Another argument made before me by Mr. Ghosh is that the evidence so far produced in the Court namely the unfinished examination-in-chief of the complainant herself is, strictly speaking no evidence in the eye of law in-as-much as the same has not yet been tested by cross examination and therefore the same is no evidence at all in the sense of the term in which it has been used in Section 245(3). The said contention, however, was overruled by S. K. Guin, J. while rejecting the revisional application No. 1003 of 1991 filed by the co-accused, Runu Guha Neogi against the very same order which is under challenge in this criminal revision at the instance of the present petitioner. I am in full agreement with his Lordship and hold that the unfinished or rather continuing examination-in-chief of the complainant in this case satisfies the requirement of legal evidence within the meaning of the word 'evidence' as used in Section 3 of the Evidence Act and therefore the same, even if not yet tested by cross examination is still evidence in the sense in which the word 'evidence' has been used in Section 245(3) Cr. P. C. Suffice it to say that generally speaking an ex parte evidence is also an evidence and there is no reason to hold that the evidence referred to in Section 245(3) Cr. P.C. must be such evidence only as has been tested by cross examination. I reiterate that the unfinished and continuing examination-in-chief of the complainant is also evidence in the sense in which the word 'evidence' has been used in Section 245(3) Cr. P.C.
2. It may be mentioned here that Smt. Archana Guha filed the petition of complaint against the accused persons on the allegation that after her arrest by police on or about the mid-night of 18th July, 1974 from her residence along with some other inmates of her house who were also ladies, they were taken to Cossipore Police Station and from there they were brought to the Special Detective Department Cell at Lalbazar and while they were lodged there inhuman physical and mental torture was inflicted on them by the accused persons and they were also subjected to abuse in filthy languages. It is also the case of the complainant that as a result of the inhuman torture inflicted on her by the accused persons while in police custody her lower limbs gradually became defective. It may be noted here that the petitioner/accused Santosh Dey is a Constable of Police and the accused Ranjit alias Runu Guha Neogi is a Police Officer. It appears that the complaint was originally filed against 5 accused but subsequently 2 of the accused died and the trial was held up for sometime for confirmation of their death report. The case against another accused was filed after issuing proclamation as he was absconding.
3. It was argued at the beginning of the hearing by Mr. Chatterjee appearing on behalf of the Opposite Party, Archana Guha that since a similar revisional application at the instance of the co-accused Runu Guha Neogi filed against the very same order of the Learned Metropolitan Magistrate was dismissed by another Learned Judge of this Court in Criminal Revision No. 1003 of 1991, there was no scope for entering into the merits of the same impugned order of the Learned Magistrate over again in the present revisional application in-as-much as that will amount to rejudging and reviewing the earlier decision of another Single Bench of this Court which is not permissible in law and that being so the present revisional application should be dismissed in limine. Mr. Ghosh appearing for the petitioner Santosh Dey however submitted that since there were glaring factual differences between the case of Runu Guha Neogi and that of the present petitioner in respect of matters relevant for consideration in connection with the prayer for discharge under Section 245(3) Cr. P.C. there can not be any" question of rejecting the revisional application of the present petitioner in limine on the singular ground that a similar application filed by Runu Guha Neogi has been rejected by this Court. Mr. Ghosh also elaborately dealt with what he felt the distinguishing factual features of the case of his client and in doing so he freely highlighted the contentions of his client on merits and in this background towards the end of the hearing it was agreed by both Mr. Chatterjee and Mr. Ghosh that the present revisional application may be disposed of on merits since the Court has been addressed by both sides on nerits also by way of an unavoidable discourse on the question whether the present revisional application should be rejected in limine or should be disposed of on merits.
4. It has been argued on behalf of the petitioner by Mr. Ghosh that in deciding the question whether the benefit of sub-section (3) of Section 245 of the Code of Criminal Procedure introduced by Section 5 of the West Bengal Amendment Act of 1988, should be granted in favour of any particular accused, the Court should only examine the particular facts and circumstances relating to the accused concerned so that the conduct of one accused contributing to the prolongation of the proceedings which may justify rejection of the prayer of that accused under Section 245(3) may not be used indiscreminately against another accused for rejecting his prayer under the said section even when it is found that he had no contribution or very little contribution to the prolongation of the proceedings. He further submitted that the very language of sub-section (3) of Section 245 indicates that the case of each accused where there are more accused than one in any particular case is required to be examined on the basis of an individualized approach. In this connection we may profitably quote Section 245 Cr.P.C in its entirety as it stands after the said West Bengal amendment :
"245. When accused shall be discharged.-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 previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
(3) If all the evidence referred to in Section 244 are not produced in support of the prosecution within four years from the date of appearance of the accused, the Magistrate shall discharge the accused unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused."
According to the argument of Mr. Ghosh the fact that time starts running from the date of the appearance of the accused under sub-section (3) of Section 245 Cr.P.C. and different accused may appear on different dates in any particular case, suggests that the said sub-section requires separate consideration for each individual accused on the basis of the facts and circumstances relating to that accused alone without looking to the facts and circumstances which may be relevant only in connection with the consideration in respect of some other accused. It has been argued by him that the petitioner was in no way responsible for the delay in the progress of the criminal case as he did not move the superior Court for obtaining any order of stay except on two occasions when he had to move for transfer of the case. It was further submitted that the first of such application was allowed and disposed of within 28 days and the second application became infructuous due to change of Magistrate and the trial was held up only for three months on that occasion, the total period during which the trial was held up at the instance of the present petitioner thus coming to only about four months. It has been submitted on the other hand by Mr. Chatterjee that both the accused were in league and whatever obstructive steps were taken by the accused persons in the name of one or the other on different occasions were in fact taken by way of a concerted measure to thwart the progress of the proceedings and frustrate all efforts of the complainant to carry on the same expeditiously. I have given my anxious consideration to all aspects of the matter and I am of the view that there can not be any set formula which may be of universal application in all cases. There may be cases where the facts and circumstances may demand in the interest of justice a unified and convergent approach in considering the prayer of the different accused persons for discharge under sub-section (3) of Section 245 while there may also be cases where the facts and circumstances may require individualized and diversified approach in the interest of justice yielding different results in respect of the different accused persons in the same case in the matter of invoking the benefit of the said sub-section (3) of Section 245. It all depends upon a number of variable factors which may differ from case to case. The common factor in all cases, however, is the interest of justice and that must be the end product of all equations.
