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2022 DIGILAW 403 (GAU)

Pikar Doyom S/o Late Gopi Doyom v. State of A. P.

2022-04-19

ROBIN PHUKAN

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JUDGMENT : ROBIN PHUKAN, J. 1. This petition, under Section 482 of the Criminal Procedure Code, 1973, is preferred by Shri Pikar Doyom for quashing the Criminal proceeding arising out of FIR of Itanagar P.S. Case No. 259/2006 and Charge-Sheet No. 21/07, corresponding to G.R. Case No. 310/2006, under Section 341/326 IPC, pending before the Court of learned Chief Judicial Magistrate, Yupia, Papum Pare District. 2. The factual background leading to filing of the present petition is briefly stated as under: “On 26.12.2006, one Shri Kommin Taso, lodged one FIR with Itanagar Police Station to the effect that one unidentified/unknown person has attack his brother Shri Menpak Taso on the short cut road, from F&G Sector to Chandaranagar, Itanagar, wherein his brother Shri Menpak Taso sustained injury on his person and he was admitted at R.K. Mission Hospital, Itanagar. On the basis of aforesaid FIR, the Officer-In-Charge, Itanagar Police Station, registered a case being Itanagar P.S. Case No. 259/2006, under Section 341/326 IPC and investigated the same. The investigation culminated in submission of Charge-Sheet against the petitioner to stand trial in the Court under Section 341/326 IPC. Thereafter, the petitioner and the victim Shri Menpak Taso, entered into a settlement deed and based upon the same, they approached this Court by filing one criminal petition, being Criminal Petition No. 10(AP)/2018, for quashing the criminal proceeding pending against the present petitioner. But, after hearing learned Advocates of both sides, a co-ordinate Bench of this Court has dismissed the aforesaid criminal petition on the ground that evidence of the victim has not yet been recorded and the victim in his statement under Section 161 of the Criminal Procedure Code clearly stated that though he does not know the accused yet he will be able to identify the accused person who attacked him and in view of the materials in the Case Diary, based upon which, the learned Chief Judicial Magistrate has framed charge against the petitioner, the prayer for quashing the proceeding of the G.R. Case No. 310/2006 was rejected. Thereafter, two more witnesses, i.e. the complainant and the victim, have been examined in the Trial Court in the year 2019 and the said two witnesses, in their statements, stated that they do not know the accused and they did not see the person who attacked the victim and on the basis of the said statement and also having been failed by the prosecution side to procure the attendance of other prosecution witnesses and having the case been pending for last 15 years, the petitioner approached this Court again for quashing the proceeding against him.” 3. I have heard Mr. D. Kamduk, learned counsel for the petitioner and also heard Ms. T. Jini, learned Additional Public Prosecutor for the State respondent. 4. None appears for the respondent Nos. 2 and 3, though notice upon them have been served by dasti mode. 5. Mr. D. Kamduk, learned counsel for the petitioner, submits that there is no eye witnesses to the occurrence and none of the prosecution witnesses examined by the Investigation Officer have seen the occurrence and though the victim and the complainant have been examined by the prosecution side, yet they have also not implicated the accused with the offence and the remaining witnesses also could not be examined as they could not be found out as they were the labourers of the different parts of State of Arunachal Pradesh and Assam. It is further submitted that though earlier criminal petition was rejected by this Court at that time the victim and the complainant have been not examined by the prosecution side and even after the examination of the complainant and victim, it has been found that they have not implicated the accused and that the accused is a daily wage earner and for last 15 years he has been appearing before the Court regularly and as such his right to speedy trial, which is a fundamental right, is violated here in this case and, therefore, he approached this Court for quashing the proceeding as further proceeding with the Case would be an abuse of the process of the Court. Therefore, it is contended to allow the petition. 6. On the other hand, Ms. Therefore, it is contended to allow the petition. 6. On the other hand, Ms. T. Jini, learned Additional Public Prosecutor, has submitted that the prosecution side has examined two witnesses, the complainant and victim, before the Trial Court and as per the statement available in the record they have not implicated the petitioner with the offence. And though some more other witnesses have cited in the Charge-Sheet, yet they could not be examined till date and therefore, she has not opposed the petition filed by the petitioner. 7. