Delhi High Court
J. Joseph vs Shri A.P. Nandy on 8 April, 1999
Equivalent citations: 1999CRILJ3090, 79(1999)DLT541, 1999(49)DRJ649, 1999(66)ECC87
Author: D.K. Jain
Bench: D.K. Jain
ORDER D.K. Jain, J.
1. By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short the Code), the petitioner prays for quashing of the criminal complaint filed against him on 26 June, 1985 under Section 56 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as the FERA), on the ground that more than 12 years have elapsed since the institution of the complaint and only one witness has been examined on behalf of the complainant so far as pre-charge evidence, thus infringing his right to speedy trial, flowing from Article 21 of the Constitution of India.
2. The allegations against the petitioner, as can be culled out from the complaint, are that during the course of search at his residential premises on 15 May, 1985 by the officers of the Enforcement Dte., some incriminating documents were seized, which revealed that the petitioner had violated various provisions of the FERA inasmuch: (i) he had a right to receive from foreign principals in Saudi Arabia substantial amounts of foreign exchange in the years 1981-1985 but did not take any action to recover the same and he same remained unrealised, committing an offence under Section 16(1) of the FERA; (ii) made payments of substantial sums of money for the purchase of air tickets in the years 1980-85 to persons resident in India on behalf of his Saudi Arabia based foreign principals without any general or special exemption from the Reserve Bank of India, thus violating Section 9(1)(d) of the FERA; (iii) had made payments totalling Rs.1 lakh to two non-residents during March/April 1985 without the general or special exemption of the Reserve Bank of India, contravening the provisions of Section 9(1)(a) of FERA; (iv) stood as surety for a sum of Rs. 32,100/- for two Saudi nationals without the general or special permission of the Central Government or the Reserve Bank of India, contravening the provisions of Section 26(ii) of the FERA, (v) made cash payment amounting to Rs.32,580/- on behalf of a person resident outside India without seeking permission from the Reserve Bank of India, contravening the provisions of Section 9(1)(d) of FERA and acquired foreign exchange of US $ 10, UK Pound Sterling 12, Saudi Riyals 306, Ceylon's Rs.15, Services Riks Bank Kroner 15 and UAE Dirham 1 but failed to offer the same for sale to an authorised dealer without the permission of the Reserve Bank of India, thus contravening the provisions of Section 14 of FERA.
3. Accordingly, the complaint in question was filed against the petitioner on 26 June, 1986. The learned Addl. Chief Metropolitan Magistrate took cognizance of the offence on 21 July, 1986 and issued production warrants for the petitioner's appearance on 29 July, 1986. The petitioner was produced in Court on the said date and was sent to judicial custody, where he remained till 5 September, 1986, on which date he was admitted to bail. Thereafter till the filing of this petition on 23 September, 1987, only one witness was partly examined by the prosecution. Hence the present petition.
4. The petition is resisted by the respondent-Enforcement Directorate. In the affidavit in opposition no explanation for the delay in adducing evidence has been furnished except making a vague averment that the process of substitution of the complainant, on account of his death, consumed a lot of time.
5. I have heard Mr. Dinesh Mathur, learned Senior counsel for the petitioner and Mr. Maninder Singh, learned counsel for the Enforcement Dte. I have also called for the record of the trial Court and have perused the same.
6. Though the right of an accused to speedy trial has not been enumerated as a fundamental right in the Constitution of India, but in a number of cases, the Apex Court has read into Article 21 of the Constitution the concept of speedy trial as an essential part of fundamental right to life and liberty guaranteed and preserved under the Constitution (See: Hussainara Khatoon (I) Vs. Home Secretary , R.S. Nayak Vs. A.R. Antulay & Ors. , Kartar Singh Vs. State of Punjab JT 1994(2) SC 423).
7. Besides, Section 309(1) of the Code also enjoins expeditious holding of the proceedings and continuous examination of the witnesses from day to day and requirement of recording reasons for adjourning the case beyond the following day.
8. Dealing with this aspect of the matter, in A.R. Antuley's case (supra), while laying down certain uidelines, the Supreme Court observed that right to speedy trial flowing from Article 21 of the Constitution encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial but at the same time no hard and fast rule could be laid to determine whether an accused has been deprived of his right of having a speedy trial. Factors for delay will vary from case to case. But to determine the question, some of the broad principles which could be taken into consideration are: (i) who is responsible for the delay; (ii) the nature of the offence, number of accused and witnesses and (iii) in the event of complaint of denial of right to speedy trial, has the prosecution justified and explained the delay. However, the Court also cautioned that though 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 facts and circumstances of the case, including the nature of offence, it is open to the Court to make such other appropriate order, including an order to conclude the trial within a fixed period, as may be deemed fit and equitable.
9. In a recent decision of the Supreme Court in Raj Deo Sharma Vs. The State of Bihar, , while noticing and supplementing the propositions laid down in Antuley's case (supra), the Supreme Court issued further directions. One of the directions so given and relevant for the present case, in which the maximum sentence for the offences allegedly committed by the petitioner can be imprisonment for a term which may extend to seven years, is:
"(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the court can proceed to the next step provided by law for the trial of the case."
