ASWINI KUMAR DESAI v. S. MUKHERJEE — 1994 DIGILAW 198 (CAL)

ARUN KUMAR DUTTA, J. ( 1 ) BY the instant Revisional Application under Ss. 401/482 of the Code of Criminal Procedure (hereinafter referred to as Code), the Petitioner-accused, Ashwini Kumar Desai (hereinafter referred to as Petitioner), has prayed the Court for setting aside the impugned order dated 18. 4. 1991 passed by the Learned Metropolitan Magistrate, 10th Court at Calcutta, in Case No. C/1471 of 1981 before him, and for quashing of the proceedings itself on the grounds made out therein and in the Supplementary Affidavit subsequently filed therefor. ( 2 ) A Petition of Complaint was filed by the Opposite-Party No. 1 Complainant (hereinafter referred to as Complainant) on May 2, 1981 before the Chief Metropolitan Magistrate at Calcutta against the Petitioner and others alleging that the accused Hashmukh Kundalia had entered into a criminal conspiracy with the Petitioner herein and others for obtaining Import Licence in the names of bogus units for the purpose of mis-utilising them. The accused Hashmukh was the brain behind plan to float bogus units at Darbhanga for which he had taken the assistance of other accused persons and had managed finance therefore. The Petitioner, a resident of Calcutta, was known to the accused Hashmukh who had deployed the accused Mahendra Amritlal Kamdar of Bombay for operating in different names for their units at Darbhanga and other places. As a result of the said criminal conspiracy amongst the accused persons, two bogus units under the name and style M/s. Indian Exports Industriest and MIs. Industrial Electro Engineers had been set up at Darbhaga. The accused Mahendra was deputed to operate those units as proprietors in the fictitious names of Mahes Saha and Girish Seth respectively. The accused Mahendra had signed the Import Applications as proprietor of the said units and had entered into several correspondences with the office of the Complainant. The office of the Complainant had thereupon granted eight Import Licences and three Release Orders under Actual Users Categories on condition that the goods to be imported should be utilised in the factory of the Licence Holders, and shall not be used for any other purpose. S. S. I. Registration and Import Licence Applications were filed therefor under the signature of the accused Mahendra therefor as Girish Seth, who had also entered into several correspondences with the office of the Complainant. S. S. I. Registration and Import Licence Applications were filed therefor under the signature of the accused Mahendra therefor as Girish Seth, who had also entered into several correspondences with the office of the Complainant. Six Import Licences and three Release Orders were also granted by the Office of the Complainant to the accused Mahendra on the application under the name of Girish Seth, Proprietor of T1lndustrial Electro Engineers. ( 3 ) THE accused Hashmukh had thereafter written a letter on 7. 7. 1993 giving the break-up value of the canalized items in his own hand addressed to the office of the Complainant for the units of M/s. Industrial Electro Engineers. The goods so received on the authority of the accused Mahendra were never brought to the Darbhanga, nor utilised for the purpose for which the same had been granted. Both the said units were bogus, which were not in existence. No such unit had either been set up. Nor, were the machineries purchased installed at the site of the factory given the application, as the same had never come into existence at all, as undertaken by the accused persons. It had further been alleged (in the Petition of Complainant) that the accused Mahendra had authorised the Petitioner to operate as a representative of M/s. Indian Exports Industries in Banks and in other Offices, which he did. The accused Mahendra had also stayed with the Petitioner in the same Hotel at Darbhanga and other places during the relevant point of time. Incriminating documents were also recovered from the house of the accused Hashmukh relating to cancellation of journey of the accused Mahendra. Neither any electrical connection, nor any Municipal Trade Licence had either been obtained by anybody in respect of those Units at Darbhanga. The Petitioner had sent his Letter-Head, which had been used for placing orders for the machineries placed by the accused Mahendra on behalf of "m/s. Industrial Electro Engineers and MIs. Indian Exports Industries with his (Petitioners) firm. ( 4 ) ON the basis of the said petition of Complaint the Learned Chief Metropolitan Magistrate had issued processes against the Petitioner and others under Ss. 120-B/419/420, I. P. C. and S. 5 of the Tm port and Export (Control) Act, 1947. Indian Exports Industries with his (Petitioners) firm. ( 4 ) ON the basis of the said petition of Complaint the Learned Chief Metropolitan Magistrate had issued processes against the Petitioner and others under Ss. 120-B/419/420, I. P. C. and S. 5 of the Tm port and Export (Control) Act, 1947. ( 5 ) ON processes being so issued by the Learned Magistrate, the Petitioner and the accused Hashmukh had appeared before him on 16th September, 1981, and were granted bail. On their application under 5. 