TaxTMI 
TaxTMI 
1990 (3) TMI 385
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....mmons against the other four accused persons more or less of similar sections as indicated earlier. Thereafter, by an order dated 20th December 1978, the learned Magistrate committed the respondent No. 1 along with others to the City Civil and Sessions Court, Calcutta for trial under the sections as mentioned above. The case of the complainant as would appear from her complaint was that she was residing at 7, Jowpur Road, Dum Dum along with her brother's wife Smt. Latika Guha, her mother and other family members and one Mrs. Gouri Chatterjee, who was like a member of the family. It was alleged that on or about 18th July 1974, at about 1-30 A.M. her house was raided by a number of Police officials disclosing that they had come from Lalbazar and according to complainant Smt. Archana Guha that the Police ransacked her entire room and carried out a search, alleging further, without asking for any independent witness. It was also alleged that thereafter, the said Smt. Guha along with Smt. Latika Guha and Smt. Gauri Chatterjee were taken to Cossipore Police Station and then in the morning of 18th July 1974, they were brought to the Special D.D. Cell at Lalbazar, where they were qu....
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....ture on her by Shri Guha Neogi and other Police officials as indicated above. 5. It would appear that Shri Guha Neogi moved and obtained a Rule being Criminal Revn. No. 449 of 1979, against the action which was started on the basis of the complaint as mentioned above and in that proceedings, apart from the said Shri Guha Neogi other Police officials has also intervened and in support of the Rule it was submitted that the prosecution case as sought to be made out or established through the witnesses was on the face of it false and was so patently absurd and inherently improbable that the proceeding before the learned Magistrate should have been quashed at once. Mr. A.P. Chatterjee who is now appearing for the appellant, admittedly appeared for the State in that proceeding and after hearing the learned Advocate and considering the materials before them and also the medical evidence of doctors including Dr. Bhabo Ranjan Sengupta, the learned Judges set aside the order dated 20th December 1978, committing the accused persons to City Sessions Court at Calcutta and also modified the order dated 17th October 1977, issuing process to the extent that the portion of the order relating to ....
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....oceedings were thereafter heard and disposed of by Salil Kumar Dutta, J. (as His Lordship then was) and after consideration of the elaborate arguments as advanced before him, by his judgment and order dated 23rd February 1979, the learned Judge observed that "there was no illegality on the part of Shri Chatterjee in breach of his official duty as Standing Counsel of the State, in accepting the brief on behalf of Smt. Archana Guha, against the alleged commission of offence under the penal laws of the land by the accused person, which were unconnected with the discharge of the official duties." The said determination has since been reported in, (1979) 1 Cal HN 262, and after considering the respective cases as made out before him, the learned Judge has indicated that a counsel can always refuse a brief but such refusal must be for good and substantial reasons. Rules framed under Section 49 of the Advocates' Act, enjoin that a counsel is bound to accept any brief in Courts or tribunals where he professes to practise but special circumstances may justify his refusal to accept a particular brief. When the state offers a brief to its law advisers, it will be possible for him to say o....
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....proposition to say that as soon as an advocate becomes a part time member of service under the Government he must have his practice suspended since everything depends on the terms and conditions of the Government employment, though there will be no such opportunity for a whole-time Government servant and that the limitations of the office of the Standing Counsel have been duly provided for under the authority of Section 241(2) of the Government of India Act, 1935. Such limitations being created under statutory powers by the competent authority are accordingly enforceable in law by issue of appropriate writs by the High Courts, apart from the provisions of Legal Remembrancers Manual, 1971 wherein the limitations have also been incorporated. It has also been observed that there is no reason why the rules complied in the Legal Remembrancer's Manual should not be accepted as statutory rules as being deemed to be framed by the official head of the department in matters under his charge under authority of the Rules of Business framed under Article 166(3) of the Constitution. Accordingly, notwithstanding the views of the Legal Remembrancer, it may be possible to hold that the Rules of....
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....f the Legal Remembrancer's Manual, 1971 on the part of the Standing Counsel. 6A. It should be noted that when the matter was sent back after the Division Bench judgment of this Court as indicated earlier, the learned Magistrate intended to enter into and consider the proceedings as initiated and then again, further objection was taken against Mr. Chatterjee's appearance for the complainant and such allegations having failed on consideration, against the determinations as made by the learned Magistrate, this Court was moved in its Criminal Revisional jurisdiction and Criminal Revision Case No. 2454 of 1981 was obtained. The said Rule, on consideration of the earlier two judgments as referred to hereinbefore and the relevant provisions of the concerned statutes, was discharged by Monoj Kumar Mukherjee, J. and since the matter was pending for a long time. His Lordship directed the learned Magistrate to proceed with and dispose of the case as expeditiously as possible, preferably within a period of six months from the date of receipt of the records by him. 7. In the above process, there is no doubt that a long time was consumed before the matter could be taken up for cons....
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....e heard learned Counsel for the parties and also Mr. A.P. Chatterjee. We do not find that there is any ground to grant leave in this case. The Special Leave Petition is dismissed and as a result thereof the concerned Special Leave Petition was dismissed. 9. From the order of the learned Magistrate which was sought to be impeached in Matter No. of 1988 reported in (1988) 2 CHN 313 (Ranjit Guha Neogi alias Runu Guha Neogi v. State of West Bengal). It would appear that the time as actually consumed in completing the proceedings were as under:-- (A) Time spent in the Hon'ble High Court and also at City Court at different interlocutory stages:-- total 25-8-78 to 19-12-80 2 years 4 months' 5-11-81 to 14-1-84 2 years 2 months' 6 years' 16-4-84 to 12-2-85 1 year 8 months' 6 months 17-7-87 to 18-11-87 4 months. approx. (B) Time taken by the complainant: total 20- 8-77 to 17-10-77 2 months 12- 7-78 to 25- 8-78 1 month 13 days 1 year 17-12-86 to 9-6-87 6 months 1 month approx 4-12-87 to 23-3-88 3 months 19 days. (C) Time taken for appearance of the accused persons ....
