LexSMT. SWARNALATA SARKAR versus STATE OF WEST BENGAL AND ORS.
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SMT. SWARNALATA SARKAR
A
v.
STATE OF WEST BENGAL AND ORS.
MAY 1, 1996
B
[M.M. PUNCHHI AND K.T. THOMAS, JJ.]
Criminal Procedure Code, 197-'f-Section 245(3) as operative in the
State of West Bengal, by vim<e of West Bengal (Amendment) Act (24 of
1988)-Applicabiliry-Delay in disposal of complaint-A substantial part at-
t1ibutable to the accuse~W11ether accused would be entitled to the beneficial C
employment of Section 245(3) of the Code-Held, No.
The appellant filed a criminal complaint alleging commission of
offence u/S 494 r/w S 109 IPC, alleging that she was married to the second
respondent QR 6.12.1976, a son was born out of the wedlock and that her D
husband, the second respondent married the third respondent on
15.9.1983, to which ceremony/proceeding the 4th, 5th & 6th respondents
illegally collaborated. The Magistrate issued process against the accused
respondents n/S 204 Cr.P.C. on basis of preliminary evidence as envisaged
u/S 200 of the Code, adduced by the appellant. An application was moved
by the accused n/S 340 Cr.P.C. requesting the Court to undertake an E
enquiry 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 as 6.12.1976 when the defence raised
the plea that no such marriage had taken place on 6.11.1976 between the
appellant and the 2nd respondent. The application was dismissed. The F
accused filed revision against the order. Proceedings before the Trial
Magistrate were stayed. The application n/S 340 Cr.P.C. and the record of
the main case kept tossing from one court to another, no date was ever
fixed for production of witnesses. On 13.10.1993, the accused prayed that
the action as contemplated n/S 245(3) Cr.P.C. as operative in the State of G
West Bengal, by virtue of West Bengal (Amendment) Act (24 of 1988),
ought to have been taken. The High Court qnashed the proceedings and
the accused respondents were discharged, holding that the delay had
occasioned from 24.4.1987 to 2.4.1990 at the instance of the accnsed
perso.ns, that the accused persons had appeared before the Magistrate on
different dates between 6.2.1984 and 30.3.1986 and the appellant could not H
119
A
B
120
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
show from the record that requirements or sub-section (3) or Section 245
had been complied with. Hence this appeal.
The appellant contended that the appellant could not be blamed for
not producing evidence arter the appearance or the accused because of the
dilatory tactics adopted by the accused in raking up a vexatious enquiry
u/S 340 Cr.P.C. when there existed preliminary evidence disclosing com·
mission of offence.
Allowing the appeal, this Court
C
HELD : The evidence of the complainant already recorded is
'evidence' \\ithin the meaning of Section 245(3) of the Act, though the
witnesses may not yet have been subjected to cross-examinati~n. 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
D the main case and of no importance that obstruction was caused towards
the progress or 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 complaint 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
E Section 494 read with Section 109 !PC. 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 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
F
the accused deliberately delayed the matter and would not thus be entitled
to the beneficial employment of Section 245(3) of Cr.P.C. It shall not be in
the interest of justice to discharge the accused {Qr the conduct above
exhibited. It is unnecessary to apportion the blame as to the delay in the
disposal of the complaint except to state that a substantial part of the part
of it was attributable to the accused. [123-F·H; 124-A·C]
G
CRIMINAL APPELLATE JURISOICTION : Criminal Appeal No.
1475 of 1995.
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