5. Mr. Ghosh argued that every accused has a right to speedy trial and this right has already received judicial recognition as flowing from Article 21 of the Constitution of India which guarantees right to life and personal liberty and assures that no person shall be deprived of his life or personal, liberty except according to procedure established by law. It has further been argued that sub-section (3) of Section 245 of the Code of Criminal Procedure is a legislative recognition of the accused's right to speedy trial emanating from Article 21 of the Constitution of India. It is submitted, in this connection, that the right of discharge of an accused under sub-section (3) of Section 245 takes its colour from his fundamental right to life and personal liberty as enshrined in Article 21 and such a right of discharge stands on the footing of a fundamental right guaranteed by the Constitution rather than a mere statutory right and therefore the same over-rides or prevails upon the ordinary legal right of the complainant to prosecute an accused for an offence. There is no doubt that this argument is indeed a fascinating one but then the same must be considered in the proper perspective of the matter. If the right to speedy trial is a right of the accused emanating from his fundamental right to life and personal liberty as enshrined in Article 21, the complainant's right to prosecute for criminal violation of his personal safety or dignity which is also an attribute of one's fundamental right to life and personal liberty has its root equally embedded in the constitutional right guaranteed by Article 21. The right to life enshrined in Article 21 means something more than mere survival or animal existence and it includes the right to live with human dignity. It also includes all those aspects of life which go to make human life meaningful, complete and worth living. Freedom from physical violence and personal indignity and the right to protect the personal safety and dignity from criminal violation or wanton violence is an attribute of life and personal liberty. Without such a right to protection against criminal encroachment on the personal safety or dignity the right to life and personal liberty can not be meaningful and complete in a civilized society. Again, this right to protection against criminal violation of or violence to personal safety and dignity can not be always ensured by the general preventive or preemptive police measures alone and that is why penal law has been given a role to play in redressing criminal violation of personal right to safety and dignity. A right without a remedy may very often prove illusory. Penal law ensures punitive remedy in addition to the preventive remedy exercised by the State through general administrative and police vigils. Law prescribes punishment for offences of violation of personal safety and dignity so that such violation may still be redressed and the violated right vindicated by trying and punishing the offender. That generally speaking any crime is an offence against the society does not denude it of its basic character of being an offence against the individual against whom the same is committed and that is one of the reasons why the law recognizes a parallel right of the individual in a large category of the cases to launch prosecution for bringing the offender to book inspite of the right of the state to prosecute the offender. Therefore the right of the individual to launch and carry on prosecution against an offender under the penal law where the individual right to personal safety and dignity has been criminally violated is a right to uphold his personal safety and dignity and to redress the criminal violation of the same. Both as a matter of fact and in the eye of law this is a right concomitant to the enjoyment of life and personal liberty with safety and human dignity and is therefore an adjunct to the right to life and personal liberty falling within the ambit of Article 21. Therefore, the right of the individual to prosecute for redress of criminal violation of his personal safety and dignity also, in the final analysis, seems flow from the same Article 21. To deny the complainant arbitrarily his right to pursue the prosecution for redressal of the criminal violation of his personal safety and dignity is to deny and deprive him of a very significant remedial right stemming from Article 21. It will, therefore, be both an over-simplification and an under-estimation to say that the right of an individual to prosecute for redressal against criminal violation of his personal safety and dignity is. a mere statutory right and is therefore less sacred than the constitutional right of the accused to speedy trial which incidentally is also equally a right of the complainant. As we have already analysed such right of an individual complainant also flows from Article 21 of the Constitution and therefore the same can not be downgraded vis-a-vis the right of the accused to a speedy trial by arguing that the latter right emanates from Article 21 of the Constitution while the former is a mere statutory right. In fact both the rights are nourished by Article 21. But the complainant's right to prosecute and pursue the prosecution foreruns the right of the accused to relief against failure of speedy trial. In fact the latter can table its claim only at that point of time when the former loses its validity by reason of unsustainable delay converting the prosecution into persecution. The task of the balancing process is to locate that point of time and any error or eberration in locating the same with forensic precision will defeat the interest of justice. As a matter of fact both these competing rights have been taken even-handed care of in sub-section (3) of Section 245 which while mandates discharge of an accused after a particular time period if the evidence is not concluded in the meantime yet keeps it open to the trying Magistrate in his judicial discretion not to discharge the accused in such a case inspite of the lapse of time, if the prosecution satisfies him that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. The provisions of the said sub-section reflect legislative recognition of the necessity of a synthesised approach in judicially deciding whether the claim of the accused for relief based on the ground of delay in concluding the trial should prevail. There is no doubt that if all the prosecution evidence are not produced within four years from the date of appearance of the accused the right of the accused to claim discharge under sub-section (3) of Section 245 comes to the forefront and the burden then shifts to the prosecution to satisfy that upon the evidence already produced and for special reasons there is ground for presuming that the discharge of the accused will not serve the interest of justice. If the prosecution can discharge this burden successfully, the accused forfeits his right of discharge under the said subsection. The paramount consideration is the interest of justice and the decision of the Court whether to throw the prosecution out of gear on ground of delay alone will be tilted by the weight of the interest of justice. The Court has to decide which way the interest of justice tilts in the particular background of the facts and circumstances of the case.
6. Apart from the provision of Section 245(3) Cr.P.C. every accused in a criminal trial has a constitutional right flowing from Article 21 to have the proceedings against him quashed on ground of delay in concluding the trial in appropriate cases. There has been a continuing debate in the legal arena during the past years as to whether any fixed time limit should be judicially laid down for the conclusion of trial so that in case the trial is not concluded within such time limit the accused can claim relief in the form of quashing the proceedings or in any other appropriate form. The Supreme Court in the recent decision in A.R. Antulay v. R.S. Nayak, 1992(1), Crimes 193 has declined to fix any time limit for the purpose and has rather preferred to keep the question of delay open for consideration in the background of the facts and circumstances of each case. The question as to what circumstances may be relevant for consideration in an enquiry for ascertaining whether there exist any special reasons by dint of which it may be presumed that it shall not be in the interest of justice to discharge the accused under sub-section (3) of Section 245 Cr.P.C. inspite of the fact that the evidence could not be concluded within four years from the date of appearance of the accused can be examined in the lilght of the guidelines laid down by the Supreme Court in the said case of A. R. Antulay.
