Delhi District Court
State vs . Ajay & Anr. on 16 December, 2022
1
IN THE COURT OF SH. ABHINAV PANDEY:
METROPOLITAN MAGISTRATE- 04,
SHAHDARA DISTRICT, KARKARDOOMA COURTS:
DELHI
FIR No.70/20
PS Jyoti Nagar
CIS No. 1586/20
State Vs. Ajay & Anr.
State Represented by
Sh. Saleem Ahmed,
Ld.Special Public Prosecutor
Versus
(1) Ajay
S/o Sh. Mahender Singh,
R/o House no. 182, B-Block,
Gali no. 6,
Shakti Garden, Delhi .
(2) Gaurav Panchal Represented by
S/o Sh. Subhash Panchal Sh. Nadeem Khan, Ld.Legal
R/o House no. E-4/72, Aid Counsel.
East Gokulpuri, Gali no.6,
Delhi.
1. Complaint Case number : CIS No. 1586/20
2. Name and address of the : (1) Ajay
accused persons S/o Sh. Mahender Singh,
R/o House no. 182, B-Block,
Gali no. 6,
Shakti Garden, Delhi .
(2) Gaurav Panchal
S/o Sh. Subhash Panchal
R/o House no. E-4/72,
East Gokulpuri, Gali no.6,
Delhi.
4. Offence complained of or : Under Section
proved 147/148/149/427/188/34 of
Indian Penal Code and
FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 1 of 23
2
Section 3 of the Prevention of
Damage to Public Property
Act, 1984
5. Plea of the accused : Pleaded not guilty and
claimed trial.
6. Final Order : Acquitted
7. Date of Institution : 17.06.2020
8. Date of Reserving the : 15.12.2022
Judgment
9. Date of pronouncement : 16.12.2022.
JUDGMENT
1. BRIEF FACTUAL POSITION:-
1.1. This is the prosecution of accused Ajay S/o Sh.Mahender and Gaurav Panchal S/o Sh. Subhash Panchal pursuant to the charge-sheet filed by the police station Jyoti Nagar, alleging the commission of offences U/s 147/148/149/427/188/34 of the Indian Penal Code, 1860 and Section 3 of the Prevention of Damage to Public Property Act, 1984, pursuant to the investigation carried out by it in FIR No.70/20 PS Jyoti Nagar. 1.2 The case of prosecution is that the accused persons had been members of a riotous unlawful assembly, armed with deadly weapons, who, taking advantage of the widespread protests against the Citizenship Amendment Act, indulged in vandalism, violence, mischief and destruction of public property. 1.3 The aforesaid FIR dated 28.02.2020 had allegedly been lodged upon the complaint made on 28.02.2020, in writing, by FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 2 of 23 3 Constable Rakesh, who was allegedly deputed as CCTV operator at that time, stating that on 25.02.2020, he was performing his duties at Duty MCS Room at Police Station Jyoti Nagar, and was monitoring through CCTV Cameras, when at 02.20 PM, he saw that a large mob of unruly riotors had gathered near Harnam Palace and Maruti Showroom, who were shouting slogans in support of and against the Citizenship Amendment Act. He further alleged in the complaint that the said mob damaged 4 CCTV cameras fixed upon the pole on the divider in front of Harnam Palace and Maruti Showroom, upon which the information was given by him to his senior police officials.
Upon these allegations, the police registered an FIR U/s 147/148/149/427 of IPC and as per the charge-sheet, thereafter the site plan was prepared at the instance of the complainant, when the investigating officer came to know that the accused persons Ajay and Gaurav, who had already been arrested by HC Raj Kumar in another FIR No. 60/20, PS Jyoti Nagar, had made a disclosure statement in investigation pertaining to that FIR, regarding their involvement in the commission of offences reported in the present FIR. It is further stated that the alleged eye witness Md. Aslam identified both the accused persons in the police station itself as the persons who were part of the mob that had destroyed CCTV cameras installed in front of Harnam Palace and Maruti Showroom. As per the charge-sheet, thereafter, the accused persons were interrogated by the investigating officer in the present case as well and thereafter, the accused persons confessed to their guilt, consequent to which their confessional/disclosure statements were recorded, and the FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 3 of 23 4 statement of the alleged eye witness Md. Aslam was also recorded in this regard, under section 161 Cr.P.C. It is further stated in the charge-sheet that neither any other eye-witness of the incident could be found nor the location of the accused persons on the spot of occurrence at the alleged date and time could be established as they were not having any mobile phones. It is in this form that the ACP, Sub-division Gokulpuri, forwarded the present charge-sheet to this Court, alleging the commission of offences U/s 147/148/149/427 of IPC. Later on, supplementary charge-sheet was also filed alleging the commission of offences U/s 188 of IPC and Section 3 of PDPP Act against the accused persons.