205 of the Code, they were exempted from their personal appearance by his order dated 18th September, 1981. The C. B. I. had, in the meanwhile, filed R. C. Cases against the Petitioner and others in connection with the relevant case at Patna. The original record of the said R. C. Cases had been called for by the Learned Magistrate on 12th February, 1981, which had eventually reached his Court on 5th January, 1983. The evidence in the relevant case before the Learned Magistrate had eventually started on 25. 2. 1983. Out of 97 witnesses named in the petition of complaint, 13 witnesses only had so far been examined before charge. In the meantime, the amended provisions of S. 245 (3) of the Code having come into force, the Petitioner had filed an application before the Learned Magistrate on 24th September, 1990 for his discharge thereunder, which was rejected by him (Magistrate) by his impugned order dated April 18, 1991 for the reasons recorded therein. Hence the instance Revisional Application for the reliefs sought for, as indicated above. ( 6 ) WHILE praying for setting aside the impugned order, the Petitioner has prayed for his discharge from the relevant case for the failure of the Prosecution to produce all the evidence within the period specified in the amended provisions of 5. 245 (3) in terms thereof, and has also prayed for quashing of the relevant proceedings on the ground of delay, infringing his right to speedy trial. ( 7 ) CERTAIN provisions of the Code of Criminal Procedure, 1973, including 5s. 167 and 245 have been amended by the Code of the Criminal Procedure (West Bengal Amendment) Act, 1988. The assent of the President was first published in the Calcutta Gazette, Extraordinary Part III, No. 548 L, dated 14. 3. 1989. ( 7 ) CERTAIN provisions of the Code of Criminal Procedure, 1973, including 5s. 167 and 245 have been amended by the Code of the Criminal Procedure (West Bengal Amendment) Act, 1988. The assent of the President was first published in the Calcutta Gazette, Extraordinary Part III, No. 548 L, dated 14. 3. 1989. The aforesaid Amendment Act had come into force on and from 2nd day of May, 1989 under the relevant Notification issued by the State Government to that effect. ( 8 ) SECTION 245 of the Code has been amended by the aforesaid Amendment Act by inserting subs. (3) after sub-so (2) in the following manner:in S. 245 of the principal Act, after subs. (2), the following sub-section shall be inserted: (3) If, all the evidence referred to in S. 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. In its plain language, plainly read, S. 245 (3) of the Code gives a mandate to the Magistrate (in cases instituted otherwise than on police report) to make an order of discharge of 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. ( 9 ) IT has been held by me in the decision in Sree Ram Trading and Supply Co. and Anr. v. The State and Anr. that since the aforesaid Amendment Act of 1988 has been enacted for the benefit of the accused with the primary object to avoid delay in trial in consonance with the fundamental rights enshrined in Article 21 of the Constitution, it must be held that the satisfaction of the Magistrate under S. 245 (3) of the Code must take place before the expiry of four years from the date of appearance of the accused in respect of cases thereunder. With the aforesaid relevant amended provision of the Code, such as they are, there could be little mistaking that the power that have been given to a Magistrate to permit continuation of further proceedings beyond the period of four years from the date of appearance of the accused in cases instituted otherwise than on police report has to be exercised before the expiry of the said period. Any direction by the Magistrate to continue the proceedings after the aforesaid period without being satisfied by the prosecution 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, in breach of the provisions of 5. 245 (3), would clearly be without jurisdiction, rendering the subsequent proceedings as well without jurisdiction. ( 10 ) THE Learned Advocate for the Petitioner leans long and relies too heavy upon my aforesaid decision in support of his contention. The Learned Advocate for the Opposite-Party C. B. I. Mr. Ghosal, in his usual wisdom and frankness, has submitted that he has as well has nothing to oppose the principles of law laid down therein. No dissenting view has either been brought to my notice by any of the parties. It would also be pertinent to note, in this context, that the S. L. P. before the Supreme Court against my aforesaid decision having since been rejected on 4. 