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....said Smt. Guha was produced before the learned Magistrate, Sealdah, but kept in the chamber of the Court Inspector attached to that Court and then, she was produced at the Police lockup attached to Sealdah Court and Alipore Court, but was not produced before any Magistrate either at Sealdah or Alipore. 12. The allegations as contained in the complaint, the writ petitioner respondent claimed, were utterly absurd and inherently improbable, apart from being devoid of any prima facie merit and that fact, he has stated, appeared from the intrinsic evidence as available in the petition and the particulars whereof have been disclosed in para. 5(a) to (k) of the writ petition. We are not indicating those facts or reiterating them in our judgment, since those facts have already been indicated in the judgment as impeached. 13. The writ petitioner respondent has also stated that on the basis of the said petition of complaint, the learned Chief Metropolitan Magistrate, took cognizance and examined Smt. Archana Guha and other ladies, who were arrested on the night of 17th July 1974 and besides them, seven other witnesses were examined and he has stated that those seven witnesses were not ....
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....ct the Sessions trial on behalf of the State, when the case was committed to Sessions. It was also the further case of the writ petitioner respondent that earlier, he objected to the appearance of Mr. Chatterjee on behalf of the private complainants, when he was a Police officer and according to him, was falsely implicated in respect of his official act and performance of his duties and as such was entitled to seek the advice of the Senior Standing Counsel, we have also indicated earlier that at this stage, this Court was moved and C.R. No. 4988(W) of 1978 Reported in (1979) 1 Cal HN 262 was obtained, which Rule was ultimately discharged by S.K. Dutta, J. (as his Lordship then was). The particulars of the said determinations, we have quoted earlier and as such we are also not reiterating them now. Admittedly, against such determinations, an appeal being F. M. A. T. No. 1029 of 1979 was preferred and even thereafter or during the pendency of that appeal, on an application being made further and in the circumstances as indicated earlier, a Civil Order, being C.O. No. 3749(W) of 1979, was issued which Civil Order was also disposed of by the said learned Judge, according to the writ pe....
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....disposal of the concerned case. It has also been stated that during the course of hearing on or about 17th July 1987 and again on the next date of hearing on 22nd July 1987, there were demonstrations in the Court premises by a large number of outsiders and their associates for the purpose of supporting the case of the complainant and those demonstrators displayed banners and festoons displaying the names of the respective organisations including "Association for the protection of Democratic Rights" and "Nan Nirjatan Morcha" and they shouted slogans, demanding early disposal of the concerned case and punishment of the wrong doers. The writ petitioner respondent has alleged that such demonstrations or shouting of slogans, were pre arranged and perhaps with the intention to create public opinion in favour of the complainant and against the accused persons therein and also to cause prejudice to them. 18. The writ petitioner respondent has also stated that in the daily issues of "The Statesman" of 18th July 1987, the news item as indicated hereunder, was also published, with a photograph of the concerned demonstration: "Members of the Association for the protection of democr....
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.... The complainant Smt. Archana Guja is further examined in Chief and further examination is adjourned to 22-7-1987 on the prayer of the Ld. Lawyer for the complaint and thereafter, the learned Magistrate recorded the following order:-- At this stage the petition so filed by the 3rd party organisation and the objection against same are taken up for consideration and order. In the said petition, the 3rd party organisation have humbly prayed for the speedy disposal of the case as the case is coming up for hearing after seven years. The Ld. lawyer for the accused in the objection has submitted, inter alia, that this system and procedure adopted by the outsiders is unknown to law and that this is a clear instance of interference in the judicial proceedings and if this is allowed to be continued or any importance is given to such a letter a very bad precedent is likely to be established, so far this particular court is concerned and as such if a speedy trial is ordered by the court at this stage there will be sufficient scope for reasonable inference that the Ld. Court might have passed such an order because of such a letter. As such, the Ld. Lawyer for accuse....
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....an article under the heading "Paralysed by Torture" written by one Sanjoy Basak and the said publication was accompanied by the two photographs of the complainant Smt. Archana Guha and one of which was purported to depict Smt. Guha being taken to Court in an armed chair for the hearing of her case and shortly thereafter, in a Bengali Magazine called "Pratikshan" which is published by one Priyabrata Deb and is edited by Smt. Swapna Deb an article was published written by one Subasis Maitra, relating to the story of a ten year long protest by Smt. Archana Guha and that article, the writ petitioner respondent has stated, was in the form of a narrative in the first person singular, being the version of the said Smt. Archana Guha and his brother Soumen Guha along with the comments of the writer and the same was accompanied by photographs . It has been stated that along with the said articles there was also a report of an interview of A.P. Chatterjee being the learned Counsel, appearing on behalf of Smt. Archana Guha along with his photograph. 21. The writ petitioner respondent has stated that on 22nd July 1987, he made an application before the learned Metropolitan Magistrate, referr....
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....onstitution of India, contending that by the same, the freedom of the Press under Article 19(1)(a) of the Constitution of India had been violated. This application was disposed of by M.R. Mullick, J. by an order and judgment dated 15th September 1987 and thereby, his Lordship was pleased to modify the order of the learned Magistrate by directing as under:-- (1) As long as the trial continues no press shall publish the exact reproduction of the evidence of the witnesses in any newspaper or magazine . This ban will continue as long as the trial is continuing and judgment is not delivered. (2) Full report of the case during trial may also affect fair trial and the press shall desist from publishing the full report of the case which may give a hint to non-examined witnesses. This ban will also continue as long as the trial is continuing. (3) The press may publish a brief summary of the evidence of the witness while publishing day to day court proceedings. (4) No excessive publication tending to affect fair trial shall be made by any press and any complaint is made before the learned Magistrate that this order has been violated or that the press has r....
