R. P. GUPTA, J. ( 1 ) THIS petition, under Section 482, Cr. P. C. read with Art. 21 of the Constitution of India, has been filed by seven accused persons who are standing trial on charges of unlawful criminal trespass in a shop with intent to commit theft and actually commiting of grocery articles. The incident occurred on 2nd January, 1983 and a complaint to SDJM, Jangipur, District Murshidabad was made on 3rd January, 1983. ( 2 ) THE petitioners seek quashing of proceedings before the criminal Court on the ground that it has turned into an unfair trial in violation of the mandate inherent in Art. 21 of the Constitution of India, for a fair trial, means speedy trial. The case has, however, lingered on for ten years, according to the petitioners. The petition had been filed on 5th Nov. 1993. The complainant and the respondent No. 2, i. e. both the parties are residents of village Aurangabad, Police station, Suti, District Murshidabad. ( 3 ) ACCORDING to the allegations, the complaint was that all these petitioners-accused, in furtherance of their common intention, trespassed into the shop of complainant on 2nd January, 1983 and snatched away mustard oil, eleven bags of sago, two bags of chilly etc. valued at Rs. 2,500. They did so due to some previous grudge. Some of the petitioners had obtained a decree of eviction from a Civil Court against the complainant-respondent No. 2. Respondent No. 2 had filed an appeal before the District Judge against that decree and the decree was set aside. It was asserted that ever since 1983, the Magistrate had adjourned the case for cross-examination. It is also urged that the petitioners are entitled to be discharged under the provisions of Section 245 (3), Cr. P. C. as introduced by a West Bengal Amendment. ( 4 ) I may note here that so far as the petition is concerned, it does not bring out the facts in clarity. It does not disclose the dates on which respective accused-petitioners were served with a notice, or date of their appearance in Court for the separate dates and the dates of their being released on bail. The petition does not mention the various dates which were fixed for the hearing and at what stages, and whether the complainant failed to produce witnesses or witnesses could not be served or they were served. The petition does not mention the various dates which were fixed for the hearing and at what stages, and whether the complainant failed to produce witnesses or witnesses could not be served or they were served. However, some of the copies of order sheets in the case have been produced. The order, dated 28th April, 1983 shows that cognizance of the case was taken by the Magistrate on 24th April, 1983 for an offence under Section 380, IPC against all the accused persons. Summons were ordered to be issued for 17th Sept. 1983. It appears that four persons put in appearance and sought bail on 7th June, 1983. They were granted bail by the Magistrate. Then on 9th July, 1983, another accused surrendered. He was granted bail that day, then on 22nd August, 1983, two accused persons surrendered and sought bail. They were granted bail by the Magistrate. The order dated 17th Sept. 1983 shows that seven accused have put in appearance by that time and one more accused, No. 5 was yet to be summoned as his name was not legible on record. Seven accused had appeared out of eight. Steps were taken about the accused, No. 5 and summons were issued afresh. He surrendered in Court on 25th June, 1984 and obtained bail order. Case was fixed to 26th Dec. 1984 for evidence of complainant. On that day, both sides sought adjournment. Next day, on 9th April, 1985, also both sides prayed for adjournment. On next day, that is 3rd Sept. 1989, three witnesses were examined for complainant. On next day, that 24th Dec. 1985, two more prosecution witnesses were examined. On next hearing, that is 21st March, 1986, case was adjourned on the request of prosecution for 4th Aug. 1986. However, the case was transferred to another Court in the mean time and on 8th Sept. 1986, it came before another Court and was adjourned to 7th Nov. 1986 accused appeared and made application for stay of the trial but the prayer was declined. The accused went in revision before the Sessions Judge and on 18th March, 1987, the Sessions Judge declined the prayer for stay of the trial. Then, on second April, 1987, both sides applied for adjournment and on 21st May, 1987, lawyers had struck work. Then, on 8th Aug. 1987, the accused were present before a Magistrate-in-charge of the case. The accused went in revision before the Sessions Judge and on 18th March, 1987, the Sessions Judge declined the prayer for stay of the trial. Then, on second April, 1987, both sides