7. I would like to quote here some of the observations made in that case. In Para-5l of that decision the Supreme Court observed thus :-
"But then speedy trial or other expressions conveying the said concept are necessarily relative in nature. One may ask speedy means, how speedy ? How long a delay is too long ? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses the work load in the particular court, means of communication and several other circumstances have to be kept in mind.
"In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable, broadly speaking. Of course, if, it is a minor offence-not being an economic ofience-and the delay is too long, not caused by the accused, different considerations may arise."
Some of the guidelines laid down in that case in Para-54 have been formulated thus :-
"4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily pre-judices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of prosecution. Ofcourse, there may be cases, where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question - to be put and answered is-who is responsible for the delay ? Proceedings taken by either party in good faith, to vindicate their rights arid interest as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings orproceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.
"5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work load of the court concerned, prevailing local conditions and so on-what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one".
To quote the language of the Supreme Court in the said case, "Ultimately, the court has to balance and weigh the several relevant factors.-'"balancing test" or "balancing process" and-determine in each case whether the right to speedy trial has been denied in a given case". In the said case of A. R. Antulay the Supreme Court in refusing to accept the ground of delay in Writ Petition No. 833 of 1990 observed thus :-
"May be the very system was partly responsible for the somewhat unusal course of events. The complainant was certainly not to blame".
Similarly while considering the Writ Petition No. 268 of 1987 the Supreme Court in the said case observed thus (at Page 230) :
"The proceedings of the court for this period placed before us by the respondents do clearly establish that during this period the prosecution has always been anxious to go on with the trial. That the trial could not be concluded so far is for reasons for which prosecution can not be held responsible".
It is, therefore, indicated and rather laid down by the Supreme Court that the apparent delay which might have been caused due to the system itself and for which the complainant can not be blamed should not be reckoned against the complainant.
8. The decision of the Supreme Court in A. R. Antulay, in my opinion, provides sufficient guidelines for considering what circumstances may constitute special reasons for presuming, in the background of the particular facts and circumstances of a case, that it shall not be in the interest of justice to discharge the accused under Section 245(3) Cr. P.C. If it appears that the accused was responsible for the delay, obviously he can not take advantage of his own wrong. Again, if it is found that the complainant was responsible for the delay either because he was not diligent or because he was negligent or was intentionally prolonging the trial for the purpose of harassing the accused, obviously he can not claim that the accused should be denied his right of discharge under the said sub-section (3). There may also be cases where neither the complainant nor the accused may be responsible for the delay, but the delay might have been caused due to circums tances beyond the control of the complainant or due to the system itself which, to borrow the language of Supreme Court, may be called systemic delay. If the delay in any particular case is found to be systemic for which the complainant can not be made responsible or the delay is caused by any other reason for which neither the complainant nor the accused is responsible, certainly that fact will ordinarily constitute valid ground for allowing the proceedings to continue inspite of the fact that four years have already elapsed since the appearance of the accused. Different considerations even in such a case may however arise where the offence is a minor one, not being an economic offence and the delay is not caused by the accused. Different considerations may also arise where the accused has already suffered prolonged detention or is rotting in custody for a shockingly long period or has been suffering some substantial unfavourable consequence due to the pendency of the proceedings such as suspension or dismissal from service, denial or withholding of increment or promotion in service, etc. There is no doubt that all the circumstances can not be forseen and therefore can not be ex-haustively enumerated. What has been mentioned above is only illustrative and then again these circumstances wherever they exist are also required to be taken into consideration not in any isolated way but along with the other peculiarities of the case, if any.
9. The language of the sub-section (3) of Section 245 Cr. P.C. also has been couched in such a manner as to provide a wide matrix for accommodating an all-embracing view of the facts and circumstances of each case. The relevant expression of the said sub-section, we may note again, reads thus : '......unless the prosecution'satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused'. The words 'upon the evidence already produced' do not project exactly the same connotation as an expression like 'on consideration of the evidence already produced'. Had the words 'on consideration of the evidence' been there instead of 'upon the evidence', that would have conveyed an idea that there must be something substantial in the evidence already produced which can lend support to the prosecution case upto the degree of prima facie or nearly establishing the same. But the expression 'upon the evidence already produced' is not that demanding as to require that the evidence already produced must prima facie or nearly establish the prosecution case. Rather it may suffice if the evidence already produced indicates explicitly or implicitly that the prosecution case may be sustained by evidence if allowed to be completed. For instance where the complainant has come forward to depose on oath and has been examined in part it may fairly be expected that his evidence if allowed to be completed is likely to support his case even though his evidence so far recorded in part may not yet be adequate for the purpose. Again the expression 'ground for presuming' is more liberal than the expression 'ground for concluding' or 'for believing' or 'holding' which would demand a higher degree of conviction than that implicit in the expression 'ground for presuming'. There is no doubt that presumption is not the same as mere conjecture or wishful thinking but at the same time the same is not as exacting as the expression like believing or holding. If the facts and circumstances of a given case furnish a ground for presuming that it shall not be in the interest of justice to discharge the accused, even if they may not be as concrete at that stage as to lead the Court to any definite conclusion or rinding about the guilt of the accused yet the same will furnish a valid ground for refusing relief to the accused under sub-section (3) of Section 245 Cr. P.C. Here in the present case, the evidence so far adduced by the complainant herself has received due attention of the Learned Magistrate. In deciding which way the decision of the Court should lean in respect of the prayer under Section 245(3) Cr. P.C. the nature of the offence is also one of the factors that should be taken into consideration. Here the offence alleged is not only an offence of ordinary physical violence and mental torture but as the allegation shows it amounts to a degrading torture and persecutory atrocity. The petitioner is also alleged to be a participant in the commission of such torture. The question whether these allegations are true or false is, of course a different matter, but the facts, circumstances and the evidence so far adduced make it highly desirable that the same should not go without enquiry, particularly when the complainant is not responsible for the prolongation of the proceedings and rather she had to take a lot of efforts and troubles for frustrating the move of the defence almost at every step of the proceedings not to allow the same to proceed smoothly.
