Bengal (Amendment) Act No. 24 of 1988. Section 245 together with
sub-section (3) reads as follows:
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 against the accused has been made out which, if unrebutted,
would warrant his conviction, the Magistrate shall discharge him.
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 charge to be groundless.
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 accused unless the prosecution satisfies the
Magistrate that upon the evidence already produced and for special reasons
there is ground for presuming that it shall not be in the interest of justice
to discharge the accused." 6.Section 245 occurs in Chapter XIX-B, which
prescribes the procedure for trial of warrant cases. A perusal of sub- section
(3) would show that it recognises and incorporates the principle of speedy
trial implicit in Article 21 of the Constitution. The section applies only to
private complaints. According to sub-section (3), if all the evidence referred
to in Section 244 is not produced in support of the prosecution within four
years from the date of appearance of the accused, the Magistrate shall
discharge the accused unless the prosecution satisfies him 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.
this case, the accused appeared in the court for the first time on November 5,
1977. All the evidence on behalf of the complainant prosecution has admittedly
not been adduced within four years therefrom. But, it must be remembered,
sub-section (3) was not on the statute book in the years 1981 or 1982. It was
inserted only in the year 1988. We shall assume for the purpose of this case
that the four years' period prescribed by Section 245(3) must be deemed to have
expired on the date the said subsection was inserted and deal with the
appellants' submissions on that basis.
after the insertion of sub-section (3), the accused applied to be discharged.
The learned Magistrate refused to do so. He opined that in the light of the
evidence already produced together with the nature of the crime, the conduct of
the accused and all other relevant circumstances, it would not be in the
interest of justice to discharge the accused. The criminal revision filed by
the accused has been dismissed by the learned Single Judge of the Calcutta High
Court. We agree with the learned Single Judge that discharge of the accused
under sub-section (3) is not automatic, once it is found that the prosecution
has failed to adduce all the evidence referred to in Section 244 within four
years of the appearance of the accused. If the Magistrate is satisfied that it
will not be in the interest of justice to do so, he will not discharge the
accused. But the said satisfaction has to be formed on the basis of evidence
already recorded and for special reasons which, of course, he may have to
record in his order. In this case, both the Magistrate and the High Court have
referred to the nature of the crime, the several attempts made by the accused
to protract the trial by various means and all other relevant circumstances in
support of their satisfaction that discharging the accused would not be in the
interest of the justice.
Jain, the learned counsel for the accused- appellant argued firstly that the
deposition of the complainant cannot be treated as 'evidence' within the
meaning of Section 245(3) inasmuch as the complainant has not so far been
cross-examined. Counsel submitted that a testimony, which has not been
subjected to cross-examination is not 'evidence' within the meaning of Section
3 of the Evidence Act. Shri Jain's second submission was that "the 426
interest of justice" referred to in Section 245(3) must be read and
understood as "public interest". He submitted that one of the
accused, Ranjit Guha Niyogi, has already retired from service; out of the five
original accused, three are dead; only one accused, namely, Shri Santosh De is
continuing in service; the offence is already 20 years old;
the prosecution at this distance of time truly amounts to persecution and that
it is not in the public interest to proceed with the said complaint, more
particularly because the complainant is no longer in India but has settled down
in Denmark after marrying a citizen of that country. Yet another argument
addressed by Shri Jain is that while considering the matter under Section
245(3), the court cannot take into consideration the nature of the offence
alleged. Shri Vaidyanathan reiterated the said submissions.
Chatterjee, the learned counsel for the complainant/respondent, besides
refuting the correctness of the reasons advanced by Shri Jain and Shri Vaidyanathan
submitted that the complainant has come back to India and that she is now permanently settled in India.
the basis of the facts set out in the judgment of the learned Single Judge
relating to the progress of the case over the last several years, we are of the
opinion that the learned Magistrate has exercised his discretion and judgment
properly in dismissing the application filed by the accused under Section
245(3) of the Criminal Procedure Code.
High Court sitting in revision did not find any error in the approach and
conclusion arrived at by the learned Magistrate. We also agree with the view taken
by the learned Single Judge that the evidence of complainant already recorded
is 'evidence' within the meaning of Section 245(3) of the Act, though she has
not yet been subjected to cross-examination. A perusal of Section 244 and the
context in which it occurs would establish the untenability of the said
contention. It is also not possible to agree with the learned counsel that the
nature of the offence alleged should not be taken into consideration. It is
certainly relevant, as has been held in A.R. Antulay v. R.S. Nayak2.
not satisfied that any interference is called for in the matter by this Court
under Article 136 of the Constitution of India. The criminal appeal is
Appeal No. 3811 of 1990 and Criminal Appeal No. 96 of 1994 [Arising from SLP (Crl.)
