Himachal Pradesh High Court
Sateesh Chander Kuthiala vs State Of H.P. And Another on 26 June, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 184 of 2015.
.
Date of decision: 26.6.2015.
Sateesh Chander Kuthiala ...Petitioner.
Versus
State of H.P. and another ... Respondents.
Coram
r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No For the Petitioner : Mr. Dushyant Dadwal, Advocate.
For the Respondent : Nemo.
Tarlok Singh Chauhan, Judge (Oral).
A senior citizen, who is retired from Armed Forces from the rank of Brigadier, out of desperation, has preferred this petition seeking time bound directions for completion of the trial in a case arising out of FIR No.167 of 2010 which was registered at Police Station Sadar, Shimla on 26.7.2011 under Sections 420, 467, 468 and 471 IPC.
2. Taking into consideration the nature of the relief prayed for and bearing in mind the nature of order I propose to pass, it is not necessary to issue notice to the opposite parties.
3. Speedy justice is an obligation of the State and every person including an accused is entitled to speedy justice. To have speedy justice, is a fundamental right which flows from Article 21 of the Constitution. There is also public interest involved in speedy trial as it serves the social interest also.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 2
4. The imperative need for quick disposal of cases was considered in detail by a learned Division Bench of Allahabad High .
Court in Siddhartha Kumar and others vs. Upper Civil Judge, Senior 1998 (1) AWC, 593 wherein it was held as under:
"3. The imperative need of quick disposal of cases was felt in ancient times. Its echoes are to be found in Mahabhorat and Ramaycma. In History of Dharamshastra by Dr. P. V. Kane.1973 Ed., Vol. III (page
243) under the head Vyauohora (Law and Administration of Justice), Chapter XI. it is recited :
r "..... The Mahabharafa (Anusasana 638 and Chapter 70) and Ramayana say that if a King intent on pleasures does not show himself to litigants who approach him for decision, he would suffer like King Nriga. The Sukranitisara (IV 58) also says the same thing. In Ramayana (VIL 53-54) King Nriga is said to have been cursed to become a chameleon for a long period by two Brahmanas who had a dispute about the ownership of a cow and could not see the king for many days. Megasthenes (Frag. XXV1L. pp. 70-71) says "the king remains the whole day in court without allowing the business to be Interrupted". Kautilya (1.19) gives the advice that, when in court the king should not cause petitioners or litigants to wait long at the door, for when a king makes himself inaccessible, those who are near him create confusion about what should or should not be done, whereby the king engenders disaffection among his subjects and makes himself a prey to hts foes."
Similarly, during the Mughal period instructions were occasionally issued by the Emperors to Judges to expedite the trials. In Administration of Justice in Medieval India by M. Basheer Ahmad, in Chapter "Working of Judicial Machinery", pages 261-262 (1941 Ed.), the author states :
"...... Those who apply for justice, states one of Akbar's Alns "let them not be inflicted with delay and expectation. Let him object to no one on account of his religion or sect."
Bernier, a contemporary traveller in the 17th Century, India, thinks that the suits were "speedily decided". According to Terry, a European missionary attached to the Staff of Sir Thomas Roe, the trials were "conducted quickly". Manucci says that the Emperor "causes the judgment he pronounces to be executed on the spot". But, it seems special emphasis was laid on the speedy decision of criminal cases. In civil cases sometimes the proceedings took considerably more time. Abdul Wahab's civil suit was referred twice within the space of one year by the Quzi-e-Subah to Jahanglr for orders on preliminary issues only, as the defendant was a high personage of the Imperial court [Tuzuk 306 S.A.). The Governor of Kara disapproved of the delay in Hamiyat Ali v. Gauri Shankar ::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 3 (Baquiat, p. 32), and Sikandar Lodi, is said to have taken to task his Chler Mir AdJ for prolonging proceedings for two months in a suit .
which he could finish in one day."
"Individual rulers, as Sir Henry Elliot observes. In most cases 'never showed any delay' (Vol. (2) p. 411). Fryer who visited India in the reign of Aurangzcb speaks of law suits being soon ended."
