Calcutta High Court
Sree Ram Trading And Supply Co. And Anr. vs The State And Anr. on 5 January, 1993
Equivalent citations: (1993)1CALLT324(HC)
JUDGMENT Arun Kumar Dutta, J.
1. The question falling for consideration here is whether in cases instituted otherwise than on police report a Magistrate can allow continuation of further proceedings beyond four years from the date of appearance of the accused if all the evidence referred to in Section 244 of the Code of Criminal Procedure (hereinafter referred to as Code) are not produced in support of the prosecution without being satisfied by the prosecution 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 view of the amended provisions of Section 245(3) (of the Code). The question arises in the facts and circumstances hereunder stated.
2. On 20th March, 1985 a Food Inspector of the Calcutta Municipal Corporation had inspected the godown of the petitioner-accused Shyam Sundar Sharma at P-185, Strand Road, Calcutta, who had found an article of food, viz. salt (edible) stored/exposed for sale for human consumption. The said Food Inspector purchased some sample of the said salt from the petitioners after due compliance with all the requisite formalities. The Food Inspector had sent one part of the said sample of salt to the Public Analyst upon analysis had opined that the said sample of salt does not conform to the standard in respect of matter insoluble in water (on day basis), which was thus reported to be adulterated. The Food Inspector had thereupon filed a complaint against the petitioners-accused and another 'before the Senior Municipal Magistrate, 1st Court, Calcutta on 29.7.85 under Section 16(1) (a)(ii)/7 of the Prevention of Food Adulteration Act, 1955. The learned Magistrate had taken cognizance of the alleged offence, and had issued process all the accused persons named in the complaint. On receiving summons, the accused persons had appeared before the learned Magistrate on 25th August, 1986, when they were released on bail. The learned Magistrate had fixed the case on 18.12.86 for evidence of the prosecution witnesses. The hearing of the case had thereafter been adjourned on 18.12.86, 24.3.87, 22.6.87 and 7.9.87 as no P.W. was produced by the prosecution.
3. During the carriage of the proceedings, the prosecution had filed a petition before the learned Magistrate on 14.12.87 praying that the accused should not be allowed to cross-examine the P.Ws. before charge. One formal witness was, however, examined by the Magistrate on that date on the assurance by the defence that they would not cross-examine the witness. The said petition was thereafter posted for hearing, which had been adjourned from time to time. In the meantime a petition has been filed on behalf of the accused No. 2 for discharge under Section 245(2) of the Code on 16.3.88 which was disposed of by the learned Magistrate on 30.9.88, allowing the petition and discharging the accused No. 2 thereunder. The petition filed by the prosecution on 14.12.87 was eventually rejected by the learned Magistrate his order dated 27.4.89. Even thereafter the hearing of the case had to be adjourned from time to time as no P.W. could be produced by the prosecution. A petition was thereafter filed by the remaining two accused persons, the petitioners herein, on 14.1.91 under Section 245(3) of the Code for their discharge. The said petition heard by the learned Magistrate on 11.4.91 and was rejected by him by his order dated 19.4.91 for the reasons recorded therein, fixing 7.6.91 for appearance of the accused and for examination of all the remaining P.Ws. before charge.
4. Being aggrieved by the order so passed by the learned Magistrate on 19.4.91 the accused-petitioners have moved this Hon'ble Court under Section 482 of the Code for quashing the proceedings and/or setting aside the impugned order on the grounds set forth in their revisional application.
5. Certain provisions of the Code of Criminal Procedure, 1973, including Sections 167 and 245, have been amended by the Code of Criminal Procedure (West Bengal Amendment) Act, 1988. The assent of the President was first published in the Calcutta Gazette Extraordinary Part III, No. 548-L, dated 14.3.89. The aforesaid Amendment Act had come into force on and from 2nd day of May, 1989 under the relevant Notification issued by the State Government to that effect.
6. By the aforesaid Amendment Act, being West Bengal Act XXIV of 1988 Section 167 of the Code has been amended as follows :
"In Section 167 of the principal Act,-
(a) for Sub-section (5), the following sub-section shall be substituted :
(5) If in respect of-
(i) any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or
(ii) any case exclusively triable by a Court of Session or a case under Chapter XVIII of the Indian Penal Code, (45 of 1860) the investigation is not concluded within a period of three years, or
(iii) any case other than those mentioned in clauses (i) and (ii) the investigation is not concluded within a period of two years from the date on which the accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary.
