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2000 DIGILAW 502 (KAR)

K. MANICK CHAND v. COD POLICE

2000-07-18

G.PATRI BASAVANA GOUD

body2000
PATRI BASAVANA GOUD, J. ( 1 ) IN these cases; the accused concerned are facing trial in respect of offences relating to category of cases specified in paragraph-4 of the decision of the Supreme Court in the COMMON CAUSE case reported in ILR 1996 KAR 2063, in the sense that the Directions 1 and 2 thereof would not be applicable, going by the ratio of the common CAUSE case. In all these cases, trial has commenced, in the sense that either the charge has been framed and plea recorded, or some progress made even thereafter by examination of some of the prosecution witnesses. On the basis of the Directions in the other decision of the Supreme Court in RAJ DEO SHARMA case reported in 1998 SCC (CRIMINAL) 1692, when the accused requested the concerned trial judges to close the prosecution evidence and to post the matter for the next stage, the learned Trial judges have declined to do so on the ground that the offences concerned relate to categories specified in paragraph 4 of the common CAUSE case, and, as such, the directions in RAJ DEO sharma cannot be made applicable thereto for the reason that even in RAJ DEO SHARMA, it is clarified that the directions given thereunder are in addition to and without prejudice to the directions issued by the Supreme Court in COMMON CAUSE case. Being aggrieved by this view taken by the learned Trial judges concerned herein, the accused petitioners have approached this Court under section 397 Cr. P. C. ( 2 ) WHEN I refer to COMMON CAUSE case and RAJ DEOSHARMA. in course of this order, I also include therein the clarificatory order in COMMON CAUSE case reported in ILR 1997 KAR 217, and the clarificatory order in RAJ DEO SHARMA case reported in 1999 CRIMINAL LAW JOURNAL 4541. P. C. ( 2 ) WHEN I refer to COMMON CAUSE case and RAJ DEOSHARMA. in course of this order, I also include therein the clarificatory order in COMMON CAUSE case reported in ILR 1997 KAR 217, and the clarificatory order in RAJ DEO SHARMA case reported in 1999 CRIMINAL LAW JOURNAL 4541. ( 3 ) SRI Bhavani Singh, learned High Court Government Pleader, supporting the view taken by the learned trial Judges strenuously urges that the Supreme Court, in RAJ DEO SHARMA, having made it absolutely clear that the directions given in RAJ DEO SHARMA are in addition to and without prejudice to the directions issued by the Supreme Court in COMMON CAUSE, RAJ DEO SHARMA cannot be independently read but has to be read along with the COMMON cause, and in that event, exceptions made in paragraph-4 of the common CAUSE taking away certain categories of causes from the scope of the directions issued thereunder, would very much be applicable even in respect of the directions give in RAJ DEO sharma. Both the decisions being required to be read together, sri Bhavani Singh, learned HCGP, submits that whether it is common CAUSE or RAJ DEO SHARMA, whenever the trial Judge needs to pass an order, he has to bear in mind that the directions in either of the two cases will not be applicable to the categories of cases mentioned in paragraph-4 of the COMMON CAUSE. Sri bhavani Singh, learned HCGP, therefore submits that since admittedly all these cases relate to offences covered by categories specified in paragraph-4 of the COMMON CAUSE, the trial judges were right in declining to accede to the request of the petitioners-accused in the matter of closing the prosecution evidence and going to the next stage in accordance with the directions of RAJ DEO SHARMA. ( 4 ) THE submission to the contrary is made by the learned Counsel for the petitioners accused Sri V- Srinivasachar, Sri A. H. Bhagwan, and Sri Y. S. Shivaprasad. I am agreeing with their contentions and, therefore, I will be referring to the same as I go along narrating the reasons. ( 4 ) THE submission to the contrary is made by the learned Counsel for the petitioners accused Sri V- Srinivasachar, Sri A. H. Bhagwan, and Sri Y. S. Shivaprasad. I am agreeing with their contentions and, therefore, I will be referring to the same as I go along narrating the reasons. ( 5 ) APART from several other occasions that the Supreme Court had to deal with the aspect of right to speedy trial implicit in Article 21 of the Constitution, it was in A. R. ANTULAY case: (1992) 1 SCC 225 that the Supreme Court, in paragraph 86 of the judgment, laid down certain guidelines. As the opening words of that paragraph would show, what was laid down thereafter from Serial Nos. 1 to 11 were taken as propositions emerging from the discussion made in the previous paragraphs, and the same were meant to serve as guidelines. The Supreme Court hastened to add that these propositions are not exhaustive and it is difficult to foresee all situations nor is it possible to lay down any hard and