1.4 Complete set of charge-sheet and other documents were supplied to the accused persons. After hearing the arguments, charges for offences punishable U/s 147/148/149/427/188/34 of IPC and U/s 3 of PDPP Act were framed against the accused persons, to which they pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF 2.1 As per charge-sheet, it is an admitted position that the complainant Ct. Rakesh only saw a mob destroying CCTV cameras at the spot of occurrence, but had not identified any offender. In these circumstances, Ct. Rakesh, who has been cited as the prosecution witness no.1 in the list of witnesses is only in a position to give evidence regarding the commission of offences by unknown persons, but is not in a position to identify the offenders. The only eye witness of the commission of alleged offences is Md. Aslam, who has been cited at serial number 5 in FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 4 of 23 5 the list of prosecution witnesses. This Court issued summons to witness Md. Aslam through the DCP concerned, which had been received back as unserved. The DCP, North-East District Sh. Sanjay Kumar Sain, IPS filed the report regarding service of summons in the Court and in the said report dated 19.10.2022, he had mentioned that the witness Md. Aslam was neither found to reside at the given address nor could his whereabouts and contact number could be traced. Accordingly, the DCP concerned stated in the concluding part of the report that despite sincere efforts, witness Md. Aslam could not be found. It needs to be noted that no time or opportunity was therefore, sought by the police for tracing the said alleged eye-witness Md. Aslam. The remaining witnesses, who were merely formal witnesses, were, therefore, not summoned by this Court as they could have never testified about the accused persons having committed the alleged offences, as none of these witnesses have actually witnessed the commission of the offences. Therefore, this Court gave an opportunity to the prosecution to explain as to how does it propose to prove the guilt of the accused persons, without the aid of the sole eye-witness. After hearing the submissions of the prosecution in this regard, this Court closed the prosecution evidence on 15.12.2022, and vide the same order, dispensed with the requirement of examination of the accused persons Under Section 313 Cr.P.C.
3. STATEMENT OF THE ACCUSED.
3.1 Nothing incriminating could come on record against the accused persons, and there are no circumstances appearing FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 5 of 23 6 against them in the prosecution evidence, and therefore, the examination of the accused persons U/s 313 Cr.P.C was dispensed with.
4. ARGUMENTS.
4.1 Ld. Special Public Prosecutor, appearing for the State, has argued that the testimony of all the prosecution witnesses should be recorded by the Court before coming to any conclusion regarding the guilt or innocence of the accused. He has further stated that the mere fact of submission of complaint by the complainant to police officials is sufficient to summon the concerned police officials for the purpose of their examination- in-chief and cross-examination. He has further argued that the police witnesses, when summoned, may narrate a version of events, which may point towards the guilt of the accused persons. Accordingly, Ld.Special Public Prosecutor has prayed to this Court not to acquit the accused persons on the basis of failure to produce Md. Aslam, and to summon the remaining witnesses so that their evidence may be recorded, and a holistic view of the case may be taken by this Court.
4.2 On the other hand, Ld.Counsel for accused persons has argued that there is no legally admissible evidence against the accused persons, and merely the witnesses pertaining to registration of FIR and arrest of the accused persons and the investigating officer can, by no means, prove the offences alleged against the accused persons, when the sole eye- witness of the prosecution could not be traced and summoned for the purpose of examination in the Court.
FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 6 of 23 7
5. BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
5.1 Arguments advanced by the Ld. Special Public Prosecutor for the State and by the Ld.Legal Aid Counsel for the accused persons have been heard in detail. Evidence and documents on record have been perused carefully.