applied for adjournment and on 21st May, 1987, lawyers had struck work. Then, on 8th Aug. 1987, the accused were present before a Magistrate-in-charge of the case. Same was the situation on 7th Sept. 1987. On 8th Dec. 1987, intimation was received from High Court that revision petition had been dismissed, as was filed by the accused. On 14th January, 1988, only three accused appeared in Court. An adjournment was sought as in the mean time, one accused had died, only seven remained. On next hearing, that is 23rd Feb. 1988, although, three accused were present and the Counsel for the rest were there. Two witnesses for prosecution were examined and prosecution evidence was closed. The case was fixed for consideration of charges on 31st May, 1988 and on 7th Nov. 1988 and then 30th January, 1989. These adjournments were sought by accused Counsel Charges were framed under Sections 380 and 147, IPC against seven accused on 30th Jan. 1989. On 28th March, 1989, only four accused appeared. Two witnesses were present for cross-examination, but accused prayed for adjournment and obtained it. On adjourned date, that is 30th May, 1989, lawyers observed strike. On further adjourned date, that is on 8th Aug. 1989, the Magistrate had been transferred. Case was adjourned to 27th Nov. 1989. Again, on 19th Feb. 1990, the Presiding Officer was mentioned on leave. On 2nd May, 1990, four accused appeared and adjournment was obtained for appearance of the rest. The case was adjourned to 6th Aug. 1990, complainant was absent due to illness. The case was adjourned to 19th Nov. 1990 for cross-examination of witnesses. Again, on 19th Nov. 1990, the complainant was still ill and absent. Accused were called for on 25th Feb. 1991. It was found that the proceeding had been stayed by the order of the CJM, Murshidabad. This position of stay of proceedings continued till 13th Jan. 1992, when by an order from the learned Sessions Judge was (sic) received about discharge of stay. The case was adjourned to 15th April, 1994, for presence of both sides. On 25th May, 1992, the complainant prayed for adjournment. The accused also applied for adjournment. The case was fixed for 17th Aug. 1992. 1992, when by an order from the learned Sessions Judge was (sic) received about discharge of stay. The case was adjourned to 15th April, 1994, for presence of both sides. On 25th May, 1992, the complainant prayed for adjournment. The accused also applied for adjournment. The case was fixed for 17th Aug. 1992. Similar situation arose on 17th Aug. 1992. Case was adjourned to 16th Nov. 1992. On 16th Nov. 1992, the accused applied for adjournment which prayer was allowed. The case was fixed to 8th Jan. 1993, for hearing. On 8th Jan. 1993, five accused were absent. Warrants of arrest were issued against them for 19th May, 1993. These accused surrendered on 11th Jan. 1993 and were again admitted to bail. The petition for dropping proceedings due to delay in trial was dismissed. ( 5 ) THE question is whether the above course of trial shows deliberate delay in trial of the accused-complainant so far as S. 245 (3), Cr. P. C. as introduced by West Bengal Amendment Act is concerned. That amendment came into effect in May, 1988. The evidence of this case was complete from the side of complainant on 23rd February, 1988. Section 245 (3) deals with stage of evidence at pre-charge-stage in warrant cases, started otherwise than on police report. So, there was no question of applicability of S. 245 (3) (Bengal Amendment), the charge in this case was framed on 30th Jan. 1989 under Ss. 147 and 380, IPC and the accused pleaded not guilty. So, there wag no question of discharge, thereafter. ( 6 ) THE only question remains is whether due to delay in trial, it has become unfair trial and has, therefore, contravened the inherent mandate of Art. 21 of the Constitution of India. ( 7 ) THAT provision of the Constitution was expounded in its hue of unfair trial due to delay, (by the Supreme Court of India) in the case of Abdul Rahman Antulay v. State of Maharashtra, cited at " air 1992 SC 1701 : 1992 Cri LJ 2717". Their Lordships, in this case, dealt with the sweep of Art. 21 of the Constitution of India and its scope to cover delays in trials indicating unfairness in trial. Their Lordships, in this case, dealt with the sweep of Art. 21 of the Constitution of India and its scope to cover delays in trials indicating unfairness in trial. Their Lordships laid down certain tests to find out whether a trial has been unduly delayed and warrants interference by Court with the direction of either quashing of proceedings or expediting trial. The following tests were stated by their Lordships :-I) That fair, just and reasonable procedure