10. 1993 as officially intimated, the aforesaid principle of law laid down in my said decision must be held to hold the field. The law so laid down in my aforesaid decision in Sree Ram Trading and Supply Company (Supra) docs not seem to make any difficulty in respect of the cases which had been instituted after the aforesaid amended provisions of the Act had come into force with effect from 2nd May, 1989 and in respect of the cases which had been pending on that date in which the specified period of four years had not then expired. The problem arises only in respect of the pending cases where the aforesaid specified period of four years had elapsed before the aforesaid amended provisions of Section 245 (3) had come into force with effect from the aforesaid date (2. 5. 1989), where the said provisions clearly do not apply in terms. The problem arises only in respect of the pending cases where the aforesaid specified period of four years had elapsed before the aforesaid amended provisions of Section 245 (3) had come into force with effect from the aforesaid date (2. 5. 1989), where the said provisions clearly do not apply in terms. The relevant proceedings before us being a case of the last category where the specified period of four years had elapsed on 16th September, 1985 (the petitioner having appeared before the Court below on 16th September, 1981), long before the aforesaid amended provisions had come into force with effect from 2nd May, 1989, a question has been posed as to whether on the failure of the prosecution to satisfy the Learned Magistrate on that very day when the aforesaid amended provisions of the Act had come into force (on 2. 5. 1989) 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 accused would be discharged as a matter of course. ( 11 ) AS already indicated above, the aforesaid amended provisions had come into force with effect from 2nd May, 1989. It has been held by a Division Bench of this Court in Syed Md. Hasan v. K. C. Das, Deputy Chief Controller, Import and Export the amended provisions thereof being prospective in nature will be applicable to cases pending from before, if on the date on which the said provision had come into force, the period of four years had expired and the evidence before charge had not been concluded on the date on which the said provisions had come into force. The aforesaid decision of the Division Bench is very much binding upon me, and sitting singly, as I do, I could neither rule differently. In view of the aforesaid decision there could be no mistaking that the aforesaid amended provisions would be very much applicable to the relevant proceedings before us. ( 12 ) SINCE the aforesaid amended provisions had come into force with effect from 2. 5. 1989, the prosecution had no duty and was neither under any legal obligation or legal liability to satisfy the Magistrate in terms thereof prior to the coming into force of the said amended provisions (on that date ). ( 12 ) SINCE the aforesaid amended provisions had come into force with effect from 2. 5. 1989, the prosecution had no duty and was neither under any legal obligation or legal liability to satisfy the Magistrate in terms thereof prior to the coming into force of the said amended provisions (on that date ). It became the duty/obligation/legal liability of the prosecution to satisfy the Magistrate on the aforesaid point for the first time on 2nd May, 1989 when the aforesaid amended provisions had come into force. The question that would readily emerge for consideration is whether the accused persons in all such pending cases would at once be discharged as a matter of course on the failure of the prosecution to do so. It could never possibly have been intended by the Legislature that in all such unnumbered pending cases throughout the country where the aforesaid specified period of four years have long elapsed (before 2. 5. 1989), the accused persons would all be discharged as matter of course on the failure of the prosecution to satisfy the Magistrate on that very date (2. 5. 