Calcutta High Court
Subhas Chandra Das vs State Of West Bengal on 9 December, 2005
Equivalent citations: 2006(3)CHN496
JUDGMENT P.N. Sinha, J.
1. This revisional application is aimed at quashing the proceeding being G.R. Case No. 1060/1980 (T.R. Case No. 65/1990) arising out of Nakashipara Police Station (in short P.S.) Case No. 9 dated 11.4.80 under Sections 420/120B/272 of the Indian Penal Code (in short IPC) now pending in the Court of the learned Judicial Magistrate, 2nd Court, Krishnagar, Nadia.
2. Mr. Tapas Kumar Ghosh, learned Advocate for the petitioner submitted that the aforesaid Nakashipara P.S. Case No. 9 dated 11.4.80 under Sections 420/120B/272 of the IPC was started against this petitioner and Ors. on the basis of written complaint / First Information Report (in short FIR) lodged by one Adhir Ranjan Das, Sub-Inspector of Police attached to District Enforcement Office, Krishnagar Sadar, Nadia. After concluding investigation chargesheet was submitted under Sections 420/120B/272/511 of the IPC against the accused persons with a prayer to discharge two other accused persons namely, Anil Kumar Singha Roy and Nitai Singha Roy. Thereafter, charge was framed against the accused persons including this petitioner on 29.4.91. Since then not a single witness was examined for the prosecution and the case is still pending for trial. Since starting of the case on 11.4.80 upto this date within 25 years not a single witness was examined by the prosecution. In the meantime, two of the accused persons have expired and the present accused has now become old, infirm and invalid.
3. Mr. Ghosh submitted that continuation of the criminal proceeding against this petitioner since 1980 amounts to miscarriage of justice and it violates principles of Article 21 of the Constitution. Right guaranteed under Article 21 of the Constitution lays down provisions of speedy trial of cases but, pendency of the case for 25 years is an abuse of the process of Court and is a glaring instance of violation pf right guaranteed under Article 21 of the Constitution. The petitioner is now suffering from serious illness and pendency of the case for the last 25 years has caused severe humiliation to him and his fame and prestige has been lowered in the eye of his neighbours, colleagues and even his family members. Pendency of the case for so many long years is causing mental agony and harassment to the petitioner. It is still uncertain when the trial would come to an end and the criminal proceeding should be quashed as its continuation would be against spirit of Article 21 of the Constitution and is abuse of process of Court. In support of bis contention he cited the decisions namely Pradip Mitra v. State of West Bengal reported in 2003 C Cr. LR (Cal) 721, Raj Deo Sharma v. State of Bihar reported in 1999 C Cr. LR (SC) 398, Raj Deo Sharma v. State of Bihar reported in 1998 C Cr. LR (SC) 385, P. Ramchandra Rao v. State of Karnataka reported in 2002 C Cr. LR (SC) 497 and one unreported decision of this Court in Babul @ Babul Kar v. State of West Bengal CRR No. 1832 of 2004.
4. Mr. Asimesh Goswami, learned Assistant Public Prosecutor appearing for the State submitted that the High Court instead of invoking jurisdiction under Section 482 of the Code of Criminal Procedure (in short Code) in this matter may invoke jurisdiction under Section 483 of the Code. this Court may direct the learned Magistrate to complete the trial within December, 2005 and the time that may be framed by this Court may be regarded as a mandatory direction. There is no doubt that, the petitioner has suffered a lot due to pendency of the criminal proceeding for the last 25 years. The next date fixed for evidence is 9.12.05 and considering this fact this Court may direct the learned Magistrate to complete the trial within a fixed time.
