Patna High Court
Ram Nath Roy And Etc. Etc. vs The State Of Bihar And Ors. on 16 January, 1987
Equivalent citations: 1988CRILJ324
JUDGMENT S.S. Sandhawalia, C.J.
1. That the curse of delays, even in the administration of criminal justice, should rise beyond the level of a twentyfive-year old silver jubilee, reminds one of Shakespeare's old lament - "For who would bear the scorns of time, the oppressors' wrong...the law's delays..." Yet it is true in our State and is epitomised by this set of thirty five criminal writ jurisdiction cases. Indeed, the facts in some of them read not like those of a current prosecution but as a chronicle of old history. All the petitioners herein invoke the constitutional right of speedy public trial under Article 21 and allege the most glaring infraction thereof. To avoid wasteful repetition, all these cases have to be disposed of by this common judgment as readily agreed to by the learned Counsel for the parties.
2. The representative matrix of facts may be taken from Criminal Writ Jurisdiction Case No. 325 of 1986 (Ramanuj Prasad Singh v. State of Bihar) and the briefest synopsis of others would suffice because gross and fatal delay herein is writ large on the face of the impugned proceedings. In Cr. W.J.C. No. 325 of 1986 the genesis of the crime goes back to more than twentyfive years way. back in March, 1961, The prosecution allegation is that on the 18th March, 1961 a railway wagon was booked from Kumardubi siding to Vikhrouli, Bombay, with iron angles and the petitioner at the material time was the Assistant Goods Clerk who had weighed the wagon and put labels thereon. The guard of the Kumardubi Engineering pilot train carried the wagon from Kumardubi Engineering siding to Barakar. However, at that place the wagon had a card labelled 'Ex Kumardubi to Patna Junction' and was thus diverted to the said station instead of Vikhrouli, Bombay. The suggestion of the prosecution is that the petitioner in collusion with others had forged a railway receipt in the name of one Ram Sagar Singh of 'Binco' Industry Co. Ltd. and one Madan Prasad Singh impersonating Ram Sagar Singh took delivery of the said goods of the wagon. It was not till the 26th May, 1962 that the Claim Prevention Inspector of Gaya railway station lodged a written report on the basis of which the first information report was registered against the petitioner and others under Sections 420, 467 and 471 of the Penal Code. After investigation the Dhanbad Government Railway Police Station submitted charge-sheet against the petitioner and others.
3. More than twentytwo years ago, on the 31st of October, 1964 charges were framed against the petitioner under Sections 419,420,468, 471 read with Section 120B of the Penal Code and the recording of the prosecution evidence started. Thereafter on the 18th June, 1966, 11th Aug. 1966 and 27th of Aug. 1966 the prosecution preferred petitions to add the charge under Section 467 of the Penal Code and to commit the case to the Court of Session. This was declined by the learned Magistrate whereupon the prosecution preferred a revision against the same which was disposed of by the Sessions Judge on the 7th March, 1968 by declining to interfere with the said order. Notwithstanding that on the 30th Aug. 1969 Shri P. K. Sharan Munsif Magistrate first class, Dhanbad, committed the case to the Court of Session and it was later registered as Sessions Trial No. 48 of 1969. The long inordinate delay of eleven or more years already compelled the petitioner to seek the transfer of the case from Dhanbad to Patna which was allowed by the High Court in 1975. Thereafter the case has lain in the archives of the Court's records and has been transferred from one Court to another till ultimately on the 29th of August, 1986 the Assistant Sessions Judge, Patna, before whom the matter is now pending, fixed 10th Nov. 1986 for the appearance of the accused and ordered the issue of summons. It is the petitioner's case that the delay and procrastination of twentyfive years or more has led to the loss and mutilation of records and even if the petitioner appears there is no hope of the trial commencing in the near future.
4. On behalf of the petitioner it has been categorically averred that he has all along remained present in Court after he was released on bail and has invariably cooperated in every way for the speedy disposal of the case. Nevertheless even after the delay of two decades and a half the commencement of the trial is as yet not in sight.
