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1999 DIGILAW 294 (RAJ)

Ajeet Singh v. State of Rajasthan

1999-03-08

G.L.GUPTA

body1999
Judgment G.L. Gupta, J.-Petitioners, through this petition under Section 482, CrPC, seek quashment of the criminal proceedings in Cr. Case No. 243/85 State v. Ajeet Singh & Ors., pending in the Court of Judicial Magistrate No. 2, Pali. 2. Mr. Parihar, learned Counsel for the petitioners, pointing out that the case against the petitioners under Sections 147 and 323, IPC in respect of an occurrence which took place on 27-9-1985 has been pending for the last about 15 years, contended that the petitioners have suffered a lot during this period, and therefore, the proceedings should be quashed. He placed reliance on the cases of Abdul Rehman Antulay v. R.S. Nayak AIR 1992 SC 1701 : 1992 CriLJ 2717 and “Common Cause” A Registered Society v. Union of India 1996 Cri LR (SC) 430: 1996 CriLJ 2380. 3. Thelearned Public Prosecutor, on the hand, contended that the delay in the trial of the case has not been caused because of lapse on the part of the prosecution. He pointed out that the record of the case was summoned by the Sessions Judge, Pali in some other case in 1986 and the record was returned in 1997 and after that the trial could not proceed as the record of the case has been called for by this Court. 4. I haveconsidered the above arguments. The challan was filed against the petitioners in December, 1985 and the case was fixed for arguments on charge on 13-3-1986. On that day an application of the complainant was decided by the Court. On the next date of hearing i.e. 1-5-1986 the Counsel for the accused-petitioners sought adjournment for arguments on charge. On the next date of hearing the Advocates did not appear in the Court because of strike. On the next date of hearing, the Counsel for the accused sought adjournment and thereafter the Presiding Officer was transferred. By the time, the new Presiding Officer joined, the record of the case had been sent to the Sessions Court, Pali in Sessions Case No. 11/87 State v. Bakhtavar Singh from where it was returned in March, 1997. These facts indicate that the trial of the case could not be completed mainly because the record of the case was requisitioned by the Sessions Judge, Pali in some other case and the record was not returned by him for about 11 years. 5. These facts indicate that the trial of the case could not be completed mainly because the record of the case was requisitioned by the Sessions Judge, Pali in some other case and the record was not returned by him for about 11 years. 5. Thequestion for consideration is whether in the circumstances of the case; the proceedings pending against the petitioners should be quashed. 6. In the case of Common Cause 1996 CriLJ 2380 (supra) the Apex Court has given certain directions with respect to the cases pending in Criminal Courts. The relevant direction is 2(b) which reads as follows (Para 2) 2(b) Where the cases pending in Criminal Courts for more than two years under IPC or any other law for the time being in force are compoundable with permission of the Court and if in such cases trial have still not commenced, the Criminal Court shall, after hearing the Public Prosecutor and other parties represented before it or their advocates, discharge or acquit the accused, as the case may be, and close such cases. At Para 4 of the Judgment their Lordships have, said that the directions of Paras (i) and (2) shall not apply to cases of certain offences. One of such offence is ‘offences against public, tranquility.’ 7. The Supreme Court in the second Judgment of the “Common Cause,” A Registered Society v. Union of India AIR 1997 SC 1539 : 1997 CriLJ 195 modified/clarified the first Judgment of Common Cause. In that case it has been observed that the phrase ‘non-commencement, of trial’ employed in paragraphs from 2(b) to 2(f) shall be construed in cases of trial of summon cases by Magistrate in the manner that the trial would be considered to have commenced when the accused appears or brought before the Magistrate is asked under Section 251 whether he pleaded guilty or had any defence to make. 8. A combined reading of both the Judgment s of the “Common cause” 1996 CriLJ 2380 and 1997 CriLJ 195 (supra) makes it clear that the trial of a summons case commences on the date the plea of the accused is recorded under Section 251, CrPC It’ is further clear that in respect of offences mentioned in Para (4) the directions of Para (2) cannot be applied. It is also clear that Para 2(b) does not apply to the cases of non-compoundable nature. 9. It is also clear that Para 2(b) does not apply to the cases of non-compoundable nature. 9. Theaccused-petitioners were challenged under Sections 147 and 323, IPC the offence under Section 147, IPC is the subject-matter of Chapter VIII of the Code of Criminal Procedure. The heading of Chapter VIII is ‘offences against public tranquillity.’ It is obvious that the directions of the Para No. (2) of Supreme Court in the first “Common Cause” case are not applicable to an offence under Section 147, IPC as it is offence against public tranquillity. Moreover the offence under Section 147, IPC is not compoundable. 10. Apart from that, the relevant date to consider the pendency of the case is the date of recording of plea. In the instant case, the plea of the accused petitioners could not be recorded firstly because the Counsel for the accused petitioners sought adjournments and then because the record of the case was requisitioned in the Court of Sessions and was kept there for 11 years. As the trial of the case has not commenced the direction No. 2(b) cannot be applied to the instant case. 11. In the case of Abdul Rehman Antulay 1992 CriLJ 2717 (Raj) (supra) it has been held that right to speedy trial flows from Article 21 of the Constitution. Their Lordships have observed as at Para No. 54 of the report as follows:- 7.5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the Court concerned, prevailing local conditions and so on what is called, the systematic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pendantic one. At Para No. 54.10 it has been observed as follows:- 10. It is neither advisable 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 on to the shoulders of the prosecution. At Para No. 54.10 it has been observed as follows:- 10. It is neither advisable 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 on to 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 do we think that not fixing any such outer limit in effectuates the guarantee of right to speedy trial. 12. It is thus obvious that the Court is required to weigh all the circumstances of the given case before pronouncing upon a complaint. The Court has to keep in mind all the attending circumstances. In the instant case, as already stated, the main cause of the delay in trial was that the record of the case was summoned by the Court of Sessions in some Sessions case and the record was returned by that Court after 11 years. It cannot be said that there was deliberate delay on the part of the prosecution. The observations in the case of A.R. Antulay 1992 CriLJ 2717 (Raj) (supra), do not help the petitioners. 13. In the case of Raj Deo Sharina v. State of Bihar 1998 (7) JT (SC) 1: 1998 CriLJ 4596 (Raj), the Apex Court has supplemented the proposition laid down in the case of A.R. Antulay 1992 CriLJ 2717 (Raj) (supra). At sub-Para (i), it has been directed that where the trial is for an offence punishable with imprisonment not exceeding 7 years the Court shall close the prosecution evidence on completion of 2 years from the date of recording the plea of the accused on the charges framed. In the instant case, the plea of the accused-petitioners has not yet been recorded. 14. It has, therefore, to be held that there is no cause to quash the proceedings pending against the petitioners. In the instant case, the plea of the accused-petitioners has not yet been recorded. 14. It has, therefore, to be held that there is no cause to quash the proceedings pending against the petitioners. It cannot be said that the trial of the case will amount to the abuse of the process of the Court. 15. Consequently, the Miscellaneous petition, being devoid of merit, is dismissed.