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2011 DIGILAW 1394 (CAL)

In Re: Gopal Chakraborty. v. .

2011-11-01

KANCHAN CHAKRABORTY

body2011
Judgment : This application under Section 482 of the Code of Criminal Procedure is pertaining to a criminal trial being No. BGR Case No.4004 of 1994 arising out of Metiabruz Police Station Case No. 306 of 1994 under Sections 498A, 114, 406 and 307 of the Indian Penal Code. The petitioner herein is the sole accused in the case. He has prayed for quashing of the proceeding mainly on the ground that there is inordinate delay in concluding the trial and his right to speedy trial as guaranteed under Article 21 of the Constitution of India has been denied. This apart, he has taken a ground that the case was instituted long back in the year 1994. In the year 1996, the accused/petitioner instituted a matrimonial suit being No.48 of 1996 praying for divorce. That matrimonial suit was disposed of on 29.9.1999 on contest and a decree of divorce was passed by the learned Judge at Alipore. The judgment in the Matrimonial Suit was appealed against in F.A.No.271 of 2006 by the opposite party no.2, Smt. Gopa Chakraborty. However, Smt. Gopa Chakraborty filed an application in the High Court expressing her intention not to proceed with the appeal as the matrimonial dispute between them was settled outside the Court. The appeal was dismissed, accordingly, for non-prosecution by this Court on 18.12.2006. The petitioner has taken the ground that the delay in the trial was caused solely because of conduct of the opposite party no.2 who did not even make herself available for further examination and cross-examination despite repeated directions of the learned Trial Court. The Court had to issue warrant of arrest against her and even thereafter, her examination could not be concluded. In the meantime, out of six charge sheeted witnesses, two other witnesses were examined and cross examined in full. Therefore, the petitioner has prayed for quashing of the proceeding for the inordinate delay in concluding the trial wherein the opposite party no.2 being the aggrieved party did not act diligently and seriously and contributed to the delay in the proceeding since initiation of the case. Before going detail into the matter, it would be expedient to give a short reference to the factual aspects of the case and the background thereto. Before going detail into the matter, it would be expedient to give a short reference to the factual aspects of the case and the background thereto. Smt. Gopa Chakraborty, opposite party no.2 being the wife of Gopal Chakraborty, the petitioner, lodged one F.I.R. on 9.11.1994 alleging therein that she was subjected to cruelty in her matrimonial house by her husband, the petitioner and that poison was administered on her by her husband. The charge sheet was filed on 27.2.1995 under Sections 498A/414/406/307 of the I.P.C. The learned Appellate Court framed charge under Section 307 of the I.P.C. in the year 1996 but that order was challenged in an appeal and the learned Trial Court remanded the case to the learned Magistrate with a direction to frame charge properly upon perusal of the materials on record. The learned Magistrate thereafter, reframed the charge under Section 498A of the I.P.C. and the trial commenced accordingly. The witness Smt. Gopal Chakraborty, the opposite party no.2 was examined in-chief in part on 9.7.1999 for the first time. Since then, the learned Trial Court could not procure attendance of Smt. Gopa Chakraborty till 24.11.2008 and that too by way of issuing warrant of arrest on her. In the meantime, two other P.Ws were examined, cross-examined and discharged on 20.11.2008. After 24.11.2008, the learned Trial Court did not also find time to conclude the trial by getting the other witnesses examined. This application under Section 482 of the Code of Criminal Procedure was filed in the year 2010. This indicates clearly that within these two years from the last date of attendance of Smt. Gopa Chakraborty on the strength of warrant of arrest till filing of this application, the learned Trial Court could not proceed further with the trial. Mr. Mukherjee, learned Counsel appearing on behalf of the petitioner submits that the inordinate delay obviously has infringed the fundamental right of his client Shri Gopal Chakraborty, the accused, who attended the Court regularly since inception. He had no contribution in the delay caused in the trial. Mr. Mr. Mukherjee, learned Counsel appearing on behalf of the petitioner submits that the inordinate delay obviously has infringed the fundamental right of his client Shri Gopal Chakraborty, the accused, who attended the Court regularly since inception. He had no contribution in the delay caused in the trial. Mr. Mukherjee also taken this Court to the numerous orders passed by the learned Trial Court on different dates since commencement of the trial till the opposite party no.2 appeared in the trial court on the strength of warrant of arrest and submits that