5. Aggrieved by the protracted, and what appears to be an endless prosecution against him, the petitioner has preferred the present writ petition. On behalf of the respondent State no counter-affidavit has been filed and the facts are not controverted. Indeed, learned Counsel for the State, in view of the uncontroverted facts, was inevitably somewhat half-hearted in defence of a horrendous delay so glaring as the one herein.
6. The facts in the other cases equally bespeak for themselves, but now it is unnecessary and not possible to pointlessly delve into the same. These may be best noticed in the tabulated form as under:
Cr. W.J.C. Date of Date of filing Stage of trial or
No. F.I.R. of charge-sheet proceeding
(1) (2) (3) (4)
278/86 15-5-76 2-2-77 No witness examined as yet.
299/86 28-12-70 - Warrant of arrest issued for
appearance.
313/86 12-2-77 5-5-80 Charge not framed as yet.
319/86 5-4-79 18-5-83
322/86 9-3-74 27-11-74
323/86 8-1-75 - Pending after framing of charge.
325/86 26-5-62 - Accused has now been summoned to appear
in Court.
326/86 11-1-79 26-5-79 Charge not framed as yet.
328/86 21-9-73 29-1-75 Pending after examination of three
witnesses.
330/86 8-10-69 10-1-73 Pending for argument.
334/86 16-6-72 2-4-73 Pending for re-examination of I.O.
335/86 7-10-77 - No witness examined as yet.
336/86 23-4-76 7-10-82 Pending after cognizance.
340/86 8-12-75 - No witness examined.
341/86 3-11-76 - Only one witness examined.
342/86 13-4-78 1978 Out of 12, only 2 witnesses
examined so far.
345/86 10-6-70 19-5-78 Only 2 witnesses examined.
347/86 12-12-77 24-12-83 No witness examined.
350/86 26-2-76 24-7-77 Only two witnesses examined.
353/86 27-3-79 1-12-83 No witness examined.
355/86 16-3-79 30-6-79 Only three witnesses examined
including the informant.
367/86 9-9-68 24-9-68 No witness examined.
368/86 24-1-79 30-1-79 Pending for examination of I.O.
369/86 30-1-74 23-8-75 Trial not yet commenced.
373/86 16-1-72 16-1-74 Pending after commitment.
378/86 25-7-75 - Pending after cognizance.
377/86 1-5-79 Sept. '79 Pending for examination of
some more witnesses
388/86 27-10-78 2-6-79 Only one witness examined.
391/86 13-8-79 - Charge not yet framed.
394/86 23-7-77 1983 Not witness examined as yet.
395/86 25-9-73 Not yet submitted Pending for submission of charge-sheet.
396/86 3-9-75 - No commitment made as yet
398/86 19-9-72 7-1-76 Pending for examination of
some more witnesses.
402/86 29-9-73 5-1-1979 Charge not yet framed.
404/86 18-7-75 25-10-78
7. It is somewhat plain from the above that the grossness of delay during trials herein is too glaring to call for any further elaboration. With the aforesaid resume' thereof one can now straight go on to the law applicable thereto. Fortunately within this jurisdiction this has now come to be well settled by a trilogy of cases beginning with the Division Bench judgment in the State of Bihar v. Ramdaras Ahir 1985 Cri LJ 584 : 1984 BBCJ (HC) 749. Therein after a somewhat exhaustive discussion of principle and precedent, the following relevant ratios were arrived at:
(i) That now by precedential mandate the basic human right to speedy trial has been expressly written as if with pen and ink into the constitutional right relating to the right to life and liberty guaranteed by Article 21 of our Constitution.
(ii) That the constitutional right of speedy trial envisages an equally expeditious conclusion of a substantive appeal and not merely a technical completion of the proceeding in the original court alone.
(iii) That a grave, inordinate delay in reversing an acquittal on a capital charge, though not identical is yet in a way akin to similar delay in the execution of a capital sentence.
