Calcutta High Court (Appellete Side)
Santosh Kumar Panja & Ors vs The State Of West Bengal on 28 November, 2008
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. NO. 1529 of 2007 Santosh Kumar Panja & Ors.
Versus
The State of West Bengal
For Petitioners : Mr. Sekhar Kumar Basu
Mr. Manas Ghosh
For State : Mr. Swapan Kumar Mallick
Heard On : September 10th, 2008.
Judgment On : 28-11-2008.
Invoking inherent jurisdiction of this court, accused persons viz. Santosh Kumar Panja, Samir Bhusan Chandra and Mozammal Haque Molla moved the instant criminal revision for quashing of the Sessions Case No. 5 (3) of 2000, now pending before the Learned Additional District and Sessions Judge, 7th Court, Alipore, 24-Parganas, South, relating to the offence punishable under Sections 120B/255/260/467/471/420 of the Indian Penal Code on the ground of infringement of their fundamental right to speedy trial guaranteed under Article 21 of the Constitution.
2. The background facts of the aforesaid case are as follows;
"On different dates between July 31, 1975 to January 22, 1976 Alipore Police Station received eight separate complaints from Alipore Post Office and one complaint was received by the Deputy Commissioner of Police, Detective Department, Lalbazar from the Investigating Inspector (Wireless) and Office of the Post Master General, West Bengal alleging that quite a large number of persons produced their radio licenses to the Alipore Post Office for renewal when on examination of those licenses it was found that all those licenses are bogus and the B.R.L. Stamp affixed postal seals and writings on those books were forged and fictitious. The investigation of the case thereafter was entrusted to the Fraud Section, Detective Department, Lalbazar, Calcutta Police. In the meantime an information was received that an well organized criminal racket led by one Ajit Ghosh was behind that. Whereupon the police started a suo motu case. During investigation nine accused persons were arrested. 31 blocks, by which fictitious radio license books were printed and three radio license cover and six license books without cover were seized from the possession of the accused Anukul Hazra, who printed the fictitious license book and B.R.L. Stamps. All 10 fictitious radio license books affixed with forged B.R.L. Stamps were sent to the India Security Press, Nasik for obtaining opinion and it was found that all the documents, license books are fictitious and B.R.L. Stamps affixed thereon are forged. Besides that those license books specimen writings of the accused persons and the counter clerk of Alipore Post Office of the relevant period were sent to the handwriting expert who opined the writing found in those license books are mostly written by accused Satish Chandra bag. During investigation one hand printing machine was also recovered at the instance of one Amiya Kumar Mitra. It was found all the nine accused persons are involved in forging the radio license stamps and using the same as genuine in some fictitious radio license. They also forged the writings in those license books which were printed by them locally and supplied the same as genuine to the innocent publics who were seeking license for their radios."
3. The aforesaid case was registered on March, 1977 and in February, 1979 police submitted charge-sheet against total nine accused persons including the present three petitioners. Thereafter, on August, 1979 the copies were supplied to the accused persons but in between on three dates the copies could not have been supplied because of the absence of the accused persons.
Although, November 16, 1979 was fixed for framing of charge it appears that nothing could be done till November 1985 as out of nine accused persons either of them was absent in court. Thereafter, hearing of this case was adjourned till 24th of April, 1987 because the court became vacant and in between on three occasions all the accuseds were not present. On 24th of April, 1987 it was reported to the court that accused Ajit Ghosh has expired and accordingly the court called for a report from the Officer-in-Charge, Kharda Police Station where the said accuseds were allegedly residing. Thus, from November 1979, when the matter was fixed for framing of charge till November 1985, for long six years there was no progress in the case due to the accused persons and thereafter for about one and half years due to the court reasons.
In the meantime the accused persons moved a criminal revision before this Hon'ble High Court being C.R.R. No. 799 of 1998 praying for quashing of the aforesaid case on the ground of delay. By an order dated May 5, 1998 this Hon'ble High Court disposed of the said criminal revisional application without allowing the petitioners prayer for quashing of the case on the ground of delay. The court found that delay was due to non-receipt of death report and accordingly directed the case against that allegedly dead person be separated from the other accused persons and directed the trial to be concluded within six months. It appears from the Lower Court Records that the aforesaid order was never brought to the notice of the Learned Court below. In any event, the delay caused during the aforesaid period cannot be taken into consideration by this court once again, since a coordinate Bench of this Court already refused to quash the impugned criminal proceedings on the ground of delay.
