D. BHARGAVA v. RANJIT SINGH — 1998 DIGILAW 53 (HP)

JUDGMENT A.L. VAIDYA, J.—The sole point to be gone into in the present petition is the effect of directions given by the Apex Court in "Common Cause", a Registered Society through its Director v. Union of India and others, (1996) 4 SCC 33 and "Common Cause", a Registered Society through its Director v. Union of India and others, (1996) 6 SCC 775, with respect to the speedy trial of criminal cases vis-a-vis the present case. 2. The facts giving rise to the present proceedings are as under: Present respondent Ranjit Singh filed a criminal complaint against the present petitioners before the Chief Judicial Magistrate, Chamba, on 30.12.1989. After recording preliminary evidence the trial Court issued notices to petitioners No. 1, 2, 3, 4, 5, 6 under Section 342/500, IPC and to petitioner No. 7 under Section 323/500/109, IPC. The service of notices on all the accused persons could not be effected till 17.10.1996 and on that date the case was adjourned to 19.12.1996 for summoning the remaining accused as on that date accused Nos. 4, 6 and 7 were present. On 19.12.1996 the trial Magistrate passed the following order which is being reproduced, for the sake of convenience : "19.12.1996 Present : Shri Rajesh Kumar, learned ADA for the State. None. The complaint was filed in this Court on 30.12.1989 and the accused have been ordered to be summoned on 3.8.1991 under Sections 342, 323, 500, 109, IPC. The trial in this case has yet to begin. More than two years have already been passed from the date of summoning the accused. In case titled Common Cause v. Union of India, JT 1996(4) SC 701, certain directions have been issued by the Apex Court which are mandatory in nature. The instant case is covered under direction No. 2(f) which is reproduced as below: "2(f) Where the cases pending in Criminal Courts under IPC or any other law for the time being in force are punishable with imprisonment up to three years, with or without fine and if such pendency is for more than two years and if such cases trials have still not commenced, the criminal Court shall discharge or acquit the accused, as the case may be, and close such cases." In the instant case, more than two years have been passed and trial has yet to begin. Therefore, in compliance of the directions issued by the Honble Supreme Court, I drop the proceedings after closing the case against the accused and discharge them. Their personal and surety bonds are discharged. File be consigned to the record room." 3. Thereafter, the complaint was put up before the trial Magistrate on 23.4.1997 when the learned Magistrate passed the following order: "23.4.1997 Present : None. File put up today before me by the Criminal Alhmad. Pursuant to the order/judgment dated 28.11.1996 passed by the Honble Apex Court in Writ Petition (Civil) No. 1128 of 1986 and 1-A Nos. 3-6/96...the order dated 19.12.1996 passed by learned SDJM Dalhousie, Camp at Chamba, is recalled. Now issue notices to the parties for 23.5.1997 and the office to register it at its original number." 4. It is on the basis of the aforesaid subsequent order dated 23.4.1997 that the earlier order was recalled and thereafter the accused have been ordered to be summoned in the aforesaid complaint. 5. The present petitioners, who happened to be the accused in the complaint, referred to above, have assailed the aforesaid order, recalling the earlier order, on various grounds. 6. This petition has been contested on behalf of the complainant. 7. Learned Counsel for the parties have been heard and the record has been scrutinized. 8. Needless to say, various types of criminal cases have been pending disposal before the criminal courts for a long period and in some of the cases, undertrials were languishing in judicial lock-ups and jails. It was, as such, deemed fit by the Apex Court to issue certain guidelines and directions in such type of cases on judicial side. As a result thereof, at the first instance guidelines were issued in (1996) (4) SCC 33 (supra). The Apex Court issued various directions in the aforesaid judgment and the relevant one is being reproduced hereunder: "Accordingly, the following directions are made which shall be valid not only for the States of Uttar Pradesh, Bihar and Delhi but for all the States and the Union Territories: 1(a)............................. 1(b)............................. 1(c).............................. 2(a).....................:.........; 2(b)............................... 2(c)............................... 2(d)................................ 2(e)............................... The Apex Court issued various directions in the aforesaid judgment and the relevant one is being reproduced hereunder: "Accordingly, the following directions are made which shall be valid not only for the States of Uttar Pradesh, Bihar and Delhi but for all the States and the Union Territories: 1(a)............................. 1(b)............................. 1(c).............................. 2(a).....................:.........; 2(b)............................... 