10. It has been argued on behalf of the petitioner that even if the other accused Runu Guha Neogi was responsible for the prolongation of the proceedings yet the contribution of the present petitioner to the same is not very significant and therefore he should not be denied his right of discharge under Section 245(3). This argument does not seem acceptable. One thing is certain that the complainant was not responsible for the delay and if the delay was the contribution of any particular accused by way of taking various obstructive moves and steps, the same will have to be treated as systemic delay or procedural delay so far as the co-accused is concerned for which the complainant is not responsible. That being so, even if it is assumed that so far as the present petitioner is concerned he has been affected by the systemic delay or procedural delay for which the complainant is not responsible the same may not, and in the facts and circumstances of the present case, should not go against the complainant in deciding the merit of the claim of the accused for discharge under Section 245(3). It may also be noted that the petitioner is not in custody nor is he suffering any departmental suspension or any inconvenience in respect of his service benefits such as pay, increment, scope of promotion etc. due to the pendency of the present proceedings. All these circumstances constitute special reasons for which the Learned Magistrate, in my opinion, was justified in presuming that it would not be in the interest of justice to discharge the petitioner.
11. Another argument made before me by Mr. Ghosh is that the evidence so far produced in the Court namely the unfinished examination-in-chief of the complainant herself is, strictly speaking no evidence in the eye of law in-as-much as the same has not yet been tested by cross examination and therefore the same is no evidence at all in the sense of the term in which it has been used in Section 245(3). The said contention, however, was overruled by S. K. Guin, J. while rejecting the revisional application No. 1003 of 1991 filed by the co-accused, Runu Guha Neogi against the very same order which is under challenge in this criminal revision at the instance of the present petitioner. I am in full agreement with his Lordship and hold that the unfinished or rather continuing examination-in-chief of the complainant in this case satisfies the requirement of legal evidence within the meaning of the word 'evidence' as used in Section 3 of the Evidence Act and therefore the same, even if not yet tested by cross examination is still evidence in the sense in which the word 'evidence' has been used in Section 245(3) Cr. P. C. Suffice it to say that generally speaking an ex parte evidence is also an evidence and there is no reason to hold that the evidence referred to in Section 245(3) Cr. P.C. must be such evidence only as has been tested by cross examination. I reiterate that the unfinished and continuing examination-in-chief of the complainant is also evidence in the sense in which the word 'evidence' has been used in Section 245(3) Cr. P.C.
12. Yet another argument was made by Mr. Ghosh that the time of four years from appearance of the accused should be reckoned in this case from the date on which the petitioner first appeared before the Learned Magistrate on 11-2-78 and since no evidence was adduced under Section 244 Cr. P.C. within four years from that date the complainant has, in terms of Section 245(3), no scope to resist the claim of the petitioner for discharge under the said section. This argument is indeed fallacious. The date of appearance referred to in Section 245(3) is obviously the date on which the accused appears before the Learned Magistrate in the case started or treated as a case instituted on complaint and triable according to the warrant procedure. When the petitioner appeared before the Learned Magistrate on 11-2-78, the case was being treated and dealt with as a sessions triable case and not as a case triable by the Learned Magistrate according to the warrant procedure. When that case was, by the order of the High Court, subsequently converted to a case triable under the warrant procedure by the Magistrate, the petitioner appeared before the Learned Magistrate on 3-2-81 and therefore for the purpose of Section 245(3) the time must have begun to run from that date, namely, 3-2-81 on which date the petitioner first appeared before the Learned Magistrate in the case triable on complaint according to the warrant procedure. Reckoning from that date the evidence of the complainant, in part though, came on record very much within four years of that date. Therefore, this argument that there was no evidence on record within four years of the appearance of the petitioner in that case does not hold good.
13. As I find no merits in the present criminal revision, no interference with the impugned order of the Learned Magistrate is warranted. The criminal revision is, therefore, dismissed, and the Rule is discharged.
Calcutta High Court
Santosh Dey vs Smt. Archana Guha And Anr. on 13 March, 1992
Equivalent citations: (1992) 2 CALLT 1 HC
1. Thid revisional application isi directed against the order dated the 3rd April, 1991 passed by the Learned Metropolitan Magistrate, 7th Court, Calcutta in Case No. C/3285/77 dismissing an application filed by the petitioner/accused under Section 245(3) of the Code of Criminal Procedure, 1973 praying for an order of discharge as the prosecution could not complete the evidence before charge within 4 years from the date of his appearance in the case. The complainant Smt. Archana Guha filed a petition of complaint and thereafter Summonses were issued against the accused persons under Sections 166, 330/34, 331/34, 348/34 and 509 I.P.C. The petitioner accused Santosh Dey appeared in that case on 11-2-78. It is relevant here to mention that Runu Guha Neogi who is also an accused appeared in the case on 5-11-77. By an order dated 20-12-78 the case was then committed by the Learned Magistrate to the Court of Session for trial. There-after this Court was moved and a Division Bench of this Court set aside the order of commitment and sent back the case to the Court below with a direction to try the same in accordance with the procedure laid down for the trial of a warrant case on the ground that there was no ground for issuing process under Section 331/34 I.P.C. which was the only section by reason of which the case was committed to the Court of Session. After the case thus went back on remand to the Learned Magistrate notices were issued to the accused persons for their appearance and pursuant to such notice the petitioner Santosh Dey appeared before the Learned Magistrate on 25-8-81. It may be mentioned here that the accused Runu Guha Neogi appeared before the Learned Magistrate on 3-2-81 pursuant to such notice. The examination of the complainant in the case under Section 244 Cr. P.C. thereafter started on 5-11-81, but the same could not be concluded as an application was filed on behalf of the defence challenging the competency of the learned Advocate Shri A. P. Chatterjee to conduct the case of the complainant. The matter went up to the Supreme Court and in the process six years rolled on. The examination of the complainant, however, could be resumed before the Learned Magistrate only on 17-7-87 and was then deferred to 22-7-87 on the prayer of the complainant. On 22-7-87 the complainant was further examined but her examination could not be completed because some organisations filed applications before the Learned Magistrate and the defence prayed for making reference to the High Court for drawing up contempt proceedings against those organisations. The Learned Magistrate, however, rejected the prayer and fixed 3-8-87 for further evidence. But further proceeding of the case was stayed by the Learned Sessions Judge upon an application filed by the defence under Section 408 Cr. P.C. for transfer of the