5. Mr. Goswami further submitted that there cannot be any time-limit for disposal of criminal cases and the views earlier expressed by the Supreme Court in 'Common Cause' case was overruled by a Constitution Bench in P. Ramchandra Rao v. State of Karnataka (supra): . The Supreme Court made it clear in this decision that there cannot be any time-limit for disposal of a criminal case. Whether there was delay or not for quashing a proceeding invoking Article 21 of the Constitution read with Section 482 of the Code, the Supreme Court laid down certain guildelines where a High Court can exercise jurisdiction under Section 482 of the Code to quash a proceeding for violation of provisions of Article 21 of the Constitution. In the said decision the Supreme Court clearly laid down that the decision in Abdul Rehtnan Antulay v. R. S. Nayak and Anr. reported in 1992(1) SCC 225, is the leading decision and still holds the field. There is no ground for quashing the proceeding invoking jurisdiction under Section 482 of the Code and in this case the Court invoking jurisdiction under Section 483 of the Code may pass necessary direction.
6. After hearing the submissions of the learned Advocates of the parties and perusing the materials and records and the contents of the revisional application and annexures made thereto, I find that the FIR was lodged against this petitioner and seven others and on the basis of it Nakashipara P.S. Case No. 9 dated 11.4.80 under Sections 420/120B/272 of the IPC was started. The allegation made in the FIR was that on 10.4.80 to work out a secret information, the complainant Adhir Ranjan Das, the Inspector of Police and other police personnel and senior scientific expert of Forensic Science Laboratory, Calcutta went to Bethuadahari Milk Chilling Plant at about 12.30 hours. Reaching there they found this petitioner, Supervisor (Processing) attached to the milk chilling plant procuring milk from different milkmen and sub-contractors without testing the milk and keeping the milk in tank No. 1. He was noting down only the names of the sub-contractors and milkmen in a register. This matter raised suspicion in the mind of the de facto complainant that this petitioner was receiving milk which was not upto the standard fixed by the Government. De facto complainant thereafter took 20 sample bottles of milk as per register from the place which was kept for testing and one sample milk bottle from the reserved chilling plant No. 1 and one sample bottle of milk from fat in a Shalimar coconut can and prepared seizure list after seizing those bottles. It was alleged that this petitioner and Ors. being public servants cheated the Government and defalcated Government fund knowing fully well that he in connivance with the contractors and Ors. was receiving substandard milk from them, On the basis of such FIR the criminal proceeding was started and after completing investigation the Investigating Officer submitted chargesheet on 1.7.88 under Sections 420/120B/272/511 of IPC.
7. Paragraph 6 of the revisional application reveals that the petitioner was suspended w.e.f. 30.12.82 and challenging the order of suspension he preferred a writ application before this Court and obtained order of stay. Finally this Court on 16.3.84 allowed the writ application filed by the petitioner and rule was made absolute and the suspension order was set aside. On 23.3.88 one of the accused persons namely Khokan Ghosh expired. On 23.5.90 copy of papers was supplied to the petitioner in view of Section 207 of the Code and the case was transferred to the Court of the learned Judicial Magistrate, 2nd Court. The learned Judicial Magistrate, 2"d Court, Krishnagar framed charges against five accused persons under Sections 420/120B of IPC on 29.4.91. Paragraph 13 of the revisional application reveals that on 26.11.92 another co-accused namely Sudeb Ghosh expired.
8. It is evident that since the FIR was lodged on 11.4.80 it took nearly 8 years to complete the investigation and chargesheet was submitted on 1.7.88 and thereafter three more years passed when charge was framed finally on 29.4.91. It is undisputed that since the date of framing charge not a single witness has been examined though 14 years have passed in the meantime. The entire time consumed by the prosecution from lodging of FIR in 1980 upto this date is 25 years and it is very unfortunate that the prosecution could not examine any witness. The petitioner has annexed certified copy of the order sheet of the Court of the learned Magistrate with this revisional application which makes it clear that no witness has been examined so far. It is true that the order sheet reflects that on some of the dates all the accused persons were not present, but one thing is clear from the different orders passed by the learned Magistrate is that prosecution could not examine any witness.
9. The Hon'ble Apex Court in the case of Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr. (supra) observed that, "In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatchreasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes". Thereafter, the Supreme Court laid down guidelines in respect of right to speedy trial emerging from Article 21 of the Constitution and the guidelines cannot be regarded as exhaustive but these are only illustrative.