(b) in Sub-section (6), after the words "any order stopping further investigation into an offence has been made", the words "and the accused has been discharged" shall be inserted".
7. Section 245 of the Code has also been amended by the aforesaid Amendment Act by inserting Sub-section (3) after Sub-section (2) in the following manner :
"In Section 245 of the principal Act, after Sub-section (2), the following sub-section shall be inserted :-
(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 aforesaid procedural enactment has clearly been enacted for the benefit for the accused, whose primary object is to avoid delay in trial, in consonance with the fundamental rights guaranteed under Article 21 of the Constitution.
9. In its plain language, plainly read, Section 245(3) of the Code gives a mandate to the Magistrate (in cases instituted otherwise than on police report) to make an order of discharge of 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 way the Magistrate is required to make an order stopping further investigation into the offence and discharge the accused unless the officer making investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the periods mentioned in Sub-section (5) of Section 167 of the Code is necessary, obviously implying that the satisfaction of the Magistrate (in both the cases) must take place before the expiry of the periods mentioned in the aforesaid provisions.
10. It would be pertinent to note in this context that it has been held in the decision in Jay Shankar Jha v. The State, 1982(1) CHN 24 that in view of Section 167(5) of the Code, the investigation beyond the period of six months can be continued only if the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation beyond the periods mentioned therein is necessary. The satisfaction of the Magistrate must take place before the expiry of the periods mentioned therein. The continuation of the investigation beyond the periods mentioned therein, in the absence of any prayer by the investigating officer that for special reasons and in the interest of justice the continuation of investigation beyond the specified period was necessary, is illegal rendering the subsequent proceedings before the Magistrate without jurisdiction.
11. It had similarly been held in the decision in Pappa Rao v. The State, 1985 Cr LJ 546 that leave to continue the investigation beyond 180 days from the date of arrest in summons cases should be taken before the expiry of the said period. No Magistrate can proceed to try an accused on a chargesheet submitted as a result of investigation continued in breach of the provisions of Section 167(5) of the Code.
12. It had further been held in the decision in Ram Kumar Keshori v. The State, 1981(11) CHN 173 that after the expiry of the period specified in Section 167(5) of the Code, the Magistrate cannot entertain any prayer to extend the preliminary investigation. Any direction for continuation of the investigation given under the aforesaid provisions after the statutory period would be without jurisdiction.
13. Since the aforesaid Amendment Act of 1988 has been enacted for the benefit of the accused with the primary object to avoid delay in trial in consonance with the fundamental rights enshrined in Article 21 of the Constitution, as indicated above, it must be held in keeping with the aforesaid decisions that the satisfaction of the Magistrate under Section 245(3) of the Code must take place before the expiry of four years from the date of appearance of the accused in respect of cases thereunder. With the aforesaid relevant amended provision of the Code, such as they are, there could be little mistaking that the power that has been given to a 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. Any direction by the Magistrate to continue the proceedings after the aforesaid period without being satisfied by the prosecution 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), would clearly be without jurisdiction, rendering the subsequent proceedings as well without jurisdiction.
14. It would be pertinent to note that in the relevant case before us no prayer whatsoever had been made by the prosecution before the expiry of the aforesaid statutory 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. The certified copy of the order-sheets on record would clearly indicate that the hearing of the case and examination of the prosecution witnesses had been adjourned at the instance of the prosecution on as many as eleven occasions on 8.12.86, 23.3.87, 22.6.87, 14.12.87, 29.2.88, 16.5.88, 15.7.88, 20.2.89, 17.4.89, 13.9.89 and 27.8.90. The Court could not be held in the absence of the presiding officer or on similar ground on four occasions on 7.9.87, 28.11.88, 18.12.89 and 16.4.90. It was only on two occasions on 29.7.88 and 10.7.89 that the hearing of the case had to be adjourned at the instance of the accused persons. But no P.W. was either present on any of those days. It would also oddly appear from the materials on record that the prosecution had neither taken any step to suminon the withnesses, nor the witnesses were present on the aforesaid dates, giving the clearest and conclusive indication that the prosecution was never keen in producing all the evidence referred to in Section 244 of the Code in support of their case.