implicit in Art. 21 of the Constitution of India creates a right in the accused to be tried speedily. II) This right encompasses all the stages namely stage of investigation, enquiry, trial, appeal, revision and retrial. III) The important concerns underlying the right to speedy trial from the point of view of the accused are :-A) period of remand and pre-conviction and detention,b) anxiety and expenses to the accused and disturbance to his vocation resulting from prolonged trial,c) possibility of impairment of ability of the accused to defend due to lapse of time. The witnesses may not be available. IV) Their Lordships recognised that accused, in many cases, are interested in delaying the trial. Their Lordships recognised that in a number of cases delay was a known defence tactic and that delay ordinarily prejudices the prosecution as the witnesses become not available. Their Lordships said that the test of unfairness would be the question as to who was responsible for delay and that proceedings taken by either party in good faith to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor the time taken in pursuing such proceedings, be counted towards delay. V) All the attending circumstances must be looked into including the nature of offences, number of accused and witnesses, the workload of Courts concerned and prevailing local condition etc. Their Lordships termed these delays as 'systemic delays. 'vi) These would not be counted towards unfairness of trial. VII) Each and every delay does not necessarily prejudice the accused. So test of prejudice is also important. VIII) The Court has to balance and weigh several relevant factors and determine in each case if right to speedy trial has been denied. IX) It is neither advisable nor practicable to fix time limit for trial. VII) Each and every delay does not necessarily prejudice the accused. So test of prejudice is also important. VIII) The Court has to balance and weigh several relevant factors and determine in each case if right to speedy trial has been denied. IX) It is neither advisable nor practicable to fix time limit for trial. The other principles laid down are conclusions from the earlier noted factors as to what orders may be passed by Courts in case delay is noticed or other incidental aspects. So they need not be noticed in detail. ( 8 ) THE above tests show that each case will depend on its own facts and circumstances and its own course of trial. It is clear that if the accused themselves are the perpetrators of delay, to that extent, the trial will not be taken as delayed resulting in unfairness of trial. In fact, such delay becomes unfair to the prosecution. Again, their Lordships clearly noticed that if any delay occurs, due to the lapse of the system, then also it will not become unfair to that extent. These are the systemic delays, when the Presiding Judges are not there or the lawyers are on strike, or the case is in the process of transfer from one Court to another. This will be called systemic delay, but when the accused were absent and seek for adjournment or go to the higher Court for revision and seek stay of proceedings, all these are delays caused by the accused themselves and have to be ignored. ( 9 ) A perusal of the order sheets about what happened in the trial after framing all the charges till the petition was filed for dropping charge, clearly shows that for one reason or the other, the accused were keeping away from the trial and have been seeking adjournments for a number of adjournments. The absence of Court was responsible, of course, on three four occasions. When the complainants sought adjournments, the accused concurred in that prayer as they were absent. The perusal of the order-sheet is sufficient to suggest that these delays cannot be fixed on the complaint. A number of times, witnesses had to go back when the Presiding Officer of the Court was present, and at other times when the Court was not in session. The perusal of the order-sheet is sufficient to suggest that these delays cannot be fixed on the complaint. A number of times, witnesses had to go back when the Presiding Officer of the Court was present, and at other times when the Court was not in session. ( 10 ) FROM the facts and circumstances of this case, I find that it cannot be said that the essence of 'fair trial' has been contravened by the prosecution. In this case, it will be unfair to the prosecution to quash this trial. There is no justification for the same. The petition is dismissed. Copy of this judgement be sent to the concerned Magistrate to proceed with the trial expeditiously. The accused-petitioners are directed to appear before the learned Magistrate on 4th Jan. 1996. Petition dismissed.