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2013 DIGILAW 422 (ORI)

Narayan Sahoo v. State of Orissa

2013-09-27

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. SARANGI, J. - The petitioners have filed this application seeking to quash the order dated 20.11.2001 passed by the learned J.M.F.C., Ranpur in G.R. Case No. 99 of 1995 refusing to drop the proceeding while considering their application tiled on 3.9.2001 as per the rulings of the Supreme Court in Common Cause v. Union of India, 1996 (I) OLR (SC) 584. 2. The petitioners have been arrayed as accused in G.R. Case No. 99 of 1995 for commission of offence under Sections 341, 324, 323, 506/34, IPC read with Section 3 of the S.C. & S.T.(P.A.) Act. 3. Mr. S.D. Das, learned SL Counsel appearing for the petitioners submitted that the proceeding initiated against the petitioners in G.R. Case No. 99 of 1995 is to be dropped in view of the law laid down by the apex Court in Common Cause (supra) and to substantiate his contention, he has relied upon the judgments of the Supreme Court in P. Ramachandra Rao v. State of Karnataka, 2002 (I) OLR (SC) 697 : (2002) 4 SCC 578 , P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 607 and of this Court in Surya Kanta Tripathy and another v. State of Orissa (G.A.) 2009 (II) OLR 113 . 4. Mr. Zafarullah, learned Addl. Standing Counsel for the State vehemently opposed the contentions raised by the learned counsel for the petitioners. He submitted that due to dilly dally tactics adopted by the accused-petitioners, the proceeding should not be dropped. He has also relied upon the judgment of the Supreme Court in Niranjan Hemchandra Sashittal and another v. State of Maharashtra (2013) 55 OCR (SC) 100. 5. On perusal of the judgment in Common Cause (supra) cited by Mr. Das, learned SL Counsel, it is found that in paragraph 4 the apex Court has held that where the cases pending in Criminal Courts under IPC or any other law for the time being in force are punishable with imprisonment up to one year, with or without fine, and if such pendency is for more than one year and if in such cases trials have still not commenced, the Criminal Court shall discharge or acquit the accused, as the case may be, and close such cases. In the present case, it is the admitted case of the petitioners that the case has been initiated on 2.9.1995 under Sections 341, 324, 323, 506/34 IPC read with Section 3 of the S.C. & S.T. (P.A.) Act and the case was tried by the learned Addl. Sessions Judge, Khurda. The petitioners being accused, challenged the order taking cognizance under Section 3 of the S.C. & S.T. (P.A.) Act and after hearing the learned Special Judge, Khurda, by order dated 16.3.1999 recalled the order taking cognizance under Section 3 of the S.C. & S.T. (P.A.) Act. On receipt of the records from the Court of learned Special Judge on 6.4.1999, copies of the police papers have been served on the accused-petitioners on 16.7.1999. But the informant challenged the order of recall of the order taking cognizance of the offence under Section 3 of the S.C. & S.T. (P.A.) Act, but the same was rejected by the learned J.M.F.C., Ranpur vide order dated 18.10.2000 and the matter was put to trial on 20.11.2000. By the time the application for dropping of the proceeding was filed, one year has already elapsed from the date of commencement of trial, i.e. 20.11.2000. 6. On perusal of the judgments cited by Mr. S.D. Das, learned SL Counsel, it is found that the same are not akin to the facts of the case in hand. However, in the judgment in Niranjan Hemchandra Sashittal (supra) relied upon by Mr. Zafarulla in para 15, it is stated as follows: "15. However, thereafter, certain pronouncements, namely, "Common Cause", A Registered Society through its director v. Union of India and others (1996) 4 SCC 33 , "Common Cause", A Registered Society through its director v. Union of India and others (1996) 6 SCC 775 , Raj Deo Sharma (supra) and Raj Deo Sharma (II) v. State of Bihar (1999) 7 SCC 604 , came to the field relating to prescription of outer limit for the conclusion of the criminal trial and the consequences of such delay, being either discharge or acquittal of the accused. The controversy required to be addressed and, accordingly, the matter was referred to a Seven-Judge Bench in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578 and the larger Bench by the majority opinion, analyzing the dictum of A.R. Antulay's case and Kartar Singh's case and other legal principles relating to the power of the Legislature, the power of the Court and spectrum of jurisdiction, recorded certain conclusions. The conclusion Nos. 3 and 4, which are pertinent for the present case, are as under: "(3) The guidelines laid down in A.R. Antulay 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 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). 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 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 as mandatorily obliging the Court of terminate the same and acquit or discharge the accused." 7. 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 as mandatorily obliging the Court of terminate the same and acquit or discharge the accused." 7. On perusal of the enquiry report dated 3.6.1995, it is found that criminal force was exercised for manual strangulation, thereby incised wounds were available on the injured, which were caused by M.O. Tangi on the body of the injured Sukanta Kishore Senapati. After passing of the order taking cognizance under Section 3 of the S.C. & S.T. (P.A.) Act, by order dated 18.10.2000 now the matter is placed for trial on 20.11.2000 under Section 341, 323, 324, 506/34 IPC. As it appears from the date of commencement of trial of the matter i.e. on 20.11.2000 onwards, only one year has elapsed. Therefore, the contention raised that the limitation prescribed having been over, the proceeding should be quashed, has no substance at all. On the other hand, the sentence for the offence alleged under Section 324 carries an imprisonment of three years and for the offence under Section 506 (II), IPC, the sentence prescribed is 7 years. Therefore, the reliance placed on the judgment in Common Cause (supra) has no application to the present context for the reasons that the offence under Section 506, IPC is under trial and carry a provision of imprisonment for a period of seven years. Thus by the time the application for dropping of the proceeding was filed, only one year has elapsed from which it cannot be construed that there was inordinate delay so as to drop the proceeding initiated against the accused petitioners. No doubt, speedy trial is required for just and proper adjudication of the case with the concept of fair trial. 8. The apex Court in Niranjan Hemchandra Sashittal (supra) held as follows: "18. At this stage, we think it apposite to advert to another aspect which is sometimes highlighted. It is quite common that a contention is canvassed in certain cases that unless there is speedy trial, the concept of fair trial is totally crucified. Recently, in Mohd. 8. The apex Court in Niranjan Hemchandra Sashittal (supra) held as follows: "18. At this stage, we think it apposite to advert to another aspect which is sometimes highlighted. It is quite common that a contention is canvassed in certain cases that unless there is speedy trial, the concept of fair trial is totally crucified. Recently, in Mohd. Hussain alias Julfikar Ali v. State (Government of NCT of Delhi) (2012) 9 SCC 408 , a three Judge Bench, after referring to the pronouncements in P.Ramachandra Rao's case, Zahira Habibulla H. Shekh and another v. State of Gujarat and others (2004) 4 SCC 158 , Satyajit Banerjee and others v. State of West Bengal and others (2005) 1 SCC 115 , pointed out the subtle distinction between the two in the following manner: "40. "Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-a-vis the impart of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end." 9. Taking the above fact and law into account, this Court is of the considered opinion that this is not a fit case where power under Section 482, Cr.P.C. is to be exercised to drop the proceeding. Rather, in the fitness of things, while disposing of this CRLMC, it would be proper for this Court to direct the trial Court to conclude the proceeding as expeditiously as possible and it is ordered accordingly. CRLMC disposed of.