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PETITIONER: SMT. SWARNALATA SARKAR

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT:       01/05/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. THOMAS K.T. (J)

CITATION:  1996 SCC  (4) 733        JT 1996 (5)   537  1996 SCALE  (4)105

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Punchhi, J.      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

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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

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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.