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record. It appears from the FIR, which is annexed with the petition as Annexure-I, that the victim Shri Menpok Taso was assaulted by unidentified/unknown person on 26.12.2006. Though the prosecution sides has cited as many as 11 witnesses barring the MO & IO, yet none of them have identified the accused. It also appears that after framing of charge against the accused by the learned Court below, the petitioner and the victim entered into a settlement deed on 30.09.2017, which is annexed with the petition as Annexure-III, yet, the said criminal petition No. 10 (AP)/2018 was dismissed by a co-ordinate Bench of this Court as at the relevant time the statement of the victim was not recorded and also in view of the statement of witnesses examine under Section 161 of Criminal Procedure Code. Thereafter, the prosecution side has examined the complainant and the victim as PWs. 1 and 2, which are annexed with the petition as Annexure-V and VI. A cursory perusal of Annexure-V and VI reveals that the victim and the complainant have not implicated the accused with the offence. Neither they have seen the accused nor they could identify him. 8. I have also carefully gone through the statement of other witnesses recorded under Section 161 Criminal Procedure Code, which are available in the Case record and I find that none of them have implicated the accused with the offence alleged. Mr. Kamduk, learned counsel for the petitioner has submitted that after examination of PWs. 8. I have also carefully gone through the statement of other witnesses recorded under Section 161 Criminal Procedure Code, which are available in the Case record and I find that none of them have implicated the accused with the offence alleged. Mr. Kamduk, learned counsel for the petitioner has submitted that after examination of PWs. 1 and 2, before the trial Court in the year 2019, two years have elapsed and the prosecution side has failed to procure the attendance of other witnesses who happen to be the labourers of different parts of the State of Arunachal Pradesh and Assam. The submission of Mr. Kamduk, is not disputed by the learned Additional Public Prosecutor Ms. T. Jini. 9. Having gone through the case record of the learned Court below, I find that the FIR was lodged on 27.12.2006. The petitioner/accused was arrested on 22.01.2007 and he was enlarged on bail on 09.02.2007. Then Charge-Sheet was submitted before the District Magistrate on 23.02.2007. Thereafter, summon was issued to the accused on 04.10.2007. On 24.10.2007, charge was explained to the accused and summons were issued to the witnesses fixing 29.11.2007. Till 26.08.2008 no witness turned up. Thereafter, what has happened is not on record. Then suddenly on 29th July 2014, the case stood transferred from the Court of District Magistrate to the Court of Chief Judicial Magistrate (CJM), Yupia. Then the learned CJM, Yupia, has framed charge against the petitioner/accused again on 28.07.2016, and posted the case for evidence on 09.09.2016. Thereafter, only on 28.08.2019, PW-1 and PW-2 were examined. Though summon was issued to one witness, namely, Nabin Baurah, yet, he was found not available in the given address and on the basis of report of police, the learned Court below has discharged him. Though summon was issued to witnesses, Dharam Pal, Vakil Mehto and Umilo Das, yet, they were found not available in the given address. It also appears that the prosecution side has been given altogether 32 dates for examination of witnesses. 10. Thus, it appears that since the date of first explanation of offence on 24.10.2007, till date more than 14 years elapsed. And the delay in trial cannot be attributed to the petitioner/accused, who appears to be present in the Court almost on every dates. 10. Thus, it appears that since the date of first explanation of offence on 24.10.2007, till date more than 14 years elapsed. And the delay in trial cannot be attributed to the petitioner/accused, who appears to be present in the Court almost on every dates. Thus, it appears that the prosecution side and the District Magistrate appears to be prima-facie responsible for the delay which is ex-facie inordinate. While the prosecution side is responsible for failing to produce the witnesses, the District Magistrate is responsible for keeping the Case pending without any order from 26.08.2008 till 29th July 2014, on which the case stood transferred to the Court of CJM, Yupia. 11. It is to be noted here that right to speedy trial is a fundamental right that has been encompassed in the Article 21 of the Constitution of India. Reference in this context can be made to decision of Hon’ble Supreme Court in the case of Hussainara Khatoon vs. Home Secretary, State of Bihar, AIR 1979 SC 1360 , where it has been held that the “right to speedy trial” a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution of India. Again in the case of Karter Singh vs. State of Punjab, (1994) 3 SCC 569 , it has been declared that the right to speedy trial is an essential part of fundamental right to life and liberty. 12. Now, it is to be seen what would be the consequence of violation of such right to speedy trial. While dealing with the issue in question Hon’ble Supreme Court in the case of Sheela Barse vs. Union of India, (1986) 3 SCC 632 , Hon’ble Supreme Court has held that: “If an accused is not tried speedily and his case remains pending before the Magistrate or the Sessions Court for an unreasonable length of time, it is clear that his fundamental Right to Speedy Trial would be violated unless there is some interim order passed by the superior Court or deliberate delay on the part of the accused. The consequence of such a delay would be that the prosecution would be liable to be quashed.” 