(iv) That a horrendous delay, extending beyond a decade in a criminal trial (including a substantive appeal) on a capital charge, involving the reversal of a double presumption of innocence, would violate the constitutional guarantee of a fair, just and reasonable procedure, and, equally infract the fundamental right to a speedy trial vested in the accused under Article 21.
(v) That American decisions on the Sixth Amendment to the American Constitution with regard to accused's right to speedy and public trial would now have a direct bearing under Article 21 of our Constitution.
(vi) That once a constitutional guarantee to speedy trial and the right to a fair, just and reasonable procedure has been violated, then the accused is entitled to unconditional release and the charges against him would fall to the ground.
(vii) That a callous and inordinately prolonged delay of 10 years or more, which, in no way arises from the accused's default (or is otherwise not occasioned due to any extraordinary and exceptional reasons), in the context of the reversal of a clean acquittal on a capital charge, would plainly violate the constitutional guarantee of a speedy trial under Article 21.
On behalf of the State the reasoning and ratio in Ramdaras Ahir's case (1985 Cri LJ 584) (Pat) (supra) were thereafter challenged but re-affirmed by the Full Bench in the State of Bihar v. Maksudan Singh with the following conclusions:
To finally conclude, it is held -
(i) That the constitutional right of the accused to a speedy and public trial in all criminal prosecution now flowing from Article 21 of the Constitution by virtue of precedential mandate is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution:
(ii) that once the constitutional guarantee of a speedy trial and the right to a fair, just and reasonable procedure under Article 21 have been violated then the accused is entitled to an unconditional release and the charges levelled against him would fall to the ground;
(iii) that the American precedents on the Sixth Amendment of their Constitution would be equally, attracted and applicable as persuasive on this facet of Article 21 of our Constitution as well;
(iv) that inordinately prolonged and callous delay of 10 years or more entirely because of the prosecution's default in the context of the reversal of a clean acquittal on a capital charge would be per se prejudicial to the accused; and
(v) that the ratio and the reasoning of Ramdaras Ahir's case is hereby affirmed.
However, the decision that clinches the issue is that of the subsequent Full Bench in Madheshwardhari Singh v. The State of Bihar 1986 Pat UR 767 : 1986 Cri LJ 1771 and it would suffice to notice the final summing up of the undermentioned propositions therein:
(i) That both on principle and precedent the fundamental right to a speedy public trial extends to all criminal prosecutions for all offences generically irrespective of their nature. It is not confined or constricted to either serious or capital offences only.
(ii) That the right to a speedy public trial is applicable not only to actual proceedings in court but includes within its sweep the preceding police investigation in a criminal prosecution as well.
(iii) That a speedy investigation and trial are equally mandated both by the letter and spirit of the Code of Criminal Procedure, 1973.
(iv) That the ratio in Ramdaras Ahir's (1985 Cri LJ 584) (Pat) and Maksudan Singh's cases 1985 Cri LJ 1782 (Pat) (FB) are mutatis mutandis applicable equally to all offences and irrespective of the fact whether the proceedings are a trial or an appeal against acquittal.
However, the specific ratio which is directly attracted to the present set of cases is to be noticed with a little more elaboration in the following observations and conclusions of the Full Bench aforesaid:
Ere 1 come to a close, I cannot help expressing some surprise at the somewhat vehement stand taken on behalf of the respondent State against the very right of a speedy public trial. It has been repeatedly asserted and, in our view rightly, that prompt trial is in the interest of the prosecution itself. Inordinate delays only tend to fade memories and being in a host of factors which militate against the successful culmination of a criminal prosecution. One would, therefore, have imagined that the respondent State would, in its own interest, be solicitous of speed in criminal prosecutions launched by it. Equally it seems to me that a prompt trial is in the interest of the accused and a fair defence as well. Though not unoften an attempt is even made on behalf of the accused persons to gain time and protract the proceedings, it is axiomatic that an accused may also be hampered in his defence by too long a passage of time. Equally a speedy trial avoids the stigma of a long pending accusation and the obloquy of a criminal charge against the citizen if he happens to be innocent.