the delay was caused solely because of non-attendance of the opposite party no.2 and failure of the learned Trial Court to take action promptly in accordance with the provisions laid down in the Code of Criminal Procedure. Right to speedy trial being the fundamental right under Article 21 of the constitution of India, the learned Trial Court was supposed to conclude the trial without wasting time for procuring attendance of the opposite party no.2 Gopa Chakraborty unnecessarily for years together. Mr. Mukherjee refers to the decision of the Hon’ble Apex Court in Raj Deo Sharma Vs. State of Bihar, reported in A.I.R. 1998 SC 3281in support of his contention that speedy trial being the fundamental right and guaranteed by the Constitution, no Court can delay the proceeding and thereby infringe such a right. Mr. Sourav Chatterjee, learned Counsel appearing on behalf of the opposite party no.2 fairly concedes that the opposite party no.2 while withdrawing the appeal admitted in the High Court that the dispute between them was settled amicably. He also submits fairly that the opposite party no.2, Smt. Gopa Chakraborty is the person who caused the inordinately delay in the proceeding and there was no laches on the part of the petitioner. However, Mr. Chatterjee submits that when the trial proceeded and only three witnesses are yet to be examined, it would not be wise and proper for the Court not to quash the trial/proceeding. It is true that only six witnesses are named in the charge sheet and out of that three witnesses have been examined. Out of remaining three witnesses, two witnesses are police officials. The last witness examined on 20.11.2008. It is true that only six witnesses are named in the charge sheet and out of that three witnesses have been examined. Out of remaining three witnesses, two witnesses are police officials. The last witness examined on 20.11.2008. Since then the learned Trial Court neither proceeded with the case any further nor could examine any witness including the opposite party no.2 whose attendance was procured by way of issuing of warrant of arrest. On careful consideration of the entire episode, this Court finds that there was no reason for the learned Trial Court to drag the proceeding unnecessarily for an uncertain period since 1994. The entire delay, i.e., for about 17 years, caused for no reason whatsoever and it was the opposite party no.2, who is responsible for the delay besides inaction of the learned Trial Court. The other two witnesses did not support the prosecution case at all. There is slim possibility for the learned Trial Court in procuring the other remaining three witnesses after such a long period. The opposite party no.2, i.e., the person aggrieved could not be cross examined due to her non cooperation and non-attendance in Court. Right to speedy trial is guaranteed under Article 21 of the Constitution of India. A criminal prosecution cannot be dragged on unnecessarily by a Court for no fault on behalf of the accused but on the part of the Court as well as the person who set the criminal action into motion. It is not a case where the “delay is known defence tactic”. One must have regard to all the attendant circumstances, including nature of offence, number of witnesses, prevailing conditions and what is called, systematic delays. It is the obligation of the State to ensure a speedy trial and State include the judiciary as well. However, a realistic and practical approach should be adopted in the matter of determining whether undue delay had occurred or not. The case in hand is an instance of a case where undue delay has been occurred and the petitioner has been suffering since 1994 without being tried properly for no fault on his part. The lady, who set the criminal action into motion is responsible for the delay and acted neither seriously nor diligently. The learned Trial Court indulged her conduct in a peculiar manner for years together. The lady, who set the criminal action into motion is responsible for the delay and acted neither seriously nor diligently. The learned Trial Court indulged her conduct in a peculiar manner for years together. The learned Trial Court could not procure her attendance and attendance of other witnesses. This is not a case where “delay is a known defence tactic.” Right to speedy trial obviously has been infringed in the instant case for no fault on behalf of the petitioner. It has already been found that neither the person who set the criminal action into motion nor other two witnesses who have been examined already by the learned Trial Court made any development in the prosecution case. The attendance of other witnesses is doubtful. This appears to be a just and proper case where High Court should exercise its extra ordinary jurisdiction under Section 482 of the Code of Criminal Procedure and quash such a proceeding which has denied the fundamental right to speedy trial. Accordingly, I allow the prayer. Let the proceeding be quashed. The revisional application is thus disposed of.