JUDGMENT Kuldip Singh, J.- Bhagwan Swaroop was charged under Section 302, I.P.C. for the murder of Man Singh and under Section 307, I.P.C. for an attempt to murder Shahid. He was further charged under Section 451, I.P.C. for committing trespass and also under section 25-A of Arms Act. Ram Swaroop, father of Bhagwan Swaroop, was charged under sections 109/302, 451, I.P.C. and 29 of the Arms Act. Ram Swaroop was acquitted of all the charges by the trial court. Bhagwan Swaroop was, however, convicted under section 302, I.P.C. and was sentenced to imprisonment for life. He was acquitted of the other two charges. The appeal filed by Bhagwan Swaroop was dismissed by the High Court. The High Court allowed the State appeal and further convicted Bhagwan Swaroop under section 307, I.P.C. and section 25-A Arms Act. He was sentenced to five years and one year rigorous imprisonment respectively for the said offences. This appeal before us by way of special leave is by Bhagwan Swaroop against his conviction and sentence on the three count". 2. Deceased Man Singh was the son of Shahjor Singh and brother of Babu Singh. They were living in the house owned by Ram Swaroop and his sons. There was dispute between the parties regarding a piece of land which according to the accused, the complainant party was forcibly occupying. A notice had been served upon Shahjor Singh by the accused, to vacate the said encroachment. According to the prosecution on May 11, 1969 at about 2.4 5 p.m. accused Ram Swaroop had an altercation with Babu Singh at a place called Gauri and thereafter he rushed towards the house of Shahjor Singh and on reaching there, abused the complainant party and started dismantling the tinshed on the disputed land. Shahjor Singh sent his son Babu Singh to the police station to lodge a report. Meanwhile Man Singh deceased came at the spot and gave a push to Ram Swaroop who as a result fell down. He got up immediately and shouted for his son Bhagwan Swaroop and asked him to bring the rifle and kill the complainant party. Bhagwan Swaroop rushed to his house, brought a gun and fired a shot hitting Man Singh. Bhagwan Swaroop fired the second shot which hit Shahid. Man Singh fell down and thereafter complainant Shahjor Singh took out a lathi and gave beating to Ram Swaroop. Bhagwan Swaroop rushed to his house, brought a gun and fired a shot hitting Man Singh. Bhagwan Swaroop fired the second shot which hit Shahid. Man Singh fell down and thereafter complainant Shahjor Singh took out a lathi and gave beating to Ram Swaroop. Man Singh succumbed to the gun-shot injury. 3. Both the accused denied the commission of the crime. Accused Ram Swaroop stated in his examination as under: "I found Babusingh gambling in my garden. I asked him as to why he is doing so in the garden, he started abusing me. I slapped him. His father came there-, both of them abused me and then left the place. I told him that I will make the report of the incident to the police station. When I reached near the house of Shahjor Singh on my way to the Police Station he along with his sons caught me and started beating me with lathies. Shajorsingh brought an axe. When he was about to use his axe on me there was gun tire." Accused Bhagwan Swaroop took the plea of alibi which has been rejected by both the court below. We are of the view that the said plea was rightly rejected. 4. The trial court did not believe the prosecution version in toto. The trial court found that the "prosecution tried to indulge in exaggeration, misrepresentation and at times suppression of facts without any meaning". The trial court further concluded as under: The defence version that Babusingh was gambling along with others in the garden of the accused Ramswaroop appears correct. Ramswaroop went there and questioned Babusingh. There was altercation and use of hot words. Admittedly Shahjorsingh P.W. 1 came there and Babusingh accompanied him back to his house. Ramswaroop further stated in his examination that he gave one slap to Babusingh. Babusingh as P.W. 9 stated that he was given three or four slaps by Ramswaroop. Thus the fact that Babusingh was slapped, stand established in the case". The part of the prosecution story, that the accused Ramswaroop rushed towards the house of Shahjor Singh and reached there before the arrival of Shahjor Singh, was also disbelieved by the trial court. 5. Regarding the actual occurrence, it is not disputed that Ram Swaroop was given four simple injuries by the complainant. The part of the prosecution story, that the accused Ramswaroop rushed towards the house of Shahjor Singh and reached there before the arrival of Shahjor Singh, was also disbelieved by the trial court. 5. Regarding the actual occurrence, it is not disputed that Ram Swaroop was given four simple injuries by the complainant. The prosecution case is that the injuries were given after the gun-shot had been fired whereas the defence version is that the gun-shot was fired while lathi injuries were being given to Ram Swaroop. Trial court considered the statements of Banne Khan, P.W. 6, Shahid P.W. 8, Sarfuddin P.W. 11, Safaat Ahmad D.W. 1 and Hamid Ahmad D.W. 3 and came to the following conclusion: "Any-way this one fact is clear from the evidence of these eye-witnesses that Ramswaroop was put to beating, then there was gun fire and Bhagwan swaroop was seen on the spot". The trial court on appreciation of the evidence produced by the prosecution and the complainants came to the conclusion that the following facts stood established from the evidence: "Ramswaroop, came near the house of Shahjorsingh. There was exchange of abuses between Shahjorsingh and Ramswaroop. Ramswaroop tried to remove the tin shed of Gonda. He was pushed aside by Mansingh and then put to beating by lathies." 