Sadhan Kumar Gupta, J. - (1.) Learned Advocate for the petitioner is present. Learned Advocate for the State is also present. None appears for the O.P. No.1. The petitioner has filed affidavit of service as well as the postal acknowledgement in respect of the O.P. No. 1. Inspite of that, the O.P. No. 1 did not appear in the present hearing. As such, the matter is taken up for hearing in presence of the learned Advocate for the petitioner as well as for the State. The case of the petitioners is that the O.I. No. 1 filed a petition of complaint against the present petitioners and another person and on the basis of that the learned Magistrate took cognizance and issued process under section 494/109 of the Indian Penal Code. The petitioner No. 1 entered appearance before the learned Magistrate on 28.02.1990 while the petitioner Nos. 2, 3 and 4 entered appearances on 25.4.90. But uptill now, no evidence was produced in support of the prosecution case and as such there is violation of the mandatory provisions of section 245 (3) of the Code of Criminal Procedure. As per the said provision, the learned Magistrate ought to have discharged the petitioners, who in fact filed a petition to that effect before the learned Magistrate praying for their discharge. The said petition was heard by the learned Judicial Magistrate, Midnapore, Sixth Court and by his order dated 18.11.1995 the learned Magistrate was pleased to reject the said petition. Being aggrieved and dissatisfied with the said order of the learned Magistrate, present revisional application has been filed on the ground that the learned Magistrate misconceived the provisions of section 245(3) of the Code of Criminal Procedure and as such, the said order of the learned Magistrate is illegal and is liable to be set aside. As such, by filing the present revisional application the petitioners have prayed for setting aside of the impugned order of the learned Magistrate and to direct that the present petitioners should be discharged from the criminal case.
(2.) I have heard the submissions of the learned Advocates for the parties and also perused the Lower Court Record which has been called for in connection with this case. It appears from the record that on the basis of the petition of complaint and on the basis of the initial deposition of the P.Ws., as prima facie case was made out so the learned Magistrate was pleased to issue process against the accused persons under section 494/109 of the Indian Penal Code on 21.09.89. Since then the matter is pending and no witness could be examined on behalf of the complainant. Learned Advocate for the petitioners argued that in view of the provisions of section 245(3)(West Bengal Amendment) as prosecution failed to adduce evidence within four years from the date of appearance of the accused, so the accused persons are entitled to be discharged from the said criminal case. As against that learned Advocate for the State drew my attention to the fact that one of the accused remained abscondcr till the impugned order was passed and as such W/A & P/A was issued against the said absconding accused and as such the complainant was deprived of the opportunity of adducing any evidence in support of her case and there was no laches on the part of the prosecution. I have perused the Lower Court Record and it appears that in fact as one of the accused was absconding, so against her W/A & P/A was issued and the said W/A could not be executed as yet. The provisions of section 245(3) (West Bengal Amendment) in this respect is relevant "If the evidence referred to in section 244 are not produced in support of the prosecution within four years from the date of appearance of the accused, the Magistrate shall discharge the accused unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused". The said section has provided for discharge of the accused in case of non-production of any evidence by the prosecution within four years from the date of appearance of the accused persons. So far as the present case is concerned, there is no doubt that four years have already passed since the appearance of the accused persons and it is the admitted position that during this time no evidence could be adduced. So prima facie it appears that there is substance in the argument of the learned Advocate for the petitioners. But if we look into the abovementioned provision then it will appear that law has given scope to the Magistrate to ascertain as to for what reason there was delay in adducing the evidence. The Magistrate cannot discharge the accused as per the said provision mechanically. He is to satisfy himself as to whether it was the intention of the complainant to delay the matter wilfully and if he is satisfied to that effect, then if the Magistrate, is of the opinion that interest of justice will be served if the accused is discharged, in that case only he can discharge the accused. In the light of the above, we are to look into the present position. So far as the present case is concerned, it appears that one of the accused remained absconder since the very beginning and for that reason only the case was delayed and no opportunity was given to the complainant to adduce her evidence. It, appears that W/A is pending against one of the accused since 1990 and same could not be executed during the last ten years. It is shocking that the learned Magistrate mechanically extended the time for the execution of the W/A without taking any effective step for its proper execution. The attitude of the learned Magistrate in this respect is highly improper. The learned Magistrate should understand that his duty is not over by issuing warrant of arrest against the particular person. It is his duty also to see that the said warrant is executed in time. In case of non-execution of the W/A, the Criminal Procedure Code has given the learned Magistrate enough power of splitting up the case of that particular accused with that of the other accused persons. It appears that the learned Magistrate did not take any such step in this respect. For this indifferent attitude of the learned Magistrate, the complainant cannot suffer and in my considered opinion that there was no laches on the part of the complainant in the non-production of witnesses before the learned Magistrate as because I find no opportunity whatsoever was given to her by the learned Magistrate to adduce evidence. Under such circumstances, if the accused persons are discharged only on the technical reasons of non-production of the witnesses within four years of appearance of the accused, then I am of opinion that it will certainly cause failure of justice and the intention of the legislature in introducing of the said amendment, as cited above, was not like that. So, I am of opinion, that there is ground for presuming that it shall not be in the interest of justice to discharge the accused persons so far as the present case is concerned as per provisions of section 245(3) of the Cr.PC (West Bengal Amendment). As such in view of my above discussion, I am of opinion that there is no merit in the present revisional application and the same is liable to be dismissed.
(3.) In the result the revisional application fails. However, the learned Magistrate is directed to take immediate step for execution of the W/A against the absconding accused and if it is not possible to apprehend the said accused then in that event he is to take proper steps as provided in the Criminal Procedure Code and thereafter to give opportunity to the complainant to adduce evidence in respect of her case. The learned Magistrate will make all out effort to dispose of the case as cxpedltiously as possible.;