Hemraj v. State of Rajasthan — 1994 DIGILAW 838 (RAJ)

Honble SAXENA, J. - The petitioner by means of this petition filed under section 482 Cr.P.C. has prayed that proceedings in Cr.Case No. 224/83, "State of Rajasthan vs. Hemraj" pending in the court of Chief Judicial Magistrate, Sri Ganganagar be quashed on the ground that the protracted trial has offended his fundamental right for speedy trial guaranteed under Article 21 of the Constitution of India. (2). Briefly the necessary facts for the disposal of this petition are that on 26.7.83 the Food Inspector, Sri Ganganagar took a sample of wheat flour (Aata) from the shop of the petitioner and sample thereof was sent for chemical analysis to the Public Analyst, Public Health Laboratory, Sri Ganganagar, who opined that the said sample was adulterated as the same was not confirmed to the prescribed standard of purity. Ultimately on 11.11.83 the Food Inspector filed a criminal complaint under Section 7/16 Prevention of Food Adulteration Act, 1955 against the petitioner in the court of Chief Judicial Magistrate, Sri Ganganagar. The petitioner appeared in the court for the first time on 16.4.1984. On 20.3.1985, the substance of the accusation under section 251 Cr.P.C. was stated to him, to which he pleaded not guilty. On 8.4.1987 the statement of P.W.I was recorded while on 22.6.1987 P.W.2 and P.W.3 were examined and the prosecution closed its evidence. The plea of the accused under section 313 Cr.P.C. was recorded on 25.11.1987 and the case was fixed for defence evidence. Meanwhile the Presiding Officer was transferred. The new Presiding Officer keeping in view the provisions of section 326 (3) Cr.P.C. by his order dated 4.4.1988 ordered for de-novo trial. After recording the statement of P.W.I Ram Swaroop, Food Inspector again on 8.2.1990 and hearing the petitioner and the Public Prosecutor the learned Magistrate vide his order dated 20.9.1990 ordered for framing of charge for the offence under Section 7/16 Prevention of Food Adulteration Act. On 17.10.1990, the charge was framed and the petitioner denied the indictment. On 16.11.1990 the said Food Inspector was re- cross examined. On 6.2.1991 and 18.8.1991 the statements of P.W. 2 and P.W. 3 were again recorded and prosecution closed its evidence for the second time. On 11.11.1991 the plea of the accused was again recorded. The petitioner did not adduce any evidence in defence and on 22.1.1992 the case was fixed for final argument. On 6.2.1991 and 18.8.1991 the statements of P.W. 2 and P.W. 3 were again recorded and prosecution closed its evidence for the second time. On 11.11.1991 the plea of the accused was again recorded. The petitioner did not adduce any evidence in defence and on 22.1.1992 the case was fixed for final argument. Thereafter number of adjournments were given as either the Presiding Officer was out of station or the A.P.P. 1 or the counsel for the petitioner prayed for adjournments. In the meantime, the Presiding Officer was transferred. The new Presiding Officer by his order dated 2.12.1992, keeping in view the law propounded by this court in Prakash Chand vs. State of Rajasthan (1), and also the provisions of section 326 (3) Cr.P.C. ordered for de-novo trial. Aggrieved by the said order the petitioner has filed this petition. (3). I have heard Shri M.L. Garg, the learned counsel for the petitioner and Shri S.M. Singhvi the learned Public Prosecutor at length and carefully perused the record of the lower court. (4). Shri Garg has strenuously contended that the successive de-novo trials resulted in protracted proceedings have deprived the petitioner of his liberty under a procedure, which is not reasonable, fair and just and that such deprivation offends the provisions of Article 21, whereby he has a fundamental right for speedy trial. He has, therefore, submitted that though the order of the learned C.J.M. dated 2.12.1992 may be in consonance with the provisions of section 326 (3) Cr.P.C. still then repeated de-novo trials in the case, which have not been occasioned by any lapse on the part of the petitioner amounts to negation of his fundamental right for speedy trial and as such the criminal proceedings against him be quashed. (5). Shri S.M. Singhvi, the learned Public Prosecutor has submitted that it is true that the petitioner has been subjected to trial for more than once, because the summary trial could not be concluded during the tenure of the same Presiding Officer and that now a direction be given to the learned lower court for completing the de-novo trial expeditiously within a stipulated period. (6). I have bestowed my most anxious consideration to the rival submissions. There is no dispute that the petitioner has been facing trial in this case since November, 1983. The summary trial against him was almost complete on 25.11.1987, when the then Presiding Officer was transferred. (6). I have bestowed my most anxious consideration to the rival submissions. There is no dispute that the petitioner has been facing trial in this case since November, 1983. The summary trial against him was almost complete on 25.11.1987, when the then Presiding Officer was transferred. His successor in office ordered for a de-novo trial. The petitioner again faced the trial for the second time, which was almost complete and the case was fixed for final arguments, but then again the Presiding Officer was transferred. Now again a new de-novo trial has been ordered against him. A careful perusal of the order sheets of the file of the lower court reflects that in the trial of this case, which has continued for last more than eleven years, the delay has not been caused on account of any fault or dilatory tactics of the petitioner. (7). The purpose of summary trial is to administer justice by speedy trial dispensing with unnecessary technical procedural formalities. A summary trial is different from a regular trial. Such trial has to be shortened or simplified by having a recourse to certain provisions in the matter of preparation of record enumerated in section 263 Cr. P.C. The Magistrate is only required to record the substance of the evidence in case the accused does not plead guilty and to give a judgement containing a statement of the reasons of the findings. Thus, the Magistrate is not required to record the statement of the witnesses in extenso. The words "substance of the evidence" implies a judicial selection or precis or the part of the