Jammu & Kashmir High Court
Chaman Lal Jalla vs State on 9 October, 2002
Equivalent citations: 2003(1)JKJ24
JUDGMENT B.L. Bhat, J.
1. Though the medium of petition in hand, the petitioners namely, Chaman Lal Jalla has invoked powers of this court Under Section 561-A Cr.P.C. for quashing the criminal proceedings in File No. 132/78 (old) 354/ 82 (old), No. 13 to 27/87 (old) and now file No. 5 to 19 (new) of 2000 Under Sections 420,409,467,471 and 477A RPC titled as State Vs. Mohan Krishan Razdhan & anothers pending decision before the court of learned Additional Sessions Judge, Ramban. It is inter-alia maintained in the petition that a false and frivolous case came to be registered against the petitioner and one Mohan Krishan Razdhan by police station Shergari, Srinagar (Kashmir) for offences under Section 409/420/467/471 and 477A RPC being file No. 132/78. That during the investigation, the petitioner was put under restraint and finally incomplete challan came to be presented before the court of learned Chief Judicial Magistrate, Srinagar on 17-06-1978. That finally complete challan came to be presented before the court of Additional Sessions Judge, Srinagar on 28-06-1982. That the Additional Sessions Judge, Srinagar directed that the challan be produced before the court of learned Chief Judicial Magistrate who in turn came to commit the case to the court of Sessions Judge, Srinagar. That the case is still at its initial stage. That the accused has a right of speedy trial . That the case in question against the petitioner is pending for the last 23 years. That the right to speedy trial is one of the basic right. That an application for quashing the proceedings and seeking discharge of petitioners was filed before the trial court. That the said petition also has not been disposed of. That there being inordinate delay, the petitioner stands denied the right to speedy trial. That the delay cannot be attributed to the petitioner.
2. Notice of this petition was given to the state respondent on 21-07-2002. When the case was listed before this court, Mr. Rehman caused his appearance on behalf of respondent-State. When Mr. Goja started the arguments Mr. H.Rehman, CA left the court room and did not return. Today also, nemo is present for the respondent.
Heard learned counsel for the petitioner and also persuade the record of the case.
3. In a case Abdul Rehman Antulay Vs. R.S.Naik reported in AIR 1992 SC 1701, their lordships of Supreme Court have while dealing with the subject of speedy trial issued the guidelines with forewarning that these propositions are not exhaustive. It is difficult to for see all situations. Nor is it possible to lay down any hard and fast rules. These propositions which are enumerated in para-54 of this judgement are reproduced as under:-
(i)."Fair, just and reasonable procedure implicit in Art. 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.
(ii). 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."
(iii). 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 , dis-appearance or non-availability of witness or otherwise.
(iv) 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 the witnesses, disappearance of evidence by lapse of time really work against the interest of prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delay the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have 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 proceeding 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 .
(v) 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 systematic delay. It is true that it is obligation of the State to ensure a speedy trial and State include Judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
(vi) 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 Vs. 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 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 prosecution. But when does the prosecution became persecution, again depends upon the facts of a given case.
(vii). 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 accused's 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 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.
(viii). Ultimately, the court has to balance and weight the several relevant facts- 'balancing test' or 'balancing process' and determine in each case whether the right to speedy trial has been denied in a given case.
(ix). Ordinarily speaking where the court comes to the conclusion that the 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 another appropriate order-including an order to conclude the trial within a fixed time where trial is not concluded or reducing the sentence where the trial is the trial has concluded- as may be deemed just and equitable in the circumstances of the case,
(x) It is neither advisable nor practicable to fix any time limit for trial of offences. Any 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 sprite of the Sixth Amend ment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
(xi) Any 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, expect in a case of grave and exceptional nature. Such proceedings in High Court must however, be disposed of on a priority basis."