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....hat any breach of the principles as indicated earlier would ultimately lead to violation of the Constitutional guarantee as embodied in Article 21 of the Constitution. He has stated that in this case, the acts and conducts of the individuals, groups, newspapers and magazines have really posed a serious threat to a fair trial in the criminal case, as they have been openly and deliberately canvassing the cause of the complainant and have made adverse comments against him in relation to the subject-matter of the trial and in fact, they have already prejudged the issue against him. Such prejudging was iniquitous according to the writ petitioner respondent. He has stated that such adverse publicity or holding the demonstration as indicated has created an atmosphere of prejudice against him, and has also created hostility and such an atmosphere would be inconsistent with the idea and requirement of a fair trial and would not also be conducive to the right of the accused to defend himself in any Court of law. Apart from the above, he has stated that such acts and actions as alleged would have a demoralising effect on his character and conduct and is likely to cause genuine apprehension in....
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....e dates, which we have quoted earlier from the said judgment. Mr. Guha Neogi has, of course, contended that the delay, if any, in the instant case, was not occasioned by any fault on his Part, since he has neither absconded nor intentionally taken any steps to delay the proceedings and he appeared in Court on receipt of the process regularly and as and when hearing was scheduled. In fact, he has stated that he participated in the proceedings without any dilatory tactics. He has, of course, agreed that, he not only moved this Court more than once, but also went to the Hon'ble Supreme Court of India and has claimed that such actions on his part were justified. In support of such submissions, he referred to the Division Bench judgment of this Court as indicated earlier and has stated that the fact that some of the charges as levelled against him, where set aside, would be enough to establish his justification of moving the higher Courts. It is no doubt that the Bench presided over by P.C. Barooah, J. (as His Lordship then was), had set aside some of the charges as sought to be framed against the accused persons, but Their Lordships have specifically directed a speedy trial of the ....
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....made in Case No. C/171. An interim order of restraint on the basis of the above prayers, was also asked for in the petition. 30. The affidavit-in-opposition in this case was filed by Mrs. Archana Guha in July 1988 and therein, she claimed that the plea of the writ petitioner Respondent was not bona-fide, since he was personally responsible for the delay of the completion of the proceedings of repeated frivolous grounds. It was her case that on her complaint that she was severely tortured by the writ petitioner Respondent Mr. Guha Neogi and other Police officials in the Police lock-up at Lalbazar and thereafter, on an enquiry being held under Section 202 of the Code of Criminal Procedure, process was issued against them under different sections and ultimately, in the facts and, circumstances as mentioned hereinbefore, the accused persons were committed to sessions. 31. The deponent has also referred to series of orders as passed by this Court and the Hon'ble Supreme Court of India, the full particulars whereof, we have indicated earlier and on that basis, she claimed that if any one was responsible and liable for the delay in completion of the proceeding, it was the writ p....
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....by the State of West Bengal to conduct the case on her behalf nor did she ever request the State Government to make any such appointment on her behalf, to conduct her case. She has stated that in fact, in all "Private complaint" cases the State has no jurisdiction to appoint any Counsel to conduct prosecution on behalf of a private complainant and where the complainant is poor and indigent, he or she can of course, request any State Legal Aid Committee, if at all set up, to hold them by appointing a Counsel on their behalf. It has also been stated by her that at the time, when the complaint was filed by her against the writ petitioner Respondent Mr. Guha Neogi and others, no such Legal Aid Committee had been set-up in the State of West Bengal and such State Legal Aid Committee was established in this State only some years ago and, in any event, the complainant did not make any petition also to the State Legal Aid Committee for any help to have her case prosecuted. 32. The deponent, in paragraph 20 of her affidavit-in-opposition has indicated the dates. Accordingly, there would be no doubt that on frivolous grounds the completion of the concerned criminal proceeding was sought to....
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....but not exceeding three years. and then, he also referred to Section 482 of the said Code, regarding saving of inherent power of High Court and to the effect that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. He also referred to Section 167 of the Code, laying down the procedure when investigation cannot be completed in 24 hours and on the basis of the explanation which lays down that if any question arises whether an accused person was produced before the Magistrate as required under Paragraph (b) of Section 167(2), the production of the accused person may be proved by his signature on the order authorising detention. Such submissions were put forward by Mr. Chatterjee, since it was the specific case of the complainant that Mrs. Archana Guha was not appropriately produced in terms of the requirements of law and he contended that if she was really produced, then such production should have been proved by tendering the necessary legal evidence, in terms of the....
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....o be established for obtaining the benefit of a speedy trial in the instant case, has been made out or put forward by Mr. Guha Neogi and by any stretch of imagination he cannot claim to have the benefit as asked for in a writ proceedings, the initiation whereof, was hopelessly delayed. 37. It was then submitted by Mr. Chatterjee that the application under Article 226 of the Constitution in question, the order where of, is under appeal, should have been dismissed in limine by holding the same to be misconceived in the facts and circumstances as indicated hereinbefore. Apart from the other fact emanating out of the delay as mentioned hereinbefore and also for availability of other adequate alternative remedies under the statute. In support of such submissions, Mr. Chatterjee firstly, referred to the case of Smt. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621, where dealing with the question of jurisdiction and the meaning of judicial or quasi-judicial authority and when writ of certiorari can be issued or where such writ can lie it has been observed per S.K. Das, J. that jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or re....
