Smt. Swarnalata
Sarkar Vs. The State of West
Bengal & Ors
[1996] INSC 642 (1 May
1996)
Punchhi,
M.M.Punchhi, M.M.Thomas K.T. (J) Punchhi, J.
CITATION:
1996 SCC (4) 733 JT 1996 (5) 537 1996 SCALE (4)105
ACT:
HEAD NOTE:
This
appeal by special leave is against the judgment 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 Shambhu Nath
Sarkar on 6-12-1976. A son was born out of the 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
collaborated. The appellant having come to know of the second marriage filed 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 IPC. 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 exercise of powers
under Section 204 Cr.P.C. The husband-second respondent 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 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 and the 2nd respondent. It was therefore suggested that the complainant
be found guilty of the forgery punishable under Section 193 IPC. 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 IPC had been committed. The complainant
denied the interpolation. While enquiry was going on, proceedings in the main
case stood suspended under court orders. The learned Magistrate dismissed the
application on 25-2-1987.
The
accused took the matter in revision before the Court of Sessions, Alipore
against the order dated 25-2- 1987. Proceedings before the Trial Magistrate
were stayed and the record was called. The appeal was allowed 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.
The
succeeding Magistrate 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
learned Magistrate for production of witnesses and the case was kept fixed for
appearance and orders 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), 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 against the accused has
been made out which, if unrebutted, 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 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 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." The High Court become seisen of the prayer for
quashing in exercise of its revisional jurisdiction. It opined that the delay
had occasioned from 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 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 the
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 a decision of this Court in Santosh
De vs. Archna Guha [1994 (22) SCC 420] contends that 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 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 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) or Section 245 of the Code of Criminal Procedure. There was evidence
already produced by the complainant disclosing commission of offences under
Section 494 read with Section 109 IPC. 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 secondary. Thus it appears to us that the
accused deliberately delayed the matter and would not thus be entitled to the
beneficial employment of Section 245(3) of the Code of Criminal Procedure. It
shell not be in the interest of justice to discharge the accused for the
conduct above exhibited. lt 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 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 conclude it as
expeditiously as possible.
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