1989) in terms thereof. It could neither have been practically possible for the prosecution to satisfy the Magistrates on the said date in all such pending cases throughout the country, and for the Magistrates allover the country to be satisfied on the said point in all such countless pending cases on that date. ( 13 ) THE answer to the aforesaid question posed would at once be available from a recent decision of the Supreme Court in Santosh De and Anr. v. Archana Guha and Ors. , where the facts and circumstances are almost identical to the facts and circumstances of the relevant proceedings before us. In the relevant proceedings before us on the relevant petition of complaint being filed before the Learned Magistrate and on the processes being issued against the accused persons therein, the Petitioner-accused had appeared before the Learned Magistrate on 16th September, 1981, who was granted bail on that date. The specified period of four years under the aforesaid amended provisions had expired on 15th September, 1985, long before the aforesaid amended provisions had come into force with effect from 2nd May, 1989. The specified period of four years under the aforesaid amended provisions had expired on 15th September, 1985, long before the aforesaid amended provisions had come into force with effect from 2nd May, 1989. Shortly thereafter, the Petitioner accused had filed an application for his discharge under the aforesaid amended provisions on 24th September, 1990, in which a rejoinder had been filed by the prosecution on 21st November, 1990. The Learned Magistrate by his impugned order dated 18th April, 1991 had rejected the aforesaid petition filed on behalf of the Petitioner on the finding 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, for the reasons recorded at length. In the aforesaid relevant case of Santosh De and Anr. v. Archana Guha and Ors. , (supra) on a petition of complaint being filed by the Respondent-Archana Guha in August 1977 and on the Learned Magistrate issuing summons to the accused-police officials, the accused concerned had surrendered before the Learned Magistrate on 5th November, 1977. All the evidences referred to in Section 244 of the Code had, admittedly, not been adduced within the aforesaid specified period of four years there from, as in the instant case. Their Lordships in the said matter had observed that the amended provision was not on the Statute Book during the relevant period, which was inserted only in the year 1988, long after the expiry of the aforesaid specified period of four years. Their Lordships had proceeded on the assumption for the purpose of the relevant case that the four years period prescribed by the aforesaid amended Section 245 (3) must be deemed to have expired on the date the said sub-section was inserted. Soon thereafter, the accused had applied to be discharged, as in the instant case. The Learned Magistrate in the said case by his order dated April 3, 1991 had rejected the application of the accused under Section 245 (3) of the Code for the reasons recorded by him. Their Lordships of the Supreme Court, upon consideration of the facts and circumstances therein, were of the opinion that the Learned Magistrate had exercised his discretion and judgment properly in dismissing the aforesaid application by the accused. Their Lordships of the Supreme Court, upon consideration of the facts and circumstances therein, were of the opinion that the Learned Magistrate had exercised his discretion and judgment properly in dismissing the aforesaid application by the accused. In doing so, Their Lordships have clearly held that discharge of the accused under the aforesaid amended provisions is not automatic on the failure of the prosecution to adduce all the evidence referred to in Section 244 within four years of the appearance of the accused. Their Lordships have further held that if the Magistrate is satisfied that it would not be in the interest of justice to do so, he, will not discharge the accused. But the said satisfaction has to be formed on the basis of the evidence already recorded and for special reasons which, of course, may have to be recorded by him in his order. Their Lordships therein had thus refused to quash the proceedings/discharge the accused, and had directed the Learned Trial Magistrate to proceed with the trial expeditiously for the reasons recorded therein, despite the failure of the prosecution to satisfy the Magistrate on the aforesaid point on the date when the aforesaid amended provisions had come into force with effect from 2nd May, 1989. ( 14 ) IN view of the aforesaid decision of the Supreme Court discharge of an accused in respect of a case where the period of four years have elapsed before the coming into force of the aforesaid amended provision (with effect from 2. 5. 1989) should not be automatic on the failure of the prosecution to adduce all the evidence referred to in Section 244 within four years of the appearance of the accused. If the Magistrate is satisfied (even after the coming into force of the aforesaid amended provision) that it would not be in the interest of justice to do so, he will not discharge the accused. The aforesaid decision of the Supreme Court being, what it is, an accused would not be entitled to be discharged as a matter of course on the failure of the prosecution to adduce all the evidence referred to in Section 244 within four years of his/their appearance of the accused. The Magistrate might be satisfied even after the aforesaid amended provisions had come into force with effect from 2. 