fast rules. It is then that 10 guidelines were spelt out with the Supreme Court stating in sub-paragraph (11) of paragraph 86 that an objection based on denial of right to speedy trial and for relief on that account should first be addressed to the High Court. I may also add herein that in sub-paragraph (9), the Supreme Court pointed out that 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, and that 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. , and, in that a case, it is open to the Court to make such other appropriates 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. , and, in that a case, it is open to the Court to make such other appropriates 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. Thus, from the time of ANTULAY, any accused, complaining of denial of right to speedy trial could approach the High Court, and the High Court could make appropriate orders/give appropriate directions depending upon the facts and circumstances of that particular case, in the light of the guidelines that the Supreme Court laid down in the said ANTULAY case. The trial judge as such could not be moved in this regard. The situations however took a concrete shape in respect of certain categories of cases when the Supreme court, in COMMON CAUSE, extended these propositions laid down by the Supreme Court in ANTULAY to the point of directing that where trial has not commenced in certain categories of cases, the accused shall be discharged/acquitted. The Supreme Court, while doing so, excepted from the category of cases which should result in such discharge/acquittal, the cases like corruption, misappropriation of public funds, cheating, etc. , as specified in paragraph-4 in common CAUSE. The Supreme Court, in directing such discharge/ acquittal in COMMON CAUSE, dealt with cases of a particular stage, namely cases in which trial has not yet commenced. That is how the directions in the COMMON CAUSE are being implemented by the Courts concerned. The field covered by RAJ DEO SHARMA however was different from the one covered by COMMON CAUSE. It related to the subsequent stage, i. e. after the trial has commenced. The directions in RAJ DEO SHARMA were not for discharge/acquittal. All that RAJ DEO SHARMA said was, if a particular case were to fall within the parameters laid down either under the 1st or under the 3rd direction in paragraph 17 of the judgment, then, the prosecution evidence shall be treated as closed and that the case shall be posted to the next stage. By following this procedure, it is not as though the accused concerned straight away comes to be acquitted. All that would happen is that the prosecution shall have to rest its case on the evidence recorded till that day. By following this procedure, it is not as though the accused concerned straight away comes to be acquitted. All that would happen is that the prosecution shall have to rest its case on the evidence recorded till that day. It was still possible for the prosecution to urge that the evidence itself would suffice to warrant conviction, and it may be possible for the Court in certain cases even to base conviction on the evidence recorded up to that stage. Even after complying with the directions of RAJ DEO sharma when there was possibility of an accused being convicted, there arose no occasion for the Supreme Court in RAJ DEO sharma to except certain categories of cases from its operation as done in COMMON CAUSE. Any such exception could not have been made for this reason, namely, that both ANTULAY and RAJ DEO sharma emphasised the right of an accused to speedy trial as being implicit in Article 21 of the Constitution. If that were to be so, the said right could not have been denied to some one merely because he is accused of certain categories of offences. It is for that reason that I am of the opinion that both ANTULAY and RAJ deo SHARMA have to be taken as dealing with an accused whose fundamental right to speedy trial is implicit in Article 21 of the constitution irrespective of which offences he is accused of. Thus, while the COMMON CAUSE dealt with a particular category of cases of minor intensity, in the sense that the more serious categories are excepted in paragraph-4, and therefore gave relief to the accused concerned by way of discharge/acquittal where trial has not commenced, in so far as ANTULAY and RAJ DEO SHARMA are concerned, they were dealing with the much broader aspect of right of an accused to speedy trial implicit under Article 21 of the constitution. Nowhere in the entire judgment in ANTULAY could one discern that, while dealing with the right of an accused to speedy trial under Article 21 of the Constitution, the Supreme Court was making a distinction between the person accused of minor offences and the one accused of a more heinous offence. Nowhere in the entire judgment in ANTULAY could one discern that, while