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....and the characteristic attribute of a judicial act or decision is that it binds, whether it is a right or wrong. An error of law or fact committed by a judicial or quasi judicial body cannot, in general be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction and provided that they must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions. On the basis of such tests as indicated in the above determinations as mentioned and the other tests as laid down, Mr. Chatterjee pointed out that error on the face of the record, which was the alleged basis of interference by the learned Trial Judge, was not appropriate and in the instant case, whether the proceedings as sought to be initiated, it was judicial or quasi judicial even, there was no occasion for affecting the ....
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....to the case of Hussainara Khatoon v. Home Secretary, State of Bihar (supra) by the Supreme Court, on such criticism being made regarding the shocking state of affairs, they hoped that the anguish expressed and the severe strictures passed by them, the justice system in the State of Bihar would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which they thought cannot and should not exceed one year for a sessions trial. But, they found that situation has remained unchangewd and the prisoners, whose case was being dealt with in the case under reference, who entered the jail as young lads 12 or 13, have been languishing in jail for over 8 years, for a crime which perhaps ultimately they may be found not have committed. In fact, it was the submission of Mr. Chatterjee that in such circumstances, the determinations as made in the two cases as indicated hereinbefore, would not apply in the present one and in fact, such determinations were and are distinguishable. 40. Reference was made thereafter, by Mr. Chatterjee to the Full Bench determinations of the Patna High Court in the case of The State v. Maksudan Singh, where, while deali....
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..... Thus what seems to be true of Article 14 qua equal protection clause of the 14th Amendment is equally true in the context of the 6th Amendment of the said Constitution qua Article 21 of our Constitution. Therefore American precedents on the Sixth Amendment of their Constitution would be equally attracted and applicable as persuasive precedent on this facet of Article 21 of our Constitution in India. Thereafter, Mr. Chatterjee referred to another Full Bench Judgment of the Patna High Court in the case of Madheshwardhari Singh v. State of Bihar AIR 1986 Patna 324: (1986 Cri LJ 1771), where, while dealing with Article 21 of the Constitution and right to speedy public trial it has been observed that in all criminal prosecutions the right to a speedy public trial is now an inalienable fundamental right of the citizen under Article 21 of the Constitution. This cannot be allowed to be whittled down on any finical ground of the hoary origin of this right in the constitutional history of Great Britain and America, nor considerations of affluence of developed countries are even remotely relevant or germane in this context. Therefore, it is not possible to read down the right of speedy and ....
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....which was pending for 20 years, even though the accused respondents were themselves largely responsible for the slow progress of the trial and the case involved commission of a serious offence. It has been held in that case that the delay being inordinate, the Supreme Court will not interfere with the High Court's order for quashing the proceedings against the accused. The said case, Mr. Chatterjee submitted, was distinguishable on the facts of the present one and he claimed that the test would be, who was attributable or answerable for the delay, which according to him, in this case, was Mr. Guha Neogi. It was indicated by him further that in the United States of America, to have a speedy trial is the fundamental right and on such submissions, he referred to the two United States cases reported in the United States Reports, the particulars whereof, we have indicated earlier. He further submitted that even though, in our Constitution, such right to have a speedy trial is not indicated specifically, but on reading of the provisions of the Constitution and the judgments of the Supreme Court, the same can be evolved in a proceedings in our country. But he contended that even then ....
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.... an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by signature on the order authorising the detention. On the question, if the said explanation is retrospective or not, Mr. Chatterjee firstly, referred to the case of Raj Narain v. Superintendent, Central Jail, New Delhi 1971 CriLJ 244, where, per majority, it has been observed that prisoners, who are under-trial are brought before the Supreme Court on rule nisi and are kept in custody of the Supreme Court. This is a transferred custody on behalf of the Magistrate. The Magistrate cannot recall the prisoner from custody of the Supreme Court by his order and he is only required to intimate to the jail authorities, the prisoner and the Supreme Court that the original remand has been extended while adjourning the case. This is sufficient compliance with the requirements of the law in such special circumstances. The object of production of the prisoner before the Magistrate is more than answered by his production before the Supreme Court because the prisoner has the protection of his interest transferred from the Magistrate to the Supreme Court. There....
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.... interference as made by the learned trial Judge, was not proper. 43. The case of R.P. Kapur v. State of Punjab 1960 CriLJ 1239, which necessarily deals with the inherent power of High Court, for making any interference under Section 561A of the Criminal Procedure Code and lays down that such power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction and has also indicated some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are:-- (i) Where it manifestly appears that there is a legal bar against the institution or cont....
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.... occasion was rejected by the High Court on the ground that questions involved were purely questions of fact which were for the Court of fact of decide, is no bar to the quashing of the proceedings at the later stage -- Such quashing will not amount to revision or review of the High Court's earlier order-- Order under Section 561A should be passed in view of the circumstances existing at the time when the order is passed, and it was submitted by him, that not only on the facts of this case, but also on the basis of the determinations of the Division Bench of this Court presided over by P. C. Barooah, J. (as His Lordship then was), and the particulars whereof, we have indicated earlier, the learned Judge was not justified in having the proceedings quashed at this stage and more particularly under the jurisdiction, which he was exercising at the relevant time. The crux of Mr. Chatterjee's submissions were that under Article 226 of the Constitution of India, the order of quashing proceedings as made by the learned trial Judge, in the facts and circumstances of the case, was not germane or proper. Thereafter, Mr. Chatterjee mentioned the case of Smt. Nagawwa v. Veeranna Shivali....