5. The Magistrate might be satisfied even after the aforesaid amended provisions had come into force with effect from 2. 5. 1989 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. On the application of the aforesaid principle in Archana Guhats case and having regard to the nature of the alleged offence, the manner in which the alleged conspiracy had alleged been hatched up and executed by the accused concerned, the facts and circumstances of the case, the evidence already produced, and the special reasons recorded by the Learned Magistrate in his impugned order dated 18th April, 1991, I am also of the view that he had exercised his discretion and judgment properly in dismissing the relevant application filed by the Petitioner-accused under Section 245 (3) of the Code. ( 15 ) THE aforesaid amended provision is silent as to when a Magistrate is required to be satisfied thereunder in respect of the pending cases where the four years period has expired before the coming into force of the said provision with effect from 2nd May, 1989. And, in the absence of any observation by the Supreme Court in Archana Guhas case as to when a Magistrate is to be satisfied in terms of the aforesaid amended provision, a question had been raised by the Learned Advocates for both sides as to when a Magistrate is required to be satisfied in terms thereof in respect of the pending cases where the period of four years specified therein had elapsed before the coming into force of the aforesaid amended provisions with effect from 2nd May, 1989. The Learned Advocate for the Petitioner Mr. Balai Chandra Roy had submitted that in such cases on the failure of the prosecution to satisfy the Magistrate in terms thereof on the very day (2. 5. 1989) when the aforesaid amended provisions had come into force, it would be open to the prosecution to pray for extension of time/condonation of delay for doing so under Section 5 of the Limitation Act. On the failure of the prosecution to do so, it cannot be heard on the point thereafter. Section 5 of the Limitation Act reads as follows:115. Extension of prescribed period in certain cases. On the failure of the prosecution to do so, it cannot be heard on the point thereafter. Section 5 of the Limitation Act reads as follows:115. Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. T But the aforesaid provision, such as it is, relates to admission of appeal or any application (other than an application under any of the provisions of Order XXI of the Code of Civil Procedure) after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient/cause for not preferring appeal or making the application within such period. Plainly read, the said Section is clearly not applicable to the amended provisions of Section 245 (3) of the Code which does not require the making of an application thereunder by the prosecution. I am, therefore, unable to accept the aforesaid submission of Mr. Roy on the aforesaid point. As against that, the Learned Advocate for the Opposite-Party, Mr. Ghosal, had submitted that Section 6, read with Article 137 of the Limitation Act would be applicable in such cases. On the failure of the prosecution to satisfy the Magistrate in terms of the aforesaid amended provision on 2. 5. 1989, it could satisfy the Magistrate within three years there from when it became its liability to do so. Section 6 of the Limitation Act runs as follows:6. Legal Disability. (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule. (2) Where such person is, at the time from which the prescribe period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have eared, as would otherwise have been allowed from the time so specified. (3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified. (4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in subsections (1) and (2) shall apply. (5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died. The aforesaid Section, as it reads, would at once make clear that the same relates to legal disability in instituting a suit or making an application for execution of a decree in terms thereof. But the aforesaid amended provision of the Code has nothing to do with institution of a suit or making of application for execution of a decree. Section 6 of the Limitation Act, on terms, is neither applicable to the amended provisions of Section 245 (3) of the Code as such. Article 137 of the said Act would neither be applicable to the aforesaid amended provision of the Code which does not require the filing of any application by the prosecution thereunder. None of the provisions of Limitation Act, to my judgment, would be applicable to the aforesaid amended provisions of the Code as such. Mr. Article 137 of the said Act would neither be applicable to the aforesaid