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2004 DIGILAW 190 (CAL)

KISHANLAL DUA v. STATE OF WEST BENGAL

2004-03-16

S.K.GUPTA

body2004
S. K. GUPTA, J. ( 1 ) THIS revisional application has been filed under Section 397/401 read with Section 482 of the Code of Criminal Procedure. The G. R. Case No. 972 of 1983 under Sections 409/471/120b of the Indian Penal Code was pending before the learned Magistrate, 14th Court, Calcutta and the present petitioner is the accused No. 3 of that case. Said case was fixed on 6. 2. 1986 for consideration of charge and in the mean time relevant papers were supplied to the accused persons. But thereafter the said case was adjourned from time to time. In the mean time the record of that case was called by the High court in connection with Criminal Revision Nos. 204 and 205 of 1985. On 25. 2. 1987 the record was received back by the learned Magistrate. Since then several dates were fixed for consideration of charge. But the matter could not be taken up and was adjourned on the prayer of the learned Public prosecutor. In this way several dates were fixed for consideration of charge, but same could not be done as the learned Public Prosecutor could not complete his argument. As the hearing regarding consideration of charge could not be taken place due to the laches on the part of the prosecution, so one of the accused filed Criminal Revision No. 1888 of 1990 before the High court praying for quashing the proceeding pending before the learned magistrate. By the order dated 6. 5. 1996 the High Court was pleased to remand back the case to the Magistrate with the direction to decide the question of framing of charge within one month from the date of the receipt of the order of the High Court. A direction was given in the said order that no adjournment should be granted to either of the parties. ( 2 ) BEFORE the learned Magistrate, it was contended by the learned advocate for the petitioner that the learned Magistrate had no jurisdiction to try the instant case as by virtue of the notification of the Government of West bengal, only the 12th Court Metropolitan Magistrate, Calcutta has been declared as Special Court to try such type of cases. Inspite of that, after receipt of the order from the Hon'ble High Court, the learned Magistrate fixed 16. 7. 1997 as the date for consideration of charge. Inspite of that, after receipt of the order from the Hon'ble High Court, the learned Magistrate fixed 16. 7. 1997 as the date for consideration of charge. On that day, after hearing the parties and after perusal of the papers, the learned Magistrate was of the opinion that there was prima facie material against the accused persons and so he proposed to frame charge against the accused persons and so he proposed to frame charge against all the accused persons. Being aggrieved and dissatisfied with the said order of the learned Magistrate, present revisional application has been preferred. ( 3 ) THE revisional application has been entrusted by the O. P. No. 1 state of West Bengal as well as the O. P. No. 2 Superintendent of Police, C. B. I. I have heard the submissions of the learned Advocate for the petitioner as well as the learned Advocate for the State and the C. B. I. in this respect. Main contention of the learned Advocate for the petitioner is that as the Criminal proceeding is pending for a very long period without any trial whatsoever, so it amounts to violation of the fundamental right of getting speedy trial as per provisions of Article 21 of the CONSTITUTION OF INDIA and as such according to the learned Advocate for the petitioner, continuance of the said proceeding should be held to be bad in law and is liable to be set aside. It has further been argued that the learned 14th Metropolitan Magistrate has no jurisdiction to try the case since the learned 12th Metropolitan Magistrate has been authorised by the Government in this respect to try such type of cases within the jurisdiction of Calcutta. As such, it has been argued that the order passed by the learned 14th Metropolitan Magistrate is without jurisdiction and so it has vitiated the entire proceeding and liable to be quashed. The learned advocate for the petitioner further argued that the age of the petitioner is about 80 years and as such, ends of justice requires that since he has faced the burden of this criminal litigation for a considerable period, so it is a fit case where the proceeding should be quashed because of the fact that the trial could not be started during these long years. ( 4 ) AS against this, learned Advocate for the C. B. I. and also the learned advocate for the State argued that the question of violation of the fundamental rights as provided under Section 21 of the CONSTITUTION OF INDIA does not arise at all since, according to them the delay also took place due to the act on the part of the accused persons. The learned Advocate for the C. B. I. argued that the old age of the petitioner cannot be a ground for quashing. It can at best be considered at the time of imposing of sentence, if any. That apart the learned Advocate for the C. B. I. further argued that there was no irregularity in passing the order by the learned 14th Metropolitan Magistrate. According to him, a Magistrate has inherent jurisdiction to try the Criminal cases as provided, under the Criminal Procedure Code. If, for argument shake, it is accepted that actually the learned 12th Metropolitan Magistrate has got the jurisdiction to try such cases, then also it cannot be said that simply because the order in question was passed by the learned 14th metropolitan Magistrate, so the same is liable to be quashed. According to him if there is any such lack of jurisdiction, then it is always open for the Court to send the case in question to the appropriate forum for trial. He has further argued that the delay, as alleged by the petitioner, also took place due to the laches on the part of the accused