Calcutta High Court
Abdul Hamid And Ors. vs The State Of West Bengal on 22 September, 1995
Equivalent citations: 1996CRILJ498
ORDER Nripendra Kumar Bhattacharyya, J.
1. By the instant revision under Section 482 of the Code of Criminal Procedure, 1973, the accused petitioners have challenged the proceedings, being Sessions Case No. 41 of 1991, arising out of G. R. Case No. 946 of 1983, pending in the Court of the learned Sub-Divisional Judicial Magistrate, Malda; and the Ralua P. S. Case No. 8 dated 5-7-83 on which the G. R. Case was started, on the ground that there is inordinate delay in the process of conclusion of the trial. In other words, the provision of Article 21 of the Constitution of India has been offended.
2. The scenario on which this revisional application has been moved is that one Abdul Basir of village Malopara, P. S. Ratua, District Malda, on 5-7-83, lodged an F. I. R. with the Ratua Police Station being Ratua P. S. Case No. 8 dated 5-7-83, alleging offence against the accused persons and others under Sections 147, 148, 149, 448, 427, 436, 380, 323, 324, 325, 326 and 302 of the Indian Penal Code. In the F. I. R. it has been alleged that on 5-7-83 between 6 hours to 8 hours the accused persons numbering 187 and others being armed with deadly weapons raided the village Malopara and in course of such raid a person named Samsul Huda and ten persons were murdered on the spot and 11 persons were seriously injured. There was arson, looting and destruction of the house. The matter was reported on 5-7-83 at 15-35 hours. On the said F. I. R. an investigation was started and G. R. Case No. 946 of 1983 was registered in the Court of the learned Sub-Divisional Judicial Magistrate, Malda.
3. From Order No. 1 of the learned Sub-Divisional Judicial Magistrate, Malda, it appears that on the first day twenty five accused persons were produced from custody. From order No. 3 it appears that on 9-7-83 another 17 accused persons were produced from custody. From order No. 4 dated July, 1983, it appears that one accused was produced from custody. Again on 17-7-83 another three accused persons were produced from custody. Ultimately chargesheet was submitted before the learned Sub-Divisional Judicial Magistrate on 9-12-83 against 106 accused persons and the case was not sent up against 35 accused persons. The learned Sub-Divisional Judicial Magistrate took cognizance of the offences on 9-12-83. The record further shows that on 9-1-84 another accused was brought under arrest. From order dated 11-1 -84 it appears that 24 accused persons surrendered before the Court of the learned Sub-Divisional Judicial Magistrate. From Order dated 29-2-84 it appears that another accused surrendered before the learned Sub-Divisional Judicial Magistrate. From Order dated 10-4-84 it appears that the accused persons were brought before the Court under arrest. Again on 14-4-84 another three accused persons were brought under arrest before the Court. On 16-4-84 23 accused persons surrendered before the Court. On 21-1 -85 one accused person was brought under arrest. On 28-12-86 one accused person was brought under arrest before the Court. On 15-6-87 another accused person was brought under arrest. Ultimately, the learned Sub-Divisional Judicial Magistrate by order dated 26-7-91 committed the case to the Court of Sessions. It will be apposite to mention here that by instalments the accused persons moved for bail before the Court of Sessions. Originally the record of the Court of the learned S. D. J. M. was called for and again it was sent back and in this process time and again the record was taken to the Court of Sessions at the instance of the accused persons. There is another factor in this matter. Some of the accused persons after enjoying bail jumped the same and thereafter again their presence was secured after arrest and prayer was made on behalf of the accused for bail which was granted. Some of the accused persons could not be produced on the ground of sickness and in this process in the Court of the learned S. D. J. M. the time rolled by. The picture is not quite different also in the Court of the learned Sessions Judge to which the case was committed, where the case was registered as Sessions Case No. 41 of 1993. From the order No. 2 dated 29-8-91 it appears that all the accused persons were present before the learned Sessions Judge for confirmation of their bail. From Order No. 4 dated 15-1 -92 it appears that out of 96 accused persons who were on bail only three accused persons were present before the Court and 93 were absent by petition. On 25-2-92 out of 96 accused persons 90 were present but 6 were absent. On 8-4-92 all the accused persons were absent. Same thing happened on 5-6-92. On 18-9-92 out of 96 accused persons only 7 were present. The matter was taken up for consideration of the charge but the charge could not be considered because of the absence of the accused persons. From Order No. 11 dated 6-2-93 it appears that only six accused persons were present and the remaining accused persons were absent and warrant of arrest was issued. Even before the Court of the learned Sessions after enjoying the bail the accused jumped the same and warrant of arrest was issued against the erring accused persons. Thereafter some were brought under arrest, some surrendered. From Order No. 12 dated 17-4-93 it appears that out of 96 accused persons 88 were absent. From Order dated 5-6-93 it appears that out of 96 accused persons 9 were present and the remaining 87 were absent. On 26-11-93, 59 accused persons were present but 36 accused persons were absent. From order dated 25-1-94 it appears that 91 accused persons were present, five were absent. From Order dated 19-3-94 it appears that out of 96 accused persons only 4 were present. On 6-6-94, 93 accused persons were present and 3 persons were absent and warrant of arrest was issued. The record shows that at no point of time all the accused persons were present before the Court for the purpose of consideration of the charge.