10. The Supreme Court in 'Common Cause' case prescribed certain limitations in respect of trial of criminal cases in view of the decisions in Raj Deo Sharma v. State of Bihar, , Raj Deo Sharma v. State of Bihar, , 'Common Cause'A Registered Society v. Union of India and 'Common Cause'A Registered Society v. Union of India, . Finally, the Constitution Bench of the Hon'ble Apex Court in P. Ramachandra Rao (supra) observed that there cannot be any prescribed period of limitation for disposal of a criminal case. In that decision the Supreme Court has observed that dictum in A R. Antulay's case is correct and still holds the field. Recently, in State of Rajasthan v. Ikbal Hussen reported in 2004 AIR SCW 5196, the Supreme Court laid down that delay in holding trial cannot be a ground to close evidence and direct acquittal of accused. In this decision also the Supreme Court laid down certain guildelines which are to be followed by Courts while considering an application for quashing criminal proceeding on the ground of delay.
11. Considering the principles of law as laid down by the Supreme Court in the aforesaid judgments it requires consideration whether there was delay in disposal of the present criminal proceeding for the fault, negligence and inaction of the prosecution or for the fault of the accused petitioner. From the certified copy of the order sheet it is clear that since the starting of FIR more than 60 days have passed but not a single witness has been examined so far. It is true that this accused or .the other accused sometimes remained absent before the Trial Court but that was not always ground for adjournment. Certified copy of the order sheet reveals that on most of the dates witnesses did not appear and prosecution could not examine any witness. It is true that this petitioner was also absent for few days during the last 14 years since framing of charge but, on the whole the picture is clear and transparent that the prosecution could not even start the trial. The order sheet reflects that the trial could not be started due to non-receipt of summons of prosecution witnesses. There was no effective step either by the learned Magistrate or by the learned Assistant Public Prosecutor (in short APP) attached to that Court for bringing witnesses to start trial and to finish the same at an early date. The entire picture of the trial as it appears from the certified copy of the order sheet annexed with the revisional application makes it clear that there was no delay in the trial for the conduct of the accused and causes of delay rests elsewhere. In the instant matter delay in disposal of the criminal proceeding has been made only for the fault of prosecution as the prosecution could not bring any witness. Though 25 years have passed in the meantime since the lodging of FIR the criminal proceeding is pending and not a single witness has been examined so far. The petitioner is suffering from mental agony and anxiety for the last 25 years because of the pendency of this criminal proceeding, He has now become old, infirm and seriously ill. Nobody even looked into the records of the case as to why it is unnecessarily pending for so many long years. Learned APP attached to the Court of learned Magistrate did not take care of the matter and was not serious to take steps for attendance of witnesses. Learned Magistrates also adopted a very casual approach behind this case and did not apply proper mind and did not take effective steps to secure attendence of witnesses.
12. Considering the entire facts and circumstances I am of opinion that, it is a fit and proper case where interference by this Court is necessary. After a long gap of 25 years it would not be proper and desirable to give further opportunity to the prosecution to continue with the trial to cause further harassment and mental agony to the petitioner. The right of speedy trial guaranteed by the Constitution under Article 21 was not followed in the present matter. In view of the guarantee of fundamental rights of speedy trial as enshrined under Article 21 of the Constitution, the present criminal proceeding should be quashed. this Court does not think it fit that instead of exercising jurisdiction under Section 482 of the Code this Court should exercise jurisdiction under Section 483 of the Code and would direct the learned Magistrate to dispose of the trial within one month or two months. The very nature of the case exposes the conduct of the prosecution and, if this Court allows further time it would only cause mental agony and harassment to the petitioner.
13. In the result, the present revisional application succeeds and the same is allowed. The continuation of the criminal proceeding being G.R. Case No. 1060 of 1980 now pending in the Court of the learned Judicial Magistrate, 2nd Court, Krishnagar, Nadia would be an abuse of the process of Court. Accordingly, for the ends of justice and to remove abuse of process of law the impugned criminal proceeding being G.R. Case No. 1060 of 1980 pending before the learned Judicial Magistrate, 2nd Court, Krishnagar is hereby quashed.
14. Send a copy of this order to the learned Judicial Magistrate, 2nd Court, Krishnagar, Nadia for information and necessary action.
Later:
15. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.