IMPORTANT POINT
Where accused deliberately delayed the matter then he could not be entitled to benefit of Section 245(3) Cr.P.C. (as amended by West Bengal (Amendment) Act of 1988) requiring complainant to produce all the evidence within 4 years of appearance of accused and it would not be in the interest of justice to discharge accused.

JUDGMENT

Punchhi, J.-This appeal by special leave is against the judgment and order dated 30th August, 1994 of the High Court of Calcutta in Criminal Revision No. 1971 of 1983, whereby proceedings in a criminal complaint filed by the appellant were quashed.

2. The case of the appellant is that she was married to the second respondent Shambhu Nath Sarkar on 6.12.1976. A son was born out of the wedlock on 20th November, 1977. The marriage between the spouses statedly was not smooth. On 15.9.1983, the second respondent married the third respondent before the Registrar of Marriages, to which ceremony/proceeding the 4th, 5th and 6th respondent, illegally collaborated. The appellant having come to know of the second marriage filed a criminal complaint on 4.4.1984 before the Judicial Magistrate, Basirhat, 24 Parganas, alleging commission of offence, under Section 494 read with Section 109 IPC. Preliminary evidence as envisaged under Section 200 of the Code of Criminal Procedure was adduced by the appellant whereafter the learned Magistrate issued process against the accused-respondents in exercise of powers under Section 204 Cr.P.C. The husband-second respondent appeared before the Court on 3.4.1985, and so did the other accused one after the other, either before or after the aforesaid date.

3. While so, on 12.9.1986, an application was moved by the accused under Section 340 of the Code of Criminal Procedure requesting the Court to undertake an inquiry 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 to 6.12.1976 from 6.11.1976, because the defence had raised the plea that no such marriage on 6.11.1976 had taken place between the appellant and the 2nd respondent. It was therefore suggested that the complaint be found guilty of the forgery punishable under Section 193 IPC. The appellant s counsel did not deny the over-writing but stated that the marriage in fact had taken place on 6.12.1976 and had mistakenly been described as if having taken place on 6.11.1976 and it was unknown who made the over-writing. The defence insisted that offence under Section 193 IPC had been committed. The complainant denied the interpolation. While enquiry was going on, proceedings in the main case stood suspended under court orders. The learned Magistrate dismissed the application on 25.2.1987.

4. The accused took the matter in revision before the Court of Sessions, Alipore against the order dated 25.2.1987. Proceedings before the Trial Magistrate were stayed and the record was called. The appeal was allowed and the order of the learned Magistrate was set aside remitting the case to another Magistrate requiring it to dispose of the application under Section 340 Cr.P.C. afresh. The record of Trial Magistrate was thus sent back.

5. The succeeding Magistrate completed the enquiry on 19.2.1988, which was again subjected to appeal before the Court of Session. Again the file of the Trial Court was summoned by the Court of Session. Since the application under Section 340 Cr.P.C. and the record of the main case kept tossing from one court to another, no date was ever fixed by the learned Magistrate for production of witnesses and the case was kept fixed for appearance and orders on various dates till 13.10.1993. On that date grievance was voiced by the accused that the action as contemplated under Section 245(3) of the Code of Criminal Procedure as operative in the State of West Bengal, by virtue of West Bengal (Amendment) Act (24 of 1988), ought to have been taken. The said Section 245 together with Sub-section 3 reads as follows:

"245. When Accused Shall be discharged-

(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for 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.