case. The matter then came up to the High Court. However, after the records went back to the Court of the Learned Magistrate notices were issued on 28-11-87 for appearance of the accused persons and the complainant took two adjournments on 29-12-87 and 2-3-88 but on 22-3-88 when the case was posted for evidence the defence filed an application for discharge of accused on the ground of inordinate delay in concluding the trial. The matter then went to the High Court and the same is now pending before the Supreme Court. Inspite of the pendency of the matter before the Supreme Court, the said Court, however, by order dated 6-8-90 in Appeal No, 652 of 1988 directed that the proceedings under Section 245(3) of the West Bengal Amendment of the Code of Criminal Procedure may go on and be disposed of and thereafter proceedings may continue but no final order is to be passed until disposal of the said appeal pending before the Supreme Court. It was further directed by the Supreme Court therein that if the accused is discharged under Section 245 no proceedings will go on and in case the accused is not discharged the proceedings will go on. After the case records were received by the Learned Magistrate a date, namely, 11-6-90 was fixed for further evidence of the complainant. Accordingly, the complainant was further examined and when such examination in-chief was almost at the concluding stage the two accused namely, the present petitioner, Santosh Dey and the accused Runu Guha Neogi filed two different applications before the Learned Magistrate under Section 245(3) Cr. P.C for their discharge on the ground that the evidence in the case could not be completed within 4 years from the appearance of the accused persons. It appears that the accused Runu Guha Neogi filed the said application for discharge under Section 245(3) Cr.P.C. before the Learned Magistrate on 11-6-90 while the petitioner, Santosh Dey filed such application on 13-6-90. It may also be noted here that both these applications are identical in text and are remarkably elaborate. Both these applications were taken up together for hearing and disposal by the Learned Magistrate and both the applications were disposed of by the said impugned order dated 3-4-91. The Learned Magistrate dismissed the applications under Section 245(3) Cr.P.C. by his impugned order as upon evidence already on record and also for reasons noted by him he considered that in the interest of justice the accused persons should not be discharged under Section 245(3) Cr.P.C. While rejecting the said applications the Learned Magistrate fixed 10-5-91 for evidence of the complainant. The petitioner Santosh Dey then moved this Court by the present revisional application against the said order of the Learned Magistrate and obtained an order of stay of further proceedings in the Court below. A similar revisional application against the same order of the Learned Magistrate was also filed in this Court by the other accused Runu Guha Neogi, but after a contested hearing S. K. Guin, J. dismissed that revisional application by order dated the 4th October, 1991 passed in Criminal Revision No. 1003 of 1991. The question that now falls for consideration is whether the present revisional application filed by the co-accused Santosh Dey has any merits to deserve success.2. It may be mentioned here that Smt. Archana Guha filed the petition of complaint against the accused persons on the allegation that after her arrest by police on or about the mid-night of 18th July, 1974 from her residence along with some other inmates of her house who were also ladies, they were taken to Cossipore Police Station and from there they were brought to the Special Detective Department Cell at Lalbazar and while they were lodged there inhuman physical and mental torture was inflicted on them by the accused persons and they were also subjected to abuse in filthy languages. It is also the case of the complainant that as a result of the inhuman torture inflicted on her by the accused persons while in police custody her lower limbs gradually became defective. It may be noted here that the petitioner/accused Santosh Dey is a Constable of Police and the accused Ranjit alias Runu Guha Neogi is a Police Officer. It appears that the complaint was originally filed against 5 accused but subsequently 2 of the accused died and the trial was held up for sometime for confirmation of their death report. The case against another accused was filed after issuing proclamation as he was absconding.
3. It was argued at the beginning of the hearing by Mr. Chatterjee appearing on behalf of the Opposite Party, Archana Guha that since a similar revisional application at the instance of the co-accused Runu Guha Neogi filed against the very same order of the Learned Metropolitan Magistrate was dismissed by another Learned Judge of this Court in Criminal Revision No. 1003 of 1991, there was no scope for entering into the merits of the same impugned order of the Learned Magistrate over again in the present revisional application in-as-much as that will amount to rejudging and reviewing the earlier decision of another Single Bench of this Court which is not permissible in law and that being so the present revisional application should be dismissed in limine. Mr. Ghosh appearing for the petitioner Santosh Dey however submitted that since there were glaring factual differences between the case of Runu Guha Neogi and that of the present petitioner in respect of matters relevant for consideration in connection with the prayer for discharge under Section 245(3) Cr. P.C. there can not be any" question of rejecting the revisional application of the present petitioner in limine on the singular ground that a similar application filed by Runu Guha Neogi has been rejected by this Court. Mr. Ghosh also elaborately dealt with what he felt the distinguishing factual features of the case of his client and in doing so he freely highlighted the contentions of his client on merits and in this background towards the end of the hearing it was agreed by both Mr. Chatterjee and Mr. Ghosh that the present revisional application may be disposed of on merits since the Court has been addressed by both sides on nerits also by way of an unavoidable discourse on the question whether the present revisional application should be rejected in limine or should be disposed of on merits.
4. It has been argued on behalf of the petitioner by Mr. Ghosh that in deciding the question whether the benefit of sub-section (3) of Section 245 of the Code of Criminal Procedure introduced by Section 5 of the West Bengal Amendment Act of 1988, should be granted in favour of any particular accused, the Court should only examine the particular facts and circumstances relating to the accused concerned so that the conduct of one accused contributing to the prolongation of the proceedings which may justify rejection of the prayer of that accused under Section 245(3) may not be used indiscreminately against another accused for rejecting his prayer under the said section even when it is found that he had no contribution or very little contribution to the prolongation of the proceedings. He further submitted that the very language of sub-section (3) of Section 245 indicates that the case of each accused where there are more accused than one in any particular case is required to be examined on the basis of an individualized approach. In this connection we may profitably quote Section 245 Cr.P.C in its entirety as it stands after the said West Bengal amendment :
"245. When accused shall be discharged.-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 previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
(3) If all the evidence referred to in Section 244 are not produced in support of the prosecution within four years from the date of appearance of the accused, the Magistrate shall discharge the accused unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused."