10. I have considered the matter in the light of the aforenoted broad principles of law. Having perused the record of the trial court, I am of the view that in the instant case there has been undue delay in the trial of the petitioner, which has resulted in serious violation of his right to a speedy trial.
11. As noticed above, the complaint under Section 56 of the FERA was filed against the petitioner on 26 June, 1986 and even after a lapse of more than a decade, even pre-charge evidence has not yet been recorded. The first witness produced by the prosecution is still under cross-examination. The proceedings in the case, as reflected in the order sheets maintained in the case, reflect a sorry state of affairs. The callous attitude of the complainant in prosecuting the case, after filing the complaint, is amply demonstrated in the following orders passed by the trial court:
"19.7.94 - Present: Shri S.P. Ahluwalia, PP for Enforcement Accused on bail with counsel No PW is present. Seeks Adjournment. Come up for P.E. on 15 and 16.12.1994."
"15.12.94: Present: Shri S.P. Ahluwalia, PP for Enforcement.
Accused on bail.
No PW is present. PP seeks adjournment. He further says that witnesses will not be available even on 16.12.1994 and prays that the case may be adjourned to some other date. The other party has no objection. Adjourned. Date 16.12.1994 is also cancelled. Come up for pre-charge evidence on 6 and 7.3.95."
"6.3.95- Present: Baldev Prakash, Clerk for the Department.
Accused on bail with counsel Shri S.S.Sindhi, Advocate The Clerk of the Department prays for adjournment as Shri S.P. Ahluwalia, PP is no longer PP and fresh PP to be appointed. Adjournment not opposed. Case is also fixed for 7.3.95 as such date is cancelled. To come up for pre-charge prosecution evidence on 16.8.95 and 17.8.95. Two consecutive dates requested as case is quite old."
"17.11.95- Present: Shri N. Mata, Proxy counsel for PP for Enforcement.
Accused present on bail with the counsel Shri S.S.Sindhi.
No PW is present inspite of the directions to produce entire evidence. Proxy counsel prays for a date. As the case relates to the year 1984, hence last opportunity given for entire pre-charge evidence on 27.5.96."
"27.5.96- Present: Shri Matta, Proxy counsel for Department.
Accused present on bail with Mr. S.S. Sindhi, Advocate.
Shri Matta requests for adjournment since the case has not been allocated to regular PP so far. Some more time be given. To come up for P.E. on 1.8.96".
"1.8.96- Present: Shri Navin Matta, PP for Enf.
Accused present on bail with Shri S.S.Sindhi and T.S. Siddiqui Advocates.
No PW is present. Case to come up for PE on 6.1.97."
"8.8.97- Present: Accused on bail with Shri S.S. Sindhi, Advocate.
Shri Navin Matta, SPP for Enf.
No PW is present. To come up for expediting P.E. on 9.12.1997."
"19.2.98- Present Shri Navin Matta SPP for Enf.
Accused on bail.
PW1 is present. However, the case is adjourned at the request of Ld. SPP on the ground that he wants to move an application for substituting the complainant as the complainant Shri A.P. Nandi has already expired. As such the case is adjourned for P.E. for 30.4.98."
"9.11.98- Present: Shri Navin Matta, SPP for Enf.
Accused on bail with counsel Shri S.S. Sindhi.
The accused has reported back in compliance with the order of permission. PW SC Dhamija is present but no time is left. As such the case to come for P.E. on 1/2.2.99."
12. From the aforenoted orders it is evident that despite last opportunity having been granted to the prosecution on 17 November, 1995 to lead the entire prosecution evidence on 27 May, 1996, no attempt has been made by it to have the pre-charge evidence recorded even till date. There is no allegation whatsoever against the petitioner that he was responsible for the delay in trial. The only explanation furnished by the prosecution for the delay in trial is that the substitution of complainant took a considerable time, is also not borne out from the record inasmuch as request for making an application for the said purpose was made for the first time on 19 February, 1998, when the factum of death of Shri A.P. Nandy, the complainant, was brought to the notice of the Court. There is no explanation for the inordinate delay in trial for the period of almost twelve years from 1986 to 1998.
13. Keeping in view the aforestated facts, the un-explained inordinate delay on the part of the prosecution and bearing in mind the principles of law laid down in the aforenoted decisions, I do not consider it to be a fit case to give a direction to the trial court to expedite the trial and prolong the uncertainty and agony of the petitioner, already suffered by him for the last over 13 years. I am of the view that in the instant case right of the petitioner to speedy trial has been infringed and it is a fit case for putting an end to his trial at this stage itself. Accordingly, I quash the proceedings against the petitioner in the complaint entitled "A.P. Nandy Vs. J.Joseph", pending in the Court of the Addl. Chief Metro politan Magistrate, New Delhi and discharge the petitioner. The personal and the surety bond furnished in terms of order dated 5 September, 1986, passed by the trial court, shall stand discharged.
14. The main petition as also Cr. M. 5115/97, seeking stay of the trial stand disposed of.
15. The record of the trial court shall be sent back.