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1991 DIGILAW 131 (CAL)

Gopal Mukherjee v. State

1991-03-12

J.N.Hore

body1991
JUDGMENT 1. THIS is an application under Section 4 82 of the Code of Criminal Procedure for quashing the proceedings in Amdanga Police Station Case Kb. 9 dated 15. 4. 79 under Section 409/12ob' of the Indian Penal Code which was registered as G. R. . Case NO. 502 of 1979 in the Court of the Sub-Divisional Judicial Magistrate, Barasat. 2. THE petitioner nos. 1 and 2 are attached to the. Haringhata farm under the Directorate of Dairy Development, Government of West Bengal as Tanker Driver and Escort respectively. Both the petitioners have been are as accused in Haringhata Police Station Case No. 9 dated 15.4.79 therein charge-sheet no. 3 dated 5.3.84 was submitted in the court of the learned Sub-Divisional Judicial Magistrate, Barasat on 13.3.84 and congizance of offences under section 409/120b. of the Indian Penal Code was taken by the learned magistrate. The charge-sheet was filed against three other persons also, namely, Pranab alias Khokan Ghosh, Bhim Ghosh and Khatib Mondal. It is alleged in the said charge-sheet that on 14th April, 1979 the petitioners were entrusted with Milk Tanker No. WGE 2292 loaded with milk under sealed cover for delivery of milk at its destination. But on 15th April, 1979 at about 12.15 P.M. both the petitioners delivered the milk to Pranab alias Khokon Ghosh, Khatib Mondal and Bhim Ghosh from the said milk at Awalsiddi as per previous conspiracy with them. The petitioners and others were caught red-handed by the defacto complainant and other witnesses; of the locality. Both the petitioners were; arrested on 15th April, 1979 and were detained in custody till they were released on ball on 30th April, 1979. Both the petitioners were placed under suspension with effect from 15th March, 1979 and they are still suffering from the order of suspension. By orders dated 12th July, 1984 and 15th October, 1984 the learned Sub-Divisional Judicial Magistrate directed that the charge-sheet be sent to the Public Prosecutor, 2 4-Parganas for filing a complaint before the learned Special Court. Again by his order dated 3rd July, 1985 the learned Sub-Divisional Judicial Magistrate directed the investigating officer of the present case to take steps for sending the records of the case to the learned Special Court for filing investigation report and for trial. Again by his order dated 3rd July, 1985 the learned Sub-Divisional Judicial Magistrate directed the investigating officer of the present case to take steps for sending the records of the case to the learned Special Court for filing investigation report and for trial. By another order dated 20th June, 1986 the learned Magistrate directed the investigating officer to appear in court with the Government notification and allotment of the case to the learned Special Court and fixed 6th May, 1986 for this purpose. On 6th May, 1986 the investigating officer did not appear in court but the learned Magistrate directed the case records to be transmitted to the learned Special Court and recorded an order that the accused persons need not appear before the learned Magistrate any further. 3. AFTER the said order was passed on 6th May, 1986, the petitioners on numerous occasions attended the court of the learned Special Judge at Alipore where trial of public servants under the provisions of Prevention of Corruption Act and allied Acts takes place. In no court records of Amdanga Police Station Case No. 9 dated 15.4.79 could be found out. After long and tiring efforts the petitioners ascertained in the first week of February, 1990 that the records of Amdanga Police Station. Case no. 9 dated 15.4.79 had been transmitted to the Second Court of the learned Special Judge at Alipore which is presided over by the learned 7th Additional Sessions Judge at Alipore. The petitioners submitted an application for information about the receipt of records of the Amdanga Police Station Case no. 9 dated 15.4.79 and the present position of the case and as per information supplied by the department, the petitioners came to know that no complaint had been filed in that court as yet. The petitioners had all along attended the court of the learned Sub-Divisional Judicial Magistrate, Barasat. There had been no contribution on the part of the petitioners to the inordinate delay which had taken place in the initiation of the proceeding before the Second Court of the learned Special Judge at Alipore. 4. MR. The petitioners had all along attended the court of the learned Sub-Divisional Judicial Magistrate, Barasat. There had been no contribution on the part of the petitioners to the inordinate delay which had taken place in the initiation of the proceeding before the Second Court of the learned Special Judge at Alipore. 