2(c)............................... 2(d)................................ 2(e)............................... 2(f) Where the cases pending in criminal courts under I PC or any other law for the time being in force are punishable with imprisonment up to three years, with or without fine, and if such pendency is for more than two years and if in such cases, trials have still not commenced, the criminal Court shall discharge or acquit the accused, as the case may be, and close such cases.” 9. In the later judgment in (1996) (6) SCC 775 (supra)f it was clarified that the time-limit mentioned in paras 2(a) to 2(f) in the said case shall not apply to cases wherein the accused persons themselves were responsible for protraction of trials. In this behalf paragraph 1 of the judgment is being reproduced hereunder: "1. The time-limit mentioned regarding the pendency of criminal cases in paras 2(a) to 2(f) of our judgment shall not apply to cases wherein such pendency of the criminal proceedings is wholly or partly attributable to the dilatory tactics adopted by the accused concerned or on account of any other action of the accused which results in prolonging the trial. In other words, it should be shown that the criminal proceedings have remained pending for the requisite period mentioned in the aforesaid clauses of para 2 despite full co-operation by the accused concerned to get these proceedings disposed of and the delay in the disposal of these cases is not at all attributable to the accused concerned, nor is such delay caused on account of such accused getting stay of criminal proceedings from higher courts. Accused concerned are not entitled to earn any discharge or acquittal as per paras 2(a) to 2(f) of our judgment if it is demonstrated that the accused concerned seek to take advantage of their own wrong or any other action of their own resulting in protraction of trials against them," The following para in the said judgment is also very much relevant which is also being reproduced hereunder : It is, however, made clear that in trials regarding other offences which are covered by the time-limit specified in our earlier order dated 1.5.1996 wherein the accused concerned are already acquitted or discharged pursuant to the said order, such acquitted or discharged accused shall not be liable to be recalled for facing such trials pursuant to the present clarificatory order which qua such offences will be treated to be purely prospective and no such cases which are already closed shall be reopened pursuant to the present order." 10. Learned Counsel for the petitioners has submitted that the directions issued by the Apex Court in the subsequent judgment, referred to above, were prospective in nature and any action taken under the directions issued in the earlier judgment will not be recalled. According to the learned Counsel, in this view of the matter, the trial Magistrate acted illegally in recalling the earlier order and proceeding with the inquiry in the complaint. It is not so simple a matter as has been contended by the learned counsel inasmuch as some admitted facts which are revealed from the record in order to appreciate the case of the parties in the background of the aforesaid directions given by the Apex Court, have to be appreciated. 11. The present petitioners were discharged vide order dated 19.12.1996, as pointed out above, on the basis of the earlier judgment of the Apex Court which was given on 1st May, 1996. 12. It may not be out of place to mention here that the later judgment, that is, (1996) (6) SCC 775 (supra) was given by the Apex Court on 23rd November, 1996, meaning thereby that on 19.12.1996, when the said order of discharge was passed by the trial Magistrate the later judgment had already been delivered by the Apex Court. It appeared that the trial! Magistrate on 19.12.1996, without issuing notices to the parties passed the said order suo motu. It appeared that the trial! Magistrate on 19.12.1996, without issuing notices to the parties passed the said order suo motu. Probably, neither the trial Magistrate nor the learned ADA, who appeared on that date, was in the knowledge of the later judgment of the Apex Court. Had the later judgment been in the knowledge of the Presiding Officer or the learned ADA, the same could have been found mention in the order dated 19.12.1996 but it was not to be so. Thus, with this background the order dated 19.12.1996 cannot be sustained as the same has been poised without taking into consideration the later judgment dated 28.11.1996 passed by the Apex Court. Otherwise the order passed could have been easily based on the principles laid down in the two judgments of the Apex Court. The order dated 19.12.1996, as such, cannot be legally sustained. 13. In case this order dated 19.12.1996 is removed, the only consequence would be that the complaint was still pending. To this proposition, there is no dispute between the learned Counsel for the parties. 