6. It was under these circumstances that Ram Swaroop asked his son to fire the gun-shot. The question for our consideration is whether on the facts of this case the appellant can claim right of private-defence. The learned trial court came to the conclusion that since minor injuries were caused by the lathi there was no basis for entertaining a reasonable apprehension that Ram Swaroop would be killed or hurt grievously and as such the plea of self defence was rejected. The High Court. upheld the finding of the trial court in the following words : "No doubt the respondent Ramswaroop had injuries on his person. There were two simple injuries caused by hard and blunt object and the other two could be caused by fall for which there is definite prosecution evidence that the respondent. Ramswaroop was pushed and he fell down. These injuries on him could not give rise to any apprehension of either grievous hurt or death". 7. We do not agree with the courts below. Ramswaroop was pushed and he fell down. These injuries on him could not give rise to any apprehension of either grievous hurt or death". 7. We do not agree with the courts below. It is established on the record that Ram Swaroop was being given la/hi blows by the complainant party and it was at that time that gun-shot was fired by Bhagwan Swaroop to save his father from further blows. A lathi is capable of causing a simple as well as a fatal injury. Whether in fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun-shot at that point of time in defence of his father is justified. We, therefore, set aside the finding of the courts below on this point and hold that Bhagwan Swaroop fired the gun-shot to defend the person of his father. 8. The trial court on the basis of the evidence on the record, including that of Dr. Mukherjee P. W. 5, came to the conclusion that only one shot was fired by Bhagwan Swaroop. According to the trial court Shahid was accidentally hit by the pellet spread by the gun-shot. It was on these findings that the trial court acquitted Bhagwan Swaroop of the charge under 307, I.P.C. We agree with the trial court and hold that the High Court was not justified in reversing the same. The High Court further grossly erred in setting aside the acquaint of Bhagwan Swaroop under Section 25-A of the Arms Act. Using the licenced gun of his father under the circumstances of this case cannot be considered possessing an arm without a licence. We agree with the reasoning and findings of the trial court and hold that High Court was not justified in setting aside the acquittal of Bhagwan Swaroop under Arms Act. 9. For the reasons given above we allow the appeal, set aside the conviction of appellant Bhagwan Swaroop under section 302, I.P.C., 307 I.P.C. and 25 Arms Act and acquit him on all these counts. He is already on bail. His bail bonds are discharged. Appeal allowed "SECTION 308, CR. 9. For the reasons given above we allow the appeal, set aside the conviction of appellant Bhagwan Swaroop under section 302, I.P.C., 307 I.P.C. and 25 Arms Act and acquit him on all these counts. He is already on bail. His bail bonds are discharged. Appeal allowed "SECTION 308, CR. P.C. NEED TO BE MORE EXPLICIT.” Damodar Rao, Advocate Adilabad (A.P.) Section 308, Cr. P.C. provides for trial of a person who has been tendered pardon and who accepted it, when that person has not complied with the condition on which the tender of pardon was made. When such person has willfully concealed anything essential for trial of main case in which such person was originally arrayed as an Accused or when such person has given false evidence, it is said that such person has not complied with the condition on which pardon was tendered. Section 308, Cr. P.C., in short, provides for prosecution/trial of the accused person who has been granted pardon which such person has accepted, when such person has betrayed the confidence reposed in such person by the court which granted/tendered pardon. As per Section 308, Ci. P.C. such person may be tried for the. following offences:- (i) The offences for which pardon was tendered to such person or (ii) any other offences of which such person appears to be guilty in connection with the same matter, and (iii) the offence of giving false evidence. For prosecuting such person/(Accused person to whom pardon is granted) for the offence for which such person was tendered pardon and for any other offence in connection with the state matter, and for the offence of giving false evidence, the Public Prosecutor should opine and certify that such person has not complied with the condition on which the tender of pardon was made, either by willfully concealing anything essential or by giving false evidence. If such person has resiled from his statement recorded by the court before