Calcutta High Court
Kumar Krishna Mondal vs Anjali Mondal And Anr. on 28 February, 1996
Equivalent citations: 1996CRILJ3134
JUDGMENT A.B. Mukherjee, J.
1 The revisional application being one under Section 482 Cr. P. C. arises out of an order dated 25-6-92 passed by the Ld. Judicial Magistrate, 2nd Court, Diamond Harbour in Case No. C-1089 of 1986.
2. A complaint case was filled by O. P. No, I before the Ld. S.D.J.M., Diamond Harbour under Section 493/496 I.P.C. Cognizance was taken and process was issued against the petitioner. The petitioner surrendered on 5-5-87 and was enlarged on bail. On 14-12-87 the case was fixed for evidence before charge when complainant was present with three witnesses. But Presiding Officer being otherwise engaged, no witness was examined. This process continued and on a number of occasions- no witness could be examined even though the complainant was present with witnesses. The reason for such adjournments were mostly either due to the Presiding Officer being engaged otherwise or the Presiding Officer having been transferred. The first witness was examined on 12-11-91 and evidence concluded on 4-3-92. The petitioner filed a petition under Section 245(3) Cr.P.C. on 4-3-92 and the Ld. Magistrate after hearing the party disallowed the prayer contained in the petition on 25-6-92 and also charge was framed against the accused. It has been contended that the Ld. Magistrate ought to have discharged the accused since no evidence could be produced in course of four (4) years from the date of appearance of the accused which was on 5-5-87.
3. The revisional application was heard by Shri. A. K. Dutta, J. and after conclusion of hearing a judgment was delivered on 1-10-93 whereby he referred the matter to the Hon'ble the Chief Justice for Constitution of a larger Banch for deciding the point of law involved in the matter. The Ld. Judge also summed up the point of law involved as follows :- Whether the power that has been given to a Magistrate under the amended Section 245(3) of the Code of Criminal Procedure to permit continuation of further proceedings beyond the period of four (4) years from the date of appearance of the accused in cases instituted otherwise than on Police Report could be exercised after the expiry of the said period and more particularly where the prosecution is not responsible for prolongation of the proceeding as in the instant proceedings as noted above.
4. The Ld. Judge pointed to an earlier decision delivered by him in the Case of Shree Ram Trading and Supply Co. v. The State, reported in 1993 (1) CHN 92 -where he took the stand that the power given to the Magistrate to permit continuation of further proceedings beyond the period of four years from the date of appearance of the accused in cases instituted otherwise than on Police Report has to be exercised before the expiry of the said period. He also came to the conclusion that the direction given by the Magistrate to continue the proceeding after the aforesaid period without being satisfied by the prosecution within the stipulated period 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, in breach of the provisions of Section 245(3) Cr. P.C, would clearly be without jurisdiction. The attention of the Ld. Judge was drawn by the O.P. No. 1 to a Single Bench decision of this Court in Santosh Dey v. Smt. Archana Guha reported in 1992 (I) CHN 366, where Shri Gitesh Ranjan Bhattacharjee, J, took the view that there was no doubt that if also the prosecution evidences are not produced within four years from the date of appearance of the accused the right of the accused to claim discharge under Section 245(3) Cr.P.C. comes to the forefront and the burden then shifts to the prosecution to satisfy that upon the evidence already produced and for special reasons there is ground for presuming that the discharge of the accused will not be in the interest of justice. If the prosecution can discharge this burden successfully, the accused forfeits his right of discharge under the said Sub-section. The attention of the Ld. Judge was not drawn to the aforesaid decision while he decided the earlier case of Shri Ram Trading and Supply Co. v. The State, (1993(I) Cal H.N. 92). The Ld. Judge was not in a position to depart from the views taken in the earlier case by him and as such thought it fit to refer the matter to a larger Bench for settling the question of law in view of the conflicting decisions on the point.
5. Thereafter the Hon'ble the Chief Justice constituted a couple of Benches but as one or other of the Judges constituting the said Benches also took some view at some point of time, the matter has come to this Bench for decision.
6. It has been contended by Ld. Advocate for the petitioner that Section 245(3) Cr.P.C. gives a valuable right to the accused in the shape of an order of discharge in the even of non-production of all the witnesses within a period of four years from the date of appearance of the accused. It is also his contention that in the present case the complainant could not produce all his witnesses in course of the aforesaid period. And as such the prayer contained in the petition under Section 245(3) Cr. P.C. ought not to have been dismissed by the Ld. Advocate has relied on cases reported in 1994 (2) CHN 85 and also 1993 (1) CLN 92. On the other hand the Ld. Advocate appearing for the State has relied on the cases reported in 1994 Calcutta Cri.L.R.97 and also 1994 Calcutta Criminal Law Reporter (SC) 87 (Sic)
7. In order to appreciate the scope of Section 245(3) Cr.P.C. it is necessary to quote the relevant Subsection which is as follows:- (3) If all 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.