4. In this background the learned Advocate for the accused persons, Mr. Sobhendu Sekhar Roy contended that though the incident, as alleged, is of 5th July, 1983 and F. I. R. was lodged on that date, till today no charge has been framed against the accused persons and that in this process over 12 years have already been elapsed and the accused are entitled to relief under Article 21 of the Constitution of India for a speedy trial and as that has not been done, the accused persons are entitled to an order for quashing of the proceeding, namely, Ratua Police Station Case No. 8 dated 5-7-83 G. R. Case No. 946 of 1983. which was pending before the Court of the learned S. D. J. M., Malda, and Sessions Case No. 41 of 1991 pending in the Court of the learned Sessions Judge, Malda.
5. In support of his contention Mr. Roy relied on some decisions of the Supreme Court and also of this Court, to wit. The State of Bihar v. Uma Shankar Kotriwal, reported in AIR 1981 SC 641, to point out that where the trial is pending for more than 20 years the High Court quashed the proceeding and the Supreme Court did not interfere with the High Court's order; Srinivas Gopal v. Union Territory of Arunachal Pradesh reported in 1989 Cri LR (SC) 26 (Sic), where the Supreme Court has held that enormous delay in a proceeding with the criminal prosecution by the appellant nine and half years for a trial for rash and negligent driving is too long a time. Quick justice is a sine qua non of Article 21 of the Constitution and on that view the Supreme Court interfered and quashed the proceeding; S.G. Nain v. Union of India reported in 1992 Cri LJ 560 (SC). wherein the Supreme Court interfered as the proceeding was challenged on the ground of sanction under Section 197 of the Code of Criminal Procedure and there was a delay and the Supreme Court has held that such delay at the instance of the accused person will not enure to the benefit of the prosecution and quashed the proceeding; Munshi Ram Ram Niwas v. Collector, Food & Supplies Department reported in, 1992 AIR SCW 3165. In paragraph 9 of that decision at page 3168 the Supreme Court observed that the criminal proceeding against the accused is pending but no effective progress has been made in the case except the submission of challan and that this indicates that the prosecution is not serious in prosecuting the matter which is pending for more than 10 years and the Supreme Court interfered with the proceeding and quahsed the same.
6. Mr. Roy also referred to a single Bench decision of this Court in the case of Sudhir Kumar Sengupta v. The State of West Bengal reported in 1994 Cr. LR (Cal) 359, where the learned Single Judge, relying on the case of S.G. Nain v. Union of India, 1992 Cri LJ 560 (SC) (supra), amongst other, interfered with the course of the proceeding and quashed the proceeding as the proceeding was pending for about 18 years. Here also the question of sanction under Section 197 of the Code of Criminal Procedure was involved.
7. Mr. Roy laid special emphasis upon the decision on the case of State of Bihar v. Uma Shankar Kotriwal, , (supra) and particularly in paragraph 3 of the decision at page 642. There was delay of 20 years and the Apex Court held that such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in Court, apart from anxiety. The Supreme Court also held that it may well be that the respondents themselves were responsible in a large measure for the slow pace of the ease inasmuch as quite a few orders made by the trial Magistrate were challenged in high Courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. In this view of the matter we do not consider the present case a proper one for our interference in spite of the fact that we feel that the allegations disclosed the commission of an offence which we regard as quite serious. With this observation the Apex Court quashed the proceeding. This is a case in connection with Section 7 of the Essential Commodities Act, 1955.
8. The learned Public Prosecutor, on the other hand, contended on behalf of the State that this snail's pace progress is largely due to non-cooperation and deliberate attempt to thwart the proceeding on the part of the accused persons. He has recited the dates on which the accused persons surrendered, brought under arrest and absconded and thereby did not allow the case to proceed. Not only that, according to the learned Public Prosecutor, by instalments the accused persons moved the Sessions Court for bail and record was called for and retained there and the ease could not be proceeded with. In this way the accused persons did not allow the case to be proceeded with at the speed at which it ought to have proceeded. According to the learned Public Prosecutor, the accused persons by their commission and omission did not allow the question of charge to be considered because at no point of time all the accused persons were present before the Court, they enjoyed the bail and they violated the bail by jumping it. Then again time has been consumed for securing the presence of the accused persons before the Court by issuance of warrant of arrest. The learned Public Prosecutor submitted that if there are laches and lapses and if there arc deliberate attempts to thwart the proceeding of the Court by the accused persons, the accused persons cannot take the benefit for their own wrong.