4. MR. Basu, learned Advocate for the petitioner has strongly contended that there has been utter callousness on the part of the prosecution in this case and there is flagrant violation of the fundamental right of the petitioners to speedy trial as enshrined in Article 21 of the Constitution and if the trial is allowed to commence at this stage i.e. almost a decade after 12 years from the date of arrest of the petitioners who have been under suspension for such a long time, there would be no end to the suffering of the petitioners and apart from all other prejudice and injury that the petitioners will seriously suffer from is the insurmountable difficulty of making out an effective defence. It has been contended that further continuance of the impugned proceeding would be an abuse of the process of the court and for ends of justice, the same should be quashed. It has now been settled by judicial interpretation that reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution. In Hussainara khatun and Ors. vs. Home Secretary, State of Bihar, AIR 1979 SC 1360 , The Supreme Court has observed as follows : "we think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it :is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597 . We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by-law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not reasonable, fair or just', such deprivation would be violative of his fundamental right under article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure: prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right of life and liberty enshrined in Article 21. " 5. IN the State of Bihar v. Umma Shankar Kotriwal and ors., AIR 1981 SC 641 where the trial had not made much headway even though a period of 20 years had gone' by and the High Court had quashed the proceedings, the Supreme Court refused to interfere with the order of the High Court in appeal by Special leave even though the accused themselves ware responsible in a large measure for the slow pace of the case and allegations in the public report disclosed serious offence, as such protraction meant considerable harassment to the accused, 6. IN Sheela Barse's case, 1986 Cr. L. J. 1736. (SC) the Supreme Court had held that the right to speedy trial is a fundamental right implicit in Article 2 1 of the Constitution and the consequence of the violation would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental-right. It has been observed in this case that total inadequacy of strength of the presiding officers of court is one of the primary reasons why trials of criminal cases are delayed. The necessity of laying down of an outer limit to concretise the right to speedy public trial is emphasised by the Patna High Court in a Full Bench decision in Madheshwar Dharis' case, AIR 1986 Pat 324 . It has been observed that : laying down of an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. It has been observed that : laying down of an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. A callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones plainly violated the constitutional grantee of a speedy public trial under Article 21. Unless the fundamental right to speedy trial is to be whittled down into a mere pious wish, its enforceability in court at least be indication by an outer limit which an investigation and the trial in a criminal prosecution may ordinarily extend. Holding otherwise should be merely paying lip service to a precious right whilst denuding it of the benefits of the actual enforceability. 7. THE Supreme Court in Srinivas Pal v. Union Territory of Arunachal Pradesh (now a State) reported in 1988 Cr. L. J. 1803 ; AIR 1938 SC 1729. ; 1989 Cr. LR (SC) 26 observed that : "quick justice is a sime qua non of Article 21 of the Constitution. Keeping as person in suspended animation for 9 and 1/2 years without any cause at all and none was indicated before the learned Magistrate or before the High Court or before us cannot be with the spirit of the procedure established by law. In that view of the matter, it is just and fair and in accordance with equity to direct that the trial or prosecution of the appellant to proceed no further. We do so accordingly". In that case the Supreme Court quashed the proceedings solely on the ground of delay. Thus delay by itself on the facts and in the circumstances of the case may be held to be contrary to the spirit of the procedure established by law. 8. IN Ranjit Kumar Pal v. The State, reported in 1990 Cr. L. J. 643, a Division. Bench of this Court in which I was a party relying on Srinivas Pal' s case referred to above has held that long delay in disposal of the proceeding prejudicially affects the defence of an accused. Administration of justice requires that the