In the meantime the petitioner Santosh Kumar Panja moved another criminal revision being C.R.R. No. 362 of 1999 for quashing of the case on the ground of delay and for non-conclusion of the trial within the time as specified by the High Court in connection with C.R.R. No. 799 of 1998. However, when the aforesaid criminal revision was taken up for hearing on 3rd of August, 1999 none appears on behalf of the petitioner and again this court directed the court below to conclude the trial within the period of six months. It further appears that the said order came to the notice of the Learned Court below on 3rd of September, 1999. It may be noted that this time also the order of the Hon'ble Court was not brought to the notice of the Learned Court below by the petitioner, when the Learned Magistrate fixed 11th of November, 1999 for appearance of the accused persons. However, on that day none of the accused persons appeared and sureties were directed to present them in court. On 22nd of Nov ember, 1999, the sureties made a prayer for time for production of the accused persons. On November 30, 1999 court issued warrant of arrest against the absconding accused persons. Thereafter, on January 14, 2000 only five accused persons were present in court when court filed the case as against three absconding accused persons and fixed January 18, 2000 for framing of charge against the remaining five accused persons. In this way nearly five months were elapsed from the date of communication of the order passed by this Court.
On January 18, 2000 no charge could have been framed as the Court found one of the offence punishable under Section 255 of the Indian Penal Code was exclusively Sessions triable and accordingly on January 28, 2000 the case was committed to the Court of Sessions. The Sessions Court received the records on commitment on March 6, 2000 and on the self-same day fixed May 23, 2000 for framing of charge. Thereafter, until August 6, 2001 no charge could have been framed on three occasions due to the Court reasons. On one occasion due to the Cease Work by the lawyers and twice on the prayer of the defence. On August 6, 2001 the defence moved an application for dropping of the case and thus the Court could not take any steps for framing of charge. However, the hearing of the said application was adjourned on several occasions due to the time taken by the defence as well as prosecution, Cease Work of the lawyers as well as due to the non-availability of the Learned Judge and on congestion of work in the Court.
4. Mr. Sekhar Kumar Basu, the Learned Counsel, appearing on behalf of the petitioners submitted that the investigation of the above noted case registered in March, 1977 ended in submission of charge-sheet in February, 1979. Since then even trial has not been commenced, no charge has been framed and during such long 31 years the present petitioners have been facing enormous mental agony, expense and strain for no fault of their own. He further submitted that earlier twice this court gave specific directions to the Trial Court to conclude the trial within some stipulated period but same has been completely ignored. According to Mr. Basu that the present petitioners can no way be held responsible for this delay and by such delay their fundamental rights of speedy trial guaranteed under Article 21 of the Constitution has been clearly infringed and the impugned proceeding is liable to be quashed.
In support of his contention Mr. Basu relied on the following decisions viz. (I) Motilal Sharaf Vs. State of J & K and Anr., reported in 2006 (10) SCC 560 and (II) Surinder Singh @ Singara Singh Vs. State of Punjab, reported in 2005 (7) SCC 387.
5. On the other hand, Mr. Swapan Kumar Mallick, the learned advocate vehemently opposed the prayer for quashing. He submitted that this case relates to a very serious offence of forging valuable documents viz. radio license and counterfeiting Government Stamps punishable with imprisonment for life. He further submitted that it cannot be said that the accused persons are no way liable for delaying the proceedings. Mr. Mallick in support of his contention relied on two decisions, one of the Constitutional Bench of the Hon'ble Apex Court, in the case of P. Ramachandra Rao Vs. State of Karnataka, reported in 2002 SCC (Cri) 830 and in the case of State of Rajasthan Vs. Ikbal Hussen, reported in 2004 All India Criminal Law Reporter 664.
6. Heard the learned Counsels appearing on behalf of the parties. Perused the Lower Court Records as well as the other materials. Considered their respective submissions and the case laws relied upon by them.
7. In the case of P. Ramchandra Rao Vs. State of Karnataka (supra) the Supreme Court upheld the law as laid down by the earlier Constitution Bench in the case of A.R. Antulay Vs. R.S. Nayak, reported in 1992 SCC (Cri) 93 and further pronounced that the law laid down therein shall hold the field. In the aforesaid case of P. Ramchandra Rao Vs. State of Karnataka (supra), the Supreme Court held as follows;
29. For all the foregoing reasons, we are of the opinion that in Common Cause case (I) [as modified in Common Cause (II)] and Raj Deo Sharma (I) and (II) the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold :
(1) The dictum in A. R. Antulay case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay, case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions.
(3) The guidelines laid down in A. R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. The applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A. R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-
limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent Trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482, Cr.P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Government of their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively-by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.
We answer the questions posed in the orders of reference dated 19.9.2000 and 26.4.2001 in the abovesaid terms."
