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Himachal Pradesh High Court · body

2014 DIGILAW 722 (HP)

Bisan Lal v. State of H. P.

2014-06-05

TARLOK SINGH CHAUHAN

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JUDGMENT : - Tarlok Singh Chauhan, Judge (Oral). “Justice delayed is justice denied” It is on this basis that the present petition has been preferred before this Court. It is claimed that the petitioner was engaged as daily wager with the IPH department in the year 1987 and continued thereafter till 18.02.2004 when a criminal case under Section 420 of the Indian Penal Code came to be registered against him vide FIR No.215/2004 for the alleged embezzlement in the department. The petitioner has claimed that despite the FIR having been registered in the 2004, the challan was put-up in the Court in the month of October, 2007 and the petitioner was summoned for the first time in the Court in 2010. Thus, according to the petitioner, there was huge delay in filing of the charge-sheet against him for which there was no explanation. The petitioner has accordingly after invoking Article 21 sought quashing of the FIR on the ground of delay. 2. The State in its reply has submitted that the investigation was carried out in a proper manner and thereafter the challan was submitted to the Court without any undue delay and it is further stated that on account of procedural wrangles the delay in no terms can be said to be inordinate so as to confer any right on the petitioner to seek quashment of the proceedings. 3. The learned counsel for the petitioner has placed reliance in Abdul Rehman Antulay etc. etc. v. R.S. Nayak and another etc. etc. AIR 1992 SC 1701 to contend that on account of extraordinary delay, the right of speedy trial has become illusory and, therefore, the proceedings deserve to be quashed. He further contended that unless there is a speedy trial, the concept of fair trial is totally crucified. 4. I have given my deep and thoughtful consideration to the arguments raised by the learned counsel for the petitioner and meticulously gone through the records of the case. It is, indeed, settled law that no time-limit can be prescribed for trial of any offence and each case must be left to be decided on its own merits. The right of speedy trial does not become illusory when a time limit is not fixed. However, it does not mean that there should be no speedy trial. It is, indeed, settled law that no time-limit can be prescribed for trial of any offence and each case must be left to be decided on its own merits. The right of speedy trial does not become illusory when a time limit is not fixed. However, it does not mean that there should be no speedy trial. At the same time, it is neither advisable nor practicable to fix any time limit for trial of offences. 5. Insofar as the issue of quashment of proceedings on the ground of delay is concerned, the Court has to take into consideration the impact of crime on the society and also the confidence of the people in the judicial system. There cannot be a mechanical approach and all aspects of delay caused have to be weighed on the factual score having regard to the nature of the offence and the concept of social justice and the cry of the collective. The law on the subject has recently been expounded in the case of Niranjan Hemchandra Sashittal and another versus State of Maharashtra (2013) 4 SCC 642 wherein the Hon’ble Supreme Court held as under:- “15. To appreciate the centripodal issue whether in such a case this Court, in exercise of powers under Article 32 of the Constitution, should quash the criminal trial on the ground of delay, it is requisite to state that in the present petition, we are only concerned with the time spent after 13-2-2001 i.e., the date of pronouncement of the judgment in the earlier criminal appeals, and further the factual matrix as already exposited shows how the delay has occurred. The factum of delay and its resultant effect are to be tested on the basis of the exposition of law by this Court. 16. In Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225 a proponement was advanced that unless a time limit is fixed for the conclusion of the criminal proceedings, the right to speedy trial would be illusory. The Constitution Bench, after referring to the factual matrix and various submissions, opined that there is a constitutional guarantee of speedy trial emanating from Article 21 which is also reflected in the Code of Criminal Procedure. Thereafter, the Court proceeded to state as follows: (SCC p.268, para 83) “83. But then speedy trial or other expressions conveying the said concept – are necessarily relative in nature. Thereafter, the Court proceeded to state as follows: (SCC p.268, para 83) “83. But then speedy trial or other expressions conveying the said concept – are necessarily relative in nature. One may ask – speedy means, how speedy? How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind.” After so stating, the Court gave certain examples relating to a murder trial where less number of witnesses are examined and certain trials which involve large number of witnesses. It also referred to certain offences which by their very nature e g fraud, forgery, sedition, acquisition of disproportionate assets by public servants, cases of corruption against high public officials, take longer time for investigation and trial. The Court also took note of the workload in each court, district, regional and State-wise and the strikes by the members of the Bar which interfere with the work schedules. The Bench further proceeded to observe that in the very nature of things, it is difficult to draw a time limit beyond which a criminal proceeding will not be allowed to go, and if it is a minor offence, not an economic offence and the delay is too long, not caused by the accused, different considerations may arise but each case must be left to be decided on its own facts and the right to speedy trial does not become illusory when a time limit is not fixed. 