amended provision of the Code which does not require the filing of any application by the prosecution thereunder. None of the provisions of Limitation Act, to my judgment, would be applicable to the aforesaid amended provisions of the Code as such. Mr. Ghosal had also referred to the provisions of Section 17 D, inserted by the West Bengal Premises Tenancy (Second Amendment) Act 34 of 1969 and Section 17 E, inserted by the West Bengal Premises Tenancy (Amendment) Act 18 of 1970 in support of his contention, which also provide for making application by a tenant within sixty days from the date of commencement of the aforesaid Amendment Acts to set aside decree for recovery of possession of any premises in terms thereof. As already indicated above, Section 245 (3) of the Code does not require the making of any application by the prosecution to satisfy the Magistrate in terms thereof. The aforesaid provisions of the West Bengal Premises Tenancy Act would have little bearing in the present context as such. ( 16 ) IN view of the discussions above, it would be difficult to fix a time limit within which a Magistrate is required to be satisfied under the aforesaid amended provisions of the Code where the four years period specified therein has expired before the coming into force of the said provision with effect from 2nd May, 1989, in the absence of any specific provision of law to that effect. But since the aforesaid procedural enactment has been enacted for the benefit of the accused with the object of avoiding delay in trial, in consonance with the fundamental rights guaranteed under Article 21 of the Constitution of India, I am clearly of the view that it is for the prosecution to satisfy the Magistrate (in such cases) soon after the aforesaid amended provisions of the Code had come into force (w. e. f. 2. 5. 1989) within a reasonable time, so that the purpose of the aforesaid amended provisions may not be frustrated. ( 17 ) IT would seem significant and observable to note in this context that the expression T1interest of justice' has been introduced in the aforesaid amended provisions for the first time. 5. 1989) within a reasonable time, so that the purpose of the aforesaid amended provisions may not be frustrated. ( 17 ) IT would seem significant and observable to note in this context that the expression T1interest of justice' has been introduced in the aforesaid amended provisions for the first time. "justice' in Corpus Juris secundum, Volume 51, Page 1, has been stated to be The dictate of right according to the consent of mankind generally, or of that portion of mankind who may be associated in one government, or who may be governed by the same principles and morals; the constant and perpetual disposition to render every man due; the conformity of our actions and our will to the law; the principle of rectitude and just dealing of men with each other; also, conformity with it; integrity; rectitude; one of the cardinal virtues. In a judicial sense justice' is defined as exacting conformity to some obligatory law. Furtherance of justice' in Words and Phrases, Permanent Edition, Volume 17-A, Page 630, is stated to be such' justice as the law administers when correctly applied. ' The phrases in the interest of justicet and in furtherance of justicet have a broad meaning, implying conditions which assist or are in aid of or in the furtherance of justice, and both import the exercise of discretion which considers both the interest of the defendants and those of society. "the expression interest of justice in terms thereof imports the exercise of discretion which considers both the interest of the defendants and those of the Society. ( 18 ) IN the relevant case before us, the allegations made in the petition of complaint by the complainant against the accused, as spelt out at the outset, are indeed grave, which, if proved, would constitute serious offences. The truth of the allegations can be arrived at only after proper trial. They, therefore, ought to be tried in the interest of justice to serve the societal interest the interest of the society. The prayer of the petitioner-accused for discharge and/or for quashing of the relevant proceedings could hardly be entertained, in the interest of justice as such. ( 19 ) TO the ground of delay next. It was in 1979 that the Supreme Court had declared in Hussainara Khatoon, (1979) 3 S. C. R. 169: 1979 Cr. The prayer of the petitioner-accused for discharge and/or for quashing of the relevant proceedings could hardly be entertained, in the interest of justice as such. ( 19 ) TO the ground of delay next. It was in 1979 that the Supreme Court had declared in Hussainara Khatoon, (1979) 3 S. C. R. 169: 1979 Cr. L. J. 1036 that right to speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution of India. A series of decisions had since thereafter