According to the argument of Mr. Ghosh the fact that time starts running from the date of the appearance of the accused under sub-section (3) of Section 245 Cr.P.C. and different accused may appear on different dates in any particular case, suggests that the said sub-section requires separate consideration for each individual accused on the basis of the facts and circumstances relating to that accused alone without looking to the facts and circumstances which may be relevant only in connection with the consideration in respect of some other accused. It has been argued by him that the petitioner was in no way responsible for the delay in the progress of the criminal case as he did not move the superior Court for obtaining any order of stay except on two occasions when he had to move for transfer of the case. It was further submitted that the first of such application was allowed and disposed of within 28 days and the second application became infructuous due to change of Magistrate and the trial was held up only for three months on that occasion, the total period during which the trial was held up at the instance of the present petitioner thus coming to only about four months. It has been submitted on the other hand by Mr. Chatterjee that both the accused were in league and whatever obstructive steps were taken by the accused persons in the name of one or the other on different occasions were in fact taken by way of a concerted measure to thwart the progress of the proceedings and frustrate all efforts of the complainant to carry on the same expeditiously. I have given my anxious consideration to all aspects of the matter and I am of the view that there can not be any set formula which may be of universal application in all cases. There may be cases where the facts and circumstances may demand in the interest of justice a unified and convergent approach in considering the prayer of the different accused persons for discharge under sub-section (3) of Section 245 while there may also be cases where the facts and circumstances may require individualized and diversified approach in the interest of justice yielding different results in respect of the different accused persons in the same case in the matter of invoking the benefit of the said sub-section (3) of Section 245. It all depends upon a number of variable factors which may differ from case to case. The common factor in all cases, however, is the interest of justice and that must be the end product of all equations.
5. Mr. Ghosh argued that every accused has a right to speedy trial and this right has already received judicial recognition as flowing from Article 21 of the Constitution of India which guarantees right to life and personal liberty and assures that no person shall be deprived of his life or personal, liberty except according to procedure established by law. It has further been argued that sub-section (3) of Section 245 of the Code of Criminal Procedure is a legislative recognition of the accused's right to speedy trial emanating from Article 21 of the Constitution of India. It is submitted, in this connection, that the right of discharge of an accused under sub-section (3) of Section 245 takes its colour from his fundamental right to life and personal liberty as enshrined in Article 21 and such a right of discharge stands on the footing of a fundamental right guaranteed by the Constitution rather than a mere statutory right and therefore the same over-rides or prevails upon the ordinary legal right of the complainant to prosecute an accused for an offence. There is no doubt that this argument is indeed a fascinating one but then the same must be considered in the proper perspective of the matter. If the right to speedy trial is a right of the accused emanating from his fundamental right to life and personal liberty as enshrined in Article 21, the complainant's right to prosecute for criminal violation of his personal safety or dignity which is also an attribute of one's fundamental right to life and personal liberty has its root equally embedded in the constitutional right guaranteed by Article 21. The right to life enshrined in Article 21 means something more than mere survival or animal existence and it includes the right to live with human dignity. It also includes all those aspects of life which go to make human life meaningful, complete and worth living. Freedom from physical violence and personal indignity and the right to protect the personal safety and dignity from criminal violation or wanton violence is an attribute of life and personal liberty. Without such a right to protection against criminal encroachment on the personal safety or dignity the right to life and personal liberty can not be meaningful and complete in a civilized society. Again, this right to protection against criminal violation of or violence to personal safety and dignity can not be always ensured by the general preventive or preemptive police measures alone and that is why penal law has been given a role to play in redressing criminal violation of personal right to safety and dignity. A right without a remedy may very often prove illusory. Penal law ensures punitive remedy in addition to the preventive remedy exercised by the State through general administrative and police vigils. Law prescribes punishment for offences of violation of personal safety and dignity so that such violation may still be redressed and the violated right vindicated by trying and punishing the offender. That generally speaking any crime is an offence against the society does not denude it of its basic character of being an offence against the individual against whom the same is committed and that is one of the reasons why the law recognizes a parallel right of the individual in a large category of the cases to launch prosecution for bringing the offender to book inspite of the right of the state to prosecute the offender. Therefore the right of the individual to launch and carry on prosecution against an offender under the penal law where the individual right to personal safety and dignity has been criminally violated is a right to uphold his personal safety and dignity and to redress the criminal violation of the same. Both as a matter of fact and in the eye of law this is a right concomitant to the enjoyment of life and personal liberty with safety and human dignity and is therefore an adjunct to the right to life and personal liberty falling within the ambit of Article 21. Therefore, the right of the individual to prosecute for redress of criminal violation of his personal safety and dignity also, in the final analysis, seems flow from the same Article 21. To deny the complainant arbitrarily his right to pursue the prosecution for redressal of the criminal violation of his personal safety and dignity is to deny and deprive him of a very significant remedial right stemming from Article 21. It will, therefore, be both an over-simplification and an under-estimation to say that the right of an individual to prosecute for redressal against criminal violation of his personal safety and dignity is. a mere statutory right and is therefore less sacred than the constitutional right of the accused to speedy trial which incidentally is also equally a right of the complainant. As we have already analysed such right of an individual complainant also flows from Article 21 of the Constitution and therefore the same can not be downgraded vis-a-vis the right of the accused to a speedy trial by arguing that the latter right emanates from Article 21 of the Constitution while the former is a mere statutory right. In fact both the rights are nourished by Article 21. But the complainant's right to prosecute and pursue the prosecution foreruns the right of the accused to relief against failure of speedy trial. In fact the latter can table its claim only at that point of time when the former loses its validity by reason of unsustainable delay converting the prosecution into persecution. The task of the balancing process is to locate that point of time and any error or eberration in locating the same with forensic precision will defeat the interest of justice. As a matter of fact both these competing rights have been taken even-handed care of in sub-section (3) of Section 245 which while mandates discharge of an accused after a particular time period if the evidence is not concluded in the meantime yet keeps it open to the trying Magistrate in his judicial discretion not to discharge the accused in such a case inspite of the lapse of time, if the prosecution satisfies him that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. The provisions of the said sub-section reflect legislative recognition of the necessity of a synthesised approach in judicially deciding whether the claim of the accused for relief based on the ground of delay in concluding the trial should prevail. There is no doubt that if all the prosecution evidence are not produced within four years from the date of appearance of the accused the right of the accused to claim discharge under sub-section (3) of Section 245 comes to the forefront and the burden then shifts to the prosecution to satisfy that upon the evidence already produced and for special reasons there is ground for presuming that the discharge of the accused will not serve the interest of justice. If the prosecution can discharge this burden successfully, the accused forfeits his right of discharge under the said subsection. The paramount consideration is the interest of justice and the decision of the Court whether to throw the prosecution out of gear on ground of delay alone will be tilted by the weight of the interest of justice. The Court has to decide which way the interest of justice tilts in the particular background of the facts and circumstances of the case.