granting pardon, it can be prima-facie said that such person has given false evidence. For prosecuting such person (the Accused person to whom pardon is granted) for the offence of giving false evidence, sanction of the High Court is essential. It is condition precedent as per the 2nd proviso of Section 308, Cr. P.C. To make the Section 308, Cr. For prosecuting such person (the Accused person to whom pardon is granted) for the offence of giving false evidence, sanction of the High Court is essential. It is condition precedent as per the 2nd proviso of Section 308, Cr. P.C. To make the Section 308, Cr. P.C. more explicit the following clarifications are necessary, which are now lacking in the section or anywhere in the Criminal Procedure Code. (1) It is not clear as to which authority the Public Prosecutor should send the certificate after forming opinion that the pardoned person has not complied with the condition of pardon. In the section itself it should be made clear whether the Public Prosecutor should send the certificate to the concerned Police i.e., Investigating agency or to the Trial Court before which the other Accused are tried. (2) It should be clarified that the Public Prosecutor means the Public Prosecutor who conducted the Trial of the case against other Accused persons. (3) It is not clear in Section 308, Cr. P.C. as to who should move the High Court for obtaining the required sanction under the 2nd proviso to Section 308, Cr. P.C. It should be made clear as to whether the Public Prosecutor of the High Court or the Public Prosecutor who conducted the trial of the case against other accused or the concerned Police should initiate action for obtaining sanction from the High Court. If it is to be the Public Prosecutor of the High Court, then it should be made clear as to how that Public Prosecutor should be apprised of the matter. (5) Sub-section (1) of Section 308, Cr. P.C. in general terms says that the pardoned accused person may be tried for the offence for which such person was granted pardon when he has not complied with the condition of pardon. It should be made clear as to how such person should be tried - Whether the concerned Police should file a separate charge-sheet or file an application before the Committal Court, or file an application before the Trial Court before which the other Accused persons in the case are tried. It is not clear now whether the concerned Police should initiate the action or the concerned Public Prosecutor should initiate the action before court and if so, which court- Committal or Trial. It is not clear now whether the concerned Police should initiate the action or the concerned Public Prosecutor should initiate the action before court and if so, which court- Committal or Trial. It may be that by the time the stage comes for giving opinion and certificate to prosecute or put the pardoned person on trial, the Public Prosecutor who conducted the trial of the main case, might have laid down the office. In such a situation it should be made clear as to who should form the opinion and give certificate, or it should be by any incumbent in the offence of the Public Prosecutor at that time. (5) It should be clarif1ed as to who should initiate action for prosecuting ,the pardoned person after obtaining the requisite sanction from the High Court as envisaged in the 2nd Proviso to Section 308, Cr. P.C. All these above points have to be clarified by suitably amending the Section 308, Cr. P.C., specially in view of the last limb of the 2nd Proviso of Section 308, Cr. P.C. which is to the effect that nothing contained in Section 195, Cr. P.C. or Section 340, Cr. P.C. shall apply to that offence i.e., the offence of giving false evidence. Section 340, Cr. P.c. envisages inter alia (1) recording a finding that an offence referred to in Section 195(1)(b), Cr. P.C., has been committed, and (2) making a complaint and sending it to a Magistrate of the 1st., Class having jurisdiction. The procedure as envisaged under Section 340, Cr. P.C. is not applicable the action under section 308, Cr. P.C., in view of the prohibition contained in the last limb of the 2nd Proviso to Section 308, Cr. P.C., which says that nothing contained in Section 195 & Section 340, Cr. P.C., shall apply to that offence. In view of the above discussion Section 308, Cr. P.c., should be more explicit and needs clarifications on the aspects pointed out as above. DAMODAR RAO B.Sc., L.L.B., Advocate Adilabad - A.P. SPEEDY TRIAL - AN ATTRIBUTIVE JUSTICE UNDER INDIAN CONSTITUTION Dr. S.N. Rath, Advocate Berhampur (Orissa) The proverbs Justice delayed is justice denied" and "delay defeats Justice" have been the global concept in Criminal jurisprudence. The problems concerning the concept of time are juristically complex. DAMODAR RAO B.Sc., L.L.B., Advocate Adilabad - A.P. SPEEDY TRIAL - AN ATTRIBUTIVE JUSTICE UNDER INDIAN CONSTITUTION Dr. S.N. Rath, Advocate Berhampur (Orissa) The proverbs Justice delayed is justice denied" and "delay defeats Justice" have been the global concept in Criminal jurisprudence. The problems concerning the concept of time are juristically complex. Grant of adjournments, hearing of lengthy arguments and unlimitation of time in disposing of a case by the Courts encourage delay. All the legal systems