17. In the said case, in paragraph 86, the Court culled out 11 propositions which are meant to sub-serve as guidelines. The Constitution Bench observed that the said propositions are not exhaustive as it is difficult to foresee all situations and further, it is not possible to lay down any hard and fast rules. 17. In the said case, in paragraph 86, the Court culled out 11 propositions which are meant to sub-serve as guidelines. The Constitution Bench observed that the said propositions are not exhaustive as it is difficult to foresee all situations and further, it is not possible to lay down any hard and fast rules. The propositions which are relevant for the present purpose are reproduced below: (Abdul Rehman Antulay case, SCC pp.271-72) “86……(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on – what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. *** (8) Ultimately, the Court has to balance and weigh the several relevant factors -‘balancing test’ or ‘balancing process’ – and determine in each case whether the right to speedy trial has been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order – including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded – as may be deemed just and equitable in the circumstances of the case.” It has been laid down therein that it is neither advisable nor practicable to fix any time-limit for trial of offences inasmuch as any such rule is bound to be qualified one. 18. 18. In Kartar Singh v. State of Punjab (1994) 3 SCC 569 another Constitution Bench, while accepting the principle that denial of the right to speedy trial to the accused may eventually result in a decision to dismiss the indictment or a reversal of conviction, further went on to state as follows:-(SCC pp.639-40, para 92) “92. Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors — (1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay.” 19. However, thereafter, certain pronouncements, namely, Common Cause v. Union of India (1996) 4 SCC 33 , Common Cause v. Union of India (1996) 6 SCC 775 , Raj Deo Sharma versus State of Bihar (1998) 7 SCC 507 , Raj Deo Sharma (2) 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. Ramchandra Rao v. State of Karnataka (2002) 4 SCC 578 and the larger Bench by the majority opinion, analyzing the dictum of A.R. Antulay case and Kartar Singh case jurisdiction, recorded certain conclusions. The conclusion Nos. 3 and 4, which are pertinent for the present case, are as under: (P.Ramachandra Rao case, SCC p. 603, para 29) “29…..(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 straitjacket 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. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket 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, Raj Deo Sharma and Raj Deo Sharma 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, 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.” (emphasis added) 20. At this juncture, we may notice few decisions to show how the principles laid down in Abdul Rehman Antulay and P. Ramachandra Rao have been applied by this Court either for the purpose of quashing of the prosecution or refusal to accede to the prayer in that regard. 21. At this juncture, we may notice few decisions to show how the principles laid down in Abdul Rehman Antulay and P. Ramachandra Rao have been applied by this Court either for the purpose of quashing of the prosecution or refusal to accede to the prayer in that regard. 21. In Vakil Prasad Singh v. State of Bihar (2009) 3 SCC 355 , the t Judge Bench took note of factual scenario that the jurisdiction to do so; that the accused-appellant therein could not be accused of causing delay in the trial because he had successfully exercised his right to challenge an illegal investigation; that despite direction by the High Court to complete the investigation within a period of three months on 7.9.1990, nothing had happened till 27.2.2007and the charge-sheet could only be filed on 1.5.2007 and, accordingly, opined that it was not a case where there was any exceptional circumstance which could be possibly taken into consideration for condoning the inordinate delay of more than two decades in investigation and, accordingly, quashed the proceedings before the trial court. 22. In Sudarshanacharya v. Purushottamacharya (2012) 9 SCC 241 , a criminal prosecution was launched for commission of an offence for misappropriation and criminal breach of trust. On an application being filed for quashing of the proceedings, the High Court declined to quash the proceedings taking note of the fact that the accused had also played a role in the procrastination of the proceeding and directed that the case be heard on day-to-day basis. The matter travelled to this Court and a contention was advanced that it would be unfair to submit the accused-appellant to the agony of a trial after a lapse of long time. The Division Bench referred to the principles laid down in P. Ramachandra Rao and, further taking note of the conduct of the accused, declined to quash the proceedings. 