15. Even though the accused is not required to raise any objection in such matter, the obligation to satisfy the learned Magistrate under Section 245(3) solely lying upon the prosecution, a petition appears to have been filed by the accused-petitioners on 14.1.91 before the learned Magistrate under Section 245(3) of the Code praying for their discharge on the failure of the prosecution to examine all the witnesses within four years from the date of their appearance. The said petition had been fixed by the learned Magistrate on 1.4.91 for hearing. A copy of the said petition appears to have been served by the accused-petitioners upon the prosecution. It was only then that wisdom had dawned upon the prosecution who had thereupon summond the wit- nesses for their examination/evidence in the case on 1.4.91, though the said date was fixed for hearing of the aforesaid petition filed by the accused-petitioners on 14.1.91, and not for evidence of the prosecution witnesses.
16. The learned Magistrate while rejecting the aforesaid relevant application filed by the accused petitioners under Section 245(3) of the Code by his impugned order dated 19.4.91 appears to have observed that the delay in disposal of the case was due to adjournments allowed by the Court on prayer of both the parties, and both the parties had taken adjournments on different dates1 on various grounds. He further appears to have observed therein that it is a matter of record that the prosecution got no sufficient opportunity to examine all the P.Ws before charge till date. But the observations so made by the learned Magistrate in his impugned order do not appear to be borne out by the record, as it is. Per Contra, the record would at once indicate that despite grant of as many as eleven adjournments on different dates on their prayers, as indicated above and so much of opportunities granted to them the prosecution have pointedly failed, neglected and ignored to produce all the evidence referred to in Section 244 of the Code (in support of the prosecution) within four years from the date of appearance of the accused on 25.8.86, without issuing any explanation/reason therefor. True it is, the prosecution was ready with the witnesses on 1.4.91 (though the said date was not fixed for prosecution evidence) only after the accused had filed a petition under Section 245(3) of the Code on 14.9.91, as discussed above ; and that too long beyond four years from the date of appearance of the accused. The certified copy of the entire order-sheets on record would clearly indicate that no endeavour whatsoever was either made by the prosecution to satisfy 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, though obligatory for them to do so for continuation of the proceedings beyond four years from the date of appearance of the accused as far back as 25.8.86. Nor, could they, the record being, what it is. The direction of the learned Magistrate by his impugned order dated 19.4.91 to continue further proceedings beyond four years from the date of appearance of the accused (on 25.8.86) without being satisfied by the prosecution 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) of the Code, must clearly, therefore, be held to be without jurisdiction. As held in the decision in Syed Md. Hasan v. K. C. Das, Deputy Chief Controller of Import and Export) 1991 C Cr LR (Cal) 99, the amended provisions of Sub-section (3) of Section 245 of the Code being prospective in nature will be applicable to cases pending from before in view of the observations made therein. The question whether the accused has been prejudiced is also wholly irrelevant in such a context in view of the aforesaid clear mandate and statutory requirement thereunder.
17. Upon the premises above, the impugned order dated 19.4.91 passed by the learned Magistrate directing further continuation of the relevant proceedings beyond four years from the date of appearance of the accused on 25.8.86, fixing 7.6.91 for appearance of the accused and for examination of all the remaining P.Ws. before charge, despite the failure of the prosecution to produce all the evidence referred to in Section 244 in support of their case, without being satisfied by the prosecution 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, must clearly be held to be without jurisdiction rendering the subsequent proceedings as well without jurisdiction. The prosecution having thus failed to produce all the evidence referred to in Section 244 of the Code in support of the prosecution within four years from the date of the appearance of the accused on 25.8.86 the accused -petitioners are entitled to be discharged under the amended Section 245(3) of the Code.
In the result, the instant revisional application succeeds. The impugned order dated 19.4.91 passed by the learned Magistrate and the relevant proceedings before him be accordingly hereby quashed. The accused-petitioners stand discharged under Section 245(3) of the Code.