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....Magistrate was satisfied that a prima facie case against the persons was made out and he accordingly issued process against them. The High Court went into the whole history of the case, examined the merits of the evidence, the contradictions and what it called the improbabilities and after a detailed discussions not only of the materials produced before the Magistrate but also of the documents which had been filed by the defence and which should not have been looked into at the stage when the matter was pending under Section 202, has held that the order of the Magistrate was illegal and was fit to be quashed. This was an entirely wrong approach. On the basis of those observations, Mr. Chatterjee submitted that on the basis of the guidelines as indicated by the Supreme Court, there was no case made out before the learned trial Judge, on the basis of the facts of this case, about the inherent improbability and claimed, that even on the basis of the tests as laid down, the learned Judge was wrong and not justified in making the necessary interference in this case and thus to quash the proceedings. It was claimed by him that since the complaint in the instant case could at this stage c....
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....r by the learned Judge, on a reference to the case of State of Karnataka v. L. Muniswamy 1977 CriLJ 1125, was also not proper. In the facts of that case, it has been held that there was no material, on the basis of which any tribunal could reasonably come to the conclusion that the accused were in any manner connected with the incident leading to the prosecution. The High Court was therefore justified in holding that for meeting the ends of justice, the proceedings against the rest of the accused ought to be quashed, and Mr. Chatterjee contended that since in this case, the stage for coming to such conclusion of "no materials" available, has not as yet reached so the observations as made therein, cannot be applied, and as such, the learned Judge also fail into errors in making his determinations. Similarly, Mr. Chatterjee claimed that the case of S. Guin v. Grindlays Bank Ltd. 1986 CriLJ 255, to which the learned Judge has made a reference, will have no application, because that was a case, where the acquittal was set-aside on the basis of the proceedings pending for a long time after trial. He repeated that since in this case, such stage has not as yet arrived, so the determinatio....
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....egarding the alleged torture meted out her by the Police officials and only in September 1975, she for the first time, made the complaint about weakness of her lower limbs, Mr. Dutt also pointed out that on 17th November 1976, Mrs. Guha was granted parole for her various ailments and on 3rd May 1977, she was released and on 28th August 1977, the present complaint was filed after about 3 years 3 months and 17 days. The above facts were pointed out by Mr. Dutt, to establish the cause of the first phase of delay in lodging the complaint or filing the FIR. 48. Therefore, on the question of delay, Mr. Dutt pointed out that to delay during the period after initiation of the complaint was also mainly due, as aforesaid, for the acts, actions and steps taken by Mrs. Guha and as a result thereof, speedy trial which is a prerequisite under or in terms of the determinations of the Supreme Court of India in the case of Hussainara Khatoon v. Home Secretary, State of Bihar, Patna (supra), the findings whereof as made by the Supreme Court and some particulars whereof, we have indicated earlier, have been frustrated. We have further indicated earlier the submissions made by Mr. Chatterjee as to ....
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....al for the prosecution to examine that person as a witness and its failure to do so would make the court draw an inference against the prosecution, (iii) The knife alleged to have been used in stabbing the victim was found by the chemical examiner to be not stained with blood, and it was not clear why the accused should keep it on his bed where he had ample opportunity to throw away the knife in some lonely place, (iv) Thus the Supreme Court does not normally reappraise evidence in an appeal under Article 136 of the Constitution, but that fact would not prevent interference with an order of conviction if on consideration of the vital prosecution evidence in the case, this Court finds it to be afflicted with ex facie infirmity. It was further observed by the Supreme Court, while making the observations in clause (iii) that looking at all the circumstances, it was not possible to sustain the conviction of the accused. Thereafter, Mr. Dutt referred to the case of Balaram Roy v. The State, (1983-84) 88 Cal WN 238, where the FIR was lodged after about 10 days of the occurrence and in the said FIR all that is said was that the delay was due to the fact that the informant was in a state o....
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....t to raise a presumption that the accused had been prejudiced, in appeal against conviction there will be no justification for the appellate Court to quash the conviction on the ground of delayed trial only. On the basis of the above determination or following the observations therein, the specific submission of M r. Dutt was that since the complainant Mrs. Archana Guha was responsible for the delay in the matter of Mr. Guha Neogi to have a fair and speedy trial, the learned Trial Judge, made no wrong in having the intended proceedings quashed, even in a Writ proceedings. Then a reference was made by Mr. Dutt to the case of T.V. Vatheeswaran v. State of Tamil Nadu, where the question whether a death sentence was liable to be quashed for the prolonged delay in execution was considered and it has been observed that prolonged detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death. The dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable w....
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....procedure established by law. It is, therefore, just and fair and in accordance with equity to direct that the trial or prosecution of the appellant to proceed no further. If the principles of the Code of Criminal Procedure applied, the taking of cognizance of the offence was barred by Section 468 of the Code and finally, it has been observed that in the circumstances of that case it was not necessary to decide whether cognizance was properly taken, when cognizance was taken and whether the extension of period of limitation under Section 473 must precede the taking of the cognizance of the offence. Thereafter, Mr. Dutt firstly, referred to Full Bench decision of the Patna High Court in the case of the State v. Maksudan Singh (supra), the particular and findings whereof and why those findings would not be applicable as claimed by Mr. Chatterjee, have been indicated earlier. Then, Mr. Dutt referred to the case of Madhesh-wardhari Singh v. State of Bihar (l986 Cri LJ 1771) (Patna) (FB) (supra), the findings where of and so also why they will not be applicable in the case, as contended by Mr. Chatterjee, we have indicated earlier. Then, further reference was made by Mr. Dutt to the cas....
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....t aspect of the matter is that the prosecution commenced in the year 1963 and it is still going on in the year 1979. It is true that the accused persons themselves are to be partly blamed for this delay because several revision applications have been filed at their instance in the High Court and in the district Court. The situation, however, continues to be unjustified because the last revision application was some time disposed in 1973 and the record was returned in 1974. This fact has been stated by the learned counsel for the petitioners and five years have elapsed since then. I am told that four witnesses have been examined and the last witness was examined in April, 1979 and after that no witness has been examined. It has been stated in the order sheet that prosecution is not in a position to know the addresses of the witnesses who are mostly Government Officials. Luxury of protracted trial cannot be allowed to the prosecution. If they did not know the addresses of their own witnesses and if the prosecution was not in a position to conclude its evidence by now it will be an abuse of the process of the Court to allow the prosecution to go on any further." The particulars or the....