14. Now at this stage when order dated 19.12.1996 does not legally exist, the effect of the two judgments of the Apex Court, referred to above, to the present proceedings has to be taken note of. 15. The offences for the commission of which the accused have been summoned come within the ambit of direction 2(f) issued by the Apex Court in the earlier judgment and as reproduced above. 16. The additional directions issued in the later judgment have to be considered at this stage so far as the present case is concerned. It has been directed in the later judgment that the time-limit mentioned regarding the pendency of criminal cases in paras 2(a) to 2(f) in the earlier judgment shall not apply to cases wherein such pendency of the criminal proceedings is wholly or partly attributable to the dilatory tactics adopted by the accused concerned or on account of any other action of the accused which results in prolonging the trial. It has also been directed that the accused concerned are not entitled to earn any discharge or acquittal as per paras 2(a) to 2(f) of the earlier judgment if it was demonstrated that the accused concerned sought to take advantage of their own wrong or any other action of their own resulting in protraction of trials against them. It has also been directed that the accused concerned are not entitled to earn any discharge or acquittal as per paras 2(a) to 2(f) of the earlier judgment if it was demonstrated that the accused concerned sought to take advantage of their own wrong or any other action of their own resulting in protraction of trials against them. It has been contended on behalf of the complainant that it was due to the conduct of the accused persons that the criminal proceedings have been prolonged by their dilatory tactics. On the other hand, this submission is being disputed on behalf of the petitioners and their learned Counsel in this behalf has argued that the protraction of the criminal proceedings in the present complaint was not due to any dilatory tactics adopted by the accused but it was otherwise as is apparent from the record. 17. This Court has been taken through all the daily orders passed by the trial Magistrate after the order for summoning of the accused was passed on 3.8.1991. Not a single order passed by the trial Magistrate after 3.8.1991 regarding the adjournment of the case, could be attributed to the accused persons more so regarding the alleged adopting of dilatory tactics. Learned Counsel for the complainant has referred to an order dated 2.11.1991 passed by the trial Magistrate wherein it has been mentioned that accused G.D. Bhargav refused to take summons and, therefore, he was ordered to be served through bailable warrants for 28.12.1991 on which date the said accused Shri G.D. Bhargav was present as is revealed from the order of that date. Other adjournments have been made mainly due to the default of the office and the absence of the presiding officer and on account of ailment of some of the accused. The Presiding Officer, as per the record, till 19.12.1996 was absent many a time on account of some leave or transfer etc. In such type of cases when the Presiding Officer is absent the matter is adjourned for the next date for passing appropriate orders and thereafter judicial orders for issuing notice to the accused persons who were not present, have been passed on various dates. In such type of cases when the Presiding Officer is absent the matter is adjourned for the next date for passing appropriate orders and thereafter judicial orders for issuing notice to the accused persons who were not present, have been passed on various dates. It may not be out of place to mention here that practically no instance has been reflected from the daily orders passed in the case which could connect the accused of adopting delaying tactics in prolonging the proceedings, more so of using some dilatory tactics for protraction of the trial. In the present case there are numerous accused persons and all of them could not be served through legal process. Only one instance has been given when accused G.D. Bhargav refused to take service of notice. Even if it was so, he presented himself on the next date of hearing. This instance cannot be stated to have been used by G.D. Bhargav accused to delay the proceedings. Thus, taking into consideration the aforesaid facts in this case, the present case come within the purview of direction 2(0 of the earlier judgment of the Apex Court as the delay has not been caused by the accused. Accordingly, on the basis of the principles laid down in the two citations of the Apex Court, the present proceedings pending before the trial Magistrate have to be dropped and closed. It is really very strange to notice that even in the present case, the trial has not yet commenced but only the enquiry was being conducted though a period of more than seven years has passed. 18. In view of the foregoing reasons, the present petition succeeds and it is accepted and as a consequence thereof the accused stand acquitted for the offences they have been summoned by the trial Magistrate. The petition accordingly stands disposed of. Petition allowed.