Jammu & Kashmir High Court - Srinagar Bench
State Of J&K vs R. S. Nayak And Anr. Etc. Etc on 25 May, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Cr. Acq. Appeal No.07 of 2008 State of J&K Petitioners Mohammad Yousuf Shah Respondents !Mr. S. A. Vakil, Advocate ^Mr. B. A. Zargar, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date:25/05/2012 : J U D G M E N T :
1. Respondent (hereinafter referred to as the accused) was posted as Cashier in Auxiliary wing of the J&K Police Department in the year 2001, he had remained absent so was replaced by one Abdul Gani ASI. Subsequently reported back, so was directed to handover charge, in the process did not handover cash amount of Rs.7,54,466/ to the incumbent cashier, namely, Abdul Gani ASI. The said amount consisted of GP fund withdrawal arrears of 15 serving and retired employees of the Auxiliary battalion. When despite directions accused failed to deposit the amount, an enquiry committee was constituted, accused deposited Rs.85,000/ with the said committee. The committee seems to have concluded that the aforesaid amount of Rs.7,54,466/ had been drawn by the accused from the Government Treasury and misappropriated the same so has committed criminal breach of trust.
2. Case has been registered on 28.5.2001 as FIR No.248/2001 for commission of offence punishable under Section 409 RPC P/S Saddar. On conclusion of investigation charge sheet (challan) has been presented before the Court of Chief Judicial Magistrate, Budgam on 04.12.2001. Charge against the accused for commission of offence punishable under Section 409 RPC has been framed on 10.05.2004. Since the accused pleaded not guilty, therefore, prosecution was directed to lead evidence, as such, out of listed 24 witnesses only four witnesses have been examined i.e. listed witness No.5, 6, 20 and 23 during the period commencing 05.06.2004 till 22nd September, 2006 i.e. date of closure of prosecution evidence.
3. Accused stand examined in terms of Section 342 Cr. P.C on 04.11.2006 wherein he has denied complicity in the crime and added that Rs.13,75,075/ were drawn as GP Fund on three dates out of which Rs.6,20,609/ were disbursed among the concerned employees whereas the balance amount of Rs.7,54,466/ could not be disbursed because Commandant of the time, namely, Zahoor Ahmad Chesti, asked him that he requires money for some time, accordingly amount was handed over to him which he did not return, further has added that Rs.85,000/ were not deposited by him. Since he was in illegal custody and it is during that time Commandant had send Mehboob Khan and one employee to his residence and asked for payment otherwise they shall have to suffer badly, based on same his family collected Rs.1,90,000/ from relatives on loan and same was handed over to the department but out of that only Rs.85,000/ were shown. Thereafter in defence accused has produced four witnesses. The defence evidence was closed on 17.3.2007.
4. Trial court by virtue of judgment impugned has acquitted the accused.
5. The first contention as projected by the learned counsel for the appellants is that the prosecution has not been given proper opportunity to produce and examine all the listed witnesses and the trial court has exhibited haste while closing prosecution evidence. Buttressing his submission also highlighted that the trial of the case has been concluded only in the name of trial.
6. In opposition to the said contention, learned counsel for the accused vehemently projected that prosecution has been given ample opportunity of two years and few months for producing the witnesses, it is the prosecution which has exhibited total negligence and slackness in producing the witnesses. Prosecution cannot claim unlimited time for producing the witnesses and if same is not denied, the guaranteed right to the accused of speedy trial would get offended. In support of this submission relied on the judgment reported in AIR 1982 SC 1167, 1992 Cr. L. J 2717 (Supreme Court), 2002(2) S. L. J 403 and 2006 Cr. L. J 930 (J&K).
7. On perusal of the records in the backdrop of aforesaid contentions, what would emerge is that the trial has been truncated. The prosecution has acted in a manner about which least said is better.
8. For effectuating meaningful trial of the accused involved in heinous or less heinous offences, the prosecution has to be alert at all stages so as to advance the object of criminal law justice system.