13. The consequence of such a delay would be that the prosecution would be liable to be quashed.” 13. In the case of Mangal Singh and Another vs. Kishan Singh, AIR 2009 SC 1535 , Hon’ble Supreme Court has held that: “Any inordinate delay in conclusion of criminal trial undoubtedly has a highly deleterious effect on the society generally and particularly on the two sides of the case. But, it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.” 14. In the case of Abdul Rehman Antuley vs. R.S. Nayak, AIR 1992 SC 1701 , Hon’ble Supreme Court has held that: (a) The Right to a speedy trial under Article 21 is available at all stages namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. (b) In every case, where the right to speedy trial is alleged to have been infringed, the first question is to be put and answered is who is responsible for the delay. Proceeding by either party in good faith to vindicate their right and interest as perceived by them cannot be taken as delaying tactics nor can the time taken in pursuing such proceeding be counted towards delay. (c) While determining whether undue delay has occurred one must take into account all the attendant circumstances, including the nature of offence, the number of accused persons and witnesses, the court’s workload, the prevailing local condition and so on. (d) Every delay does not necessarily prejudice the accused. However, inordinately long may be taken as presumptive proof of prejudice. The prosecution should not be permitted to become a persecution. But when the prosecution becomes a persecution depends upon facts of a given case. (e) An accused person’s plea of denial of a speedy trial cannot be defeated by saying that the accused did not at any time demand a speedy trial. (f) The court has to balance and weigh several relevant factors- balancing test-and determine in each case whether the right to a speedy trial has been denied in a given case. (e) An accused person’s plea of denial of a speedy trial cannot be defeated by saying that the accused did not at any time demand a speedy trial. (f) The court has to balance and weigh several relevant factors- balancing test-and determine in each case whether the right to a speedy trial has been denied in a given case. (g) Charge on conviction must be quashed if the courts comes to the conclusion that the right to a speedy trial of an accused has been infringed. But this is not only course open. It is open to the court to make any other appropriate order-including the order to conclude the trial within a fixed period, where the trial is not concluded, or reducing the sentence, where trial has concluded - as may be deemed just and equitable in the circumstance of the case. (h) It is neither advisable nor practicable to fix any time for trial of offence. (i) An objection based on denial of the right to a speedy trial and for relief on that account should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceeding, except in cases of grave and exceptional nature, such proceedings, except in the High Court must be disposed on a priority basis. 15. In the case of P. Ramachandra Rao vs. State of Karnataka, (2002) 4 SCC 578 , Hon’ble Supreme Court has laid down certain factors to identify whether an accused has been deprived of his Right to Speedy Trial. They are: 1. length of delay. 2. the justification for the delay. 3. the accused assertion of his Right to Speedy Trial. 4. prejudice caused to the accused by such delay. If nothing is shown and there are no circumstances to raise a presumption that the accused had been prejudiced there will be no justification to quash the conviction on the ground of delayed trial only. 16. Having examined the attending facts and circumstances discussed here in above, in the light of the principles discussed in the case laws discussed above, I find that grave prejudice is caused to the petitioner/accused and his right to speedy trial is violated. The petitioner, as submitted by the learned counsel, Mr. D. Kamduk, is a daily wage earner and his family has been suffering a lot. The petitioner, as submitted by the learned counsel, Mr. D. Kamduk, is a daily wage earner and his family has been suffering a lot. There is substance in the submission of Mr. Kamduk. The sword of Democols is hanging over the head of the petitioner for last 15 years. If the engine of oppression is allowed to run then further prejudice will be caused to him and his right to speedy trial will be jeopardised further. 17. We are not unmindful of the nature and gravity of the offence. But, the materials available on the record, especially the evidence of the victim and the complainant and also the statement of other witnesses available in the Case recorded under Section 161 Criminal Procedure Code, left this Court unconvinced that a fruitful result will come out even if the proceeding is allowed to be continued. 18. In the given facts and circumstances this Court is inclined to allow the petition accepting the arguments advanced at the Bar and relying upon the ratio laid down in the case of Sheela Barse (supra). In the result, the petition stands allowed. The proceeding of G.R. Case No. 310/2006, under Section 341/326 IPC, pending before the Court of learned Chief Judicial Magistrate, Yupia, Papum Pare District, stands quashed and set aside. The parties have to bear their own costs.