8. Subsequently, in the case of State of Rajasthan Vs. Ikbal Hussen (supra) Apex Court held as follows;
"The Court must respect legislative policy unless the policy is unconstitutional.
Statutes of limitation, limited though they are on the criminal side, do not apply to:
(a) serious offences punishable with more than 3 years imprisonment;
(b) all economic offences.
Corruption by high public servants is not protected for both these reasons. Right to speedy trial is not a right not to be tried. Secondly it only creates an obligation on the prosecutor to be ready to proceed to trial within a reasonable time;
That is to say without any delay attributable to his deviousness or culpable negligence.
The actual length of time taken by a trial is wholly irrelevant. In each individual case the court has to perform a balancing act. It has to weigh a variety of factors, some telling in favour of the accused, some in favour of the prosecutor and others wholly neutral. Every decision has to be ad-hoc. It is neither permissible nor possible nor desirable to lay down an outer limit of time. The U.S. Supreme Court has refused to do so. Similar view is taken by out Court. There is no precedent warranting such judicial legislation.
The following kinds of delay are to be totally ignored in giving effect to the plea of denial of speedy trial:
(A) Delay wholly due to congestion of the Court calendar, unavailability of Judges, or other circumstances beyond the control of the prosecutor.
(B) Delay caused by the accused himself not merely by seeking adjournments also by legal devices which the prosecutor has to counter.
(C) Delay caused by orders, whether induced by the accused or not, of the court, necessitating appeals or revisions or other appropriate actions or proceedings.
(D) Delay caused by legitimate actions of the prosecutor e.g. getting a key witness who is kept out of the way or otherwise avoids process or appearance or tracing a key document or securing evidence from abroad.
Delay is usually welcomed by the accused. He postpones the delay of reckoning thereby. It may impair the prosecution's ability to prove the case against him. In the meantime, he remains free to indulge in crimes. An accused cannot raise this plea if he has never taken steps to demand a speedy trial. A plea that proceedings against him be quashed because delay has taken place is not sustainable if the record shows that he acquiesced in the delay and never asked for an expeditious disposal."
Similarly, in the case of Motilal Sharaf Vs. State of J& K and Anr. (supra) the Apex Court quashed a proceeding relating to an offence punishable under Section 5 (2) of the Jammu & Kashmir Prevention of Corruption Act on the ground of delay thereby infringement of Article 21 of the Constitution on the ground that the criminal prosecution of the accused were pending for two and half decades were not a single witness were examined by the prosecution without there being any lapses on the part of the accused.
In the case of State through C.B.I. Vs. Dr. Narayan Waaman Nerukar & Anr., reported 2002 SCC (Cri) 1542, the Apex Court held as follows;
Para. 9. "While considering the question of delay the court has a duty to see whether prolongation was on account of any delaying tactics adopting by the accused and other relevant aspects which contributed to the delay. Number of witnesses examined, volume of document likely to be exhibited, nature and complexity of the offence which is under investigation or adjudication are some of the relevant factors. There can be no imperical formula of universal application in such matters. Each case has to be judged in its own background and special features if any. No generalization is possible and should be done. It has also to be borne in mind that criminal Courts exercise available powers such as those under Sections 309/311/258/ Cr.P.C. to effectuate right to speedy trial."
9. As held by the Apex Court in the case of State of Rajasthan Vs. Ikbal Hussen (supra) right to speedy trial is not a right not to be tried and it is an obligation on the prosecutor to be ready to proceed to trial within a reasonable time i.e. to say without any delay attributable to his deviousness or negligence. The actual length of time taken by a trial is wholly irrelevant. In each particular case the court has to perform a balancing act. It has to weigh a variety of reasons some telling in favour of the accused, some in favour of the prosecutor while rests are wholly neutral.
Though court further held the following kinds of delay are to be totally ignored in giving effect to the plea of denial of speedy trial viz. delay due to the congestion of the court calendar unavailability of judges or other circumstances beyond the control of the prosecutor. Delay caused at the behest of the defence.
10. Currently in the case of Superintendent of Police, Karnataka Lokayukta & Anr. Vs. B. Srinivas, reported in (2008) 3 SCC (Cri) 587, the Supreme Court was once again posed with a similar situation and held as follows;
Para. 10. "There is no general and wide proposition of law formulated that whenever there is delay on the part of the investigating agency in completing the investigation, such a delay can be a ground for quashing the FIR. It would be difficult to formulate inflexible guidelines or rigid principles in determining as to whether the accused has been deprived of fair trial on account of delay or protracted investigation; it would depend on various factors including whether such a delay was reasonably long or caused deliberately or intentionally to hamper the defence of the accused or whether the delay was inevitable in the nature of things or whether it was due to dilatory tactics adopted by the accused. It would depend upon certain peculiar facts and circumstances of each case i.e. the volume of evidence collected by the investigating agency, the nature and gravity of the offence for which the accused has been charge- sheeted in a given case. The nexus between whole and some of the above factors is of considerable relevance. Therefore, whether the accused has been deprived of fair trial on account of protracted investigation has to come on facts. He has also to establish that he had no role in the delay. Every delay does not necessarily occur because of the accused."