4. In a case P. Ramachandra Rao Vs. State of Karnatakareported as 2002(3) Supreme 260 while overruling in Common Cause case (I) (as modified in Common Cause case (II) 1996(4) SCC 33, 1996(6) SCC 775 and Raj Deo sharma-I and II 1998(7) SCC 507 and 1999(7) SCC 602 their lordships observed in para - 28 of their judgement as under:-
"26, The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained is that these decisions though two or three -judge Bench decisions run counter to that extent to the dictum of the Constitutions Bench in A.R. Antulay's case and therefore, cannot be said to be good law to the extent they are in breach of the doctrine of the precedents. The well settled principle of precedents which has crystalised into a rule of law is that a bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or inconflict therefrom. We have in the earlier part of this judgement extracted and reproduced passages from A.R.Antulay's case . The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time limits as bar beyond which a criminal proceedings or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix any time-limit for trial of offences. Having placed on record the exposition of law as to right to speedy trial flowing from Article 21 of the Constitution this Court held that it was necessary to leave the rule as elastic and not fix it in the frame of defined and rigid rules. It must be left to the judicious direction of the court seized of an individual case to out from the totality of circumstances of a given case if the quantum of time consumed upto a given point of the time amounted to violation of Article 21, and if so, then to terminate the particular proceedings,and if not ,then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A.R.Antualy. In Kartar Singh Case (supra) the Constitution Bench while recognising the principle that the denial of accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state. "Of course, no length of time is per too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of this possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors (1) length of delay, (2) the jurisdiction for the delay (3) the accused assertion of his right of speedy trial, and (4) prejudice caused to the accused by such delay." (para 92).
Having regard to the aforesaid law, I have examined the record of the case. The perusal of the file reveals that this is as early as on 22-04-1978,caseFIRNo. 132 for offence Under Section 409/420/467/471 and 477A read with Section 34 RPC came to be registered by the police station Sher-Garhi, Srinagar on the report of one Radha Krishan zaffron, Deputy Director Accounts and Treasuries, Srinagar, alleging inter-alia therein that Shri Mohan Krishan Razdan son of Ved Lal Razdan R/o Barzulla, Srinagar during the period of his incumbency as Account Officer of the State Insurance Section has in his capacity as Drawing and Disbursing Officer embezzled as amount of Rs 264386.32 paisa from 08-12-1973 to 16-01-1978 in connivance of accused No. 2 the petitioner by fraudulent manipulation of document s pertaining to the acts of forgery and showing fictitious disbursements of the amount drawn from the Treasury from time to time during the said period. Annexure- 'A' certified copy of the incomplete challan in the said FIR No. 132 presented before the learned Chief Judicial Magistrate, Srinagar on 17-06-1978 in term of Section 344 Cr.P.C.. seeking postponement of proceedings. Annexure- B is the certified copy of the order recorded by the chief Judicial Magistrate, Srinagar dated 20-10-1978 with respect to said incomplete challan, it reveals that a complete challan has not been produced. Annexure-C is the certified copy of the order of Additional Sessionsjudge, Srinagar dated 17-04-1984 which reveals the date of presentation of complete challanas 05-02-1987 and appear to have been received by the said court of Additional Sessions Judge, Srinagar on 26-06-1987 i.e. to say well after more than a decade the complete challan came to be filed by the prosecution against the accused before the concerned Magistrate. This order further reveals that this police report (challan) came to be returned back to police station Sher-Garhi, Srinagar for further investigation and bifurcation of the challan after holding that, "it is alleged that a sum of Rs. 264386.32 have been embezzled by means of fraud and manipulation of documents, forgery and fictious disbursements from 08-13-1973 to 16-01-1978. the amount so mentioned has been embezzled for anumber of years,the exact date of each embezzlement has not been mentioned in the police report. In view of Section 234 RPC only three charges of the same nature committed with in the period of one year can be framed. Since in the present case the allegation against the accused is that the amount in question was embezzled from 08-12-1973 to 16-01-1978 apparently within four years." It appears subsequently the separate challan with respect to the matter came to be filed