No. 983 of 1990] 12.These two appeals are preferred by Shri Santosh De and Ranjit
Guha Niyogi respectively, the two surviving accused.
are directed against the judgment of the Division Bench in Writ Appeal No. 652
of 19881 preferred by Smt Guha (the complainant) against the judgment and order
of a learned Single Judge of Calcutta High Court (Shri Ajit Kumar Sen Gupta,
J.) allowing the writ petition filed by the accused and quashing the criminal
proceedings instituted on the basis of the private complaint of Smt Guha. The
learned Single Judge had allowed the writ petition mainly on the ground of
inordinate delay in proceeding with the trial.
said delay, the learned 2 (1992) 1 SCC 225 :1992 SCC (Cri) 93 427 Single Judge
held, violates the right to speedy trial inhering in the accused. He also
opined that proceeding with the complaint at this distance of time would serve
no purpose. The Division Bench, however, disagreed with the learned Single
Judge and held under a very elaborate judgment that the order of the learned
Single Judge quashing the entire proceedings was 'improper', besides being
unjustified, in the facts and circumstances of the case.
Division Bench also observed that the learned Single Judge had taken into
consideration extraneous matters while allowing the writ petition which he
ought not to have done.
agree with the opinion of the Division Bench. The Division Bench also referred
to the nature of the offence alleged and the allegation of the complainant that
she was tortured in a very inhuman manner by the accused-police officials in
the torture chamber of the Police Headquarters.
opined that if the said allegations are proved they constitute serious offences
and, therefore, they ought to be tried in the interest of justice. We are of
the opinion, applying the principles evolved by this Court in A.R. Antulay v.
R.S. Nayak2 that this is not a case where the accused's right to speedy trial
has been violated. We agree with the High Court that the truth of the
allegations can be arrived at only after a proper trial which, having regard to
the nature of allegations and having regard to other circumstances referred to
by the Division Bench, should now take place without any further delay. We see
no reason to differ from the view taken by the Division Bench.
Harish N. Salve, learned counsel of Shri Santosh De submitted that his client's
part was very minor even according to the complaint and that his client was
only a police constable obeying the orders of his superiors.
submitted in such a situation it would not be in the interest of justice to ask
him to face criminal trial at this distance of time. We are not satisfied with
the reasons assigned by the learned counsel. We are also not inclined to
separate his case from that of Ranjit Guha Niyogi. The complaint against them
is common and there is Section 34 as well.
For the above reasons, both these appeals are also dismissed.
The facts of this case impel us to say how easy it has become today to delay
the trial of criminal cases. An accused so minded can stall the proceedings for
decades together, if he has the means to do so. Any and every single
interlocutory is challenged in the superior courts and the superior courts, we
are pained to say, are falling prey to their stratagems. We expect the superior
courts to resist all such attempts. Unless a grave illegality is committed, the
superior courts should not interfere. They should allow the court which is
seized of the matter to go on with it. There is always an appellate court to
correct the errors. One should keep in mind the principle behind Section 465 Cr
PC. Any and every irregularity or infraction of a procedural provision cannot
constitute a ground for interference by a superior court unless such
irregularity or infraction has caused irreparable prejudice to the party and
requires to be corrected at that stage itself. Such interference by superior
courts at the interlocutory stages tends to defeat the ends of justice instead
of serving those ends. It should not be that 428 a man with enough means is
able to keep the law at bay.
would mean the failure of the very system.
direct the learned trial Magistrate to proceed with the trial expeditiously and
as far as possible on day-to-day basis. No adjournment shall be granted except
for very good and sufficient reasons. No court other than this Court shall be
competent to entertain any appeal, revision or other petition (including writ
petitions) against any interlocutory orders and the order/proceedings framing
charges, if any, against the accused, passed by the learned Magistrate in the
said case. Of course against the final order passed, the aggrieved parties
shall have their remedies provided by law. The above direction is made having
regard to the peculiar circumstances of this case.
Registry of this Court shall forthwith communicate this order to the learned