reaffirmed the said principle and there seems to have never been a dissenting note there from. A Division Bench of this Court in Ranjit Kumar Pal v. The State had held about eleven years thereafter that the broad interpretation of the fundamental rights guaranteed under Article 21 of the Constitution includes the right of an-accused to have speedy trial, further observing therein that the prosecution cannot have the luxury of dragging a case in a court of law for years together. It had further been held therein that long delay in the disposal of criminal 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. A Single Bench of the Bombay High Court in Shyam Lachmandas Ajwani v. The State of Maharashtra had as well held that inordinate delay and laches in the prosecution without any progress of a criminal proceedings amounts to harassment of the accused warranting interference under inherent powers of the Court. In another Single Bench decision of the Bombay High Court in R. Mahadevan Iyer v. State of Maharashtra and Anr. , it had been held that criminal proceedings not completed even after lapse of 12 years heavily prejudiced the accused in his defence in respect of the incidents extremely old in point of time. It had been held therein that the High Court is justified in quashing prosecution exercising its powers under Section 482 of the Code if the right to speedy trial is violated. The Orissa High Court in the decision in Rabindranath Rout v. The State of Orissa, had also quashed a criminal proceedings on the ground of delayed trial holding that the same constitutes denial of justice. The Orissa High Court in the decision in Rabindranath Rout v. The State of Orissa, had also quashed a criminal proceedings on the ground of delayed trial holding that the same constitutes denial of justice. In a Writ Petition, being No. 268 of 198, and a few other Criminal Appeals before the Division Bench of the Supreme Court, it was further urged on behalf of the accused that a time limit should be fixed for concluding all criminal proceedings as without such a time limit, the guarantee of right to speedy trial would remain a mere platitude. The Division Bench was of the opinion that the said contention raised a very important constitutional question which is likely to arise more often in many cases and that the decision on the question would have far-reaching consequences in a large number of criminal cases pending in Courts all over the Country. The Bench had accordingly directed the cases to be placed before a. Constitution Bench. The Constitution Bench of the Supreme Court in Abdul Rehman Antulay etc. etc. v. R. S. Nayak and Anr. etc. etc has held fair, just and reasonable procedure implicit in Art. 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. The Court had further observed that the provisions of the Code of Criminal Procedure provide for an early investigation and for a speedy and fair trial. If only the provisions of the Code are followed in their letter and spirit, there would be little room for any grievance. The fact, however, remains unpleasant, as it is, that in many cases these provisions are honoured more in breach. Be that as it may, it is sufficient to say that the Constitutional Guarantee of speedy trial emanating from Art. 21 is properly reflected in the provisions of the Code. The fact, however, remains unpleasant, as it is, that in many cases these provisions are honoured more in breach. Be that as it may, it is sufficient to say that the Constitutional Guarantee of speedy trial emanating from Art. 21 is properly reflected in the provisions of the Code. T Their Lordships in the aforesaid decision had issued certain guidelines in regard to speedy trial in terms thereof, some of which are set out below: (1) One cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, delay is a known defence tactic. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay ? (2) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (3) It is neither available nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification onto the shoulders of the prosecution. In every case of complaint of denial of Right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the Court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U. S. A. too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor it can be said that non-fixing any such outer limit in effectuates the guarantee of Right to speedy trial. The Supreme Court of U. S. A. too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor it can be said that non-fixing any such outer limit in effectuates the guarantee of Right to speedy trial. (4) Ordinarily speaking, where the Court comes to the conclusion that Right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the Court to make such other appropriate order including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded-as