5.2 I have bestowed my thoughtful consideration to the rival submissions made before me. The accused is indicted for the offences U/s 147/148/149/427/188/34 of IPC and for offence U/s 3 of the Prevention of Damage to Public Property Act, 1984. 5.3 The essential ingredients of the offences as alleged by the prosecution against the accused have also been considered by this Court, and are being discussed as under :-
5.3.1 Section 147 states that "Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". 5.3.2 Section 148 states that "Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both". 5.3.3 Section 149 states that " if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence".
FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 7 of 23 8 5.3.4 Section 425 IPC states that " Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or ductility, or affects it injuriously, commits "mischief". 5.3.5 Section 427 IPC states that " Whoever commits mischief an thereby caused loss or damage to the amount of fifty rupeees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
5.3.6 Section 3 of The Prevention of Damage to Public Property Act, 1984, lays down as under:
"3. Mischief causing damage to public property-
(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2) Whoever commits by doing any act in respect of any public property being-
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installation;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of telecommunication, or any building, installation or other property used in connection FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 8 of 23 9 therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine : Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months".
5.3.7 Section 188 lays down the penalty for disobedience to an order duly promulgated by public servant.
5.3.8 Section 34 states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for the act in the same manner as if it were done by him alone.
5.3.9 Recently in Mahendra & Another versus State of M.P. (Crl. Appl. No. 30 of 2022 arising out of SLP (Crl.) no. 6530/2018) a two judge bench of Hon'ble Supreme Court has held that it is an essential requirement of an unlawful assembly that its membership must be five and more, but, at the same time, it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under section 149, if the prosecution case is such that the persons before the court and others, numbering in all more than five, composed an unlawful assembly, these other persons being not identified and being unnamed. 5.3.10 In State of UP vs. Dan Singh & Others (1997 3 SCC 747) and Lalji Versus State of UP (1989 1 SCC 47), it was held that the common object of the unlawful assembly may be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence.
FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 9 of 23 10 5.3.11 Further, in Lakshman Singh versus State of Bihar (2021 9 SCC 191), it was held that the ingredients for the completion of an offence under section 146 of IPC are that: (i) there is an assembly of 5 or more persons which was unlawful, having one or the other objects defined in section, (ii) the unlawful assembly must have used force or violence. Force is defined in section 349 of IPC as: "A person is said to use force to another if he causes motion, change of motion or cessation of motion to that other" ; and (iii) the force or violence used by an unlawful assembly or any member thereof must be in the prosecution of common object of the assembly.
5.3.12 It was further held by the court that there is no requirement of attribution of specific role to every member of the unlawful assembly, for the offence of rioting under section 147 of IPC to be made out as where there are a large number of assailants, it can be difficult for the witnesses to identify each assailant and attribute specific role to him. When the incident occurs over a short span of time, it is natural that the exact version of the incident, revealing every minute detail, i.e. meticulous exactitude of individual acts cannot be given by the eye witnesses. Even otherwise, every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. There is thus, vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly. In holding so, the court derived support from Mahadev Sharma versus State of Bihar (1966 1 SCR 18, AIR 1966 SC 302) and Abdul Sayeed Versus State of Madhya Pradesh (2010 10 SCC 259).
FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 10 of 23 11
6. In the present case, the complainant has nowhere claimed himself to be in a position to identify the persons who actually dealt a blow to the CCTV Cameras, thereby destroying them, and the accused persons had allegedly been arrested in the police station itself, when they were under arrest in some other case pertaining to the jurisdiction of the same police station. In the said other case arising from FIR No. 60/20, police station Jyoti Nagar, the said person called Md. Aslam gave a statement dated 18.04.2020 that he sells goods from his cart below Meet Nagar flyover, and on 25.02.2020, he saw two communities indulging in violence in Ashok Nagar, Meet Nagar, and Wazirabad Road area, due to which he did not sell his goods from his cart on that day, and saw Ajay and Gaurav as part of the mob which destroyed CCTV cameras on Wazirabad main road. On the same date, he has given a statement in the present case that he saw Ajay and Gaurav, being part of the unlawful assembly that destroyed CCTV Cameras in front of Harnam Palace and Maruti Showroom by means of stone and sticks. In none of these statements, the alleged eye-witness Md. Aslam has stated his exact location on the date of commission of alleged offences, as he has only stated that he usually sells snacks form his cart in front of liquor store below the Meet Nagar flyover, and on 25.02.2020, seeing riots erupting in Ashok Nagar, Meet Nagar and Wazirabad Road area, he did not place his cart for selling goods at the said place. Even the site plan has been prepared at the instance of the complainant,who was not present at the scene of occurrence, and the said site plan nowhere shows the spot at FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 11 of 23 12 which the alleged eye-witness Md. Aslam had been present at the time of alleged commission of the offences.