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....ercising its inherent power for quashing a proceeding in which process has only been issued, this Court can look into and rely upon materials, besides those on which process was issued, which can be translated into admissible and relevant evidence, but it should not embark upon an enquiry in which an appreciation of the materials may be necessary to support or discharge the accusation. For establishing further that any delay in Criminal trial, when occasioned by the default of the prosecution, Court can have the trial quashed and expeditious trial is an essential part of fundamental " right and the same is implicit in Article 21 of the Constitution of India. Reference was made by Mr. Dutt to a single Bench judgment of this Court in the case of Mihir Kumar Ghosh v. State of West Bengal. In that case, a prosecution for the offences alleged to have been committed by the petitioner between the period of May, 1971 and March, 1972 was started before the Special Judge who took cognizance of the offence after examining the complainant. The Public Prosecutor did not examine all the witnesses during the period from 1976 to March, 1987 and no charge could be framed and thereupon the petitione....
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....ereof, we have indicated earlier and stated that the fact that the said Division Bench had accepted that the proceedings as initiated could not be treated as a Session triable one, but the same was a warrant case and has set aside that part of the proceedings, which dealt with a Session triable case remanded the matter back to the learned Magistrate, with directions to proceed with a trial in accordance with the procedure laid down for the trial of warrant cases, instituted on the basis of a complaint, shows that up to the date of the said judgment, which was 13th May, 1980. Mr. Guha Neogi was acting bona fide and the stand as taken by him, was not absurd. The fact that the said Mr. Guha Neogi partly succeeded before the concerned Division Bench, according to Mr. Dutt, established the fact as indicated above and it was his further and specific submissions that for any delay or absurdity or when in a case of the present nature, there has been excessive prejudicial publication; the trial was and is bound to be vitiated. In support of such submissions, Mr. Dutt referred to the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalqi 1976 CriLJ 1533, where, while dealing with scope of t....
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....mprobable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of complaint, by legally competent authority and the like. It was Mr. Dutt's further submissions that under Section 482 of the present Code, which deals with saving inherent power of High Court, and on following the principles as indicated earlier, the learned trial Judge was justified in making the interference as he did. 53. Turning now to the question of the power of the High Court in making any interference in the matter of quashing a criminal proceeding under Article 226 of the Constitution of India, and if that is possible and permissible, Mr. Dutt placed reliance on the case of The Delhi Development Authority, New Delhi v. Smt. Lila D. Bhagat AIR 1975 SC 495, where, it has been observed that in an appropriate case it ma....
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....l 2nd August 1974, which prayer was allowed and thereafter, on 2nd August 1974, the accused persons including Mrs. Guha were produced from Police custody and they were directed to he kept in Jail Custody till 16th August 1974/23rd August, 1974. To establish the enormity of the absurdity of the complaint. Mr Dutt pointed out that even during the period as aforesaid, there was no complaint made by Mrs. Archana Guha about any torture being caused on her by the Police personnel or that, she was having the strength of her lower limbs diminished and such conduct of Mrs. Guha, according to Mr. Dutt was contrary to the provisions of Section 54, which deals with examination of arrested person by medical practitioner at the request of such person. Mr. Dutt claimed that if the story as now sought to be set up by Mrs. Guha, was correct then there was no bar and the law gave her the right to make an application under Section 54, but such steps were not taken by her and that fact alone, would be enough to establish the falsity of her claim. 55. M r. Dutt then referred to the publications in press as made during the course of the proceedings and after the complaint was filed and claimed that t....
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....joria, appearing for the Respondent No. 2, who was a constable at the relevant time and against whom allegations of torture or abetting the commission of the same was made, put forward his submissions on (1) the inherent improbability, (2) delay, and (3) fair trial, which were also advanced by Mr. Dutt, and claimed and contended that since in the facts and circumstances of the case, his client did not expect to get a fair trial and that too in view of the hostile atmosphere as created in view of the excessive publications and demonstrations, the interference by way of quashing the proceedings, even in a proceeding under Article 226 was possible and permissible and in making his determination, as he did, the learned trial Judge, did no wrong. He also submitted on the question of necessary speedy trial as a limb of fair trial. 57. Mr. Bajoria, barring his submissions as would be indicated hereafter, specifically adopted the submissions of Mr. Dutt. 58. While on his submissions on delay, Mr. Bajoria pointed out that since the alleged occurrences or happenings were in July, 1974 and the complaint itself was filed on 20th August, 1977, that fact would be enough to return a verdict....
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....ion and ultimately succeeded in the same and thus established that his claim was justified and that absurd, cannot be held responsible for causing any delay and as such, his case on the question of delay should be considered in isolation of Mr. Guha Neogi. 59. While on the point, Mr. Bajoria, referred to the application of his client dated 3rd August, 1987, for transfer of the proceedings before the learned Chief Judge, City Sessions Court, Calcutta, which was filed after some publications made in some local Newspapers and succeeded to some extent in that proceeding. That proceeding was challenged in this Court on 7th August, 1987, by Ajkal Publishers and they did not succeed before M. R. Malliek, J. and the said learned Judge, modified to some extent, the order of transfer as made. 60. Mr. Bajoria further contended that since there was no order of stay made or subsisting, there was no cause or ground of not proceeding with the proceeding by the learned Magistrate during the two periods as mentioned earlier. 61. On the ground of the effect of adverse publicity and excessive publication, Mr. Bajoria adopted the submissions of Mr. Dutt. 62. Mr. Mondal, appearing for the S....
