SANTOSH DE AND ANOTHER versus ARCHNA GUHA AND ORS.

SANTOSH DE AND ANOTHER v.

ARCHNA GUHA AND ORS.

FEBRUARY 3, 1994

[B.P. JEEVAN REDDY AND B.L. HANSARIA, JJ.]

Criminal Procedure Code, 1973: Sections 245(3) (as inserted by West Bengal Amendment Act, 1988)-Discharge of accused in wa"ant case-Not automatic on the failure of prosecution to adduce all evidence within the prescribed period of four years-Magistrate on being satisfied on the basis of evidence that discharge would not be in the interest of justice, can reject the discharge application-Deposition of complainant already recorded even in the absence of cross-examination can be treated as evidence-Nature of of-fence relevant factor to be taken into account by Magistrate.

Constitution of India, 1950: Articles 21, 136 and 226-Speedy trial-In-ordinate delay in proceeding with the trial-Quashing of entire proceedings improper since truth of the allegations could be arrived at only after proper trial-Interference with criminal proceedings-Called for only in cases of grave illegality-Provisions for interference-Any and every i"egularity or infraction cannot constitute ground for interference at interlocutory stages-Such inter-ference tends to defeat the ends of justice-Not to be allowed to be misused by those who could afford to approach the superior courts.

Respondent filed private complaint in August, 1977 against five police officers alleging that they had tortured her at the police head-quarters in July, 1974. Summons were issued and the accused surrendered. In December 1978, the Magistrate committed the accused to stand trial before the Sessions Court for offences under Sections 325, 330, 331 and 509 read with Section 34 I.P.C. Accused filed criminal revision against the order of commital and the High Court allowed the same and directed the Magistrate to try the case as Warrant case. Thereafter the matter could not proceed beyond the examination-in-chief of the complainant on account of the various proceedings taken by the accused in superior Courts against interlocutory order.

The present appeals were filed by two of the five accused, the other three having passed away. The first of the two aJ>peals arose out of claim

[1994] 1 S.C.R.

of the accused for a. discharge under Section 245(3) Criminal Procedure Code (as inserted by the State Government). The plea was rejected by the Magistrate and the Criminal revision against the same was dismissed by the High Court. According to Section 245(3) Criminal Procedure Code if all the evidence is not produced in support of the prosecution within four years from the date of appearance of the accused, the Megistrate shall have to discharge the accused unless he is satisfied that it will not be the interest of justice to do so.

The other appeal is directed against the decision of Division Bench of the High Court reversing the Judgment of Single Judge, who had allowed the Writ Petition tiled by the accused and held that there was inordinate delay in proceeding with the trial which violated the accused's right to speedy trial.

Dismissing both the appeals, this Court

HELD: 1.1. Discharge of the accused under sub-section (3) of Section 245 Criminal Procedure Code is not automatic once it is found that the prosecution has failed to adduce and the evidence referred to in Section 244 Cr.P.C. 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 shall have to record in his order. (554-C, D]1.2. In the instant case, the accused appeared in the Court for the first time on November 5, 1977. All the evidence on behalf of the com-p plainant-prosecution has admittedly not been adduced within four years therefrom. Though sub-section (3) was not on the statute book in the year 1981 or 1982, as it was inserted only in the year 1988, the court may assume · for the purpose of the instant case that the four years period prescribed by Section 245(3) must be deemed to have expired on the date the sub-sec-G lion was inserted. The Magistrate has exercised his discretion and judg-ment properly in the facts of the case by dismissing the application tiled by the accused under Section 245(3) Cr.P.C. The High Court, in revision did not find any error in the approach and conclusion arrived at by the Magistrate. The Single Judge was right in holding that the evidence of complainant already recorded was 'evidence' within the meaning of Section 245(3) of the Act, though the complainant had not not yet been subjected

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SANTOSH v. ARCHNA

to cross-examination. perusal of Section 244 Cr.P.C. and the context in which it occurs would establish that the deposition of the complainant could be taken as evidence. It is also not correct to say that the nature of the offence alleged should not be taken into consideration. It is certainly relevant. (554-H; 555-A-D]

A.R. Antulay v. R.S. Nayak, [1992l 1 S.C.C. 225, referred to.