9. Dispensation of justice connotes that justice is not only done but must seen to be done. Court has to strike balance so as to protect interests of the State/complainant and also of the accused.
10. Speedy trial is a right which flows from Article 21 of the Constitution. The object of speedy trial can be advanced only when both prosecution as well as defence exhibit promptness in ensuring appearance as well as production of the evidence and Court ensures effective proceedings on each and every date of hearing except for just cause.
11. The judgment rendered by the Honble Apex Court captioned Ab. Rehman Antulay Etc. Etc. Vs. R. S. Nayak and anr. Etc. Etc, reported in 1992 Cr. L. J 2717, as relied upon by the learned counsel for the defence, provides that constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of Code of Criminal Procedure. In this connection it shall be quite appropriate to quote para 50 of the said judgment:-
50.The provisions of the Code of Criminal Procedure are consistent with and indeed illustrate this principle. They provide for an early investigation and for a speedy and fair trial. The learned Attorney-General is right in saying that if only the provisions of the Code are followed in their letter and spirit, there would be little room for any grievance. The fact, however, remains unpleasant as it is that in many cases, these provisions are honoured more in breach. Be that as it may, it is sufficient to say that the Constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of the Code.
12. In the said judgment Honble Apex Court has made it clear that it is not possible to lay down any time schedule for conclusion of the proceedings for variety of reasons which may include that in many cases accused may be responsible for the delay, when it may be so, he cannot be given chance to take advantage of his own wrong. In many cases nature of evidence, number of accused, number of witnesses, workload in the particular court and several other circumstances have to be kept in mind while giving meaning to the speedy trial. It shall be quite relevant to quote following portion from para 51 of the reported judgment:-
Wherever a complaint of infringement of right to speedy trial is made the Court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period. In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable broadly speaking. Of course, if it is a minor offence not being an economic offence and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter. For all the above reasons, we are of the opinion that it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory.
13. Various prepositions, which are not exhaustive, have been framed so as to serve as guidelines. Para 54 of the said judgment is relevant to be quoted:-
54.In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive.
It is difficult to foresee all situations. Nor it is possible to lay down any hard and fast rules. These propositions are:
1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
2. Right to Speedy Trial flowing from Art. 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.
3. The concerns underlying the Right to speedy trial from the point of view of the accused are:
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
4. 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. Non-availability 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 delaying 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 stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays obtained on ex parte representation.
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 pedantic one.
6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell; J. in Barker it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate. The same ideal has been stated by White, J. in U. S. v. Ewell, (1966) 15 Law Ed 2d 627, in the following words:
the sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.
However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
7. We cannot recognize or give effect to, what is called the demand rule. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accuseds plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be plus point in his favour, but the mere non- asking for a speedy trial cannot be put against the accused. Even in U.S.A, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.
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 in a given case may be such that quashing of 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.
10. It is neither advisable nor practicable to fix any time- limit for trail of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the Court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U.S. A. too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of Right to speedy trial.
11. An objection based on denial of Right to 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 proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
14. Now the question which emerge for consideration, in view of the law as has been laid down, is as to whether right to speedy trial guaranteed to the accused has been offended. Answer has to be no because speedy trial has been hampered by variety of reasons. Speedy trial does not mean to conclude trial without any meaning nor does it mean to hoodwink the proceedings of the trial in a manner so as to close the trial in an unjustified manner.