6.1 It is pertinent to note that despite citing the said person by the name of Md.Aslam as the sole eye-witness of the alleged offences, the investigating agency has not cared to obtain any address proof/identity proof of the said witness or his contact number. No documentary proof to show that any such Md. Aslam ever resided at House no. A-3/343, Gali no. 3, Amar Colony, Delhi was ever collected. In fact, Section 170(2) of Cr.PC stipulates that investigating officer/SHO shall require the persons who appear to him to be acquainted with the facts and circumstances of the case, to execute a bond to appear before the Magistrate as thereby directed, and to give evidence in the matter of the charge against the accused. However, the investigating agency has, for some unexplained reasons, not thought it necessary to obtain any such bonds for appearance from the said person called Md. Aslam, who is allegedly the sole eye-witness in the present case. In these circumstances, even the actual existence of any such person called Md. Aslam, who witnessed the commission of the alleged offences, comes under a shadow of doubt, and the possibility of him being a fictitious person cannot be denied. It seems that the FIR has been registered and a semblance of investigation has been carried out, just for the sake of it, by first making the arrest and thereafter, arranging the witness by some means or the other, with utter disregard to the consideration as to how such evidence shall stand in the Court, and with total apathy to the agony of the victims.
FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 12 of 23 13 6.2 It becomes clear from the aforesaid discussion that the prosecution case has fallen flat on its face and has no legs to stand upon. Ld. Special Public Prosecutor for the State has fervently argued that it is upon the identification of the sole eye- witness that the police officials had arrested the accused, and the investigation was carried out in that direction, and therefore, the accused can still be identified by the arrest witnesses and by the investigating officer of the case.
6.3 At this juncture, it is pertinent to refer to the provisions of Section 60 of the Indian Evidence Act, which is being reproduced as under:
"Oral evidence must, in all cases whatever, be direct; that is to say-
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who say he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness, who says he perceived if by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of the experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 13 of 23 14 incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers tot he existence or condition of any material thing other than a document, the Court may, if it thinks fir, require the production of such material thing for its inspection".
6.4. In the light of these provisions, this Court now proceeds to examine the role of the remaining prosecution witnesses, only for the purpose of arriving at the utility of recording of their testimony in the Court, within the confines of Section 162 of Cr.P.C.