before the Learned Addl. Sessions Judge, Srinagar where the same came to be registered as File No. 13 to 21/ Sessions of 11-08-1987, all this is manifest from Annexure-D on the file. It also appears from the record of this case that all these challans have been clubbed together and order sheets are maintained on File No. 13/Sessions. From order dated 18-08-1987, it reveals that "challan has been filed and the same has been entered into the registered concerned. Bail granted in favour of accused by virtue of order dated 07-08-1984 is in force. Mr. Raghunath Koul Advocate seeks opportunity to file vakaltnama on behalf of the accused, same is granted. Defence counsel submits that the accused have not been furnished the copy of the cahallan, APP seeks an opportunity to furnish the same, the same is granted. File to be adjourned to 02-09-1987, 14-09-1987,05-10-1987,20-10-1987,14-11-1987,12-12-1987,15-02-1988, 27-02-1988, 11-03-1988, and 31-03-1988 but the copies in terms of Section 173 cr. P.C.. were never furnished by the prosecution. It appears that after this accused persons which includes the petitioners approached this court for quashing of proceedings Under Section 561-A Cr.P.C. of the said challans, but this court by the virtue of its order dated 06-11-1996 came to reject the application after holding that the petitioners accused have approached this court without moving the trial court where the process of law is being abused. It further appears that petitioners/accused No. 2 approached this court for transfer of said cases from file of the court of Additional Sessions Judge, Srinagar on the ground that he is a migrant from the valley and is presently residing at jammu and it is not possible for him to go and defence his case at Srinagar. This petition came to be accepted by this court on 31-01-2000 and accordingly the said cases came to be transferred from the file of Additional Sessions Judge to the file of the Additional Sessions Judge, Ramban with the direction to the Registry to send copy of the order to the trial court at Srinagar for the transmission of record of all these cases to the transfer court at Ramban. The cases appears to have been received pursuant to this order of this court dated 31-01-2000 passed with respect to transfer application registered as Cr.T.A. No. 131/98. The files came to be received by the Additional Sessions Judge, Ramban on 22-07-2000, on this date the petitioners-accused No.2 was directed to furnish fresh bail and personal bonds and non-bailable warrant of arrest came to be issued against accused No. l From the perusal of interim order dated 12-08-2000, it appears that accused No. 2 came to file an application for dropping proceedings in the said cases instituted against him. The copy of the petition appear to have been furnished to the app. with the direction to the file objections, which he came to file after three months when case came to be spread to as many as four dates of hearings. On 16-12-2000 the trial court came to record an order which inter-alia makes mention of the fact that files were received on 27-07-2000, It is stated by the prosecution that the case diaries and exhibits have not been received from the concerned prosecution branch. It is pursuant to this submission of the prosecution after holding that the submission is in clear violation of the direction of the hon'ble High Court to dispose of the case expeditiously keeping in view the age of the case and came to order sending a copy of this letter to the Inspector General of Police to issue strict instructions to concerned prosecution branch to arrange for case diaries with a separate communication to sessions Judge, Srinagar to direct the APP of his high court to see that case diaries and exhibits are despatched to this court immediately with a further direction that a copy of this order be sent to the Director Prosecution and the case be adjourned to 10-01-2001. On this date after recording its satisfaction that the accused No. 1 has absconded and his availability in near future is not in sight initiated proceedings Under Section 512 Cr.P.C. against him. On this date also, App sought time to produce the case diaries and the exhibits of this case. Order dated21-05-2001 reveals the submission of App. that he is in receipt of case diaries and under takes to furnish copy of the same to the accused during the course of one week and case came to be adjourned to 21-05-2001. On this date petitioner-accused No. 2 submitted before the court that he is in receipt of the copy of the documents but wants to compare the same, file came to be adjourned on 28-05-2001. On this date, the accused made a submission before the court that he has not received copy of the challan and the case came to be adjourned on 27-06-2001. On this date, App made a request and sought opportunity to furnish copy of the documents presumably of the police report, the same was granted and file came to be adjourned to 28-07-2001. On this date, it