15. The trial court records amply suggest that the case has been registered on 28.8.2001, charge sheet(challan) has been presented on 4.12.2001, charge against the accused has been framed on 10.5.2004. Why the question of charge has not been decided from 4.12.2001 till 10.5.2004 is answered by the interim orders recorded by the trial court from time to time. Orders recorded on 26.12.2001, 06.03.2002 and 03.04.2002 would reveal that it is the counsel for the accused who had sought adjournment. On 24.4.2002 arguments have been heard, then on 08.05.2002 accused remained absent but personal appearance was dispensed with in view of the application filed by his wife. Then on 01.06.2002 counsel for the accused sought further time for making further submissions, on 12.6.2002 accused has again remained absent and on 22.7.2002 counsel for the accused has sought time. Then a transfer application has been moved which has been dismissed. Then again when the matter was taken up by the trial court on 14.8.2003, accused has remained absent. Same remained position on 03.10.2003. On 03.12.2003 accused was present but he sought time as his counsel was not available. On 04.03.2004 again accused has remained absent, then finally on 10.5.2004 charge has been framed against the accused. It is disturbing as the accused had succeeded in delaying the commencement of the trial for two and half years.
16. Above referred interim orders clearly indicate as to how the accused has contributed to the delay in deciding the question of charge. Norm of speedy trial has been violated by the accused himself. This is one part of the trial court proceedings.
17. When the charge has been framed on 10.5.2004, prosecution was directed to lead evidence. On 05.06.2004 no witness was produced, same remained the position on 21.7.2004 and 12.8.2004. on 14.9.2004, prosecution witness Nos.4, 5 and 6 were produced but were not examined as the Court time was over. Then on 17.12.2004 prosecution witness Nos.3, 4, 22 and 17 were present but advocates were not available so not examined. On 20.1.2005, four witnesses, namely, Ghulam Mohammad Bhat, Mehboob Khan, Ab. Rashid and Sonaullah were present but due to absence of SPO their statements were not recorded. Then on 09.02.2005 accused has remained absent but prosecution witness Nos.4, 5,6, 9, 11, 20 and 23 were present but in view of absence of accused as well as his counsel were not examined. On 24.2.2005 statement of prosecution witness No.5 Inspector Mehboob Khan was recorded where as PW Nos.3, 6, 9, 11, 19 and 22 were present but their statements have not been recorded. On 23.3.2005 accused has remained absent whereas listed witness No.23 was present, so his statement was not recorded. On 12.7.2005 statement of PW 20 has been recorded. Then on 10.8.2005, 30.8.2005, 17.9.2005 and 24.9.2005 no witness was present. On 20.10.2005 PW No.4, namely, Ghulam Mohammad Bhat was examined and the prosecution was given last opportunity for producing rest of the witnesses. Then on 12.11.2005, in the interests of justice, one more opportunity has been granted and then on 25.1.2006 prosecution evidence has been closed.
18. The witnesses who had appeared were not examined, once SPO was not present, once Court time was over and mostly counsel for the accused or the accused have remained absent. Here the Court has also erred i.e. when prosecution witnesses had appeared, it was then duty of the Court to ensure their presence by having recourse to all coercive measures. The trial court has not shown indulgence as was expected. When number of prosecution witnesses as referred to hereinabove had appeared, was it not the duty of the Court to ensure their presence and to record their statements. Could prosecution evidence be closed in the given circumstances in a manner it has been.
19. Again a strange situated. After closure of prosecution evidence, when on 13.6.2006 case was taken up for examining the accused under Section 342 Cr. P. C, it has been noticed that since on 09.02.2005 PWs 4, 5, 6, 9, 11 and 23 were present, thereafter statements of PWS 4, 5 and 12 had been recorded whereas PWs 6, 9, 11 and 23 who had appeared but their statements could not be recorded due to absence of accused, so they are to be examined, SPO was directed to produce said witnesses and summons were also issued. The SPO who was conducting the case on behalf of the State has also shown total slackness as the summons issued were not executed and the Court observed that it appears that the orders passed for ensuring presence of the witnesses have been taken casually, therefore, warrants were issued which were also not executed. When the warrants as issued against the witnesses were not executed, the trial court again closed prosecution evidence on 22.09.2006.
