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2001 DIGILAW 1536 (RAJ)

Gauri Shanker v. State of Rajasthan

2001-09-21

H.R.PANWAR

body2001
JUDGMENT 1. - By this criminal misc. petition under section 482 Cr.RC., petitioner seeks quashing of criminal proceedings pending against him before the trial court. The petitioner is facing trial for offence under section 411 I.RC. the petitioner filed an application before the trial court on 31.1.2001 for closing of prosecution evidence and decision on the basis of whatever evidence recorded by the trial court. Vide order dated 3.2.2001, the trial court dismissed the said application. 2. By this petition, the petitioner seeks quashing of whole proceedings on the ground that petitioner is facing trial for last 7 years and the trial could not be completed even after completion of 7 years. The offence for which the petitioner is charged, is under section 411 IPC, which is punishable with imprisonment for 3 years. 3. It is contended by the learned counsel for the petitioner that a case in which the punishment prescribed is for a period of 3 years and if the prosecution does not complete its evidence within a period of 2 years from the date of framing of charge, then the evidence of the prosecution should be closed. Learned counsel for the petitioner placed reliance on a judgment of the Hon'ble Supreme Court in Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507 , wherein the Hon'ble Supreme Court Issued certain directions for effective enforcement of the right to speedy trial flowing from Article 21 of the Constitution. A petition was filed before the Hon'ble Supreme Court for directions/modifications/clarification of the directions of the Supreme Court in Raj Deo Sharma's case (supra), in Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604 , the Hon'ble Supreme Court held that in fact, in the judgment. In the main appeal in the present case, the Supreme Court has not fixed any time limit for conclusion of trial. As such, the Hon'ble Supreme Court has only laid down guidelines for closing the prosecution evidence in certain circumstances. There is difference between time fixing for disposal of a trial and fixing time limit for prosecution to complete its evidence. A perusal of the guidelines contained in the main judgment would itself show that there is no hard and fast rule applicable to every case, irrespective of facts and circumstances thereof. There is difference between time fixing for disposal of a trial and fixing time limit for prosecution to complete its evidence. A perusal of the guidelines contained in the main judgment would itself show that there is no hard and fast rule applicable to every case, irrespective of facts and circumstances thereof. If the delay is not due to any fault of the prosecution, it is open to the prosecution to place the relevant facts before the court and seek further time for producing its evidence. The judgment in appeal cannot be understood as punishing the prosecution and preventing it from adducing evidence when it is not responsible for the delay. 4. In State of Tamil Nadu v. A.M. Vedachalam, 2001 AIR SCW 2455 , the Hon'ble Supreme Court considered both the above noticed judgments of the Hon'ble Supreme Court and observed that it is open to the trial court to close the evidence of prosecution, whether prosecution exhausts the list of witnesses or not, on the expiry of one year from the date of the receipt of the copy of the order. It was further observed that it is needless to point out that the time taken at the instance of the accused will be excluded from the said period of one year. 5. In the instant case, the petitioner is facing trial for the offence under section 411 I.RC. which is punishable with imprisonment for 3 years or fine or with both. The charges were famed on 9.3.1995. Initially charge-sheet was filed against two accused persons namely, one Dulichand for the offence under Sections 457 and 380 I.RC. and petitioner Gauri Shankar under section 411 I.RC. After framing of the charges, co-accused Dulichand did not appear before the trial court on 4.8.1995 and thereafter, since it was the joint trial, two accused were facing the charges for different offences. The presence of accused Dulichand was sought and ultimately in the year 1996, it came to the notice of the court that accused Dulichand has expired and proceedings against him were dropped. The matter was fixed for evidence on 8.9.1997. 6. PW.1 Nathulal was examined but for want of the articles, which were the subject-matter and were recovered from the petitioner, the statement of PW.1 Nathuial was deferred. The matter was fixed for evidence on 8.9.1997. 