8. The date of appearance of accused in this case is 5-5-87 and the date when the first witness was examined is 12-9-91, obviously not within the period of four years. In order to appreciate the scope of Section 245(3) we consider it necessary to mention the different orders subsequent to the date of appearance of the accused up to the date of examination of the first witnesses by the Ld. Magistrate. The trial Court received the case by transfer on 19-8-87 after appearance of the accused and fixed 14-12-87 for evidence. On 14-12-87 complainant was present with three witnesses. Accused was also present. But as the P.O. was otherwise engaged the case was adjourned to 22-4-88 for evidence. On that day complainant was present with three witnesses but the accused on bail was absent by petition, and the case was adjourned to 8-7-88 for evidence. On 8-7-88 complainant was present with three witnesses, accused was also present but as the P.O. was otherwise engaged and the case was again adjourned to 28-12-88. On that day also complainant was present with two witnesses, accused was also present but P.O. was busy otherwise and accordingly the case was again adjourned to 2-6-89. On that day also complainant was present with two witnesses, accused was also present but P.O. was otherwise engaged and the case was again adjourned to 27-11-89 on the said day at the prayer of the complainant the case was adjourned to 9-5-90. The record was not placed on 9-5-90 as it was a holiday and the record was placed on the next day i.e. 10-5-90 when it was adjourned to 17-9-90, presumably because neither side was present for the obvious reason that the case was not fixed earlier on that day. On 17-9-90 complainant was present with one witness, the accused was also present but filed a petition for adjournment which was allowed and the case was adjourned to 7-1-91 but on 7-1-91 complainant was present with two witnesses, accused was also present but as the Presiding Officer was already transferred the case was adjourned to 27-5-91 by the concerned S.D.J.M. On the adjourned date both sides were present but as the new incumbent did not join as presideing officer the case was adjourned to 12-9-91 when complainant was present with witnesses who were also examined.
9. Thus it will appear from the above narration that on most of the clays the complainant was present with witnesses but due to the presiding officer being engaged otherwise on a good number of occasions and also due to the fact that the presiding officer was transferred later and the new incumbent was yet to join the case could not be taken up. While the accused also took time on two occasions and in all those occasions the complainant was present with witnesses. The complainant took time only on one occasion. Thus it can be stated that witnesses could not be examined within the statutory period in terms of 245 (3) Cr P C mostly due to the reasons over which the complainant had no say. If we analyse Section 245(3) Cr P C it will appear that the said subsection speaks of the complainant producing witnesses in support of the prosecution. Production of witness in our opinion cannot be synonymous with examination of the witnesses. The complainant in a case instituted otherwise than on a police report is required to produce witnesses on the dates fixed for evidence. But he cannot have any control over the examination of witnesses which mainly rests with the learned P.O. of the concerned Court. It is true that the said Sub-section gives a valuable right to the accused in the shape of an order of discharge but at the same time the Sub-section deals with the necessity of production .of witnesses by the complainant and not their examination. We have shown from the narration of the dates when the case was fixed for evidence that the complainant was very much vigilent in the matter of production of witnesses on the dates fixed for evidence right from the very first day but due to the circumstances stated earlier the P.O. of the Court concerned could not take up the case. Obviously, the benefit cannot be harvested by. the accused. It is true, that the accused had also no fault on a number of occasion when the case had to be adjourned on the ground of the P.O. being otherwise busy and the P.O. being transferred but the complainant also performed her obligation which law casts on her in the shape of production of the witnesses on the dates fixed for evidence. In a situation like this Section 245(3) Cr.P.C. cannot have, in our opinion, any application. The reason is obvious. The law requires the complainant to produce witnesses and in the present case the complainant performed her duty in accordance with law. She cannot suffer due to circumstance over which she had no control namely want of time on the part of the P.O. As such the present case in our opinion is not covered by the Section 245(3) Cr.P.C. It is a case in which the omission on the part of the Court is the reason for prolongation of the trial.
10. For the purpose of our case it is not necessary to consider whether satisfaction of the Magistrate enshrined in the second part of the Section 245(3) Cr.P.C. is required to be considered before the expiry of the period of four years and whether satisfaction so recorded after the lapse of four years is insufficient because we have come to the conclusion that Section 245(3) Cr.P.C. is not attracted to the present case. Even then it may be stated that the case reported in 1994 Calcutta Cri LR (SC) 7 (sic) is an answer to the said position where satisfaction recorded by the Ld. Magistrate long after the expiry of the statutory period was upheld by the Hon'ble Supreme Court. ,
11. In the result we do not find any merit in the revisional application which accordingly stands dismissed. The Ld. J.M. trying the case is however directed to dispose of the same as expeditiously as possible and in any case within the period of six (6) months from the date of communication of the order. We direct that adjournments should not be granted on flimsy grounds and the trial shall be held on day-to-day basis after charge, if any, is framed according to law.