dealing with the right of an accused to speedy trial under Article 21 of the Constitution, the Supreme Court was making a distinction between the person accused of minor offences and the one accused of a more heinous offence. If that could be said in respect of ANTULAY, RAJ DEO SHARMA made it absolutely clear thai it was to supplement the propositions laid down in antulay that the additional guidelines by way of directions were required to be laid down. In the same way as with ANTULAY, even raj DEO SHARMA, therefore, did not make any distinction between a person accused of certain category of cases with the person accused of the other category of cases. If speedy trial is a fundamental right implicit under Article 21 of the Constitution, then, it hardly stands to reason that a citizen should be discriminated against and nis fundamental right in that regard should be permitted to be violated merely because he is accused of more heinous crime. It is in that spirit that RAJ DEO SHARMA has to be taken, as expressly stated in the judgment, as being in continuation of antulay and therefore has to be taken as not being restricted to any categories of cases. I may add here that even RAJ DEO sharma has kept outside its purview certain categories of cases, like cases wherein death sentence needs to be awarded, because, the directions given in RAJ DEO SHARMA relate to offences punishable with imprisonment only and not with death. It is to that extents lhat RAJ DEO SHARMA can be said to have excepted certain categories That does not however mean that a person facing murder charge has no remedy where his right to speedy trial is infringed. He still can approach the High Court in pursuance of the guidelines issued by the Supreme Court in sub-paragraph (11) of paragraph 86 of the judgment in ANTULAY case. No restrictions as available in paragraph-4 of the COMMON CAUSE can therefore be read into raj DEO SHARMA case. He still can approach the High Court in pursuance of the guidelines issued by the Supreme Court in sub-paragraph (11) of paragraph 86 of the judgment in ANTULAY case. No restrictions as available in paragraph-4 of the COMMON CAUSE can therefore be read into raj DEO SHARMA case. If the observations of the Supreme Court in RAJ DEO SHARMA to the effect that the directions that are issued therein would be in addition to and without prejudice to the directions issued in COMMON CAUSE, have to be taken as meaning that the directions in RAJ DEO SHARMA are inapplicable to the categories of cases specified in paragraph-4 of the COMMON CAUSE, then, one cannot reconcile such understanding with the final order passed by the Supreme Court in that very RAJ DEO SHARMA case, namely, remitting the matter to the trial judge for passing appropriate order in the light of RAJ DEO SHARMA judgment, because, even the case that the Supreme Court was dealing in RAJ DEO SHARMA was very much a case coming within the excepted categories of cases as specified in paragraph-4 of the COMMON CAUSE. The reason as to why the Supreme Court had to clarify in RAJ DEO sharma that the directions given therein were in addition to and without prejudice to the directions issued by it in COMMON CAUSE was altogether different. I have said earlier that the COMMON cause death with cases of the stage prior to commencement of trial while RAJ DEO SHARMA dealt with cases where trial has commenced, in the sense that the charge is framed and plea is recorded. This is the broad distinction between the two, though all these cases, namely ANTULAY, COMMON CAUSE AND RAJ DEO sharma have to be taken as laying down guidelines and giving of directions in the matter of making the accused right to speedy trial under Article 21 of the Constitution meaningful. While thus, the common CAUSE broadly dealt with cases wherein trial has not commenced and RAJ DEO SHARMA the cases wherein trial has commenced, there were still certain areas overlapping both in common CAUSE AND RAJ DEO SHARMA. It is for that specific reason that RAJ DEO SHARMA had to say that the directions given therein were in addition to and without prejudice to the directions given in COMMON CAUSE. Overlapping areas are these: Direction no. It is for that specific reason that RAJ DEO SHARMA had to say that the directions given therein were in addition to and without prejudice to the directions given in COMMON CAUSE. Overlapping areas are these: Direction no. 1 in its sub-clauses (a), (b) and (c) of COMMON CAUSE related to accused being granted bail if the criteria laid down therein are fulfilled. Significantly, in all these three clauses, granting of bail was not confined to cases in which trial had not commenced. These clauses dealt with cases of pending trial. Where offences concerned are punishable with imprisonment not exceeding three years and if the trial is pending for one year or more, and the concerned accused have been