4. The frightful problem of mounting arrears of cases in the subordinate courts is one of the greatest challenges which the Judiciary is facing today. It has subjected the Judicial system, as it must, to severe strain. Though the strain at present, is severe, the problem of delay in the disposal of cases is not a recent phenomenon. It has been in existence since a long time. The gradual increase in the institution of cases coupled with failure of disposal to keep pace with them, has resulted in an alarming rise in the pendency of cases in the subordinate courts. The problem has assumed gigantic proportions inviting scathing criticism. The contributory sources and factors are many. It is not the Judiciary alone which has to hear the bunt of the criticism. To deal with the chronic disease in the body of the administration of justice, several Law Commissions and Committees have scratched their heads to find out a solution to the problem. The first Committee, known as Rankin Committee, was appointed in 1924. It was followed by a report of the High Court Arrears Committee, 1949, set up by the Central Government under the Chairmanship of Justice S. R. Das. In 1972, Justice Shah Committee was appointed. The report of Justice Satish Chandra Committee was also submitted and in the year 1990-- Malimath report came into being. Besides these reports of the Committees, the Law Commission of India made as many as 14 reports (14th. 22nd. 27th. 54th, 58th. 77th. 79th. 80th, 99th, 120th. 121th, 123rd, 124th and 129th) in one way or the other to deal with the problem of accumulation of huge arrears of cases and disposal of old cases at various stages and levels of courts. The very fact that the problem of arrears has received the attention for such a long time and has been considered by so many high powered Committees, and yet continues to vex all concerned, is enough to indicate that the problem, by its nature, is not so easy to solve. Concern has been voiced by eminent Jurists, administrators, Parliamentarians and politicians at different platforms but the problem still remains unaffected, unabated and unsolved. In the light of the recommendations made by the Law Commission and the various Committees efforts have been made to tinker with the problem but the surging problem remains insurmountable.
::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 45. There was, no doubt, a time when Judiciary was highly respected by the people who had faith in the quality of justice, .
dispensed with promptly by the Judges. Now the people have started loosing faith in the entire judicial system because of every day increasing arrears. Remarks have come to be made expressing the lamentation in various forms. The whole nation, it was said, is in a Juridical abyss. Many today are dissatisfied over the courts' conduct. All through the years men have protested at the laws' delay and counted it as a grievous wrong, hard to bear. It is linked amongst the whips and scorns of the time. Some talk of it. how it exhausts patience, courage and hope. In substance, it is a Judicial anathema, for all who are concerned with the litigation process. Even the aggrieved persons have, at times, been found remorseful and repentant for filing the case. It is a usual phenomenon to hear the conversation between suitors that they are not likely to reap the fruits of litigation during their life time. Eminent Jurists have gone even to the extent of observing that our Justice Delivery System is cracking under the oppressive weight of delay and arrears. It has been repeated ad nauseam that to delay Justice is to deny justice. An eminent person not less than the former Chief Justice of India, J. C. Shah made the following remarks, which amply exhibits the present situation :
".....The accumulation has reached such a proportion that there is danger of Judicial administration breaking down in future years, if the cases before the courts increase at the rate at which they are mounting today. One shudders to think what the position of Judicial administration will be in a decade or two, if the present worst disparity between in flow and disposal of cases continues. Unless this problem is tackled the litigants might be gripped with a sense of frustration and loss of confidence in courts and Tribunals."
The present state of arrears in our Law Courts and the long delays in the disposal of cases are Justly causing concern. From time to time, public attention has been drawn to this sorry state of affairs and though the matter has been frequently discussed both in the Parliament and outside, yet the problem has defied any solution. Pt. Jawahar Lal Nehru, while addressing a conference of State Law Ministers expressed alarm at the slow pace of the wheels of justice and pleaded for a change of attitude and a genuine effort to accelerate the judicial machine which according to him was rusty and out-moded.
6. A compilation of mostly identical but a few divergent suggestions of eminent jurist. Judges, legislators, committees and commissions would show that all are raising 'alarm' at the mounting arrears and delay in disposal of cases. Almost unanimous view is that ::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 5 unless something 'radical' is done the Judicial system would 'crash and collapse under its weight.' .
7. There are other factors also which are contributory for the delay in the disposal of cases. It is expected from the Judges that they will dispense justice in a cool, peaceful atmosphere. Due to the attitude of certain members of the Bar not only the disposal of the cases is delayed but it puts the judicial officers under mental strain. Sometimes the atmosphere of the court rooms is so hot up that mental equilibrium of thejudicial officers is unnecessarily disturbed. It has been observed by the Apex Court in K P. Tewari v. State of M. P., AIR 1994 SC 103 :
r "It has also to be remembered that the lower Judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks, more correctly up to their nostrils."
