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2004 DIGILAW 315 (PAT)

Bubna Tiwari v. State Of Bihar

2004-03-18

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. This application has been preferred on behalf of 11 petitioners. The prayer made in the present application is to quash the FIR and the consequent prosecution of the petitioners under Sections 147, 148, 149, 323, 324, 307 and 302 of the IPC read with Section 27 of the Arms Act against the petitioners arising out of Kaleya PS Case No. 33 of the 1998. The single ground urged in support of the only prayer made in the application is that the proceedings are vitiated for reason of inordinate delay in conclusion of the prosecution, i.e. for over 15 years, thus violating the fundamental rights of the petitioners to speedy trial guaranteed under Article 21 of the Constitution. 2. The present prosecution arises out of an FIR lodged on 23.5.1988. The deceased expired subsequently on 26.5.1988 when Section 302, IPC was added in the prosecution charges. It is alleged that on 30.8.1989 the Investigating Officer has noted in the Case Diary that the investigation is complete on every point. Nonetheless the charge-sheet was submitted on 9.9.2002 after a lapse of almost 15 years. Based on the charge-sheet cognizance against the petitioners herein was taken on 10.1.2003 and which is presently under challenge. 3. Shri Y.V. Giri, learned Senior Counsel appearing on behalf of the petitioners, submitted that for reasons of this inordinate delay in the prosecution where even alter 15 years the trial remains incomplete, has caused serious prejudice to the petitioners. They have lived under the proverbial democlese sword of criminal prosecution, hanging over their heads thus having caused them mental trauma and agony. Learned Senior Counsel further submitted that Article 21 does not distinguish the right to speedy trial on the basis of allegations in the prosecution. It was further submitted that notwithstanding the nature of the allegation, Article 21 guaranting speedy trial is all pervasive in its application. No distinction or categorisation in respect of the same can be made based on the nature of offence/allegation. It was further contended that it was not the case of the prosecution that the petitioners were responsible for the delay. The petitioners are also not alleged to be the main assailants. No distinction or categorisation in respect of the same can be made based on the nature of offence/allegation. It was further contended that it was not the case of the prosecution that the petitioners were responsible for the delay. The petitioners are also not alleged to be the main assailants. Shri Giri in support of his contention placed reliance primarily on the judgment reported in (2002) 4 SCC 578 whether the entire conspectus with regard to the right for speedy trial under Article 21 has been considered by the Apex Court. 4. Learned counsel Shri Naresh Chandra Verma appearing for the informant has opposed this prayer and contended that the prosecution should be allowed to continue and reach its logical conclusion. 5. A counter affidavit has also been filed on behalf of the Sub Divisional Police Officer. From the counter affidavit it is apparent that the prosecution was instituted against as many as 15 accused persons. A perusal of the FIR would also reveal that the petitioners herein and the other assailants are alleged to have had acted with concert. This is not the stage to go into the individual allegation against them. Suffice it to say that they are-named in the FIR and that the assault has resulted in the death of the deceased. The counter affidavit points out that though investigation was complete, one of the accused Narmadeshwar Pandey persisted in his representation to the Police authority alleging false allegation against him. This resulted in direction for fresh investigation coupled with certain orders in favour of Narmadeshwar Pandey restraining his arrest. 6. This Court opines that while considering the prayer for quashing the prosecution under Article 21, the nature of the allegation would also occupy a primary status. A heinous offence of causing death disturbs the tranquility of the society and cannot be put at par with other lesser offences. The need to maintain a civil society by prosecution of heinous offenders need not be over emphasised. In the present case though investigation was concluded earlier, it may have been possible to bifurcate the case of those in respect of whom nvestigation was complete vis-a-vis those in respect of whom it was not complete. The trial could have been considered for bifurcation and dealt with accordingly. However this was not so done. In the present case though investigation was concluded earlier, it may have been possible to bifurcate the case of those in respect of whom nvestigation was complete vis-a-vis those in respect of whom it was not complete. The trial could have been considered for bifurcation and dealt with accordingly. However this was not so done. Notwithstanding the same the Court is of the opinion that the petitioners cannot claim the grounds of mental trauma, agony and prejudice in a heinous offence under Section 302 for seeking quashing of their prosecution on grounds of inordinate delay. It cannot be lost sight of the fact that the petitioners and the said Narmadeshwar Pandey are all co-accused in the FIR. The delay in investigation and reinvestigation at the behest of the said Narmadeshwar Pandey has caused direct benefit to the petitioners, the other accused persons in so much as it resulted in prolongation of the prosecution to their benefit. The question whether the delay was directly attributable to them or not is irrelevant. The petitioners have also remained on bail throughout. 7. In the judgment reported in (2002) 4 SCC 578 relied upon by learned Senior Counsel Shri Giri, it has been held that the rule for speedy trial and for grant of relief under Article 21 for denial of the same has to be left elastic and could not be fixed in a frame or a defined and rigid rule. It has to be left to the judicious discretion in each individual case to conclude from totality of the circumstances therein if the quantum of time consumed upto a given point of time amounted to violation of Article 21, based on the above principle it cannot be said in the facts of the present case that there has been inordinate, oppressive and unwarranted delay so as to grant relief to the petitioners in a heinous offence under Section 302 which shakes the foundation of a civilized society itself. 8. More recently in the case of Jagdish Ram v. State of Rajasthan and another, Appeal (Cri.) 357/1997 the Supreme Court by its judgment dated 9.3.2004 while considering the subject for quashing the criminal proceedings pending since 19 years has held that there could be no binding principle that criminal proceedings deserve to be quashed merely on account of delay without anything more. In the facts of the present case where the prosecution has been delayed at the behest of the accused, albeit, allegedly one of the accused it would be an abuse of the Court if other accused persons who has all acted in concert are now allowed to urge delay as a ground for quashing the criminal proceeding. In considering the question whether criminal proceedings deserve to be quashed on the ground of delay the first question to be looked into is the reason for delay, as also the seriousness of the offence. Regarding the reasons for the delay the petitioners have only to thank their other co-accused. They are the beneficiaries of the delay. Regarding the seriousness of the offence, nothing more need to be said than that the charge is under Section 302 of the IPC. The plea that there is no allegation of direct assault etc. by the petitioners and to urge the same as a ground for supporting the quashing of the prosecution on the ground of delay is not at all relevant at this stage. The petitioners would have adequate opportunity to raise all pleas available to them in law before the trial Court at the appropriate stage. No case has been made out to quash the criminal proceedings on the ground of delay. 9 Having regard to the facts and circumstances of the case, it is directed that the trial Court shall expedite the trial and dispose of the same as early as possible. The need or necessity to bifurcate the trial of the petitioners from co -accused not sent up yet for trial can also be considered by the trial Court if necessary. 10. For the reasons as stated above this application is dismissed.