was pointed out by the trial court that the learned APP has not furnish copy of the documents to the accused, however, he has produced a letter, whereby, prosecution has asked the SSP, Srinagar to produce the said copies before the court. It is observed by the trial court intre-alia in its order dated 28-07-2001 that copies have not been furnished to the accused upto today also. Learned APP has produced letter written by the Director of Prosecution to the address of SSP Srinagar directing him to produce the documents before the court. All this is going from years together. Nobody is going to share the responsibility and the court is not getting proper assistance from the prosecution as a result of which the accused is suffering. Under these circumstances the case is adjourned for hearing the arguments in the application filed by the accused. The case be listed on 12-08-2001. On this date the trial court appear to have heard the petition of the petitioner dated 12-08-2000 for dropping of the proceedings against him in part and observed that App has not produced copy of the documents nor the same have been furnished to the accused as a result of which it can be said that the documents are not with the prosecution, with a further observation that the case being an old shall come up for hearing the arguments about framing of charge. Thereafter on 19-09-2001 arguments appear to have been heard in the case and the file reserved for orders and so for virdict has not been given. It appears that the presiding officer Shri Kuldeep Singh had heard the arguments who despite hearing the arguments and reserving it for orders for more than 5 month did not pronounce the same, for this he owes an explanation to offer. It appears that on 02-05-2002 the present Additional Sessions Judge or the court has adjourned the file for hearing afresh. All this goes to snow that the proceeding in the case in question are pending for the last more than two decades, firstly, a comman incomplete challan with respect to these cases came to be filed before the committal court of learned Chief Judicial Magistrate, Srinagar as early as on 17-06-1978 for the postponement of the investigation in terms of the Section 344 Cr.P.C. in the case when FIR in this behalf came to be registered on 22-04-1974, secondly, it is on 05-02-1987 i.e. well after four years, a complete challan came to be filed before the same court, thirdly, it is on 26-06-1987 that Additional Sessions Judge, Srinagar to whom case came to be committed returned the same to the prosecution for re-investigation and for bifurcation of the challan which came to be filed before the said court on 11-08-1987 and fourthly, the proceeding before the Additional Sessions Judge Srinagar where the cases were pending and thereafter before the learned Additional Sessions Judge, Ramban to whom cases came to be transferred by this court remained pending without any further proceedings up to the date of filling this petition because all these years, the prosecution are failed to furnish copies of the police reports and the documents referred to in Section 173 Cr.P.C. to the accused and also failed to produced the exhibits in the cases before the trial court despite very strong and positive directions issued by the said court from time to time, copies thereof forwarded to the Superior Officer of the prosecution wing and even to IGP, Srinagar. This being so, the petitioner is facing agony of proceedings who appears to have abetted the alleged offenced and has already suffered more punishment that what could be awarded to him it the offences ultimately found to be proved against him. This inordinate delay of pending proceedings of more than two decades can safely be attributed to the prosecution which is both oppressive and unwarranted against the petitioner and it has resulted into infringement of his right of speedy trial flowing from Article 21 of the Constitution of India when he has been seeking this right by approaching this Court earlier in terms of Section 561-A Cr.P.C. and also by approaching trial court for dropping the proceedings in the case in question.
5. Viewed thus, the petitioner stands prejudiced because of the pendency of criminal proceedings in question against him for the last more than two decades when presumably his service carrier stands ruined. Thus, this shall be in the interest of fair justice to quash the proceedings in the cases in question against the petitioner Chaman Lal Jalla presently pending before the Additional Sessions Judge, Ramban.
6. Therefore, the petition is allowed, proceedings in the criminal cases in question are quashed so far as petitioner Chaman La! Jalla is concerned and his name shall stand delinked from the array of accused in the case in the question. The record of the case together with the copy of the Judgment is sent back to the trial court with direction to proceed further in the case in accordance law after issuance of notice to the APP of the court.