8. In spite of the several constraints, stresses and strains, the courts, by and large, enjoy high prestige and command, great respect amongst people. This is because of the moral authority of the courts and the confidence the people have in the role of the court to do justice between rich and poor, mighty and weak, State and citizen, without fear and favour. This feeling of the common people in general and the litigants in particular, is eroding on account of the impasse which it is difficult to overcome.
9. Despite the basic soundness of our judicial system some weaknesses have manifested themselves. One such striking weakness is that of undue delay in the disposal of cases. This weakness has undoubtedly affected the image of the system and undermined people's confidence in its efficacy.
10. It is not intended to burden this judgment by recounting the various factors and causes, which have brought about the present situation. Suffice it to say succinctly that the most common cause put forth for the present malaise are litigation explosion ; radical change in the pattern of litigation ; increase in legislative activity : inordinate concentration of work in the hands of some members of the Bar ; lack of punctuality amongst the Presiding Officers, long arguments and prolix judgments ; lack of priority and interest in disposal of old cases ; granting of unnecessary adjournments ; non-appearance of the lawyers in courts due to strike and other allied causes.
11. The general public and even the administrators squarely lay the blame mainly on the Judiciary and it is a common belief that the ::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 6 courts and those connected with the courts are responsible for the mess. This general feeling blaming only the Judiciary is the reflection .
of the attitude that one has not gone deep in the roots of the problems or has not been foreseeing and analysing the causes that have created and accelerated the problem. This again is a field which may be subject-matter of deep research. The causes and reasons for the alarming mounting arrears and who is responsible for bringing about the situation, are such matters which are left to be considered by some other forum. At the moment, for the purpose of this judgment, we are concerned to improve upon the situation within the existing legal frame work and the accentuating circumstances.
13. The delay in disposal of old cases, apart from causing hardship to the parties, has a human aspect and has the effect of embroiling succeeding generations in litigation started by the ancestors. The Supreme Court has taken note of this situation and the remarks made in two seminal decisions touching the problem may profitably be referred to. In Sant Narain Mathur and others v. Ram Krishna Mission and others, 1970 (2) SCC 730. the suit giving rise to the appeal before the Supreme Court was instituted in the year 1958.
It remained pending for more than 14 years in the trial court and the High Court. Disallowing the prayer to raise a new plea, the Supreme Court noted with concern that we have reached the culminating point of a litigation which arose out of a will executed in the last century and which has been pending in one court or the Other since before the dawn of Indian Independence. The question is whether we should call a halt and put an end to this litigation or whether we should allow the litigation to take a further meandering course which must necessarily be the case if we allow the new plea to be raised in this Court'. The other part of the celebrated observations touching the present controversy made in the aforesaid case were reiterated by the Supreme Court in a subsequent case of Bechan Pandey and others v. Dulhan Janki Devi and others, (1976) 2 SCC 286, in which the prayer for remanding the case to the trial court was rejected. Some of the relevant aspects of the controversy in hand are made clear from the following observations:
".....Apart from that, we find that the suit out of which the present appeal has arisen was filed as long ago as January, 1950. From the title of the appeal we find that many of the original plaintiffs and defendants have during this period of more than a quarter of century departed and are no more in the land of the living, having bowed as it were to the Inexorable law of nature. They are now represented by their legal representatives. To remand the suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial court and thereafter in appeal. It is time, in our opinion, that we draw the final curtain and put an end to this long ::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 7 meandering course of litigation between the parties. If the passage of time and the laws of nature bring to an end the lives of men and women, it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict .
started by the dead. To do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time. If human life has a short span it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty. The courts should be loth to entertain a plea in a case like the present which would have the effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation. It may be appropriate in the above context to reproduce what was said in the case of Sant Narain Mathur v. Rama Krishna Mission, (1974) 2 SCC 730 (p. 737. para 15) :
"It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its members to smoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this context to refer to the observations of Chief Justice Crewe in a case r concerning a peerage claim made after the death without issuse of the Earl of Oxford. Said the learned Chief Justice :
"Time hath its revolution; there must be a period and an end to all temporal things--an end of names and dignities and whatsoever is terrne and why not of De Vere? For where is Bohun? Where is Mowbray? Where is Mortimer? Why, which is more and most of all. where is Plantagenet? They are all entombed in the urns and sepulchres of mortality. What was said about the inevitable end of all mortal beings, however eminent they may be is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they all have a stamps of mortality on them.