evidence, which is material. The summary trial has to be expeditiously completed and the Magistrate is expected to record the evidence in one sitting and if it is not possible then to give short adjournment that too on reasonable grounds and to dispose of the case at his earliest convenience. The general rule is that a Judge or Magistrate can decide a case on the basis of the evidence taken by him, but section 326 (3) Cr. P.C. is a statutory departure from the above general principle. Section 326(3) Cr.P.C. is thus an exception to the general rule. It clearly proclaims that nothing in section 326(1) and (2) shall apply to summary trial. P.C. is a statutory departure from the above general principle. Section 326(3) Cr.P.C. is thus an exception to the general rule. It clearly proclaims that nothing in section 326(1) and (2) shall apply to summary trial. Therefore, if the trial in a summary case is unduly protracted by frequent transfers of the Presiding Officers or by giving unnecessary adjournments then the very purpose of summary trial shall be frustrated. The accused can not be held responsible for such delays and put to suffer the jeopardy of repeated de-novo trials. Such delay in the trial amount to mental and positively violate his liberty and the right for speedy trial, which has been. guaranteed under Article 21 of the Constitution of India. (8). In Hussainara Khatton & Ors. vs. Home Secretary, State of Bihar, Patna (2), the Apex Court has propounded that if a person is deprived of his liberty under a procedure which is not reasonable, fair or just, then such deprivation would be violative of his fundamental right under Art. 21 and that he wold be entitled to enforce such fundamental right and secure his release. It has also emphasized that an accused person is entitled for a reasonably expeditious trial, which is an integral and essential part of fundamental right to life and liberty enshrined in Art. 21 of the Constitution of India. (9). In Sheela Barse & Anr. vs. Union of India & Ors. (3), their lordships of the Supreme Court have observed that if an accused is not tried speedily and his criminal trial remains pending before the Magistrate or the Sessions Judge for unnecessary or unreasonable time, his fundamental right of speedy trial is vitiated, unless such a trial is heldup on account of an interim order passed by a superior court or due to the dilatory tactics adopted by the accused. They have reiterated that the consequence of violation of such a fundamental right is that the trial woud be liable to be quashed on the ground that it is in prejudice to his fundamental right. (10). They have reiterated that the consequence of violation of such a fundamental right is that the trial woud be liable to be quashed on the ground that it is in prejudice to his fundamental right. (10). Again in Shri Niwas vs. Union Territory of Arunachal Prades (4), where the accused was facing trial for the offences punishable under sections 279, 304-A & 338 I.P.C. and the trial was delayed for about 9-1/2 years, the Supreme Court reiterated that quick justice is a sine qua non of Art. 21 of the Constitution of India and that keeping a person in suspension state without his fault can not be in consonance with the spirit of the procedure established by law. The Supreme Court, therefore, held that the trial stood vitiated on that account and quashed the same. (11). In Om Prakash vs. State of Rajasthan (5), the accused was facing trial for the offences punishable under sections 429 and 426 IPC. reading to on incident which occurred in the year 1981. The "charge was framed against him in the year 1985 and only four prosecution witnesses were examined till September, 1990. It was held that sword of Democles cannot be allowed to remain hanging over the head of the accused for an indefinite period and the proceedings against him were quashed. (12). In Rakesh Kumar Gupta vs. State of Rajasthan (6) the accused had procured 15 bags of cement on 19.6.1978, on the basis of three permits by false impersonification. After investigation a challan was filed against him on 6.11.1978. The charge was framed against him on 21.9.1982 and thereafter despite innumerable adjournment not a single witness was examined. It was held that it was an abuse of process of the court in allowing the proceedings to continue and hence proceedings against the accused were quashed and dropped. (13). In Prithvi Raj vs. State of Rajasthan (7), trial for the offence under section 3/7 of the Essential Commodities Act was pending for the last 13 years. The delay was not caused by any fault or dilatory tactics of the accused. Liberal adjournments were given unnecessarily to the prosecution for adducing evidence. It was held that it was not a fair, just, reasonable and speedy trial and the same violated the accuseds liberty and his fundamental right to speedy trial and hence the proceedings were quashed under section 482 Cr.P.C. (14). Liberal adjournments were given unnecessarily to the prosecution for adducing evidence. It was held that it was not a fair, just, reasonable and speedy trial and the same violated the accuseds liberty and his fundamental right to speedy trial and hence the proceedings were quashed under section 482 Cr.P.C. (14). Similar are the facts and circumstances of the case on hand. In my considered opinion the petitioner can not be exposed to mental torture, physical harassment and successive de novo trials occasioned due to frequent transfers of the Presiding Officer, as also for their liberal attitude in granting frequent adjournments. The petitioner is facing trial for last 11 years. In my considered opinion no useful purpose will be served, if a direction is given to the trial Magistrate to commence the de-novo trial and complete the same within a stipulated period. To my mind, keeping in view the nature of the offence and circumstances, it is a fit case, wherein the inherent powers of this Court should be invoked under section 482 Cr. P.C. for preventing the abuse of the process of the court and also to secure the ends of justice. (15). The net result of the above discussion is that this petition is allowed and proceedings in Cr. Case No. 224/83 "State vs. Hemraj" pending in the court of Chief Judicial Magistrate, Sri Ganganagar are hereby quashed. A copy of this judgment be circulated to all Judicial Magistrates for their guidance in expeditiously conducting summary trials.