However, as has been authoritatively, stated, even leaving out the interest of the prosecution or the defence, there is a societal interest in ensuring a speedy public trial. Indeed, public weal cannot be allowed to be whittled down for considerations of any private advantage.
To conclude on this aspect, the answer to question No. 5 is rendered in the affirmative and it is held that an outer time limit to concretise the right to speady public trial is envisioned both by principle and precedent. It is further held that a callous arid inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Article 21.
8. It appears to me that the view aforesaid now bears the stamp of approval by the Final Court itself. On behalf of the State it had been earlier argued in the aforesaid case that a time-frame or norm suggested by precedent was impermissible and in the absence of statutory provisions it could not possibly be so spelt out. The last nail in the coffin of such an argument appears to be now struck on its head squarely by Sheela Barse v. Union of India . Their Lordships in the said case, in the context of the trial of children for criminal offences laid down a time-frame, not in years only, but in months, and yet again not for trials alone, but even for investigations and for filing the complaints or charge sheets in court, in the following terms:
We would also direct that where a complaint is filed or first information report is lodged against a child below the age of 16 years for an offence punishable with imprisonment of not more than 7 years, the investigation shall be completed within a period of three months from the date of filing of the complaint or lodging of the...first information report, and, if the investigation is not completed within this time, the case against the child must be treated as closed. If within 'three months, the chargesheet is filed against the child in case of an offence punishable with imprisonment of not more than 7 years, the case must be tried and disposed of within a further period of 6 months at the outside and this period should be inclusive of the time taken up in committal proceedings, if any...we would direct every State Government to give effect to this principle or norm laid down by us in so far as any further cases are concerned, but so far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months from today if the investigation has not already resulted in filing of chargesheet and if a chargesheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed.
9. It is manifest from the above that not only has a precise time frame been spelt out, but a mandatory direction to quash prosecutions violating the same has been laid. However, lest it be misunderstood that this was in any way confined to the case of children alone, it is well to quote the following observations from the said judgment, reiterating the earlier view with regard to the other criminal trials as well:
We have already held in Hussainara Khatoon v. Home Secretary, State of Bihar that the right to speedy trial is a fundamental right implicit in Article 21 of the Constitution. 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, of course, the trial is held up on account of some interim order passed by a superior court or the accused is responsible for the delay in the trial of the case. The consequence of violation of the fundamental right to speedy trial would be that the persecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.
10. Perhaps, the recent reiteration of the rule in Raghubir Singh v. State of Bihar equally called for notice, which is in the terms following:
The constitutional position is now well settled that the right to a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by Article 21 of the Constitution : vide Hussainara Khatoon v. State of Bihar Kadra Pahadiya (I) v. State of Bihar , Kadra Pahadiya (II) v. State of Bihar AIR 1982 SC 1167 and State of Maharashtra v. Champalal Punjaji Shah . In foreign jurisdictions also, where the right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been held in appropriate cases sufficient to quash a conviction or to stop further proceedings : Strunk v. United States (1973) 37 Law Ed 2d 56 and Barkar v. Wingo (1972) 407 US 514 two cases decided by the United States Supreme Court and Bell v. Director of Public Prosecutions, Jamaica (1985) 2 All ER 585, a case from Jamaica decided by the Privy Council....
11. Reverting back to our own jurisdiction, the present cases have yet again a total identity with the Division Bench judgments in Criminal Writ Jurn. Case No. 180 of 1986 and its analogous cases (Arjun Das v. State of Bihar) decided on 19th Dec. 1986 : (Reported in 1987 Pat LJR (HC) 762) and Criminal Writ Jurn. Case No. 16 of 1985 and its analogous case (Mohammad Salamat v. State of Bihar) decided on 24th Nov. 1986.
