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2000 DIGILAW 877 (PAT)

Babu Lal Sah v. State Of Bihar

2000-07-14

S.K.CHATTOPADHYAYA

body2000
Judgment 1. Invoking jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure the petitioner has prayed for quashing the entire criminal proceeding solely on the ground that continuation of the trial for such a long period is violative of the principle of speedy trial as enshrined in Article 21 of the Constitution. He has also prayed for quashing the order dated 8.9.1999 refusing to discharge the petitioner. 2. In order to appreciate the contention of the parties some facts are necessary to be gone into. 3. One Phuleshwar Chaudhary, the Choukidar of the village lodged information to the Police Officer that the petitioner, Babu Lal Sah, along with other family members have committed the murder of the wife of Lakshman Sah, son of the petitioner. When the dead body was being taken in a cot for cremation and disposal the informant, Choukidar, challenged them and brought back the dead body. He also alleged that those accused persons used to torture the deceased house wife from before and had committed the murder by strangulation and were trying to dispose of the dead body in much haste. The police, however, after investigation submitted final form reporting the case as "mistake of fact" under Sections 302, 511 read with Section 201 of the Indian Penal Code. 4. Subsequently the matter was reopened on the direction of the Superintendent of Police, Mahila Kosang, Patna and police, after reinvestigation, filed chargesheet under Sections 304B, 201 and 34 of the Penal Code read with Section 3/4 of Dowry Prohibition Act. By order dated 14.2.1995 the court below prima facie found that there were sufficient materials for framing charge for the aforesaid offences against the accused persons. 5. As the charge-sheet was submitted under Section 304B of the Penal Code the petitioner and other accused moved this Court in Cr. W.J.C. No. 189/95 contending, inter alia, that the occurrence alleged to have been taken place on 29.3.1995 and the said Section having been inserted by Act No. 43 of 1986 with effect from 19.11.1986, no charge-sheet could have been submitted by the police under this Section. This argument found favour with this Court and the order dated 14.2.1995 framing charge was set aside and the court below directed to proceed with the matter in accordance with law. This order of the High Court is dated 24.5.1995 as contained in annexure-2. This argument found favour with this Court and the order dated 14.2.1995 framing charge was set aside and the court below directed to proceed with the matter in accordance with law. This order of the High Court is dated 24.5.1995 as contained in annexure-2. Thereafter the learned Additional Sessions Judge heard the matter afresh on the point of framing of charge and by order dated 14.8.1995, considering the materials on record, found that the charge may be framed against the accused persons under Sections 306, 498A, 201 and 34 of the Penal Code read with Sections 3/4 of the Dowry Prohibition Act. The petitioner moved this Court against the said order in Cr. W.J.C. No, 609 of 1995 but without success. Thereafter, the petitioner filed a petition for discharge before the court below on 23.4.1996 and by order dated 8.9.1999 the said prayer was rejected. 6. Learned counsel for the petitioner vehemently contends that when the case is of 1985, the trial ought to have been disposed of much earlier and that not being done the entire criminal proceeding is liable to be quashed on the ground of delay. According to him, when no fault could be found against the accused persons the delay in disposal of the trial violates Article 14 of the Constitution. In support of his contention he has relied on the decisions reported in 1992 (1) PLJR 41 (Abdul Rehman Antulay etc. V/s. R. S. Nayak and Anr.); 1999 (1) PLJR 207 (Om Prakash Mishra V/s. State of Bihar and Ors.); 1994 (2) Criminal Law Journal 1975 (Suresh De V/s. Archna Guha and Ors.); (1993)2 BLJR 968 (Mohd. Suddique and ors. V/s. State of Bihar) and 1997 (1) PLJR 354 (R. K. Mandal and ors. V/s. The State of Bihar). 7. Countering his argument learned counsel for the State urged that each and every case has to be decided on its own facts and the decision relied by the learned counsel for the petitioners are to be applied if the facts of the instant case are similar to that of the other decisions. Referring to various orders passed by the lower court he contends that the delay was not due to negligence on part of the prosecution rather it is the accused persons who are to be blamed for delay in getting the trial disposed of at an early date. 8. Referring to various orders passed by the lower court he contends that the delay was not due to negligence on part of the prosecution rather it is the accused persons who are to be blamed for delay in getting the trial disposed of at an early date. 8. The argument of the learned counsel for the parties is to be considered by going through the lower court records which were called for by this Court on 24.2.2000. 