23. At this stage, we think it apposite to advert to another aspect which is some times highlighted. It is quite common that a contention is canvassed in certain cases that unless there is a speedy trial, the concept of fair trial is totally crucified. Recently, in Mohd. Hussain alias Julfikar Ali v. State (Govt. 23. At this stage, we think it apposite to advert to another aspect which is some times highlighted. It is quite common that a contention is canvassed in certain cases that unless there is a speedy trial, the concept of fair trial is totally crucified. Recently, in Mohd. Hussain alias Julfikar Ali v. State (Govt. of NCT of Delhi) (2012) 9 SCC 408 ,a three-Judge Bench, after referring to the pronouncements in P. Ramchandra Rao’s case, Zahira Habibulla H. Shekh v. State of Gujarat (2004) 4 SCC 158 , Satyajit Banerjee v. State of W. B. (2005) 1 SCC 115 , pointed out the subtle distinction between the two in the following manner:-(Mohd. Hussain Case, SCC pp.427-28, para 40) “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 himself. The right to speedy trial is in its very 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-à-vis the impact 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 impact 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.” (emphasis added) 24. It is to be kept in mind that on one hand, the right of the accused is to have a speedy trial and on the other, the quashment of the indictment or the acquittal or refusal for sending the matter for re-trial has to be weighed, regard being had to the impact of the crime on the society and the confidence of the people in the judicial system. There cannot be a mechanical approach. From the principles laid down in many an authority of this Court, it is clear as crystal that no time limit can be stipulated for disposal of the criminal trial. The delay caused has to be weighed on the factual score, regard being had to the nature of the offence and the concept of social justice and the cry of the collective. 25. In the case at hand, the appellant has been charge-sheeted under the Prevention of Corruption Act, 1988 for disproportionate assets. The said Act has a purpose to serve. The Parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. The intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings incorruption cases solely because of delay without scrutinizing other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism. 26. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. 26. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality. 27. Therefore, the relief for quashing of a trial under the 1988 Act has to be considered in the above backdrop. 28. It is perceivable that delay has occurred due to dilatory tactics adopted by the accused, laxity on the part of the prosecution and faults on the part of the system, i.e., to keep the court vacant. It is also interesting to note that though there was no order directing stay of the proceedings before the trial court, yet at the instance of the accused, adjournments were sought. After the High Court clarified the position, the accused, by exhibition of inherent proclivity, sought adjournment and filed miscellaneous applications for prolonging the trial, possibly harbouring the notion that asking for adjournment is a right of the accused and filing applications is his unexceptional legal right. When we say so, we may not be understood to have said that the accused is debarred in law to file applications, but when the delay in trial has caused colossal hardship and agony warranting quashment of the entire criminal proceeding.” 6. It cannot be denied that the petitioner is facing a charge under Section 409 read with Section 120-B of the Indian Penal Code which admittedly is an offence against the State as compared to an offence against an individual. Therefore, taking a holistic view of the matter, more particularly, the lucid exposition of law laid down in Sashittal’s case (supra), I do not find any merit in this petition insofar as it seeks quashing of the FIR only on the ground of delay in trial. Therefore, taking a holistic view of the matter, more particularly, the lucid exposition of law laid down in Sashittal’s case (supra), I do not find any merit in this petition insofar as it seeks quashing of the FIR only on the ground of delay in trial. However, this Court cannot be oblivious and unmindful of the fact that the petitioner is facing trial in the present case and also in about nine other cases and out of the entire batch of ten cases the challans (final reports) have been presented, but only in one case till date the charge has been framed. 7. This is a serious matter and cannot be over-looked by this Court, though there may not be sufficient grounds for quashing the proceedings of delay, but nonetheless, the petitioner in the given facts and circumstances and also taking into view the provisions of Article 21 of the Constitution of India is entitled to speedy trial and cannot be made to suffer either on account of laxity of the prosecution or the Courts or for any other reason. 8. Accordingly, the trial Magistrate is requested to ensure free, fair and speedy trial and make all out efforts and an endeavour to decide these cases preferably before 30th June, 2015. 9. Needless to add that the object of this order is to expedite the hearing and not scuttle the same. The learned Court would ensure that the process of justice is speeded-up but fairness which is basic element of Records of the Court below be sent forthwith and the parties to appear before the learned trial Court on the date already fixed. 10. With these observations the present petition is disposed of in the aforesaid terms, so also the pending application, if any.