2. This is not case where the accused's right to speedy trial has been violated. The High Court was right in holding that the truth of the allegations could be arrived at only after proper trial which, having regard to the nature of allegations and having regard to other circumstan-ces referred to by the Divisions Bench, should now take place without any further delay. [557-D, EJ

3. In the instant 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. [555-E]

4. The case of one of the accused-appellants cannot be separated from that of the other accused, since the complaint against them is common. (557-F]

5. It has become easy today to delay the trial of criminal case. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory order is challenged in the superior courts and the superior courts are falling prey to these strategems. The superior courts are expected to resist all such attempts. Unless grave illegality is committed, the superior courts should not inter-fere. 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. The principle behind Section 465 Cr.P.C. should be kept in mind. Any and every ir- regularity or infraction of procedural provision cannot constitute ground for interference by superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocutory stage tends to defeat the ends of justice instead of serving those ends. It should not be that man with enough means is able to

[1994) 1 S.C.R.

keep the law at bay. That would mean the failure of the very system.

[557-H, 558-A-C]

CIVIL/CRIMINAL APPELLATE JURISDICTION: Civil Appeal No. 3811 of 1990.

From the Judgment and Order dated 5.3.1990 of the Calcutta High Court in No. 652/88 (Matter No. 999/88).

WITH

Criminal Appeal Nos. 96 and 97 of 1994.

From the Judgment and Order dated 5.3.1990 & 4.10.1991 of the Calcutta High Court in No. 652/88 & Crl. R. No. 1003 of 1991.

Harish N. Salve, C.S. Vaidyanathan, R.K. Jain, Bhola Pd. Singh, Gaurav Banerjee, Rathin Das, Abhijat Chatterjee, Ashish Verma and M.P. Jha for the Appellants.

Arun Prakash Chatterjee, AD. Sikri, Ranjan Mukherjee, Ranjan Roy, S.K. Nandi and Subash Roy for the Respondents.

V.M. Tarkunde and R. Venkataramani for the intervenors.

The Judgment of the Court was delivered by

1. B.P. JEEVAN REDDY, J. Leave granted in S.L.P~ (Crl.) Nos. 983 of 1990 and 483 of 1992.

2. Criminal Appeal arising from S.L.P. (Crl.) No. 983 of 1990 and Civil Appeal No. 3811 of 1990 are preferred against the judgment of the Division Bench of the Calcutta High Court in Smt. Archana Guha v. Ranjit (Alias Runu) Guha Niyogi, & Ors., dated March 5, 1990 (reported in 1990(1) CHN 281) while Criminal Appeal No. 97of1994 (arising S.L.P. (Crl.) No. 483 of 1992) is directed against the order of learned Single Judge in Criminal Revision No. 1003 of 1991 dated October 4, 199L

3. The respondent, Smt. Archana Guha filed 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 Bagh (Calcutta) in July, 1974. * She has set out in detail the manner in which she was tortured

* Of the five accused, three are dead. The two surviving accused are the appellants herein.

in her complaint. On 30th September, 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.

4. On the private complaint filed by Smt. Guba, the learned Magistrate directed issue of summons to the accused police officials. On [B ]5th November, 1977 the appellants herein surrendered before the learned Magistrate. By an order dated December 20, 1978, the learned Magistrate comitted the accused to stanu trial before Sessions Court for offences under Sections 325, 330, 331 and 509 read with Section 34 I.P.C. The accused-police officials filed Criminal Revision against the order of commital which was allowed by the Division Bench of Calcutta High Court on May ll 1980. The High Court held the order of Committal bad. It directed the learned Magistrate to try the said case as warrant case. The reasons for which the matter could not proceed thereafter from 1980 upto now, beyond the examination-in-chief of the complainant (Smt. Guha), is graphically set out in the opening paragraphs of the judgment of Sri 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 Sri·A.P. Chatterjee, advocate can appear for the complaint. The matter was fought upto 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 1990(1) CHN 281, referred to supra.