in jail for a period of six months or more, Clause (a) of direction-1 requires bail to be granted. Similarly, the different criteria relating to the period of imprisonment for the offence concerned, the period for which trial is pending, and the period for which the accused is in jail varies in respect of Clauses (b) and (c) of the first direction. Overall effect of these clauses is that, on certain criteria being fulfilled relating to punishment provided for certain offences concerned, the period for which the trial is pending, and the period for which the accused is in jail, the Court shall have to grant bail to the accused as per the first Direction in COMMON CAUSE. This very aspect of the necessity of granting bail to the accused was also dealt with in raj DEO SHARMA in the second Direction in paragraph-17 of the judgment. If the trial is for an offence punishable with imprisonment for a period not exceeding seven years, and if the accused in such a case has been in jail for the period not less than one half of the maximum period of punishment prescribed for the said offence, the trial Court was directed to release the accused on bail. In this category also would come a case where the offence is punishable with imprisonment for a period not exceeding three years contemplated in Clause (a) or not exceeding five years contemplated in Clause (b) or not exceeding seven years contemplated in Clause (c) of the first Direction in COMMON CAUSE. In this category also would come a case where the offence is punishable with imprisonment for a period not exceeding three years contemplated in Clause (a) or not exceeding five years contemplated in Clause (b) or not exceeding seven years contemplated in Clause (c) of the first Direction in COMMON CAUSE. While according to raj DEO SHARMA, granting of bail in such cases is subject to closing of prosecution evidence on completion of a period of two years from the date of recording of the plea of the accused and releasing the accused on bail if the accused has been in jail for a period not less than one half of the maximum punishment prescribed for the offence, granting of bail to the accused as per Clause (a) or (b) or (c) of the first Direction of the COMMON CAUSE, is on totally different criteria as already set out. Therefore, on account of these overlappings, the Supreme Court had to clarify in RAJ DEO SHARMA that the directions therein are in addition to and without prejudice to the directions given in COMMON CAUSE. Because the Supreme court said to, the trial Courts will have a clear picture as to whether a particular case falls within the criteria laid down in one or the other clauses in the first Direction in COMMON CAUSE or whether it falls within the criteria laid down in Directions 1 and 2 of paragraph 17 of RAJ DEO SHARMA, and accordingly shall have to decide about granting of bail on the relevant criteria being fulfilled. It is in that context that the Trial Court shall have to bear in mind that if it is asked to grant bail on the basis of the criteria laid down in one or the other of Clauses (a) to (c) in the first Direction in COMMON cause, then, the benefit of bail therein cannot be extended to the category of cases specified in paragraph-4 of COMMON CAUSE,. but, when the trial Court is asked to grant bail on the ground that, in the given case, criteria laid down in Directions 1 and 2 of paragraph 17 of RAJ DEO SHARMA are fulfilled, then, the Trial Court need not deny that relief to the accused merely because the case comes in one of the categories excepted in paragraph-4 of COMMON cause, The said exception in paragraph-4 of the COMMON CAUSE has no application to cases where bail is to be granted exclusively under Direction-2 of paragraph-17 of RAJ DEO SHARMA. Another overlapping area between COMMON CAUSE and RAJ deo SHARMA is the one covered by the Direction 2 (a) in the common CAUSE. The said direction covers criminal proceedings relating to traffic offences pending in any criminal Court for more than two years either on account of non-serving of summons to the accused or for any other reason, in which event, Court shall have to discharge the accused and close the case. The stage is not important for this clause to operate, because, it could be either before the service of summons on the accused or even after service when it is pending for trial. The said category of cases can also be brought in under the first Direction in paragraph-17 of RAJ DEO SHARMA, wherein the Court does not discharge the accused but shall have to close the prosecution evidence and post the case to the next stage. Herein again, because of the observation in RAJ DEO SHARMA that the directions therein are in addition to and without prejudice to the directions issued in COMMON CAUSE, the Court shall have to consider as to whether it is passing an order in respect of a particular case under