T. ABRAHAM Vs. DEBT PRASAD BHATTACHARYA

JUDGEMENT

(1.) These three Rules raise the common question as to whether in the circumstances the learned Magistrate was justified in discharging the accused opposite party under Sec. 245(2) of the Code of Criminal Procedure, 1973. It appears that on 22.8.73 one Bivas Chatterjee filed three petitions of complaint against him as an employee of M/s Concord of India Insurance Co. Ltd. The complainant Bivas Chatterjee also made it clear in his complaint that he was filing the complaint as an employee of the said Company on being duly authorised by the Company to file such complaint. It appears that in one of the cases Bivas Chatterjee was being examined as P.W. 1. In the other two cases one Monmohan Chatterjee was being examined as P.W. 1. On the date fixed for further evidence, an application was filed by the present petitioner T. Abraham supported by a medical certificate. It was stated in such application that the complainant Bivas Chatterjee who was authorised by the Company to file the complaint had an attack of Coronery Thrombosis and was still in bed and would not be in a position to conduct the prosecution nor give evidence in that case and that in such circumstances the Company had authorised T. Abraham to conduct the prosecution as he was conversant to the facts of the case being Head of the Accounts Department of the Company at the relevant period. The prayer in each of these applications was that the petitioner may be permitted to conduct the prosecution in place of Bivas Chatterjee. The learned Magistrate treated all these applications as applications tor substitution in place of the complainant Bivas Chatterjee and after observing that there was no provision for such substitution in the Code of Criminal Procedure, rejected such applications after distinguishing the decision of the Supreme Court in the case of Aswini Vs. State of Mysore, AIR 1967 983 . He not only rejected such applications but also proceeded to discharge the accused under Sec. 245(2) of the Code of Criminal Procedure, 1973. In my view, the learned Magistrate has not only misread the applications filed by the petitioner T. Abraham and the decision of the Supreme Court but also acted illegally and without jurisdiction in discharging the accused-opposite party under Sec. 245(2) of Code. We have already seen that on the three complaints filed by Bivas Chatterjee on 22.8.73, the learned Chief Presidency Magistrate took cognizance and issued process under Sec. 403/467/471 I.P.C. against the accused opposite party in all the three cases. When the Code of Criminal Procedure 1973 came into force the enquiry or the trial against the said accused was pending. That being the position, the provisions of the Code of Criminal Procedure 1898 was applicable and as such, the learned Magistrate have had no jurisdiction to discharge the accused opposite party under Sec. 245(2) of the new Code. It has also to be considered whether having regard to the offences alleged and also the date of taking cognizance of such offences, the learned Magistrate was competent to try the case instead of committing the accused to the court of sessions. It has also to be considered whether the proviso to sub-section 2(a) of Sec. 484 of the Code of Criminal Procedure 1973 would be attracted in the absence of any enquiry under Chapter 18 of the Old Code pending on the date the Code of Criminal Procedure 1973 came into force. In any event, the learned Magistrate have had no jurisdiction to discharge the accused opposite party under Sec. 245(2) of the Code. The learned Magistrate fell into error in thinking that the applications filed by the petitioner were applications for substitution instead of the applications being for permitting the petitioner to conduct the prosecution in the absence of the complainant Bivas Chatterjee who had been incapacitated by illness from either being present in court for the purpose of conducting the prosecution or for being examined as witness in any of these cases. Having regard to the circumstances, the learned Magistrate ought to have allowed prayer of the petitioner to conduct the prosecution and should not have rejected the applications filed by T. Abraham. Again if the learned Magistrate was trying the cases as warrant triable cases it was incumbent upon the learned Magistrate to see to the production of the witnesses mentioned in the petition of complaint instead of discharging the accused opposite party under Sec. 245(2) of the new Code.

(2.) In the result, all the three Rules are made absolute. The impugned orders are set aside and all the three cases are sent back to the learned Magistrate for disposal in accordance with the provisions of law from the stage those cases reached prior to the passing of the impugned orders after allowing the petitioner T. Abraham to conduct the prosecution in place of Bivas Chatterjee in all the three cases. Let the records go down as early as possible. Rules made absolute.