20. The trial court in a manner has shown unjustified helplessness. Was it not possible for the trial court to send warrants for execution through Director General of Police when the same were not responded at district level, was it also not possible for the trial court to ask SSP of the district to explain as to why warrants were not executed and was not SPO, who was conducting the trial on behalf of prosecution, answerable as to why the warrants were not executed. This shows how the trial has been conducted and how SPO has responded. This all goes to show that mostly accused, then SPO has contributed to the unwarranted delay and disposal of the case.
21. Right to speedy trial cannot be denied but for claiming such protection as guaranteed accused is supposed to exhibit extra alertness and care so as to help smooth trial. It is due to absence of accused on various dates that the examination of the witnesses who were present could not materialize. When the accused contributes to the delay, is he entitled to claim that his right to speedy trial has been offended. He cannot be allowed to take advantage of his own wrong.
22. The offence is very heinous, GP fund of various employees has been allegedly embezzled, therefore, the trial could not be permitted to be truncated the way it has been.
23. From the date of presentation of charge sheet (challan) i.e. 04.12.2001 till 10.5.2004 as detailed above, it is the accused who has protracted the matter by one pretext or the other. Then after 10.5.2004 when trial commenced, it is again the accused who sometimes remained absent and sometimes his counsel was not present as noticed above and it is his conduct which did not allow the examination of all the prosecution witnesses from 10.5.2004 till 22nd September, 2006. From 14.10.2006 till 17.3.2007 defence evidence has been produced. Then again from 07.04.2007 it is the accused or his counsel who have not remained present so arguments have not been concluded for long period i.e. from 07.04.2007 till 26th March, 2008 process for hearing continued and again it is the accused who has contributed to the delay.
24. Handling of the case right from the stage of its presentation before the Court is quite disturbing. The interim orders records from time to time present a disturbing state of affairs.
25. Trial court was expected to exercise complete control over the proceedings. The accused due to laxity has succeeded in prolonging the case with impunity and has also succeeded in evading examination of the witnesses who had appeared from time to time. PWs 3, 4, 5, 6, 9, 11, 20 and 23 had appeared before the Court but the statements of only four witnesses i.e. PWs 5, 6, 20 and 23 have been recorded and others were not examined, mostly either due to non availability of the accused or his counsel which shows that the Court has not shown absolute control over the proceedings. The prosecutors who have conducted the case from time to time have also exhibited indolence so have ignored the heinousness of the offence allegedly committed. They were expected to show extra alertness and should have taken steps which would indicate seriousness on their part.
26. It can safely be concluded that the right to speedy trial as guaranteed to the accused has been infringed by the accused himself by contributing to the delay in trial while having recourse to various measures, such as absence and adjournments. It is to be made clear that when trial is protracted by the conduct of the accused and the protraction is mainly attributable to the accused, then he runs the risk of loosing right to speedy trial, so cannot be permitted to claim that his right to speedy trial is offended.
27. The judgment impugned, for the afore-stated reasons, is unsustainable, as such, set aside. Case remanded back to the trial court with the direction to frame schedule for recording statements of the remaining witnesses and to ensure that the trial is concluded with reasonable dispatch. Case shall be scheduled for recording statements of witnesses after every 15(fifteen) days. The investigating officer of the case shall be asked to remain present on every date of hearing who shall ensure presence of such number of witnesses as shall be scheduled to be examined.
28. SSP of the District shall also be directed to ensure that the summons/warrants, as shall be issued for securing presence of the witnesses, are executed without any fail and in case of default, the concerned executing officer shall be made accountable.
29. Strong criminal law justice system is a guarantee for the crime free and orderly society.
30. Copy of this judgment be send to the Director General of Police who shall issue necessary instructions to SSPs of the Districts, prosecuting agencies and investigating officers to ensure the execution of warrants, summons and production of prosecution witnesses and to take all necessary steps so that smooth trial of the cases is not hampered.
31. Trial court record along with copy of the judgment be send back forthwith. The accused shall appear before the trial court on 06.06.2012.
(Mohammad Yaqoob Mir) Judge Srinagar 25.05.2012 Mohammad Altaf