KALIPADA SON Vs. SATYA RANJAN SARKAR & ORS.

JUDGEMENT

(1.) A complaint was filed by Kalipada Sen, Inspector C.B.I. and S.E.B. Department at Calcutta on the allegation that Sri Satya Ranjan Sarkar was caught red handed for receiving a sum of Rs. 15,000.00 during a trap laid by the C.B.I. Authorities. Thereafter necessary sodium carbonate test was held. The money recovered as also the incriminating documents seized from the residence of the accused which were subsequently examined by experts clearly indicates a prima facie case of commission of an offence under sections 120B, 420 and 161 of the Indian Penal Code read with section 5(1) and 5(2) of the Prevention of Corruption Act, 1947 as a result Sri Kalipada Sen, the said Inspector of the C.B.I. lodged a complaint before the Fourth Special Court, Calcutta and subsequently a charge sheet was submitted. The trial commenced from 1st of April, 1980 went up to 31st of Aug., 1985 altogether twenty witnesses had been examined, on behalf of the prosecution. Two of the witnesses absented themselves from attending that court as a result warrant of arrest had to be issued for securing the attendance of these witnesses. In the meantime Satya Ranjan Sarkar, moved a writ petition before Mr. Justice Ajit Kumar Sengupta and obtained an order on 17th Feb., 1987 directing the learned Judge, 4th Special Court, Calcutta to dispose of the criminal cases within six months from the date of the communication of the order failing which to discharge the accused for non prosecution. On 29th of April, 1987 when all the prosecution witnesses were present to be examined one of the accused absented himself as a result the court had to issue a non bailable warrant of arrest end fix the hearing on 2nd of May, 1987. Again an adjournment was obtained till 14th of May, 1987. On that date one witness was examined. On 16th of May, 1987 two other witnesses had been examined. Then again accused no. 3 filed a petition praying for an adjournment till 18th June, 1987 on the ground of the marriage of his daughter.

(2.) The learned Public Prosecutor engaged at the trial fell ill as a result a new Public Prosecutor was engaged to conduct the trial. On 3rd of Sept. 1987, the learned Public Prosecutor submitted a petition praying for time to enable the prosecution to move the High Court for extension of time but instead of granting such time the very next day, i.e. on 4th of Sept., 1987 the case was dismissed for non prosecution by the learned Special Court.

(3.) Being aggrieved thereby the present application before this Court for quashing such order of dismissal. From the averments made in the instant petition it indicated that the trial could not be completed within the period of six months not due to the fault of the prosecution but also because of the reasons attributable to the accused. Hence, the accused could not be discharged as per the order of Mr. Justice Ajit Kumar Sengupta dated 13th Feb., 1987. The said order dated 4th Sept., 1987 passed by the learned Special Court if allowed to stand would result in serious mis-carriage of justice inasmuch as the accused will escape justice in spite of ample evidence having been collected and given in evidence at the trial. The learned lawyer appearing on behalf of the petitioner contended that the learned Magistrate's ( ) order of dismissal was perverse inasmuch as the provisions in the Code Criminal Procedure do not provide for dismissal of the case for non prosecution. As provided in the Code it is only open consideration of the record of the case and after hearing the submissions of the prosecution as also of the accused the Court if considers that there was not sufficient ground for proceeding against the accused then only the accused could be discharged after recording the reasons for doing so under section 227 of the Criminal Procedure Code. The purpose of ss 227 and 228 of the Code Criminal Procedure is to ensure that a court should be satisfied as to the acquisition made against the accused and there were materials for proceeding against the accused. Under section 232 of the Code Criminal Procedure only after taking the evidence for the prosecution and examining the secured and after hearing both the prosecution and the defence on the poll if the learned Court considers shat there is no evidence that the accused committed the offence then only the Court will record an order for acquittal. Similarly, in the trial of warrant cases by the learned Magistrate if after considering the police report and the documents under section 173 and making such examination of the accused as the Magistrate thinks necessary and after giving the prosecution that the accused had to be given an opportunity of being heard, the Magistral considers the charge against the accused to be groundless then only the accused -shall be discharged after recording the reasons for doing so. Similarly, under section 245 only upon taking all evidence if the Magistrate considers for reasons to be recorded that no case against the accused had been made out which would warrant his conviction that learned Court shall discharge the accused. Under section 248 of the Code Criminal Procedure if in any case the Magistrate finds the accused not guilty he shall record an order of acquittal. Similarly, where the learned Magistrate finds the accused guilty, he shall pass the sentence upon him after hearing the accused on the question of sentence in accordance with law. In the instant case the order has been passed discharging the accused on the ground of non-prosecution when in fact the prosecution had examined number of witnesses and was also ready to go on with the examination of the witnesses but because of the various adjournments taken by the accused persons themselves and because of the unforsseen circumstances of the learned Public Prosecutor failing ill. Hence, a procedure had been followed which is unwarranted by law.