may be deemed just and equitable in the circumstances of the case. Bearing the aforesaid principles and the guidelines issued by the Supreme Court in mind, let us now turn to the facts and circumstances of the relevant case before us for considering whether the same is liable to be quashed on the ground of delay. The petition of complaint in the relevant case had been filed by the complainant on 2nd May, 1981. The Petitioner-accused had appeared before the Court on 16th September, 1981. The case records would indicate that the records of the relevant R. C. Case had been called for from Patna on 12th February, 1982, which had reached the Court below on 5th January, 1983. The examination of the prosecution witnesses had started sometime thereafter, from 25th February, 1983. 13 P. Ws. had been examined by the prosecution upto 31st January, 1989 (before the amended provisions of the Code had come into force with effect from 2. 5. 1989) ; of whom P. Ws. 1 to 12 had been fully cross-examined before charge, and the P. W. 13 had also been cross examined in part before change (upto 31st January, 1989 ). The P. W. 13 had been fully cross examined before charge on 17th May, 1989. The P. W. 14 had been examined and cross-examined in part before charge thereafter till 16th February, 1990. The P. W. 13 had been fully cross examined before charge on 17th May, 1989. The P. W. 14 had been examined and cross-examined in part before charge thereafter till 16th February, 1990. The accused-petitioner had filed the application before the Court below for his discharge under the aforesaid amended provisions of the Code on 24th September, 1990, against which a rejoinder was given by the prosecution on 21st November, 1990. The Learned Magistrate had eventually rejected the aforesaid petition of the accused-petitioner for his discharge under the aforesaid amended provision by his impugned order dated 18th April, 1991. On scrutiny of the case records, it would pretty clearly appear that both the prosecution and the Defence had almost equally contributed to the delay in the relevant proceedings. There had been quite some delay on account of the Court, due to the absence and/or transfer of the Presiding Magistrate, and due to Presiding Magistrate being otherwise busy. Institutional cause also appears to have added considerably to the delay in the proceedings. The record being, what it is, the prosecution cannot, therefore, be held to be solely responsible for the delay in the relevant proceedings. The finding of thy Learned Magistrate that the delay is attributable more to the defence than prosecution does neither appear to be borne out by the record. In the nature of the alleged offence, being a case of criminal conspiracy relating to economic offence, and the facts and circumstances of the case, as indicated above, it docs not seem to me to be a case of prosecution. And, applying the principles evolved by the Supreme Court in AR. Antulay v. R. S. Nayak it does not seem to me that this is a case where the accuseds right to speedy trial has been violated. And, having regard to the nature of the alleged offence and the facts and circumstances; indicated above, it does not seem to be that quashing of the relevant proceedings would be in the interest of justice. As already stated above, the truth of the allegations can be arrived at only after a proper trial, which should not take place without any further delay. ( 20 ) IT would not be out of place in this context, to refer 10 the following recent observations of the Supreme Court in the decision in Santosh De and Anr. v. Archana Guha and Ors. ( 20 ) IT would not be out of place in this context, to refer 10 the following recent observations of the Supreme Court in the decision in Santosh De and Anr. v. Archana Guha and Ors. (supra) The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory order is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to their stratagems. We except the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind the principle behind Section 465 Cr. P. C. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocutory stages tends to defeat the ends of justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system. T ( 21 ) UPON the premises above, the Revisional Application is clearly liable to fail, and be accordingly rejected. But in view of the delay already occasioned in the matter, I would direct the Learned Trial Magistrate to proceed with the trial expeditiously, and, as far as possible, on day-today basis. The Learned Magistrate shall not grant adjournment to any of the parties except for very good and sufficient reasons. The Registry of the Court shall forthwith communicate this Order to the Learned Magistrate. Revision dismissed. Trial Magistrate is directed to proceed with trial expeditiously.