6. Apart from the provision of Section 245(3) Cr.P.C. every accused in a criminal trial has a constitutional right flowing from Article 21 to have the proceedings against him quashed on ground of delay in concluding the trial in appropriate cases. There has been a continuing debate in the legal arena during the past years as to whether any fixed time limit should be judicially laid down for the conclusion of trial so that in case the trial is not concluded within such time limit the accused can claim relief in the form of quashing the proceedings or in any other appropriate form. The Supreme Court in the recent decision in A.R. Antulay v. R.S. Nayak, 1992(1), Crimes 193 has declined to fix any time limit for the purpose and has rather preferred to keep the question of delay open for consideration in the background of the facts and circumstances of each case. The question as to what circumstances may be relevant for consideration in an enquiry for ascertaining whether there exist any special reasons by dint of which it may be presumed that it shall not be in the interest of justice to discharge the accused under sub-section (3) of Section 245 Cr.P.C. inspite of the fact that the evidence could not be concluded within four years from the date of appearance of the accused can be examined in the lilght of the guidelines laid down by the Supreme Court in the said case of A. R. Antulay.
7. I would like to quote here some of the observations made in that case. In Para-5l of that decision the Supreme Court observed thus :-
"But then speedy trial or other expressions conveying the said concept are necessarily relative in nature. One may ask speedy means, how speedy ? How long a delay is too long ? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses the work load in the particular court, means of communication and several other circumstances have to be kept in mind.
"In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable, broadly speaking. Of course, if, it is a minor offence-not being an economic ofience-and the delay is too long, not caused by the accused, different considerations may arise."
Some of the guidelines laid down in that case in Para-54 have been formulated thus :-
"4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily pre-judices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of prosecution. Ofcourse, there may be cases, where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question - to be put and answered is-who is responsible for the delay ? Proceedings taken by either party in good faith, to vindicate their rights arid interest as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings orproceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.
"5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work load of the court concerned, prevailing local conditions and so on-what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one".
To quote the language of the Supreme Court in the said case, "Ultimately, the court has to balance and weigh the several relevant factors.-'"balancing test" or "balancing process" and-determine in each case whether the right to speedy trial has been denied in a given case". In the said case of A. R. Antulay the Supreme Court in refusing to accept the ground of delay in Writ Petition No. 833 of 1990 observed thus :-
"May be the very system was partly responsible for the somewhat unusal course of events. The complainant was certainly not to blame".
Similarly while considering the Writ Petition No. 268 of 1987 the Supreme Court in the said case observed thus (at Page 230) :
"The proceedings of the court for this period placed before us by the respondents do clearly establish that during this period the prosecution has always been anxious to go on with the trial. That the trial could not be concluded so far is for reasons for which prosecution can not be held responsible".
It is, therefore, indicated and rather laid down by the Supreme Court that the apparent delay which might have been caused due to the system itself and for which the complainant can not be blamed should not be reckoned against the complainant.
8. The decision of the Supreme Court in A. R. Antulay, in my opinion, provides sufficient guidelines for considering what circumstances may constitute special reasons for presuming, in the background of the particular facts and circumstances of a case, that it shall not be in the interest of justice to discharge the accused under Section 245(3) Cr. P.C. If it appears that the accused was responsible for the delay, obviously he can not take advantage of his own wrong. Again, if it is found that the complainant was responsible for the delay either because he was not diligent or because he was negligent or was intentionally prolonging the trial for the purpose of harassing the accused, obviously he can not claim that the accused should be denied his right of discharge under the said sub-section (3). There may also be cases where neither the complainant nor the accused may be responsible for the delay, but the delay might have been caused due to circums tances beyond the control of the complainant or due to the system itself which, to borrow the language of Supreme Court, may be called systemic delay. If the delay in any particular case is found to be systemic for which the complainant can not be made responsible or the delay is caused by any other reason for which neither the complainant nor the accused is responsible, certainly that fact will ordinarily constitute valid ground for allowing the proceedings to continue inspite of the fact that four years have already elapsed since the appearance of the accused. Different considerations even in such a case may however arise where the offence is a minor one, not being an economic offence and the delay is not caused by the accused. Different considerations may also arise where the accused has already suffered prolonged detention or is rotting in custody for a shockingly long period or has been suffering some substantial unfavourable consequence due to the pendency of the proceedings such as suspension or dismissal from service, denial or withholding of increment or promotion in service, etc. There is no doubt that all the circumstances can not be forseen and therefore can not be ex-haustively enumerated. What has been mentioned above is only illustrative and then again these circumstances wherever they exist are also required to be taken into consideration not in any isolated way but along with the other peculiarities of the case, if any.