9. It is true that first time a case was registered on 29.3.1985 on the basis of the first information report lodged by the Choukidar of the village. The police after investigation submitted final form stating as "mistake of fact". The matter was thus temporarily remained in the cold storage. The Superintendent of Police subsequently directed for reinvestigation and at this time the police submitted charge- sheet for the offence punishable under Sections 304B, 201 read with 34 of the Penal Code and Sections 3/4 of Dowry Prohibition Act. On 14.2.1995 the trial court was of the view that sufficient materials were available on record for framing charge against the accused persons. The petitioner moved this Court in Criminal Writ and by order dated 24.5.1995 (Annexure-2) this Court, setting aside the order dated 14.2.1995, directed the Additional Sessions Judge to proceed with the matter in accordance with law. On remand the learned court below heard the matter afresh on the point of framing charge and after hearing the parties found that the charge can be framed under Sections 306, 201/34 and 498A of the Penal Code read with Sections 3 and 4 of Dowry Prohibition Act. The petitioner again challenged the order in Cr. W.J.C. No. 609 of 1995. Obviously therefore the trial court could not proceed with the trial due to pendency of cases before the court. 10. The order of the lower court dated 3.1.1996 reveals that on 6.11.1995 the said Criminal Writ was dismissed by the High Court. It further appears from the order-sheet that even after dismissal of the writ application all the accused persons did not appear at one time and several requests for adjournment were made on the ground of absence of one or other accused. The order-sheet dated 20.3.1996 shows that when ultimately the case was adjourned to 23.4.1996 for framing of charge a petition for discharge was filed by the accused on the said date. The order-sheet dated 20.3.1996 shows that when ultimately the case was adjourned to 23.4.1996 for framing of charge a petition for discharge was filed by the accused on the said date. Even thereafter all the accused persons never presented themselves in the court and only one accused out of four accused presented himself and naturally on the prayer made by the defence side the matter was adjourned to 23.8.1999. This delaying tactics on part of the accused further continued. In the meantime, the Presiding Officer was transferred on some occasions. Some time the Presiding Officer was also on leave and, as such, the matter could not be heard on the petition for discharge. Ultimately by the impugned order dated 8.9.1999 the petition for discharge was rejected and this time the petitioner moved this Court in the instant application under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding on the ground of delay as well as the order dated 8.9.1999. 11. This petition was filed before this Court on 29.11.1999 and on 20.4.2000 the lower court records were called for and thus the matters remained pending before the court below. There cannot be two opinions about the settled principle of law that speedy trial is a right of the accused as contemplated under Articles 14 and 21 of the Constitution. The decisions relied on by the learned counsel for the petitioner are to this effect, but as observed earlier each case has to be decided on its own fact. If the court is satisfied that the delay has been caused on behalf of the prosecution in not producing the prosecution witnesses even after opportunities were given to it, the court may consider in certain cases to quash the entire criminal proceeding. But, on the other hand, if the court is satisfied that it is the accused who is trying to delay the disposal of the case with an oblique motive to get the proceeding quashed on the ground of delay by the High Court, it may not be quashed. Moreover, it has to be borne in mind that in the present case the members of the family of the victim girl are more aggrieved than the State agency, who is prosecuting the trial. Moreover, it has to be borne in mind that in the present case the members of the family of the victim girl are more aggrieved than the State agency, who is prosecuting the trial. The father and other members of the victim ultimately have no other option but to get the accused persons punished through the State agency in a police case. 12. From the lower court records it appears that, so far this case is concerned, there is no delay on the part of the prosecution but it is the accused persons who moved the High Court on more than one occasions. The lower court records further reveal that even after their writ application (Cr. W.J.C. No. 609/95) was dismissed on 6.11.1995, they filed a petition for discharge before the court below on 23.4.1996 but till 23.8.1999 the matter had to be adjourned on the ground mentioned above. All the accused persons were not present at one time on several dates and every time filed a petition for adjournment, the court adjourned it. There was no justification for the petitioner and other accused persons not to press their applications for discharge which was filed on 23.4.1996. 