One feels tempted to add that if life like a dome of many-coloured glass stains the while radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down."
16. In the wake of the above administrative instructions which every judicial officer is bound to comply, and the confidence reposed by the court in their ability and competence, the judicial officers have to bear in mind that they should rise to the exalted judgment seat to do quick and real justice.
17. If past experience is of any value, one can easily conclude that the Judicial officers by and large for variety of reasons and existing constraints avoid in taking up time consuming, energy exhausting old cases for disposal. The administrative instructions of the High Court have failed to evoke the desired response and impact.
18. Should the old cases be allowed to grow older to meet their own death? is the delay in disposal of cases Indispensable? is the ::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 8 evil of law's delays chronic and incurable? Can the cankers be not weeded out? Can the cancerous spots be not operated upon? These .
are some of the questions which have direct nexus with the attitude and zeal of the Presiding Officers.
20. The judiciary, like all other organs of the State, is equally accountable to the people. The Presiding Officers of the subordinate courts, therefore, have to realise their accountability to the common man. There can be no denying the fact that the old cases are to be attended to on priority basis unmindful of the various limitations and difficulties. The three principal participants in a litigative process are
(i) litigants (ii) lawyers, and (Hi) Presiding Officers, besides the ministerial staff of the court, etc. The attitude of the litigants sometimes is motivated. The cases get old and old because this suits one of the contestants. To keep the case pending proves to be of Immense advantage to one of the parties to the litigation. In case of vexatious litigation, it suits the plaintiff because he can subject his adversary to continued harassment with regard to any supposed or genuine grievance. So one party has always a vested Interest in delay backed by expert and tactical management of the case in Its passage through one court to another. Nevertheless the party who is interested in delaying the case does not have the last voice in the matter. A sensitised and alert Presiding Officer of the court must be in a position to curb such designs to see that the case proceeds in conformity with law and according to time schedule.
23. In the whole exercise, the dominating role is to be performed by the Presiding Officer of the subordinate courts, particularly the trial court. The position of a trial Judge cannot be undermined. In our view, the Judiciary is not like a ladder which steps in a descending order. Our Judiciary is like a ladder ascending from lower to upper- steps. He who holds the ladder at the lower end is far more important. If the first that holds the ladder at the bottom becomes loose or the grip is lost, all those at the upper and a long with the ladder would fall down. Therefore, if an evaluation is made of the importance of the role of the different functionaries who play their part in administration of justice, the top position would necessarily have to be assigned to the trial court Judge. He is key-man or say the lynch-pin, the most important and influential participant in the system of dispensation of Justice. It is mqstly with the trial court Judge rather than appellate court Judge that the members of the general public come into contact, whether as parties or as witnesses.
::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 924. Hon'ble Supreme Court in its landmark judgment of All India Judges Association v. Union of India, AIR 1992 SC 165 observed :
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"The trial Judge is the king pin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the proceedings in Court. On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered. The personality knowledge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the Court's functioning successful."
Hon'ble Mr. Justice A. M. Ahmadi, former Chief Justice of India spoke about the subordinate courts as follows :
"Subordinate Judiciary is the backbone of Indian Judiciary. It is the base on which the judicial edifice of the country rests. The base must, therefore, be sufficiently strong to carry the weight of the r Judicial system. The Image of the judicial system in the public eye rests on the members of the subordinate Judiciary since it is they who come in direct contact with the litigant public. Therefore, a heavy duty and responsibility lies on them to function in a manner as would enhance the image of the judiciary and Its credibility in the public eye."
25. The common man really forms an impression about the judiciary from the working of the trial courts. This is because he is concerned with the Judges and the courts at the bottom only. His hopes are pinned with the subordinate judiciary. The image of the judiciary for the common man, therefore, is projected by the trial court Judges and this. In turn, depends upon their intellectual, moral and personal qualities. Therefore, in the arduous task of disposal of old unyielding and time-consuming cases, the great qualities of head and heart of the trial court Judge and the influence of his personality go a long way.