direction 2 (a) of COMMON CAUSE or under first Direction in paragraph 17 of RAJ DEO SHARMA. If the order to be passed in under RAJ DEO SHARMA, then, it is only closing of the prosecution evidence that is to be done. If it is acting under Direction 2 (a) of qmmon CAUSE, then, the Court may have to discharge the accused and close the case once for all. If the order to be passed in under RAJ DEO SHARMA, then, it is only closing of the prosecution evidence that is to be done. If it is acting under Direction 2 (a) of qmmon CAUSE, then, the Court may have to discharge the accused and close the case once for all. But, because of the observations relating to the Directions in RAJ DEO SHARMA being without prejudice to the directions in COMMON CAUSE, the Court has to bear in mind that when it passes an order under Direction 2 (a) of the COMMON CAUSE, the fact that certain categories of cases are excepted under paragraph-4 of COMMON CAUSE cannot be lost sight of. In respect of such excepted categories, therefore, there could be no such order like the order of discharge under direction 2 (a) of COMMON CAUSE. It is thus that the observations in RAJ DEO SHARMA because necessary with regard to the directions therein being in addition to and without prejudice to the directions in the COMMON CAUSE. ( 6 ) TO conclude, if the Court is required to take a decision on the ground that certain criteria in one or the other clauses of the directions in COMMON CAUSE are met, then, the Court shall have to bear in mind that the benefits of COMMON CAUSE cannot be extended to the cases covered by exception in paragraph-4 of the common CAUSE. On the other hand, if the Court is called upon to extend the benefits of RAJ DEO SHARMA on the ground that the criteria thereunder are met, then, the Court would not be bound to deny those benefits merely because the cases fall in one or the other of the excepted categories in paragraph-4 of COMMON cause. The benefits of RAJ DEO SHARMA shall have to be extended without reference to the magnitude of the offence and without reference to the question as to whether a particular case is or is not covered by paragraph-4 of the COMMON CAUSE. All that needs to be looked into is whether the criteria laid down in RAJ deo SHARMA are met or not. ( 7 ) WHETHER it is COMMON CAUSE or whether it is RAJ DEO SHARMA, before giving the benefits to the accused, the Court is bound to examine the conduct of the accused and his own contribution, if any, to the delay. ( 7 ) WHETHER it is COMMON CAUSE or whether it is RAJ DEO SHARMA, before giving the benefits to the accused, the Court is bound to examine the conduct of the accused and his own contribution, if any, to the delay. It is only then that the benefits shall have to be given. In this regard, the Courts will do well to bear in mind the observations of the Supreme Court in the first paragraph of the clarificatory order in COMMON CAUSE in ILR 1997 KAR 217, and which are as follows:"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 cooperation 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. "similarly, when any benefits are sought for by the accused under raj DEO SHARMA, the Courts should bear in mind the Directions 4 and 5 in paragraph 17 of RAJ DEO SHARMA, in addition to the other circumstances in this regard mentioned in the clartficatory order of RAJ DEO SHARMA, 1999 Criminal Law Journal 4541. In cases concerned herein, by the impugned orders, some expressly stated, some implied, while the request of the accused is in terms of RAJ DEO SHARMA for closing the prosecution side evidence, same has come to be negatived on the ground that the cases are of the excepted categories in para-4 of the COMMON cause. ( 8 ) PETITIONS are therefore allowed. ( 8 ) PETITIONS are therefore allowed. Impugned orders are set aside with a direction to the learned trial judges concerned, to consider accused's request for closing of prosecution side in terms of RAJ deo SHARMA afresh in accordance with law and in the light of the discussion made above. ( 9 ) AT the end, what the Courts are to be told is this; If you are releasing the accused on bail under Direction 1 of COMMON CAUSE or discharging/acquitting the accused under Direction -2 of COMMON cause, then, do not do so if the case concerned falls under paragraph-4 of COMMON CAUSE. On the other hand, if you are closing the prosecution side evidence as per the Directions in paragraph-17 of RAJ DEO SHARMA and in that process, if you are releasing the accused on bail under Direction-2 therein, then, do so even if the case concerned falls under para-4 of the COMMON cause all the time, the learned trial Judges should be conscious of the fact that, while passing an order in this regard, the conduct of the accused vis-a-vis delay, is an extremely important factor to be taken into consideration, as emphasized by the Supreme Court. --- *** --- .