Para. 11. "A seven-Judge Bench of this Court in P. Ramchandra Rao V. State of Karnataka affirmed the view taken in Abdul Rehman Antulay V. R.S. Nayak and clarified confusion created by certain observations in Common Cause, A Registered Society V. Union of India, Common Cause, A Registered Society V. Union of India, Raj Deo Sharma V. State of Bihar and Raj Deo Sharma (II) V. State of Bihar. It was observed that the decision in A.R. Antulay case still holds the field and the guidelines laid down in the said case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factual situations of each case. 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. Whenever there is any allegation of violation of right to speedy trial the court has to perform by balancing the act by taking into consideration all attending circumstances and to decide whether the right to speedy trial has been denied in a given case. As noted above, one month after the order relating to investigation and lodging of FIR, a petition under Section 482 of the Code was filed before the High Court." Now examining the present case, in the touchstone of the ratio of the aforesaid decisions, I find in the instant case prosecution cannot be held solely responsible for causing delay in the conclusion of the trial. The delay was caused mainly due to non-availability of the Judges, congestion of work in the Court as well as on the ground of the defence viz. on the prayer adjournment made on behalf of the defence and due to the Cease Work by the lawyers. There was no progress in the trial after this High Court directed conclusion of the trial within some specified time for which defence is very much responsible. The first order was never brought to the notice of the Trial Court and then although direction was for conclusion of trial within six months from the date of communication, but for more than five months all accused persons were not available before the Court and in the meanwhile after the case being committed to the Court of Sessions, an application for dropping the case was moved by the accused, for which the prosecution cannot be held to be responsible in any way. As held by the Constitution Bench of the Apex Court in the aforesaid decisions no outer limit can be fixed for disposal of a criminal trial. Moreover, the alleged offence of counterfeiting Government Stamp and forging valuable documents punishable under Section 255 of the Indian Penal Code and under Section 467 of the Indian Penal Code are very serious offence, where accused can be punished with imprisonment for life or for a term which may be extended upto rigorous imprisonment for 10 years with fine. It may be pertinent to note that after the aforesaid order passed by this Court on August 5, 1999 in connection with C.R.R. No. 362 of 1999 the hearing of this case was adjourned totally on 13 occasions, out of which on eight occasions due to the defence, on four occasions due to the court reasons and once because lawyers went for Cease Work. In the meantime on August 6, 2001 on behalf of the accuseds an application was moved for dropping of the case. The said application could not have been disposed of as defence took time as many as on two occasions, prosecution on four occasions, due to the Cease Work of the lawyers on four occasions, on the joint prayer of the parties on two occasions and due to the court reasons on nine occasions.
In view of the aforesaid circumstances it cannot be said that prosecution is only liable for causing delay. The delay was also attributed to the defence. The non-availability of the court is also one of the major reason for delay. Leaving aside the delay caused due to the defence non-availability of the court and due to the Cease Work of the lawyers it cannot be said that the prosecution is liable for causing considerable delay. Thus, I am not inclined to allow the petitioners prayer for quashing on the grounds of infringement of Article 21 of the Constitution.
The Office is directed to communicate this order to the Learned Court below within a week from this date. It is further directed that upon receipt of this communication the Learned Trial Court shall fix a date must be within one month thereof for framing of charge. The petitioners are directed to appear in the court below within a week from this day.
11. So far as the accused Satish Chandra Bag and Pradip Pathak are concerned who are not before this court in the present criminal revision, the Learned Court is directed to take necessary steps at once by calling upon the sureties for their production in the court on the next date to be fixed by it. In the event the sureties fails to produce them on the date so fixed by the Trial Court, the Trial Court shall proceed against them in accordance with law to compel their presence. Mr. Swapan Kumar Mallick, the Learned Counsel appearing on behalf of the State is also directed to communicate this order to the Investigating agency so that the trial may not be delayed any further due to their reasons.
The Trial Court is directed to proceed with the trial strictly in terms of provisions of Section 309 of the Code of Criminal Procedure and must proceed with the trial on day to day basis and all endeavours must be made by the Trial Court to conclude the trial preferably within a period of one year from the date of its commencement.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
( Ashim Kumar Roy, J. )