persons and so they are not entitled to take advantage of the said delay. ( 5 ) I have considered the submissions of the learned Advocates for both the sides. The learned Advocate for the petitioner has cited several decisions. Regarding his argument that there was unusual delay in the trial of the case and as such the petitioner was disposed of his fundamental right of getting speedy trial, he has relied on the decision report in P. Ramchandra rao v. State of Karnataka, 2002 SCC (Cr) 830 : 2002 C Cr LR (SC) 497. As regards the other points he has also cited decisions reported in State of haryana and Ors. v. Bhajanlal and Ors. , 1992 SCC (Cr) 426; Mahendra Lal Das v. State of Bihar and Ors. As regards the other points he has also cited decisions reported in State of haryana and Ors. v. Bhajanlal and Ors. , 1992 SCC (Cr) 426; Mahendra Lal Das v. State of Bihar and Ors. , 2002 SCC (Cr) 110; Pradip Mitra v. State of West bengal and Anr. , (2003)1 Cal HN 557 : 2003 C Cr LR (Cal) 721; Seeta hemchandra Shashittal and Anr. v. State of Maharashtra and Ors. , 2001 SCC (Cr) 787 :2001 C Cr LR (SC) 197; Sanjay Kapoor v. C. B. I. and Anr. , (2002)1 Cal HN 101. I have carefully perused those decisions. The ratio decided in those cases practically shows that it is the mandate of the constitution that a criminal trial to be faced by an accused, should be disposed of as early as possible as the accused has got the fundamental right of getting speedy trial. In the decisions, as cited above, it has been clearly discussed that no hard and fast rule can be laid down in order to come to a decision as to whether the accused in a particular case has been deprived of any speedy trial or not. In the circumstances of a particular case should be looked into in order to arrive at a decision in this respect. The delay cannot be considered simply by way of counting of years. There may be various reasons for the said delay and a Court in order to come to a definite conclusion, as to whether such delay has been caused intentionally resulting in failure of justice, it should look into the entire surrounding circumstances of a particular case. So, the fact remains that in case of an unusual and unreasonable delay the accused is entitied to pray for quashing of a particular proceeding on the ground of denial of speedy trial resulting in failure of justice. Keeping in mind that position, we are to look into the present proceeding to come to a decision as to whether there was any unreasonable delay in proceeding with the criminal trial in this case. It appears that the criminal proceeding in question was started in the year 1983. The petitioner surrendered before the Court on 19. 04. 1983 and since then he is facing the trial. It appears that the criminal proceeding in question was started in the year 1983. The petitioner surrendered before the Court on 19. 04. 1983 and since then he is facing the trial. If we look into the revisional application then it will appear that on several dates the matter could not be heard for consideration of charge due to the difficulties of the learned Public prosecutor on behalf of the C. B. I. The revisional application further shows that the learned Magistrate took pain to fix consecutive dates for hearing of the matter considering the importance of the case in question. The revisional application further discloses that when on 26. 4. 1989 the matter could not be heard regarding consideration of charge, another accused preferred a revisional application praying for quashing of the proceeding against the order dated 27. 6. 1990. It appears that in the said revisional application present petitioner also joined as a party. If we look into the page 7 of the Revisional Application, then it will appear that the said Revisional Application, pending before the high Court, was disposed of on 6. 5. 1996 with certain directions upon the learned Magistrate. At page 8 of the present Revisional Application it has been stated that the learned Magistrate, after receiving the direction of the hon'ble Court, fixed 16. 7. 1997 for framing of charge. Against that order present revisional Application has been filed and a Stay Order has been obtained and as such since then no step could be taken in the Criminal case pending before the learned Magistrate. So it appears that the delay took place not only for the procedural hazard of a criminal case prevailing in our country, but also due to that action on the part of the accused persons. Firstly, there was delay of about seven years when the first Revisional Application was filed. By filing the present Revisional Application there is already another seven years delay in proceeding with the trial. So it appears that already 14 years have been passed as the accused persons preferred to file Revisional Applications. In this respect learned Advocate for the C. B. I. has drawn my attention to the decision reported in Santosh De and Anr. v. Archana Guha and Ors. , 1994 SCC (Cr) 546 : 1994 C Cr LR (SC) 87. So it appears that already 14 years have been passed as the accused persons preferred to file Revisional Applications. In this respect learned Advocate for the C. B. I. has drawn my attention to the decision reported in Santosh De and Anr. v. Archana Guha and Ors. , 1994 SCC (Cr) 546 : 1994 C Cr LR (SC) 87. In the said decision the Hon'ble Supreme court has discussed the manner as to how easy it has become today to delay the trial of criminal cases. An accused, so minded, can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory order is challenged in the superior Courts and the superior Courts in some cases are fallen prey to their stratagems. In fact the hon'ble Supreme Court has discarded such frequent inference by superior court at the interlocutory stages which will tend to defeat the ends of justice instead of serving those aims. It is not desirable that a man with enough means is able to keep the law at bay. If that is allowed to be done