TMI Blog2001 (3) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... ut it is left to the discretion of the Court to be exercised judiciously. It has been found by the ld. Judge that there was justifying reasons for the evidence of the prosecution having not been completely adduced within the period of four years as prescribed under the law and in view thereof the Hon'ble Supreme Court's decision in Santosh De's case reported in 1994 C.Cr.L.R. (SC) 87 would not be applicable to the, facts of the present case and it would not be in the interest of justice to discharge the accused under Section 245(3) Cr.P.C. simply on the ground that the prosecution had failed to adduce its evidence in full within a period of four years on the date of the appearance of the accused. 2.The accused persons being the present petitioners have challenged the order of the Court below on the grounds as follows. The decision reported in 1994 C.Cr.L.R. (SC) 87 (Santosh De v. The State of W.B.) is totally inapplicable to the present case in view of the fact that in this case under reference there was some evidence before the Court and thus the evidence on record left the Court with the discretion to discharge or not to discharge the accused on an appreciation of the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing before Court below as far as the petitioners are concerned are liable to be quashed. 3.On perusal of the impugned judgment it appears that the ld. Trial Judge has relied upon the principle enunciated in a decision of the Apex Court reported in 1994 C.Cr.L.R. (SC) 87 : (1994) 2 S.C.C. 420 (Santosh De Another v. Archana Guha and Ors.) wherein it has been held that discharge of an accused under Section 245(3) of the Code is not automatic and if the Magistrate is satisfied that it will not be in the interest of justice to do so, he will not discharge the accused. The Court below has expressed the view that in a warrant procedure case like the present one the appearance of all the accused persons must be obtained first and when all of them have appeared before the Court or the process for procuring their attendance has been exhausted, the case can be said to be ripe for the purpose of adducing of evidence by the prosecution. In his order ld. trial Judge has shown how since after the inception of this complaint case the Court of the Chief Judicial Magistrate had to wait for long three and half years (the complaint was filed on 26th September, 1989 and the same was sent to the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be compelled to suffer for no fault of its own, the presence of all the accused persons having not been obtained during the relevant time and secondly the interest of justice would not be served at all by discharging the accused due to such a technical reason, and the decision of a Single Bench of this High Court reported in the 1993 C.Cr.L.R. 139 would not be applicable to the instant case as the facts are totally different. 5.The Sub-section (3) of Section 245 Cr.P.C. has been inserted in the Statute Book in the year 1988 by way of amendment by the State of West Bengal with a view to protecting the accused from the dilatoriness of the conduct of prosecution and is somewhat analogous to Section 167(2) proviso of the Code which is designated to protect him from dilatory investigation. Therefore, the spirit behind the provisions should not be missed. It should not be used as, panacea for any and every instance of a case where the time gap between the appearance of the accused and the completion of prosecution evidence exceeds a period of four years. It is to be scrutinised whether there has been any dilatoriness on the part of the prosecution in the matter of adducing its ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarge under Section 245(3) Cr.P.C. was premature and untenable. 7.But, what is more important, the principle which should govern the Court in the matter of applying the provisions of Section 245(3) of the Code is that the relief available under this Section is not to be treated as automatic as soon as it is shown that the prosecution has failed to adduce any or all of the evidence referred to under Section 244 within four years of the appearance of the accused and a vital check has been provided by the legislature to the indiscriminate user of such extreme measures. This is that if the Magistrate is satisfied that it will not be in the interest of justice to do so, he will not discharge the accused under this Section. In this connection a verdict of a Division Bench of the Apex Court in Santosh De and Another v. Archana Guha and Others reported in 1994 C.Cr.L.R. (SC) 87 = (1994 Vol. 2 SCC 420) will be very much relevant. Their Lordships in this case came to the finding that the discharge under this Section is not automatic and the nature of offence in particular along with the other relevant circumstances including the conduct of the accused would have to be taken into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case due to the non-appearance or non-production of the accused for years together The case was not at all ripe for fixing date of trial in view of the absence of one of the accused and therefore, the question cannot arise at all for saying that the prosecution failed to adduce evidence. 9.The newly added provisions of Section 245(3) Cr.P.C. appear to have been intended to serve as a harmonising force, to strike a balance between the rights of the accused persons to get speedy trial and the rights of the society to be indemnified against the recurrence of crimes against it. It cannot be the intention of the legislature that these provisions should be blindly applied without making an assessment as to how far it will be safe and in the interest of justice regard being had to the nature of the offence alleged to set the accused free on purely technical grounds. 10.In any view of the matter, in the present case the proposed discharge of the accused persons under Section 245(3) Cr.P.C. will be unwarranted and unjustified and the Court below did not commit any error by refusing to allow their petition under Section 245(3) of the code. Accordingly the impugned order is upheld and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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