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....e of Bhim Singh, MLA v. State of J & K 1986 CriLJ 192, where the Supreme Court while considering Articles 21 and 22(2) of the Constitution of India has held and observed that there have been gross violation of right of an accused under those Articles and the Police though obtaining remand of arrested requisite period, apart from indicating that when a person comes to the Supreme Court with the complaint that he has been arrested and imprisoned with mischievous or malicious intent and that his constitutional and legal rights were invaded, the mischief or malice and the invasion may not be washed away or wished away by his being set free. In appropriate cases the Court has the jurisdiction to compensate the victim by awarding suitable monetary compensation and where a member of the Legislative Assembly was arrested while en route to scat of Assembly and in consequence, the member was deprived of his constitutional rights to attend the Assembly Session and responsibility for arrest lay with higher echelons of the Government, it was a fit case for compensating the victim by awarding compensation. Compensation of Rupees 50,000/- was awarded. 64. It was submitted by Mr. Chakraborty th....
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....or quashing the same but since the delay in the instant case has not been caused either due to or at the instance of Mrs. Guha, the interference on that ground by quashing the proceedings as made by the learned trial Judge was wrong and irregular. In fact, he submitted that if not the whole of it but the larger part of the delay in this case was caused by the writ petitioner/respondent and in support of such submissions Mr. Chakraborty referred to the tabulation as made by the learned Magistrate as to why and at whose instance the delay in prosecuting the proceedings had occurred. He further submitted that delay, if any, caused by Mrs. Guha was not wilfully as she was interned under M IS A and in fact, during that period she filed the concerned complaint, (t was also indicated by Mr. Chakraborty that some delay perhaps was caused by Mrs. Guha since she could not over-come the shock which she received in jail custody meted on her and also on the members of her family which according to him, had also dehumanising effect on her mind. Mr. Chakraborty further submitted that such delay as caused in this case or the happenings thereof, was visualised by the Legislators, as such Section 46....
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.... having the proceeding disposed of occurred (a) on account of procedural delay, (b) the time taken by the writ petitioner-respondents, and (c) the time taken by Mrs. Guha. It was specific submission and that too on a reference to the observations made by the learned Magistrate that really, the writ petitioner respondent should be blamed and held responsible in wasting or consuming more time unnecessarily. It was also his submissions that delay alone cannot be the only criterion for quashing a proceeding of the present nature and on the facts of this case, such submissions were made by him on a reference to the case of V.K. Agarwal v. Vasantraj Bhagwanji Bhatia (supra), where the accused was prosecuted for an offence punishable under Section 111 read with Section 135 of the Customs Act, 1962. In that case one of the accused was convicted whereas other two accused were acquitted. The same alleged offenders were later on sought to be prosecuted under Section 84 of the Gold (Control) Act, 1968 relying on the find of primary gold from the very same premises at the time and on the occasion of the very same raid which gave rise to the prosecution under the Customs Act which had culminated....
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....l) Act, 1968 (November 15, 1968) would be no ground for not proceeding further with the matter inasmuch as the offence in question was a serious economic offence, which undermines the entire economy of the Nation. The delay occasioned in the working of the judicial system by the ever increasing workload cannot be the ground for justifying the delay. 68. Mr. Chakraborty also referred to Article 51A of Part-IVA of the Constitution relating to fundamental duties of every citizen of India and claimed that under such provisions, the woman folk should be duly honoured and respected, which was also enunciated by Manu and which is also recognised by Arts. 5 and 9 of the International Bill on Human Rights, which again, according to him, should be regarded and considered to be the basic structure for protection of human rights, specially for women, who have been made to suffer and receive such torture like Mrs. Guha, in the hands or at the behest of police officers like the respondent writ petitioner. 69. Both Mr. Chatterjee and Mr. Chakraborty claimed the impugned judgment to be perverse and illegal, as apart from the wrong application of the provisions of law and inappropriate applic....
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....flicted by a Public Officer. On the basis of the available evidence and without any appropriate evidence being led and tendered, the learned trial Judge, in our view, was not justified to hold at this stage, that Mrs. Guha was guilty of such lapses as indicated above and while making his determination, as he did, the learned trial Judge failed to consider the effect and import of Section 468, Cr.P.C. or the Legislative intent behind the incorporation of the same. It is to be noted, on the basis of the pleadings as available at this stage and so also the records, it appears that in 1974 Mrs. Guha was put behind the bar and on 17th November, 1976, she was released on Parol and finally, was released on 3rd May, 1977 and by 3 months thereafter, on 20th August, 1977, she filed her complaint. As such, we feel that she really filed the complaint within 3 months of her release and that cannot certainly be and without any further evidence, considered to be an inordinate delay. There is also no evidence that Mrs Guha waited and wasted time to file her complaint for the Left Front Government to come to power, as alleged. This finding and the grounds to support and supplement the same, appear ....
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....te and it is expected that much more evidence would be forthcoming during the course of the proceedings and as such also, the interference as made by the learned trial Judge was not proper and he was also not right in holding that this Court in its jurisdiction in which the proceeding was decided could test or find out whether the prosecution as sought to be lodged, was a mala fide one or such prosecution was initiated for an oblique purpose or with such ulterior motive as hinted by him. In any event, at the stage of this proceeding, we feel that the learned trial Judge had no cogent evidence before him, to come to the conclusion that the prosecution as sought to be initiated, was a fake one or was expected to fail because of infirmities. It is also pertinent to record here that the learned trial Judge himself has observed that the application under Article 226 of the Constitution of India, which was being dealt with by him, was not made in the Criminal Revisional Jurisdiction, invoking the inherent power of the Court under Section 482 of the Criminal Procedure Code. Such being the position, we feel that the learned trial Judge was not right and justified in opining that the princi....