9. In support of his submission the learned Public Prosecutor relied on two decisions of the Apex Court to wit, Abdul Rehman Antulay v. R.R. Nayak reported in 1992 Cri LJ 2717. He laid much stress upon paragraph 54 of that decision at page 2747, wherein the Apex Court laid down as many as 11 principles whereof the Court should interfere for quashing of a proceeding in exercise of the power under Article 21 of the Constitution of India. The Apex Court had pointed out in that paragraph that those 11 principles are illustrative and not exhaustive. The learned Public Prosecutor, particularly, relied on the principle No. 4 as laid down in paragraph 54 of that decision, which runs as follows:-
"At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out. "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Nonavailability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of slay granted by a superior Court is by itself no proof that the proceeding is not frivolous. Very often these stays obtained on ex parte representation."
10. The learned Public Prosecutor further relied on a decision of the Supreme Court in the case of Santosh De v. Archana Guha reported in 1995 Cri LJ 2640. In paragraph 14 and 15 of that decision at page 2643, the Supreme Court observed after relying upon the decision in the ease of A.R. Antulay, 1992 Cri LJ 2717 (supra) as follows :-
"The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory is challenged in the superior Courts and the superior Courts, we are pained to say, are falling prey to their stratagems. We expect the superior Courts to resist all such attempts. Unless a grave illegality is committed, the superior Courts should not interfere. They should allow the Court which is seized of the matter to go on with it. There is always an appellate Court to correct the errors. One should keep in mind the principle behind Section 465 Cr. P. C. That any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself, because such frequent interference by superior Court at the interlocutory stages tends to defeat the ends of Justice instead of serving those ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system."
11. Having heard the learned Advocates for the parties and considering the materials on record, it appears that by commission and omission those by absenting themselves in the Court below either before the Court of the learned Sub-Divisional Judicial Magistrate or before the Court of the learned Sessions Judge the accused persons tried to delay the proceeding to the disadvantage of the prosecution. The record does not say that there were any laches or lapses on the part of the prosecution for a speedy trial but for their own interests the accused persons tried to delay and thwart the proceeding not only by their absence before the Court as mentioned earlier but also by removing the record of the case from the Court of the learned Magistrate by way of moving the application for bail by instalments and calling for the records and retaining the same in the Court of the learned Sessions Judge and in that process they did not allow the learned Magistrate to proceed. Even after enjoying the bail, they did not allow the ease to proceed at a speedy pace. They jumped the bail, and absconded, and warrant was issued for securing their presence. In the same process they gained time keeping their ultimate object that by such process they would delay the proceeding and they would come for quashing of the case. That is a deliberate act for gaining a mileage. Delay always may not be beneficial to the prosecution; delay may also be beneficial to the accused. That has been pointed out in the case of A.R. Antulay, 1992 Cri LJ 2717, (supra) at paragraph 54 at page 2747 of that decision. The Apex Court observed that it is usually the accused who is interesed in delaying the proceedings. As is often pointed out, 'delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Nonavailability of witnesses, disappearnce of evidence by lapse of time really work against the interest of the prosecution.
12. The same thing has happened in this case. The decision as has been referred to by Mr. Roy are of lesser offence. The gravity of the offence, therefore, is much important and that cannot be lightly brushed aside. In one incident at least 12 persons were murdered on the spot and another 11 persons were seriously injured. In the incident there were cases of arson, looting and other grave offences. So in this case the accused persons are more interested in delaying the proceeding because if the case is proceeded with at a speed than that may adversely affect the accused persons and that is why the delay may be caused for the purpose of non-availability of the witnesses, disappearance of evidence by lapse of time. The record shows that at no point of time all the accused persons appeared before the Court in order to face the trial. They did not appear before the Sessions Court for the purpose of consideration of the charge and in that way they kept the proceeding at bay to their own advantage. It is the known principle that one cannot take the advantage of one's own wrong. But in the instant case the accused persons, tried to do so. In one hand they kept the proceeidng at bay by delaying the same and on the other hand they tried to take advantage of such delay for the purpose of quahsing of the proceeding. That is not the imperative of the law. Wehre there is a genuine case that the prosecution failed to take appropriate action for speedy disposal of the case, for that the accused should not suffer and the Court should interfere in such matter; but where the accused persons are themselves responsible for such delay and there arc no laches and lapses on the part of the prosecution for expeditious trial of the proceeding for the wrong of the accused the prosecution should not be penalised.
13. In that view of the matter, I find that this is not a fit case for quashing of the proceeding.
14. I, accordingly, dismiss this revisional application.