Judgment

B.P. JEEVAN REDDY, J.- Leave granted in SLP (Crl.) Nos. 983 of 1990 and 483 of 1992.

2. Criminal Appeal arising from SLP (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 Archana Guha v. Ranjit (alias Runu) Guha Niyogi{(1990) 1 CHN 281} dated March 5, 1990 while Criminal Appeal No. 97 of 1994 [arising from SLP (Crl.) No. 483 of 1992] is directed against the order of a learned Single Judge in Criminal Revision No. 1003 of 1991 dated October 4, 1991.

3. The respondent, Smt Archana Guha filed a 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 Bazar (Calcutta) in July 1974.{Of the five accused, three are dead. The two surviving accused are the appellants herein} She has set out in detail the manner in which she was tortured in her complaint. On September 30, 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 Guha, the learned Magistrate directed issue of summons to the accused police officials. On November 5, 1977 the appellants herein surrendered before the learned Magistrate. By an order dated December 20, 1978, the learned Magistrate committed the accused to stand trial before a sessions court for offences under Sections 325, 330, 331 and 509 read with Section 34 IPC. The accused-police officials filed a criminal revision against the order of committal which was allowed by the Division Bench of the Calcutta High Court on May 13, 1980. The High Court held the order of committal bad. It directed the learned Magistrate to try the said case as a warrant case. The reasons for which the matter could not proceed thereafter from 1980 up to now, beyond the examination-in-chief of the complainant (Smt Guha), is graphically set out in the opening paragraphs of the judgment of Shri 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 Shri A.P. Chatterjee, Advocate can appear for the complainant. The matter was fought up to 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 Archana Guha v. Ranjit Guha Niyogi{(1990) 1 CHN 281}.

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 SLP (Crl.) 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 a revision filed by the accused-police officials against the order of the learned Metropolitan Magistrate, Seventh Court, Calcutta dated April 3, 1991 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 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.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any pr