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....ed, was already considered by the Division Bench presided over by P.C. Barooah, J. (as his Lordship then was), in Criminal Revision Case No. 449 of 1979 and that being the position, it was not at this stage appropriate for the learned trial Judge, in view of the said Division Bench judgment to hold that there was no prima facie case. It is true that the respondent writ petitioner had also succeeded even before the said Division Bench to some extent, the particulars whereof, Mr. Dutt has indicated in his argument. But, even then, we are of the view that the learned trial Judge had no right or jurisdiction to hold at this stage of the proceedings and evidence, that there was or has been no prima facie case or the prosecution sought to be initiated was patently absurd or inherently improbable. It should be noted that the said Division Bench, while remanding the matter to the learned Magistrate, directed him to proceed with the trial in accordance with law and as such, there was no doubt that the Respondent writ petitioner would be at liberty to urge and raise all points as taken even before the said Division Bench or such other points as may be available to him at the appropriate stag....
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.... patently absurd or inherently improbable. We hold that such stage has not as yet arrived on the basis of the available evidence. We further feel that the learned Trial Judge should not have observed and based his decisions on such observations that if the trial is allowed to be continued, the documents which are now annexed to the writ petition, will be brought on record without any difficulty, as most of them are public documents and are not disputed documents. It is true that some records have been disclosed, but there may be some other records, which may be tendered and brought into evidence during the course of trial, for the purposes of establishing the genuineness of the prosecution case. We feel that even on the basis of the observations as made by the learned Trial Judge himself that on the basis of the materials as available and taking into consideration, the infirmities in the prosecution as pointed out by him, it would be extremely doubtful as to whether the prosecution case will at all result in a conviction. By making such observations, with due respect, we find that the learned Trial Judge has just put the cart before the horse and he had no occasion to state at this....
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....ken by the writ petitioner Respondent Mr. Guha Neogi, even though charges in the concerned Criminal case, have not as yet been framed and it appears without any doubt that at every stage and whenever the proceeding was going to be taken up for consideration, he took such steps, which prolonged and intended to frustrate the proceedings. We have indicated earlier about the tilt in obtaining adjournment or wasting time, lay on whom to a larger extent and we further feel, which has also been indicated earlier, that while making the determinations, the learned Trial Judge failed to consider and construe duly and properly, the provisions of Section 468 of the Code of Criminal Procedure, 1973 and in all fairness and more particularly when, complete evidence has not as yet been made available in the proceedings, the learned Trial Judge, in terms of the observations of the earlier Division Bench judgment, should have allowed the learned Magistrate to take further steps, in having the proceedings continued and completed. Such steps, admittedly could not be taken, for such action of the writ petitioner Respondent Mr. Guha Neogi as indicated earlier. 74. On the basis of the evidence as avai....
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....d by us earlier, the learned Trial Judge was not right and justified in making determinations as he did, at this stage. Speedy trial is not only a part of the fundamental rights to life but the same is also a further fundamental right to liberty. To arrive at such conclusion, something more than the evidence which has already been received in the record of the proceedings, is necessary and without such complete evidence, the learned Trial Judge had no power and jurisdiction to direct quashing of the Criminal Proceedings at this stage. We further hold that even on the determinations as made in the case of V.K. Agarwal v. Basant Bhabanji Bhatia (AIR 1988 SC 1106) (supra) and following the observations of the erstwhile Division Bench as referred to hereinbefore, the allegations as made, are required to be gone into and considered and as such, the learned Trial Judge, in the way and in the manner as he did, should not have got the proceedings frustrated. The determinations in Hussainura Khatoon v. Home Secretary, State of Bihar (supra), agreeing with Mr. Chatterjee, we hold, would not apply in the facts and circumstances of the present case. We further find that the determinations in t....
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....mstances of the present case and more particularly when, at this stage of the proceedings, the learned Trial Judge was not also justified in holding or concluding that there were no materials available for holding the writ petitioner Respondent Mr. Guha Neogi, guilty of the offences as alleged. The cases of S. Guin v. Grindlays Bank Ltd. (supra) and Rakesh Saxena v. State through C.I.B. [1987] 1 SCR 173 (supra), are also distinguishable on the basis of our findings as recorded hereinbefore. 76. It should be noted that apart from other cases as cited hereinbefore, Mr. Dutt also relied on the case of Hussainara Khatoon v. Home Secretary, State of Bihar, Patna (supra), and we have indicated earlier, why the said determination is not applicable or is distinguishable in the facts of this case, Mr. Dutt referred to the case of Thulia Kali v. State of Tamil Nadu (supra) and Balaram Roy v. The State (88) CWN 238) (supra). We feel that even on the basis of such determinations, the learned Trial Judge, at this stage of the proceedings, was not justified in making the necessary interference. We also found and hold that the determination in State of Maharashtra v. Champalal Punjaji Shah) (s....
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....e at which the learned Trial Judge has directed quashing the proceedings, was not proper. We also feel that at this stage, we will not also be justified in coming to a firm and definite conclusion that the case as sought to be made out on the basis of the allegations of Mrs. Guha, were improbable or absurd and such decision should be left to be made after receipt of the full and final legal evidence and that being the position, the learned Trial Judge was not justified in making the interference, as he did. 78. The above observations of ours do also deal with and dispose of the submissions as made by Mr. Bajoria, as he more or less adopted the submissions of Mr. Dutt. We have indicated earlier the submissions as made by Mr. Chakraborty appearing for the Intervenors and our views on them. 79. On the basis of our over all findings as indicated earlier, we feel that the quashing of the proceedings at this stage as directed by the learned Trial Judge and more particularly when, the entire and complete legal evidence has not as yet been received in the proceedings, was not justified, this appeal, therefore should succeed and the trial of the concerned Criminal proceedings, should ....