13. The argument of the learned counsel for the petitioner that right to speedy trial being a fundamental right of the petitioner, the prosecution for which the first information report was lodged in 1985 should be quashed, in my view, cannot be accepted as valid. In the case of Union of India and anr. V/s. Ashok Kumar Mitra, AIR 1995 SC 1976 practically the same argument was advanced before their Lordships that charge-sheet was filed in 1985 and, therefore, the proceeding should be quashed. This argument did not find favour with their Lordships. It was observed that the High Court itself after considering the facts of the case came to the conclusion that the delay was not attributable only to the prosecution and that the Respondent had himself handsomely contributed to the delay. Their Lordships categorically held that on the ground of delay, not attributable only to the prosecution, the respondent cannot challenge his prosecution for various offences for which he was standing trial before the Special Court. Their Lordships categorically held that on the ground of delay, not attributable only to the prosecution, the respondent cannot challenge his prosecution for various offences for which he was standing trial before the Special Court. Similarly, in the instant case, the petitioner having himself attributed to the delay in disposal of the trial along with other accused persons cannot be permitted to take advantage of his own wrong and take shelter under speedy trial to escape from prosecution. Another important aspect to be kept in mind is that the matrimonial offences under the Penal Code including Section 498A or under any other law for the time being in force cannot be quashed merely on the ground that there is delay in disposal of the criminal trial. In the case of "Common Cause" a registered Society V/s. Union of India and ors.; 1996 (2) East Cr. Case 129 (SC) : 1996(2) PLJR (SC)122 their Lordships gave certain direction in order to safeguard the constitutional right of the accused persons. In paragraph 4 of the judgment their Lordships enumerated class of offences in which the bail is to be granted to the accused and the criminal proceedings should be quashed on the ground of delay in disposal. However, subsequently their Lordships passed a clarificatory order in the same case which is reported in 1997 (1) East. Cr. Cases 296 (SC); AIR 1997 SC 1539 (Common Cause a registered Society V/s. Union of India and ors.) Clarificatory order No. Ill is relevant for disposal of the instant case which reads as follows: III. However, subsequently their Lordships passed a clarificatory order in the same case which is reported in 1997 (1) East. Cr. Cases 296 (SC); AIR 1997 SC 1539 (Common Cause a registered Society V/s. Union of India and ors.) Clarificatory order No. Ill is relevant for disposal of the instant case which reads as follows: III. In paragraph 4 of our judgment in the list of offences to which directions contained in paragraphs 1 and 2 shall not apply, the following additions shall be made: (n) matrimonial offences under Indian Penal Code including Section 498-A or under any other law for the time being in force; (o) offences under the Negotiable Instruments Act including offences under Sections 138 thereof; (p) offences relating to criminal misappropriation of property of the complainant as well as offence stating to criminal breach of trust under Indian Penal Code or under any other law for the time being in force; (q) offences under Section 304-A of the Indian Penal Code or any offence pertaining to rash and negligent acts which are made punishable under any other law for the time being in force; (r) offences affecting the public health, safety, convenience, decency and morals as listed in Chapter XIV of the Indian Penal Code or such offences under any other law for the time being in force." 14. From the aforesaid order it is manifest that their Lordships were of the view that in matrimonial offences either under the Penal Code including Section 498-A or any other law the criminal proceeding cannot be quashed solely on the ground of delay in disposal. Not only that the Supreme Court further directed the concerned criminal court to issue either suo motu or on an application by the aggrieved concerned party summons of warrant as the case may be to such discharged or acquitted accused who were either acquitted or discharged pursuant to its earlier judgment dated 1st May, 1996 and shall restore the criminal cases against them to proceed further in accordance with law. This mandate of the Supreme Court is enough to reject the submission of the learned counsel for the petitioner that petitioners fundamental right has been violated in not disposing the trial earlier. Thus I reject the contention of the learned counsel for the petitioner. 15. This mandate of the Supreme Court is enough to reject the submission of the learned counsel for the petitioner that petitioners fundamental right has been violated in not disposing the trial earlier. Thus I reject the contention of the learned counsel for the petitioner. 15. So far challenge to the impugned order dated 8.9.1999 is concerned, I am of the view that this is the last resort of the petitioner in getting the matter pending for another three to four years. By order dated 14.8.1995 the learned Additional Sessions Judge found prima facie case against the accused persons for framing charge under relevant Sections of the Indian Penal Code as well as Dowry Prohibition Act. This order was impugned by the accused persons but the High Court did not interfere. In such circumstances, in my view, the petition filed by the accused persons for discharge was to be rejected by the court below and that has been done. At this stage the High Court will not interefere with the order impugned. 16. Having considered the pros and cons of the entire case I am of the view that the criminal case pending against the petitioner, namely, Sessions Trial no. 61/94 cannot be quashed on ground of delay and similarly impugned order cannot be set aside. I find no merit in this application which is accordingly, dismissed. 17. The trial court, however, is directed to conclude the trial as expeditiously as possible considering the age of the case. 18. The office is directed to send down the lower court records along with the case diary positively by 21.7.2000.