then in that event it will certainly mean the failure of the very system. If we look into the present proceeding, then it will appear that there was an attempt to stall the proceeding by way of filing Revisional Applications and considering that aspect, I am of opinion, that if on the ground of that delay the entire proceeding is quashed, then it will certainly cause a failure of justice and as such I cannot agree with the argument of the learned Advocate for the petitioner. ( 6 ) LEARNED Advocate for the petitioner argued that as the accused persons are very aged persons in the fitness of things, as the case is pending for long years without trial, so it is a fit case where the entire proceeding should be quashed. In this respect the learned Advocate for the C. B. I. has cited decision reported in Superintendent and Remembrancer of Legal affairs. West Bengal v. Anil Kumar Bhunj'a and Ors. , AIR 1980 SC 52 . In the said decision the Hon'ble Supreme Court did not consider the claim of lapse of several years for framing of charge and consequently did not allow the prayer for quashing on that ground. West Bengal v. Anil Kumar Bhunj'a and Ors. , AIR 1980 SC 52 . In the said decision the Hon'ble Supreme Court did not consider the claim of lapse of several years for framing of charge and consequently did not allow the prayer for quashing on that ground. It was held in the said decision that ground of delay can be considered while fixing the quantum of sentence, in case the accused is found guilty. In this respect I also rely on the decision reported in Shahzade v. State of U. P. , AIR 1981 SC 2008 . So in view of this decision, I am unable to accept the contention of the learned Advocate for the petitioner. ( 7 ) LEARNED Advocate for the petitioner drew my attention to the decision reported in (2003)1 Cal HN 557 (supra ). It appears that in the said decision the learned Single Judge was of the opinion that pendency of a criminal case for an unusual long period without any trial should be considered to be a harassment to an accused and as such the proceeding pending against the said accused is liable to be quashed. I have already discussed the decision of the Hon'ble Supreme Court in this respect where it has been clearly laid down that pending of a case for a long period simpliciter can not be the sole ground for quashing. That apart the learned Advocate for the c. B. I, has filed the copy of the SLP (Cr) No. 750 of 2003 wherefrom it appears that the decision of the learned Single Judge as cited above has been challenged before the Hon'ble Supreme Court and the matter is still pending. As such, I am unable to consider this decision as cited by the learned advocate for the petitioner so far as the present case is concerned. ( 8 ) REGARDING the argument that the learned 14th Metropolitan magistrate is not empowered to try such cases and as such the proceeding pending before the said Court should be quashed, the learned Advocate for the C. B. I cited decisions reported in Central Bureau of Investigation v. S. Bangarappa, AIR 2001 SC 222 ; Smt. Om Wati and Anr. v. State through Delhi administration and Ors. AIR 2001 SC 1507 ; State of M. P. v. Bhooraji and Ors. v. State through Delhi administration and Ors. AIR 2001 SC 1507 ; State of M. P. v. Bhooraji and Ors. , AIR 2001 SC 3372 : 2001 C Cr LR (SC) 521. In the decision reported in AIR 2001 sc 222 (supra) it has been clearly laid down therein that a criminal proceeding is not liable to be quashed for want of jurisdiction. Instead it can be transferred to the Court having jurisdiction. Even if no Court is empowered, criminal proceedings can be kept in abeyance till Government issues notification conferring power on the competent Court. This decision has clearly laid down that for want of jurisdiction to try the case no criminal proceeding should be quashed. At the time of hearing learned Advocate for the C. B. I. submitted that in the mean time the Government has issued notification empowering the learned 14th Metropolitan Magistrate to try such type of cases and as such, according to him there is now no lack of jurisdiction. Be that as it may, I have already pointed out that lack of jurisdiction will not automatically entitle a party to pray for quashing of a criminal case. As such, the prayer of quashing on that ground, as made by the petitioner, is not sustainable. So the said prayer, as made by the petitioner, in this Revisional application, is liable to be rejected. ( 9 ) IT appears from the impugned order that the learned Magistrate after hearing the parties and after carefully considering the materials on record was of the opinion that there was prima facie material against the accused persons to frame the charge. I find no illegality whatsoever in the said order and to my mind it is not a fit case where this revisional Court should interfere. ( 10 ) CONSIDERING all these things, I am opinion that there is no merit in the present Revisional Application and same is liable to be rejected. ( 11 ) IN the result the Revisional Application is dismissed. ( 10 ) CONSIDERING all these things, I am opinion that there is no merit in the present Revisional Application and same is liable to be rejected. ( 11 ) IN the result the Revisional Application is dismissed. However, the learned Court below is directed to verify as to whether he has been specially empowered by the Government to try this type of case or not and in case he is so empowered he will try the same himself and in case he finds that another Court is competent to try this type of case then in that event he will take immediate step for transferring the case record to the said Magistrate for trial. Since the matter is pending for a long time, the learned Magistrate will make all out effort to dispose of the matter as early as possible. ( 12 ) INTERIM order of stay, if any, is vacated. Send a copy of this order to the Court below for information and taking necessary action.