shall be efficient to serve the needs of the people within a reasonable time. On account of habitual delay of cases, people prefer to take law in their own hands to get immediate result. Over burden with cases or insufficient infrastructures or inadequate staff are the usual explanations for delay in disposal of cases. Mere expenses for these requirements will never help in improving the situation. The poor-suffers due to technicalities and procedure and the rich is able to buy the legal time by his legal tactics. History of Civilization is the history of conflict between liberty and authority. Power and liberty are always in conflict though they go side by side. Power always prevail upon liberty to show its dominance. The present study relate to the area of legal right of an accused in a criminal case for speedy disposal of the indictment leveled against him. The Indian Limitation Act limits the time for filing an appeal or revision only. Ch. XXXVI, Criminal Procedure Code, 1973 limits in time for initiation of prosecutions. Though for henious and economic offences, no limit of time is fixed, delay in such cases also looses its gravity by change of circumstances and lapse of time. There is no time limit for trial or hearing of an appeal, revision or review application. Except a few instructive provisions in Section.154 and Section 173 in the Criminal Procedure Code, there is no mandate for time bound investigation. Trial means the examination of a cause, civil or criminal, by a tribunal (Court) having jurisdiction over it according to law. It is a stage after inquiry under the Criminal Procedure Code.1 Inquiry stops when the trial begins or every proceeding preceding a trial is an inquiry. Generally trial begins as soon as the Court takes cognizance of the offence or the accused appears before the Court. Speedy trial has now been recognised as constitutional right under Article 21 of the Constitution. Generally trial begins as soon as the Court takes cognizance of the offence or the accused appears before the Court. Speedy trial has now been recognised as constitutional right under Article 21 of the Constitution. The expression Procedure established by law has been held to be fair and reasonable procedure in Maneka Gandhis case.2 The expression has been further explained extensively in Hussainara Khatoon v. Stale of Bihar3 as follows. "Obviously procedure prescribed by law for depriving a person of his liberty cannot be reasonably 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 Art. 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 to life and liberty enshrined in Article 21 ". In Kadra Pehadiya v. Slate of Bihar4 It has been held that it is a crying shame upon our ad judicatory system which keeps men in jail for years without a trial. The constitution has no meaning and significance and human rights no relevance for them. It was further remarked that we fail to understand why our justice system has become dehumanized; that lawyers and judges do not feel a sense of revolt at caging people in jail for years without a trial. It was also observed in State of Maharashtra v. Champalal Punjaji Shah5, that it is one of the sad and distressing features of our Criminal Justice system that an accused person resolutely minded to delay the day of reckoning, may quite conveniently and comfortably do so, if he can but afford the cost involved by journeying back and forth, between the court of first instance and the superior courts at frequent interlocutory stages. Delay in trial by itself constitutes denial of justice. The court referred to Europeon Conventions on Human Rights as well as the, Constitution of United States where speedy trial has been recognised as an inherent right of an accused. If the delay was unintentional caused by packed listed cases or inadequacy of staff or of the like nature the accused is not entitle to any benefit. The court referred to Europeon Conventions on Human Rights as well as the, Constitution of United States where speedy trial has been recognised as an inherent right of an accused. If the delay was unintentional caused by packed listed cases or inadequacy of staff or of the like nature the accused is not entitle to any benefit. But if the accused is not responsible for the delay and he was prejudiced by reason of such delay, he is entitle to be freed from the indictment. The Supreme Court suggested in Kadra Phadiya6 that any accused who is denied the right of speedy trial is entitled to approach the court under Article 32 of the Constitution and the court would give necessary directions to the Government and other authorities for securing this right to the accused. While accepting delay in execution of a death sentence as inhuman and infringes Article 21 of the Constitution, the sentence of death was converted to one of life sentence.7 But this ratio has been overruled in Triveni Ben v. State of Gujarat8 and Madhu Meheta v. Union of lndia9 In both these cases it has been held that speedy trial is a part of ones fundamental right to life and liberty. Speedy trial in Criminal Cases though may not be fundamental right is implicit in the broad sweep and content of Article-21 of the Constitution. The Court further held that no fixed period of delay could be held to make the sentence