26. The problem of disposal of old cases has defied any viable solution ; nevertheless, it needs Immediate attention to make certain significant improvement in the area. A few and far. In between stray directions of this Court, in different writ petitions, are just like a few drops in the ocean. Such directions are sometimes counter productive as a feeling of genuine frustration and distress is generated amongst the common people, particularly the litigants. Their feeling that only those cases in which the High Court is approached for a direction to the subordinate court for expeditious disposal, or within the phased time, are taken up on priority basis to the serious detriment of much more older cases which continue to be neglected or proceed at a snail's speed as the parties to those case are not in a position or find it difficult to travel upto this Court, is not without basis for, every body has a right to speedy justice, it is, indeed, regrettable that the parties have often to approach this Court ::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 10 only to obtain a writ of mandamus to command the subordinate court to decide the case expeditiously. We should not, however, hesitate to .
turn the mirror on ourselves. The Chief Justice of India Hon'ble J. S. Verma, on the day he assumed charge of the exalted office in March this year, articulated this well, when he said These days we are talking about everyone what they should do. But who is to tell us."
While the courts have sometimes resorted to judicial activism and done the work which other State organs should really have done, the judiciary has done precious little to extend the area of cleansing its own precincts and dockets which are fully brimmed up and overflowing with arrears. If we do not question ourselves, the people may resort to extra judicial activities/remedies, the echoes of which are quite rampant. Eviction under the threat of muscle power, land and house grabbing, encroachment over public land are a few instances, which are getting multiplied day in and day out.
27. It is, therefore, thought proper that in the struggle of solving the problem, which is never ending, some general directions be issued on the judicial side so that as far as possible the litigants may evenly be benefited in the justice delivery system. As a matter of caution, it may further be pointed out that it is not the intention of this Judgment to make radical changes or major innovations in the areas.
Those who may be looking for it may perhaps experience some disappointment. The Judgment simply strikes at the root of one of the most basic problems afflicting our judicial system, in the wake of the fact that there is absence of a mechanism for ensuring judicial accountability. Our only concern is to deal with the ways and means with a view to reduce, control and streamline the arrears and to cut short the delays in the disposal of cases pending before the subordinate courts taking note of the prevailing environment and circumstances and within the four corners of the existing system of administration of justice, which itself is in the grip of manifold problems. These efforts may prove useful only if concerted and effective steps are taken to deal with the huge arrears, which have already piled up out of proportion. No reform and no suggestion for improvement would make any impact if the existing courts remain burdened with the heavy back-log of cases. As long as the courts remain burdened with arrears, the other suggestions for expeditious disposal of cases would be nothing more than palliatives and would not provide any effective relief.
28. A note of caution against the undue haste in disposal of cases may, however, be sounded. True, speedy Justice is the absence of an organised society. At the same time, it is obvious that ::: Downloaded on - 15/04/2017 18:27:07 :::HCHP 11 in order to speed up the decision of a case, the basic norms, concepts and contents, that are necessary for ensuring justice should .
not be sacrificed. Therefore, while laying stress on the necessity of elimination of delay in the disposal of cases, we must guard against the undue haste in the matter of disposal because this would be substituting one evil for another evil. Any stress on speedy disposal of cases at the cost of substantial justice would impair faith and confidence of people in the Judicial system--perhaps in a much greater degree than would be the case if there is delay in the disposal of cases. In no case, due procedure as prescribed should be dispensed with, otherwise, it would be mockery of a trial. In issuing the directions, to be followed by the subordinate courts, we will be keeping in the fore-front the need to maintain a reasonable amount of harmony between these two considerations."
5. As observed earlier, the trial in this case is pending since the year 2011 and, therefore, it is imperative that the same is concluded in a time bound manner especially when the petitioner is a septuagenarian.
6. Accordingly, the present petition is allowed and the learned Chief Judicial Magistrate, Shimla is directed to decide the case bearing No. 89-2 of 2011 titled State of H.P. vs. Sateesh Chander Kuthiala as expeditiously as possible and in no event later than 31.12.2015.
The petition is disposed of in the aforesaid terms.
June 26, 2015 (Tarlok Singh Chauhan)
(GR) Judge.
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