5. We 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 S.L.P. (Cr/.) No. 483 of 1992). 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 revision filed by the accused-police officials against the order of the learned Metropolitan Magistrate, Vllth Court, Calcutta dated April 3, f991 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:

"245. When accused shall be discharged.~

(1) If, upon talcing all the evidence referred to in Section 244, the Magistrate considers, for the 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 Magistrate from discharging the accused at any previous stage of the case if, for reasons to be Fecorded 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 prosecu-tion satisfies the Magistrate that upon the evidence al-ready 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 pro-cedure for trial of warrant cases. perusal of sub-section (3) would show thai: it recognises and incorporates the principle of speedy trial implicit in Article 21 of the Constitution. The section applies only to private com-p plaints. 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.

7. In 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 sub-section was inserted and deal with the 'appellants' submissions on that basis.

8. Soon after the insertion of sub-section en, 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 Magistr~te 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 ~ other relevant circumstances in support of their satisfaction that discharging the accused would not be in the interest of the justice.

9. Sri 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· com-F plainant has not so far been cross-examined. Counsel submitted that testimony, which has not been subjected to cross-examination is not 'evidence' within the meaning of Section 3 of the Evidence Act. Sri Jain's second submission was that "the interest of justice" referred to in Section 245(3) must be read and understood as "public interest". He submitted that iJne of the accused, Ranjit Guha Niyogi, has already retired from service; out of the five original accused, three are dead; only one accused, namely, Sri Santosh De is continuing in service; the offence is alreaqy 20 years old; continuing the prosecution at this distance of time truly amounts to per-secution 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 citizen of that country. Yet another argument addressed by Sri Jain is that while considering the matter under Section 245(3), the court cannot into consideration the nature of the offence alleged. Sri Vaidyan~than reiterated the said submission.

10. Sri Chatterjee, the learned counsel for the complainant/respon-B dent, besides refuting the correctness of the reasons advanced by Sri Jain and Sri Vaidyanathan submitted that the complainant has come back to India and that she is now permanently settled in .India.

11. On 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 discre-tion and judgment properly in dismissing the application filed by the accused under Section 245(3) of the Criminal Procedure Code. The 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 record~d is "evidence" within the meaning of Section 245(3) of the Act, though she has not yet been subjected to cross-examination. 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. Nayak, [1992] 1 S.C.C. 225. We are not satisfied that any inter-ference is called for in the matter by this Court under Article 136 of the Constitution of India. The Criminal Appeal is accordingly dismissed.

CIVIL APPEAL NO. 3811 OF 1990 AND CRIMINAL APPEAL NO. 96 OF 1994 (ARISING FROM S.L.P. (CRL.) NO. 393 OF 1990).

12. These two appeals are preferred by Sri Santosh De and Ranjit Guha Niyogi respectively, the two surviving accused. They are directed aginst the judgment of the Division Bench in Writ Appeal No. 652 of 1988 (1990 1 CHN 281), preferred by Smt. Guha (the complainant) against the judgment and order of learned Single Judge of Calcutta High Court (Sri 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

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trial. The said delay, the learned 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 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. The Division Bench also observed that the learned Single Judge had taken into consideration ex-traneous matters while allowing the writ petition which he ought not to have done. We agree with the opinion of the Division Bench. The Division Bench also referred to the nature of the offence alleged and the allegati.on of the complainant that she was tortured in very inhuman manner by the accused-police officials in the torture chamber of the Police Headquarters. It 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. Nayak, [1992] 1 S.C.C. 225, that this is not 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 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.

13. Sri Harish N. Salve, learned counsel of Sri Santosh De submitted that his client's part was very minor even according to the complaint and that his client was only police constable obeying the orders of his superiors. Counsel submitted in such 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.

14. For the above reasons, both these appeals are also dismissed.

15. 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 strategems_. We expect the superior courts to resist all such attempts. Unless 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.P.C. Any and every irregularity or infrac-B tion of procedural provision cannot constitute ground for interference by superior court unless such irregularity or infraction has caused ir-reparable prejudice to the party and requires to be corrected at that stage itself. Such frequent 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 man with enou~h means is able to keep the law at bay. That would mean the failure of the very system.

16. We 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 using 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 cir-cumstances of this case. The Registry of this Court shall forthwith com-municate this order to the learned Magistrate.

Appeals dismissed.