SANTOSH DEY Vs. ARCHANA GUHA

JUDGEMENT

(1.) This revisional application is 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. Thereafter 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 midnight 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 cannot 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 merits 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.