accused is entitled to have as much protection as the prosecution is entitled to. Bench of this Court in which I was a party relying on Srinivas Pal' s case referred to above has held that long delay in disposal of the proceeding prejudicially affects the defence of an accused. Administration of justice requires that the accused is entitled to have as much protection as the prosecution is entitled to. Waste of time affects the defence case and the witnesses which the accused may choose to examine suffering from physical inability during the trial. In the event of a trial being dragged for years together the judicial view is in favour of dropping of the proceeding irrespective of the nature of the case. The mental torture and anxiety suffered by an accused for a long length of time is to be treated as sufficient punishment inflicted on him. The prosecution cannot have the luxury of dragging a case in a court of law for years together. Considering the facts and circumstances of the case the Division Bench quashed the proceeding solely on the ground of delay. In Rajendra Kumar and Ors v. States, 1989 Cr. L. J. 554, the Madhya Pradesh, High Court (Inddore Bench) has held that speedy trial is a fundamental right implicit in Article 21 of the Constitution of India and delay of 10 years occasioned not for the fault of the accused or for any exceptional reason is violative of Article 21 and the proceedings ware quashed on that ground. 9. IN the instant case there has been total callousness on the part of the prosecution in utter disregard to the fundamental right of a citizen to speedy trial as enshrined under Article 21 of the Constitution The alleged offence took place of 15.4.79 and the petitioners were arrested on the same day and were produced in Court on1 6.4.79. Both the petitioners have been under suspension from 15.4.79 and have been allowed only subsistence allowance. The investigation continued for long 5 years and the charge sheet was filed on 13th March, 1984. By orders dated 12th July, 19 84 and 15th October, 1981, the; learned Sub-Divisional Judicial Magistrate directed that the charge-sheet be sent to the Public Prosecutor, 24-Parganas for filing a complaint before the learned Special Court. Again by his order dated 3rd July, 1985 the learned Sub-Divisional Judicial Magistrate directed the investigation officer of the present case to take steps; for filing investigation report and for trial. Again by his order dated 3rd July, 1985 the learned Sub-Divisional Judicial Magistrate directed the investigation officer of the present case to take steps; for filing investigation report and for trial. By another order dated 20th June, 1986, the learned Magistrate directed the investigating officer to appear in court with the Government notification and allotment of the case to the learned Special Court and fixed 6th May, 1986 for the said purpose. The Investigating Officer did not appear in court in pursuance of the said order. Thereafter the Learned Magistrate directed case records to be transmitted to the learned Special Court. The record was received by the Second Court of the Special Judge at Alipore which is presided over by the learned 7th Additional Sessions Judge after May, 1986. But thereafter during long 5 years no step whatsoever was taken for commencement of the trial. No steps for sanction and allotment of the case to the a Second Court of the learned Sessions judge at Alipore or to any other Special Court were taken and the Special Court has not as yet taken cognizance of the offence. The petitioners have little contribution of this inordinate delay of 12 years even before commencement of the trial. If the proceeding is allowed to continue there is no knowing how long the petitioners will continue to suffer financially from constant mental anxiety. The learned advocate for the State has submitted that the Investigating Officer of the case has since retired from service was that his successor who attended court at my direction was not aware of the impugned proceeding at all; Such is the callousness of the prosecution. There is absolutely no' reason for such an inordinate delay in even commencing the trial. As a result of the utter callousness of the prosecution the petitioners have suffered a lot and farther continuation of the proceeding in flagrant violation of the fundamental right of reasonably expeditious trial guaranteed under Article 21 of the Constitution would in the facts and circumstances of the case, be an abuse of the process of court resulting in untold sufferings to the petitioners and prejudice in their defence. The impugned proceeding is liable to be quashed for ends of justice. The revisional application is, therefore, allowed and the impugned proceeding against the petitioner is quashed. Revisional application allowed.