6. PW.1 Nathulal was examined but for want of the articles, which were the subject-matter and were recovered from the petitioner, the statement of PW.1 Nathuial was deferred. The articles were given on "Supurdaginama" to PW.1 Nathulal who failed to produce the same before the court and therefore, an application was moved on behalf of the present petitioner before the trial court on 23.2.1998 for production of the articles which remained pending till August, 1998 and, therefore, during this period no prosecution witness could be summoned and examined. On certain dates, the Presiding Officer of the Court remained on leave. By order dated 28.8.1998, the "Supurdaginama" was cancelled and it was directed to forfeit the surety. During the pendency of the case, the Presiding Officer was transferred and the post remained vacant for a considerable period. Thereafter on 31.1.2001, the prosecution witness Paras was examined. Before the trial court could further proceed for summoning of prosecution witnesses, an application was moved by the petitioner for closing the prosecution evidence. The trial court considered all these circumstances and reached to the conclusion that the prosecution was not at fault in completing the prosecution evidence and rejected the application filed by the petitioner. 7. In the clarificatory judgment passed in the case of Raj Deo Sharma (II) (supra), the Hon'ble Supreme Court included a rider that an additional period of one year can be claimed by the prosecution in respect of the prosecutions which were pending on the date of judgment in the main appeal, and the court concerned would be free to grant such extension if the court considers it necessary in the interest of administration of criminal justice. As the operation of the judgment in the case of Raj Deo Sharma (I) (supra) remained suspended from 14.5.1998 till the date of clarificatory judgment i.e. 22.9.1999, the said period was also excluded from the additional period of one year by the Hon'ble Supreme Court. 8. This criminal misc. petition was admitted by this Court on 7.3.2001 and further proceedings in the trial court were stayed. Thus, the period during which the proceedings before the trial court remained stayed by the order of this Court, is also liable to be excluded from the additional period of one year. 9. 8. This criminal misc. petition was admitted by this Court on 7.3.2001 and further proceedings in the trial court were stayed. Thus, the period during which the proceedings before the trial court remained stayed by the order of this Court, is also liable to be excluded from the additional period of one year. 9. In the case of Raj Deo Sharma (II) (supra), the Hon'ble Supreme Court held that the whole idea was to speed up the trial in criminal cases to prevent the prosecution from becoming persecution of the person arrayed in a criminal trial. No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d'etre in prescribing the time-frame within which prosecution evidence must be closed. The Hon'ble Supreme Court further held that additional period of one year can be claimed by the prosecution in respect of the prosecutions which were pending on the date of judgment in the main appeal, and the court concerned would be free to grant such extension if the court considers it necessary in the interest of administration of criminal justice. 10. If the case in hand is viewed in light of the observations of the Hon'ble Supreme Court made in the aforesaid judgments, then also the additional period of one year has already elapsed from the date of judgment of the Hon'ble Supreme Court in case of Raj Deo Sharma (II). In the instant case, the prosecution has been launched as back as from the beginning of year 1994 and a period of more than 8 years have already elapsed. 11. I have perused the order-sheets of the trial court commencing from 16.3.1992 till 3.2.2001. Present petitioner has been regularly appear before the trial court and prosecution could not complete its evidence for all those years. Thus, the petitioner has been subjected to protracted trial. The main accused Duli Chand, who was facing trial for the offences of theft and lurking house trespass under sections 457 and 380 I.RC., has already expired. In this view of the matter, in my considered opinion, no useful purpose would be served in allowing the prosecution to produce further evidence. 12. Taking into account peculiar facts and circumstances of the case, in my view, the trial court erred in not closing the prosecution evidence. 13. In this view of the matter, in my considered opinion, no useful purpose would be served in allowing the prosecution to produce further evidence. 12. Taking into account peculiar facts and circumstances of the case, in my view, the trial court erred in not closing the prosecution evidence. 13. The Hon'ble Supreme Court in case of Raj Deo Sharma (II) (supra), made it clear that even if the prosecution evidence is closed in compliance with the directions contained in the main judgment, it is still open to the prosecution to invoke the powers of the court under section 311 of the Cr.P.C. It was also made clear that if evidence of any witness appears to the court to be essential to the just decision of the case, it is the duty of the court i.e. summon and examine or recall and re-examine any such person. 14. In view of the aforesaid discussion, this criminal misc. petition is allowed to the extent that the trial court shall close prosecution evidence in Criminal Original Case No. 49/94 pending before it. The order impugned dated 3.2.2001 is set aside. However, it will be open to the prosecution to invoke the powers of the court under section 311 Cr.RC. or for the court, if the evidence of any witness appears to the court to be essential to the just decision of the case, the summon and examine or recall and re-examine any person,Petition allowed to a limited extent. *******