12. Now once the legal position is settled as above, it is manifest that the cases of virtually all the petitioners (barring those to which separate reference follows at the end) come amply within the ambit of the ratios of the aforesaid cases. As has been noticed at the outset the genesis of the crime in the main case bearing Criminal Writ Jurisdiction Case No. 325 of 1986 (Ramanuj Prasad Singh v. State of Bihar) lies more than 25 years back in the year 1961. In all these cases the mortal threat of a criminal prosecution has hung over the head of the petitioners like the proverbial sword of Damocles for years and decades. In every one of them it is far beyond the time-frame of seven years and admittedly herein the charges levelled against them are not of a capital nature. It is not in dispute either that the blame for the gross delays herein cannot even remotely be laid at the door of these petitioners. In some of the cases it is common ground that as yet even the investigation has not been completed nor even a charge framed or a single witness examined. In Madheshwardhari Singh's (1986 Cri LJ 1771) (Pat) (FB) case it was held that an inordinately prolonged delay of seven years or more in investigation and trial for offences other than capital ones would violate the guarantee of a speedy public trial under Article 21. Herein instead of seven in many cases nearly twice or more than that period has elapsed and one can only guess how many more years would pass before the alleged trials come to a conclusion. With great regret it has to be held unreservedly that the constitutional right to speedy public trial by fair, just and reasonable procedure, now recognised under Article 21 of the Constitution stands patently violated herein. As has been authoritatively laid down in Maksudan Singh's case (1985 Cri LJ 1782) (Pat) (FB) the petitioners are entitled to an unconditional release and the charges levelled against them would fall to the ground. All these criminal writ jurisdiction cases except Cr. WJC Nos. 350 of 1986 (Aditya Singh v. State of Bihar) and Cr. WJC No. 342 of 1986 (Gopal Kumar v. State of Bihar) to which a reference follows hereinafter, are, therefore, allowed and the investigation and trial against the petitioners are hereby quashed.
13. However, in Aditya Singh v. State of Bihar Cr. WJC No. 350 of 1986 the first information report was lodged on 26th Feb. 1976 under Sections 347, 353, 332, 188, 379, 323 and 337 of the Penal Code as well as Sections 39 and 44 of the Electricity Act. With relative expedition the charge sheet was submitted in the court on 24th July, 1977. On the petitioners' own showing by a vis major the original file of the case was gutted in a fire in the court premises between the night of 8th and 9th Dec. 1978. Inevitably some time was consequently taken for the reconstruction of the file. However, it is the admitted case that for well neigh four years from 25th March, 1979 to the 2nd of May, 1983 the petitioners did not choose to appear at all in court despite the issue of processes against them. Thereafter they preferred Criminal Miscellaneous No. 10520 of 1983 for quashing the prosecution of the petitioners but later withdrew it on 15th Nov. 1983 vide Annexure 1. It is manifest on the record that even thereafter the presence of the petitioners in court has been an erratic when one or the other of them chose to remain absent. Even as late as 18th Mar. 1985 only one of the petitioners chose to put in physical appearance whilst four others sought permission to appear through counsel and the sixth accused who was in jail was not produced. Plainly enough, the petitioners herein have themselves materially contributed to the delay in the trial. They are, therefore, disentitled to invoke the rule of speedy public trial and this criminal writ petition has consequently to be dismissed.
14. In Criminal Writ Jurisdiction Case No. 342 of 1986 (Gopal Kumar v. State of Bihar) the first information report was recorded on 13th April, 1978 under Sections 379, 411 and 416 of the Penal Code. The charge sheet was submitted with reasonable expedition within the year 1978 itself. It is manifest from paras 5 and 6 of the detailed counter-affidavit filed on behalf of the State that two of the co-accused continued to abscond for more two years from 22nd Oct. 1973 to 11th Dec. 1985, and the court was ultimately compelled to separate the trial of the petitioners from the absconding co-accused, and proceeded to frame the charge on 21st Dec. 1985. It is plain from the counter-affidavit that the petitioners or their co-accused have been substantially and primarily responsible for occasioning the delay in the present case. They cannot possibly be allowed to take advantage of their own wrong. Their case clearly comes within the rule that if delay and default is occasioned by the conduct of the accused himself then he must be deemed to have waived the right to speedy public trial in the case. On an over-all conspectus of the case, I find that these petitioners are disentitled to the benefit under Article 21 of the Constitution of India. This application has, therefore, to be consequently dismissed.