Case Note & Summary
The appeal before the Supreme Court arose from a criminal complaint alleging bigamy filed by the appellant against her husband and other accused. The appellant married the second respondent on 6 December 1976, and a son was born on 20 November 1977. The marriage was not smooth; on 15 September 1983, the second respondent married the third respondent before the Registrar of Marriages, allegedly with the illegal collaboration of respondents 4 to 6. The appellant filed a criminal complaint on 4 April 1984 before the Judicial Magistrate, Basirhat, 24 Parganas, alleging commission of offence under Section 494 read with Section 109 of the Indian Penal Code. Preliminary evidence under Section 200 CrPC was adduced, and the Magistrate issued process under Section 204. The accused appeared before the court on different dates between 1985 and 1986. On 12 September 1986, the accused moved an application under Section 340 CrPC alleging forgery in the court record, claiming that the date of marriage had been overwritten from 6 November 1976 to 6 December 1976, and sought action under Section 193 IPC. The Magistrate dismissed that application on 25 February 1987, but the accused took the matter in revision before the Court of Sessions, Alipore, which allowed the revision and remitted the application for fresh disposal. The succeeding Magistrate completed the inquiry on 19 February 1988, but the matter continued to be litigated, and the record of the main case kept moving between courts. No date was fixed for prosecution witnesses, and the case remained at the stage of appearance and orders. On 13 October 1993, the accused raised a grievance that action under Section 245(3) of the Code of Criminal Procedure, as operative in West Bengal by virtue of West Bengal Amendment Act 24 of 1988, ought to have been taken. The High Court, in exercise of its revisional jurisdiction, quashed the proceedings and discharged the accused, holding that the delay had occasioned from 24 April 1987 to 2 April 1990 at the instance of the accused persons, and that Section 245(3) came into force on 2 May 1989. The High Court concluded that the appellant could not show from the record that the requirements of Section 245(3) had been complied with. On appeal, the Supreme Court examined the provision and held that if all evidence under Section 244 is not produced within four years from the date of appearance of the accused, the Magistrate shall discharge the accused unless the prosecution satisfies the court that upon the evidence already produced and for special reasons, it would not be in the interest of justice to discharge. The Court noted that the delay was substantially caused by the accused's repeated and vexatious applications under Section 340 CrPC, which were alien to the main case and obstructed trial progress. Relying on Santosh De v. Archna Guha, the Court reiterated that evidence already recorded under Section 200/244, though not cross-examined, is evidence for the purposes of Section 245(3). The Court further observed that the factum of marriage between the spouses was the essential fact, and the date of its performance was secondary. The accused could not be allowed to take advantage of their own wrong and side-track the issue on a trifling matter. Consequently, the Supreme Court allowed the appeal, set aside the judgment and order of the High Court, and remitted the matter to the learned Magistrate having jurisdiction to undertake the trial and conclude it as expeditiously as possible.
Headnote
A) Criminal Procedure - Discharge of Accused - Section 245(3) Code of Criminal Procedure, 1973 (West Bengal Amendment) - Mandatory discharge after four years does not operate when delay is substantially caused by accused's own vexatious applications and interlocutory interference - The High Court quashed proceedings and discharged accused holding that the prosecution failed to produce evidence within four years; Supreme Court found that frequent interferences by superior courts on Section 340 CrPC applications, alien to the main case, obstructed trial progress and the delay was largely attributable to accused - Held that accused cannot take advantage of their own wrong and shall not be discharged (Paras Not mentioned). B) Criminal Procedure - Evidence - Section 245(3) Code of Criminal Procedure, 1973 - Preliminary evidence recorded under Section 200/244, though not cross-examined, constitutes 'evidence' for purposes of refusing discharge - Court relied on Santosh De v. Archna Guha where it was held that evidence of complainant already recorded is evidence within meaning of Section 245(3); preliminary evidence disclosed commission of offence under Sections 494/109 IPC - Held that such evidence is sufficient to avoid mandatory discharge (Paras Not mentioned). C) Criminal Law - Bigamy - Sections 494, 109 Indian Penal Code, 1860 - Date of marriage is secondary when factum of marriage between spouses is to be established - Accused sought to side-track trial by raising alleged forgery of date of marriage through Section 340 CrPC application; Court observed the essential fact is existence of first marriage and second marriage during its subsistence, not exact date - Held that the accused's attempt to benefit from a trifling issue of date cannot defeat prosecution (Paras Not mentioned).
Issue of Consideration
Whether the High Court was correct in quashing criminal proceedings and discharging accused under Section 245(3) of the Code of Criminal Procedure, 1973 (West Bengal Amendment) on the ground that prosecution evidence was not produced within four years from the date of appearance of the accused, when the delay was substantially caused by the accused's own vexatious applications under Section 340 CrPC.
Final Decision
Appeal allowed; judgment and order of the High Court set aside; matter remitted to the learned Magistrate having jurisdiction to undertake trial and conclude it as expeditiously as possible.
Law Points
- Accused cannot take advantage of own wrong in seeking discharge under Section 245(3) Code of Criminal Procedure
- 1973
- delay attributable to accused defeats mandatory discharge after four years
- evidence already recorded under Sections 200/244 CrPC is evidence for purposes of Section 245(3)
- vexatious applications under Section 340 CrPC cannot frustrate prosecution
- date of marriage is secondary when factum of marriage is to be established under Sections 494/109 Indian Penal Code
- 1860