9. The language of the sub-section (3) of Section 245 Cr. P.C. also has been couched in such a manner as to provide a wide matrix for accommodating an all-embracing view of the facts and circumstances of each case. The relevant expression of the said sub-section, we may note again, reads thus : '......unless the prosecution'satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused'. The words 'upon the evidence already produced' do not project exactly the same connotation as an expression like 'on consideration of the evidence already produced'. Had the words 'on consideration of the evidence' been there instead of 'upon the evidence', that would have conveyed an idea that there must be something substantial in the evidence already produced which can lend support to the prosecution case upto the degree of prima facie or nearly establishing the same. But the expression 'upon the evidence already produced' is not that demanding as to require that the evidence already produced must prima facie or nearly establish the prosecution case. Rather it may suffice if the evidence already produced indicates explicitly or implicitly that the prosecution case may be sustained by evidence if allowed to be completed. For instance where the complainant has come forward to depose on oath and has been examined in part it may fairly be expected that his evidence if allowed to be completed is likely to support his case even though his evidence so far recorded in part may not yet be adequate for the purpose. Again the expression 'ground for presuming' is more liberal than the expression 'ground for concluding' or 'for believing' or 'holding' which would demand a higher degree of conviction than that implicit in the expression 'ground for presuming'. There is no doubt that presumption is not the same as mere conjecture or wishful thinking but at the same time the same is not as exacting as the expression like believing or holding. If the facts and circumstances of a given case furnish a ground for presuming that it shall not be in the interest of justice to discharge the accused, even if they may not be as concrete at that stage as to lead the Court to any definite conclusion or rinding about the guilt of the accused yet the same will furnish a valid ground for refusing relief to the accused under sub-section (3) of Section 245 Cr. P.C. Here in the present case, the evidence so far adduced by the complainant herself has received due attention of the Learned Magistrate. In deciding which way the decision of the Court should lean in respect of the prayer under Section 245(3) Cr. P.C. the nature of the offence is also one of the factors that should be taken into consideration. Here the offence alleged is not only an offence of ordinary physical violence and mental torture but as the allegation shows it amounts to a degrading torture and persecutory atrocity. The petitioner is also alleged to be a participant in the commission of such torture. The question whether these allegations are true or false is, of course a different matter, but the facts, circumstances and the evidence so far adduced make it highly desirable that the same should not go without enquiry, particularly when the complainant is not responsible for the prolongation of the proceedings and rather she had to take a lot of efforts and troubles for frustrating the move of the defence almost at every step of the proceedings not to allow the same to proceed smoothly.
10. It has been argued on behalf of the petitioner that even if the other accused Runu Guha Neogi was responsible for the prolongation of the proceedings yet the contribution of the present petitioner to the same is not very significant and therefore he should not be denied his right of discharge under Section 245(3). This argument does not seem acceptable. One thing is certain that the complainant was not responsible for the delay and if the delay was the contribution of any particular accused by way of taking various obstructive moves and steps, the same will have to be treated as systemic delay or procedural delay so far as the co-accused is concerned for which the complainant is not responsible. That being so, even if it is assumed that so far as the present petitioner is concerned he has been affected by the systemic delay or procedural delay for which the complainant is not responsible the same may not, and in the facts and circumstances of the present case, should not go against the complainant in deciding the merit of the claim of the accused for discharge under Section 245(3). It may also be noted that the petitioner is not in custody nor is he suffering any departmental suspension or any inconvenience in respect of his service benefits such as pay, increment, scope of promotion etc. due to the pendency of the present proceedings. All these circumstances constitute special reasons for which the Learned Magistrate, in my opinion, was justified in presuming that it would not be in the interest of justice to discharge the petitioner.
11. Another argument made before me by Mr. Ghosh is that the evidence so far produced in the Court namely the unfinished examination-in-chief of the complainant herself is, strictly speaking no evidence in the eye of law in-as-much as the same has not yet been tested by cross examination and therefore the same is no evidence at all in the sense of the term in which it has been used in Section 245(3). The said contention, however, was overruled by S. K. Guin, J. while rejecting the revisional application No. 1003 of 1991 filed by the co-accused, Runu Guha Neogi against the very same order which is under challenge in this criminal revision at the instance of the present petitioner. I am in full agreement with his Lordship and hold that the unfinished or rather continuing examination-in-chief of the complainant in this case satisfies the requirement of legal evidence within the meaning of the word 'evidence' as used in Section 3 of the Evidence Act and therefore the same, even if not yet tested by cross examination is still evidence in the sense in which the word 'evidence' has been used in Section 245(3) Cr. P. C. Suffice it to say that generally speaking an ex parte evidence is also an evidence and there is no reason to hold that the evidence referred to in Section 245(3) Cr. P.C. must be such evidence only as has been tested by cross examination. I reiterate that the unfinished and continuing examination-in-chief of the complainant is also evidence in the sense in which the word 'evidence' has been used in Section 245(3) Cr. P.C.
12. Yet another argument was made by Mr. Ghosh that the time of four years from appearance of the accused should be reckoned in this case from the date on which the petitioner first appeared before the Learned Magistrate on 11-2-78 and since no evidence was adduced under Section 244 Cr. P.C. within four years from that date the complainant has, in terms of Section 245(3), no scope to resist the claim of the petitioner for discharge under the said section. This argument is indeed fallacious. The date of appearance referred to in Section 245(3) is obviously the date on which the accused appears before the Learned Magistrate in the case started or treated as a case instituted on complaint and triable according to the warrant procedure. When the petitioner appeared before the Learned Magistrate on 11-2-78, the case was being treated and dealt with as a sessions triable case and not as a case triable by the Learned Magistrate according to the warrant procedure. When that case was, by the order of the High Court, subsequently converted to a case triable under the warrant procedure by the Magistrate, the petitioner appeared before the Learned Magistrate on 3-2-81 and therefore for the purpose of Section 245(3) the time must have begun to run from that date, namely, 3-2-81 on which date the petitioner first appeared before the Learned Magistrate in the case triable on complaint according to the warrant procedure. Reckoning from that date the evidence of the complainant, in part though, came on record very much within four years of that date. Therefore, this argument that there was no evidence on record within four years of the appearance of the petitioner in that case does not hold good.
13. As I find no merits in the present criminal revision, no interference with the impugned order of the Learned Magistrate is warranted. The criminal revision is, therefore, dismissed, and the Rule is discharged.
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