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2008 DIGILAW 351 (CHH)

Kanti Pandey v. State of M. P. (now C. G. )

2008-12-04

T.P.SHARMA

body2008
ORDER 1. This petition is directed against the order dated 21-12- 99 passed by the 1st Additional Sessions Judge, Durg, in Criminal Revision No.183/99 whereby learned Additional Sessions Judge has set aside the order dated 20-4-99 passed by the Judicial Magistrate, First Class, Durg, in Criminal Case No.29/95 and ordered for closure of the prosecution case in terms of the dictum of pronouncement by the Apex Court in the case of Raj Deo Sharma v. State of Bihar1. 2. The order impugned is challenged on the ground that the offence punishable under Section 498A of the I.P.C. is not covered and effected by the aforesaid pronouncement of the Apex Court and the limitation as laid down in the cases of "Common Cause" A Registered Society Through its Director v. Union of India and others2 & "Common Cause", A Registered Society Through its Director v. Union of India and others3 is not applicable in the case of matrimonial offences as held by the Apex Court in the aforesaid two "Common Cause" cases. 3. I have heard learned counsel for the parties and perused the petition. 4. Non-applicant No.2 herein is facing trial under Section 498A of the I.P.C. at the instance of the applicant herein. Charge has been framed on 2-6-86, but trial has not been concluded till 21-12-99 i.e. the date of the order impugned and application for closure of the prosecution case was filed before the Judicial Magistrate, First Class, Durg in terms of Raj Deo Sharma's case and the same was rejected by the Judicial Magistrate, First Class, vide order dated 20-4-99. Revision was preferred by non-applicant No.2 herein, the order of the Judicial Magistrate, First Class was set aside by the revisional Court and it was directed that the case of the prosecution shall be closed and the case be posted for examination of the accused and for further hearing. The order of the revisional Court is under challenge before this Court. 5. Mr. The order of the revisional Court is under challenge before this Court. 5. Mr. T.K. Tiwari, learned counsel for the applicant submits that while deciding limitation for trial the Apex Court has issued certain directions in the case of "Common Cause" {(1996) 4 SCC 33} (supra), but the Apex Court has specifically directed that limitations shall not be applicable to the crimes of cases mentioned in para 4 of the judgment which was further clarified and added by the Apex Court in the case of "Common Cause" {(1996) 6 SCC 775} (supra). Para III of the judgment in the case of "Common Cause" {(1996) 6 SCC 775} (supra) says that the aforesaid limitation shall not be applicable to the offence punishable under Section 498A of the I.P.C. Pronouncement in the case of Raj Deo Sharma (supra) is in addition to and without prejudice to the directions issued by the Apex Court in the two "Common Cause" cases. Therefore, limitation provided in Raj Deo Sharma's case is also not applicable in the case of matrimonial offences i.e. Section 498A of the I.P.C. 6. Learned counsel for non-applicant No.2 submits that while dealing with the question of limitation for disposal of the cases in terms of Article 21 of the Constitution of India, discussing the aforesaid two "Common Cause" cases, the Apex Court in the case of Raj Deo Sharma (supra) provided limitation for trial of the cases and the limitation is applicable to all the cases including matrimonial offence because, the direction so given in the case of Raj Deo Sharma (supra) is in addition to the directions issued in the two "Common Cause" cases. 7. By the aforesaid three pronouncements, the Apex Court has issued certain directions regarding the period of limitation for trial of different offences. The question of speedy trial and the limitation prescribed in the aforesaid cases has been analyzed by the Constitution Bench of the Apex Court comprising seven Judges in the case of P. Ramachandra Rao v. State of Karnataka4 and declared that the limitation provided in the two "Common Cause" cases & Raj Deo Sharma's case were not good law and bar of limitation is impermissible and tantamounts to impermissible legislation and activity beyond the power which the Constitution confers on the judiciary. Para 30 of the judgment in the case of P. Ramachandra Rao (supra) reads thus, "For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:- (1) The dictum in A.R. Antulay's case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait- jacket formula. Their applicability would depend on the fact- situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II). The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." 8. After pronouncement in the case of P. Ramachandra Rao (supra) by the Constitution Bench of the Apex Court, present case is not effected in any way by the pronouncement of Raj Deo Sharma's case or the two "Common Cause" cases. Non- applicant No.2 is facing trial for the offence punishable under Section 498A of the I.P.C. The prosecution has not examined all the witnesses. Therefore, closure of the prosecution case on the basis of Raj Deo Sharma's case is not legally permissible. 9. Consequently, the petition deserves to be allowed and it is hereby allowed. The order impugned is set aside.