6.5 Ct. Rakesh is alleged to have stated in his statement U/s 161 Cr.P.C that he saw a large mob attacking the CCTV Cameras at the pole on the divider in front of Harnam Palace and Maruti Showroom, as he was observing this activity from control room, and has neither been at the spot of occurrence, nor has identified any offender. Mehfooj Alam is a consultant in the company called E CIL, who has merely stated that it was his company that had installed the CCTV cameras at the spot of occurrence. HC Raj Kumar is the witness of arrest who has stated that upon the secret information and identification of the said person called Md. Aslam, he arrested the accused persons on 18.04.2020 from the railway line, beneath the Meet Nagar Flyover. He has further allegedly stated in his statement U/s 161 Cr.P.C that thereafter, confessional statements of the accused persons were recorded and a bambo "danda" and on "iron pipe" allegedly used in the commission of the offence, was recovered from the nearby FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 14 of 23 15 bushes, upon their instance. It needs to be noted that the said 'danda' and the "iron pipe" have been recovered from an open area, not within the possession or control of the accused persons. Conveniently, the commission of offence on 25.02.2020 and arrest of accused persons and recovery of 'danda' and 'iron pipe' on 18.04.2020 have been at around the same place. Needless to state, the "Fard-Nishandehi, Mauka-e-Vardaat" or the identification memo of the spot of occurrence, as is alleged to have been made at the instance of the accused persons, while being in the custody of police, completely lacks any legal sanction, and in the absence of certain physicality being attached to the discovered fact, cannot be said to fall within the purview of Section 27 of the Evidence Act. It is, in fact, a colourable exercise of powers to make a confessional statement, while being in police custody, relevant and admissible under Section 27, which is clearly hit by the bar imposed by section 25 and 26 of the Evidence Act, upon confessions to the police and in police custody. Moreover, if the accused persons were ready to confess to the offences alleged, it has not been specified as to what prevented the investigating officer from moving an application U/s 164 Cr.P.C for recording of the same by Ld.Metropolitan Magistrate. Ct. Sonu, whose statement has also been recorded Under Section 161 Cr.P.C, is also a witness only of the arrest and alleged recovery of a 'danda' and an 'iron pipe' at the instance of the accused persons. Not only this, as far as the aforesaid case property is concerned, the police has filed a report in this Court on 03.09.2022 that the case property pertaining to the present case had been destroyed due to a 'fire incident', which took place FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 15 of 23 16 in the basement of police station Jyoti Nagar at around 03.30 PM on 23.08.2022, pertaining to which a GD No. 114A had been recorded on 02.09.2022 and FIR no. 673/2022 pertaining to this incident had been registered at PS Jyoti Nagar on 24.08.2022. Thus, the prosecution had made it clear that it is not in a position to even produce the case property i.e. the allegedly recovered 'danda' and 'iron pipe' before this Court. As already discussed, the complainant, admittedly, is not in a position to identify the accused persons, and the other witnesses apart from alleged eye- witness Md. Aslam, are only witnesses pertaining to investigative steps, and thus, can in no manner give any evidence regarding the identification of the accused persons as the actual offenders. 6.6 Therefore, a bare perusal of remaining evidence sought to be adduced on behalf of the prosecution shall itself reveal that none of these prosecution witnesses can, in any manner, assist this Court in establishing the identity of the accused persons as the offenders. At the most, they can testify to the effect that the accused persons were the persons who were arrested upon the instance of the sole eye-witness. Whether or not the accused persons were the persons who committed the offences in question can only be proved by the sole eye-witness, whom the prosecution has failed to produce in the Court. 7 In this regard, it is also pertinent to mention that as a rule of caution and prudence, even though not as a rule of law, various judgments of Hon'ble Supreme Court have established the legal position that when a criminal court has to deal with the evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, the normal FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 16 of 23 17 test is that a conviction can be sustained only if it is supported by two or more witnesses, who give a consistent account of the incident in question. {Busi Koteshwara Rao & others versus State of Andhra Pradesh (2012 12 SCC 7 11) relied upon}. Further, in State of Uttar Pradesh Versus Dan Singh and Others ( 993 3 SCC 747), it was recognized by Hon'ble Supreme Court that when an incident of rioting takes place, there may be a possibility of the incident being exaggerated, or some innocent persons being named as members of the assailant's party, either willingly or unwillingly, and merely some inconsequential exaggeration or contradictions in the testimony of the eye witnesses should not be a ground to reject their evidence in its entirety, as in offences involving large number of assailants and witnesses, testimony of witnesses cannot be expected to be identical.
7.1 However, in the same judgment, Hon'ble Supreme Court has also held that what requires to be seen in such a case is that whether the basic features of the occurrence have been similarly viewed and/or described by the witnesses in a manner which tallies with the outcome of the riot, viz, the injuries sustained by the victims and the number of people who are attacked and/or killed. Further, applying the principle laid down by Hon'ble Supreme Court in Masalti versus State of Uttar Pradesh (AIR 1965 SC 202) and Inder Singh versus State of Rajasthan (2015 2 SCC 730), the identity of the accused persons as a member of the unlawful assembly, should be confirmed by two or three or more witnesses, who identify the accused persons as a part of the mob/unlawful assembly.
FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 17 of 23 18 7.2 As already discussed, in the present case, Md. Aslam is the only eye-witness to the commission of the alleged offences, who is alleged to have identified the accused persons and upon whose identification, the arrest had allegedly been made, and he could not be produced by the prosecution allegedly after sincere efforts, and no prospects of him ever being traced were shown, and therefore, the prosecution evidence does not stand the test of guidelines laid down by Hon'ble Supreme Court in Masalti Case. 7.3 Time and again, Hon'ble Supreme Court and Hon'ble Delhi High Court, have emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the CrPC. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of Hon'ble Supreme Court in Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 & Anr. & in Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar (1980) 1 SCC 81, the Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be 'reasonable, fair and just'; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 18 of 23 19 right to life and liberty enshrined in Article 21. The exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered afresh by the Constitution Bench of Hon'ble Supreme Court in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr. (1992 1 SCC 225). Referring to a number of decisions of Hon'ble Supreme Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, this Court does not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are:-
(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial;
(iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is -- who is responsible for the delay?;
(iv) 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 work-load of the court concerned, prevailing local conditions and so on-- what is called, the systemic delays;
(v) each and every delay does not necessarily prejudice the FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 19 of 23 20 accused. Some delays may indeed work to his advantage.
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 and when does the prosecution become persecution, again depends upon the facts of a given case;
(vi) ultimately, the court has to balance and weigh several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has been denied;
(vii) 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 and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;
(viii) it is neither advisable nor feasible to prescribe any outer time- limit for conclusion of all criminal proceedings. 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;
(ix) 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 FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 20 of 23 21 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.
7.4 Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed, the pronouncements of Hon'ble Supreme Court Court in "Common Cause" A Registered Society Vs. Union of India (UOI) & Ors. (1996) 4 SCC 33, "Common Cause", A Registered Society Vs. Union of India & Ors. (1996) 6 SCC 775, Raj Deo Sharma Vs. State of Bihar (1998) 7 SCC 507 and Raj Deo Sharma II Vs. State of Bihar (1999) 7 SCC 604 gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven- Judge Bench of Hon'ble Supreme Court in P. Ramachandra Rao Vs. State of Karnataka16. (2002) 4 SCC 578. Speaking for the majority, RC Lahoti J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 21 of 23 22 applied like a strait- jacket formula. Their applicability would depend on the fact-situation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial.
7.5 The Hon'ble Supreme Court has further stated in Pankaj Kumar Vs. State of Mahrashtra (2008) 16 SCC 117 and Jayendra Vishnu Thakur Vs. State of Maharashtra (2009) 7 SCC 107 that a person charged with an offence and submitted before the process of law, has also a right of speedy trial, which has been considered as a fundamental right under Article 21 of the Constitution of India.
7.6 Accordingly, in the light of the aforesaid discussion and cited judgments, this Court is of the opinion that the examination of the remaining witnesses who are merely formal witnesses, will not be of any help in altering the conclusion arrived at by this Court, and the prosecution shall not be in a position to establish the guilt of the accused persons beyond reasonable doubt regarding the commission of offences as alleged. The prosecution has completely and miserably failed to prove the guilt of the accused persons beyond reasonable doubt.
8. Conclusion In view of the above discussion, I am of the considered FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 22 of 23 23 opinion that the prosecution has failed to establish its case beyond reasonable doubt against the accused persons. Accord- ingly, accused persons Ajay S/o Sh. Mahender Singh and Gau- rav Panchal S/o Sh. Subash Panchal are hereby acquitted of the offences punishable under Section 147/148/149/427/188/34 of the Indian Penal Code and Section 3 of the Prevention of Dam- age to Public Property Act, 1984. Copy of this judgment be given free of cost to both the sides.
Announced in the open Court on 16.12.2022.
(Abhinav Pandey) Metropolitan Magistrate-04 (Shahdara) KKD/Delhi The judgment contains 23 pages, all pages signed by the presiding officer (Abhinav Pandey) Metropolitan Magistrate-04 (Shahdara) KKD/Delhi FIR no. 70/20 State Vs. Ajay and Gaurav Panchal Page no. 23 of 23