of death in executable. Speedy trial in Criminal Cases though may not be fundamental right is implicit in the broad sweep and content of Article-21 of the Constitution. The Court further held that no fixed period of delay could be held to make the sentence of death in executable. The full Bench of Patna High Court in Madheswardhari Singh and another v. The State of Bihar10 eX1ensively laid down the proposition of delay as follows: (i) That both on principle and precedent the fundamental right to a speedy public trial extends to all Criminal Prosecutions for all offences generally; (ii) That the right to a speedy public trial is, applicable not only to actual proceedings in court but includes within its sweep the police investigation as well; (iii) That a Speedy investigation and trial are equally mandated both by the letter and spirit of the Criminal Procedure Code: 1973; (iv)  That the rule is applicable equally to all offences and irrespective, of the fact whether the proceedings are a trial or an appeal against acquittal; (v) A callous and inordinately prolonged dely 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 once would plainly violate the Constitutional guarantee of a, speedy public trial. In Rama Kisan v. State of Haryana11, the court quashed the proceedings pending against the petitioner. It was an incident of 1976 and F.I.R. was registered on 20-10-1977 u/s 409/34, I.P.C. As no challan was filed, the case was adjourned sine die. Challan were filed in court on 30- 3-l9X7 and no reason was assigned for late submission of challan. It was held to be an ordinary case and did not require elaborate investigation. But the court hesitated to quash prosecutions on account of delay occasioned by circumstances not wanton or deliberate in V.K. Aggarwal v. Vasanl Raj12 though twenty years had elapsed since the date of seizure. It was held that delay was not a ground for not proceeding further in as much as the offence in question (under Customs Act and Gold (Control) Act) is a serious economic offence which undermines the entire economy of the nation. It was held that delay was not a ground for not proceeding further in as much as the offence in question (under Customs Act and Gold (Control) Act) is a serious economic offence which undermines the entire economy of the nation. In Raghubir Singh v. State of Bihar13, also the court refused to quash the proceedings as the delay was not wanton and needed time to ascertain facts. Similarly in State of Andhra Pradesh v. Parilharan14 the court agreed that there is no denying the fact that a lethargic and lackadaisical manner of investigation over a prolonged period makes accused to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis. The court also agreed with the right of an accused for a speedy investigation and trial. But unless such delay in investigation has caused grave prejudice or disadvantage to the accused, the initiation and continuation of the pending investigation cannot be quashed. In the case though F.I.R. was registered on 8-3-1984 under Prevention of Corruption Act, sanction for prosecution was obtained on 169-1988. But in the meanwhile the High Court of A.P. quashed the F.I.R. on the ground of delay which was set aside. The anguish expressed by court in Kadra Pahadiya15 that it is a crying shame upon our adjudicatory system which keeps men in jail for years without trial and that the Constitution has no meaning and significance and human rights no relevance for them and that justice system has become dehumanized cannot be lost sight of. Alas, despite such feelings, pendency in higher courts in the form of appeal and revision arc also in increase and the position remains unabated due to apathy of investigation and trying agencies. The usual avoidable delay are due to non appearance of accused and witnesses, non-supply of police papers and non-production of under-trial prisoners. which kill most of the time of the trying. Magistrate. The investigating officers (Police Officers) arc mostly engaged in current law and order and devote little time to investigation. It needs attention of the Executive Government to cope up with timely adjudicatory system. The recent trend of time bound judgments have produced no qualitative results which needs to be discouraged. Justice hurried is also justice denied. Lok Adalat and circuit/sitting of all courts would also lead us a long way in combating the Situation. 1. See. It needs attention of the Executive Government to cope up with timely adjudicatory system. The recent trend of time bound judgments have produced no qualitative results which needs to be discouraged. Justice hurried is also justice denied. Lok Adalat and circuit/sitting of all courts would also lead us a long way in combating the Situation. 1. See. State of Bihar v. Ram Naresh Pandey. A.I.R. 1957 S.C. 589. 2. A.I.R. 1978 S.C. 597. 3. A.I.R. 1979 S.C. 1360. 4. A.I.R. 1982 S.C. 1167. 5. A.I.R. 1981 S.C. 1675. 6. Supra. 7. T.V. Vatheswaran v. State of Tamil Nadu, A.I.R. 1983 S.C. 361. 8. A.I.R. 1989 A.C. 1335. 9. A.I.R. 1989 S.C. 2299, 10. 1986 (3) Crimes 591. 11. 1990 (2) Crimes 405. 12. A.I.R. 1988 S.C. 1106. 13. A.I.R. 1987 S.C. 149. 14. A.I.R. 1990 S.C. 1266. 15. Supra. For Citation : 1992 Crl. L.J. 777 = AIR 1992 SCC 675 = 1992 SCC (Crl.) 422