CALCUTTA HIGH COURT
Gitesh Ranjan Bhattacharjee, J.
Suresh Prasad Shaw - Petitioner
versus
State of West Bengal & Anr. - Respondents
Criminal Revision No. 285 of 1993
Decided on 26.7.1993
Counsel for the Parties:
For the Petitioner: S.P. Talukdar and Sandip Ghosal.
For the Respondent No. 1- State: Sanat Choudhury.

IMPORTANT POINT
A Magistrate can continue proceedings even after 4 years from date of appearance of accused without framing charge and question of stopping the proceeding as a whole does not arise.

Headnote:(i) Criminal Procedure Code, 1973 - Sections 245(3), 246 and 167(5) - Petition for discharge u/s. 245(3) - Whether Magistrate can continue proceeding even after 4 years from date of appearance of accused without framing charge? - Distinction between provisions of Sections 167(5) and 245(3).

       Held, that the Magistrate may frame charge in appropriate cases even before the completion of all the evidence referred to in S. 244, because S. 246(1) clearly mandates that charge may be framed even 'at any previous stage of the case'. Therefore even where out of the total evidence proposed to be produced the evidence already adduced make out a clear case for framing charge the Magistrate may, in an appropriate case, frame such charge under S. 245(1), Cr. P.C., although all the evidence have not yet been produced. Under sub-so (5) of S. 246 after framing of charge the accused gets an opportunity to cross-examine the witnesses already examined by the prosecution before charge. Sub-section (6) of S., 246 provides an opportunity to the prosecution thereafter to examine the remaining witnesses for the prosecution who were not earlier examined before framing of charge. There is no doubt that it is somewhat an extra-ordinary course to take up the consideration of framing of charge before at the prosecution evidence as adduced but even then the power of the Magistrate is there to consider the question of framing of charge and also to frame charge in appropriate cases before the prosecution have examined all their witnesses at pre-charge stage and once charge is framed the question of discharge of the concerned accused under Section 245, Cr. P.C. does not arise. Since under S. 245(3) - the question is a single and composite one as to whether the accused should be discharged or not and nothing more, it is also not necessary, although permissible, for the prosecution to apply before hand to the Magistrate praying that the accused may not be discharged under S. 245(3). Even at the time when the Magistrate takes up the matter for passing an order under S. 245 (3) the prosecution may, upon the evidence already adduced canvass before the Magistrate that the accused should not be discharged under S. 245(3) or special reasons and in the interest of justice. The irresistible conclusion therefore is that the question whether the accused should be discharged or not under S. 245 (3) has to be taken up for consideration only on or after the expiry if the prescribed period and not before that and since the question is a composite one as to whether the accused should be discharged or not the prosecution is entitled to urge at the time when the matter is taken up or passing an order under S. 245(3), that upon the evidence already produced and for special reasons the accused should not be discharged under S. 245(3) in the interest of justice. (Para 7)

       Further held, that in considering the question whether any order of discharge in respect of a particular accused in a given case is warranted under S. 245(3), Cr. P.C. a good number of individual factors applicable only to the particular accused may have to be taken into consideration along with the relevant general factors yielding different results for different accused persons in the same case. Again where there are more accused than one and where they first appeared before the Magistrate on different dates the Magistrate may have to or may be called upon to consider whether discharge under S. 245(3) is warranted in respect of any particular accused in respect of whom four years have already elapsed from the date of his appearance while the period of four years have not yet expired in respect of the other accused persons reckoned from the respective dates of their appearance. Any order in such a situation as to whether the particular accused under consideration should or should not be discharged under sub-s. (3) of S. 245, obviously will be confined in its effect only to that accused and will not perforce apply to the other accused persons in respect of whom the period of four years from the respective dates of their appearance might not have yet elapsed thereby rendering the question of their discharge under S. 245(3) premature yet. (Para 10)

       Consequently held: Again when an investigation has been stopped under sub-so (5) of S. 167 by the Magistrate, the Sessions Judge may, be in a fit case, under sub-so (6) of S. 167 vacate such order and direct further investigation to be made into the offence. This power of the Sessions Judge is quite different from are visional power. No such corresponding power however has been given by the legislature to the Sessions Judge authorising him to direct continuation of proceeding under S. 244 which indicates that the legislature did not contemplate passing of an order stopping the proceeding under sub-so (3) of S. 245. (Para 11)

       Therefore looking from any angle of view it has to be concluded that under S. 245(3) there is no scope of considering whether the proceeding itself as a whole should be stopped or not, but the consideration is rather confined only to the question whether the particular accused in respect of whom four years have already elapsed from date of his appearance should be discharged or not under the said sub-s. (3) and the court may have to consider the question separately at different times in respect of each different accused as to what order is required to be passed under S. 245 (3) in the case of that particular accused in whose case the period of four years have already elapsed. (Paras 11 and 12)

       Finally held, that the question of passing an appropriate order under S. 243 (3) in respect of any accused has to be taken up by the Magistrate only on or after the expiry of the prescribed period in respect of such accused and not before that and since the question is a composite one as to whether the accused should be discharged or not the prosecution is entitled to urge at the time when the matter is taken up for order under S. 245 (3) on or after the expiry of the prescribed period, that upon the evidence already produced and for special reasons the accused should not be discharged under S. 245(3) in the interest of justice. In any particular case the question of passing an appropriate order under S. 245(3) may have to be considered by the Magistrate on different occasions in respect of different accused persons separately where the accused persons appeared for the first time before the Magistrate on different dates. It may also so happen in the peculiar facts and circumstances of a case that while one accused may be discharged under S. 245(3), in the case of another accused in the same proceeding an order of discharge may be considered unwarranted in the interest of justice under the said sub-s. (3) of S. 245. Therefore the question of stopping the proceeding as a whole does not arise and the only order which the Magistrate may pass in respect of each accused under S. 245(3) is whether that particular accused is discharged or not under sub-s. (3) of S. 245, Cr. P.C. (Para 13)

       (ii) Prevention of Food Adulteration Act, 1954 - Sections 2 (ix) (k), 7 and 16(1)(a)(i) -Prosecution for selling topioca wafers in a 'misbranded' packet as label does not contain address of manufacturer and batch or Code No. - Misbranding of technical nature - No misrepresentation, false declaration or false labelling - Long pendency of proceeding in court for more than 7 years - Denial of petitioner's right to speedy trial - Proceedings in court below are liable to be quashed. (Para 15)

       (iii) Criminal Procedure Code, 1973 - Sections 244- & 245(3) - Period of four years mentioned in Section 245(3) commences from time when accused appears or is brought before Magistrate -Where there are more accused than one and they appear for first time on different dates - From whose date of appearance period of four years is to be calculated? - Held, period in respect of each accused has to be calculated from date of appearance of that particular accused. (Para 9)

       Result: Petition disposed of accordingly.