Rajasthan High Court - Jaipur
K.K. Tiwari vs Superintendent Of Police Cbi And Anr. on 17 January, 1989
Equivalent citations: 1989WLN(UC)494
JUDGMENT P.C. Jain, J.
1. In this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ of (SIC) or any other appropriate writ, order or direction quashing the proceeding pending in the Special Criminal Case No. 9 of 1971 in the Court of Special Judge for CBI cases, Jaipur on the ground of violation of his fundamental right of speedy public trial under Article 21 of the Constitution of India.
2. The facts giving rise to this writ petition are not material because the question posed for our consideration is a (SIC) question of (SIC) so, (SIC) facts may be briefly stated since they would provide the (SIC) drop against which the question of law arises for consideration. The (SIC) for the factual matrix may be stated thus:
3. The petitioner, in the year 1976, when he was posted and working as Income tax Officer at Sawai Madhopur, CBI, Jaipur registered a case, No. 27/76, on 17th September. 1975 against him under Section 5 read with Section 5/2 of the prevention of Corruption Act and, thereafter search of the house of the petitioner, at Sawai Madhopur as well as (SIC) family house at (SIC) was conducted at the behest of a complaint made by the immediate neighbour. During the search, documents were taken into possession It is (SIC) by the petitioner that the CBI thereafter took as many as two years to (SIC) to launch prosecution. The CBI submitted an incomplete (SIC) in the Court of Special Judge on (SIC) August. 1978 after taking (SIC) charge sheet. The CBI applied copies on 8th January, 1979. The Special Judge framed formal charge on 12th April, 1979 and thereafter the case was fixed for recording the prosecution evidence. The case of the petitioner is that so far 10 years are over, yet the prosecution could not complete the evidence and the case is still pending for recording the evidence of the prosecution. There are as many as 173 witnesses on behalf of the prosecution. The main ground on which the relief sought in the writ petition is based is that the trial of the case has taken almost about 12 years without any result, for no fault of the petitioner, which has violated the fundamental right of the petitioner to speedy public trial. The contention of the petitioner is that under Art 21 of the Constitution it is a fundamental right of the petitioner that there should be a speedy trial in criminal case and as the prosecution has not been able seven to examine its witnesses and the trial is still pending, this court should quash the criminal proceedings against the petitioner and acquit him of the charges.
4 It is true that the right (SIC) a speedy trial as constitutional guarantee is a some what recent origin. How ever, by new it is well settled by precedential mandate of the Apex Court that the right to a speedy public trial is a part and parcel of the constitutional guarantee under Article 21 of the Constitution Since the matter is no longer res integra, it would be wasteful and unnecessary to examine the issue of principle afresh Suffice it would be if we quote the principles laid down from the various judgments of the Supreme Court. In Hussainara Khatoon v. State of Bihar , the Supreme Court had the occasion to consider this aspect of the matter and, it is held that the right to speedy trial is a fundamental right implicit in Article 21 of the Constitution. If an accused is not tried speedily and his case remains pending before the Magistrate or the Sessions Judge for an unreasonable length of time, it is clear that his fundamental right to speedy trial would be violated unless... of course, the trial is held up account of some interim order passed by the Superior court or the accused is responsible for the delay in the trial of the case. The Supreme Court in that case further observed that consequence of the violation of fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.
5. In Hussainara Khatoon v. State of Bihar , which was one of series of cases arising from heart rendering delays in the context of under-trials, the Hon'ble Court after quoting the Sixth Amendment to the American Constitution and also Article 3 of the European Convention on Human Rights, observed as under:
We think that even under our Constitution though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India . We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life on liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just." If a person is deprived of his liberty under a procedure which is not 'reasonable' fair or just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable', fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. 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. There can, therefore be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
In another case of the same series, in Hussainara Khatoon v. State of Bihar , it was again reiterated by the Apex Court that speedy trial is an essential ingredient of reasonable, fair and just procedure guaranteed by Article 21 and it is the constitutional obligation of the State of device such a procedure as would ensure speedy trial of the accused. In the State of Maharashtra v. Champalal Punfaji Shah and T.V. Vatheeswaran v. State of Tamil Nadu the final court clearly laid down that in all criminal prosecutions, the right to a speedy public trial in as much part of our Constitution under Article 21 as it is of the American Constitution. In Sheela Barse v. Union of India 1986 Cr. LJ 1736, the Supreme Court while considering the cases of child accused observed that so far child accused of an offence punishable with imprisonment of not more than seven years is concerned, a period of three months from the date of filing of complaint or lodging of the First Information Report as the maximum period permissible for investigation, a period of six months from the filing of charge-sheet is a reasonable period within which a trial must be completed and if that is not done, the prosecution against the child would be quashed. How ever, the Supreme Court in that case did not lay down any period within which the trial of a period who is not a child below the age of 16 years should be completed. The Supreme Court left the issue open for its consideration in some other case where it may be called upto examine the same.
6. The Patna High Court in its Full Bench judgments considered this question at length. In State v. Maksudan Singh (FB) , Madheshwardhari Singh v. State (FB) and Surya Narain Singh v. State the court laid down the following principles:
(1) That both on principle and precedent the fundamental right to a speedy public trial extends to all criminal prosecutions for all offences generically, irrespective of their nature. It is not confined or constructed to either serious or capital offences only;
(2) That the right to a speedy public trial is applicable not only to actual proceedings in Court but includes within its sweep the preceding Police Investigation in a criminal prosecution as well;
(3) That a speedy investigation and trial are equally mandated both by the letter and spirit of the Code of Criminal Procedure, 1973;
(4) That the ratios in Ramdaras Ahir's 1985 Cr. LJ 584 (Part) and Maksudan Singh's cases are mutatis mutandis applicable equally to all offences and irrespective of the fact whether the proceedings are a trial or an appeal against acquittal;
(5) That an outer limit to concertise the right to speedy public trial is envisioned both by principle and precedent. A callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) an investigation and original trial for offences other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Article 21.
We are not discussing this matter at length as we express our complete agreement with the proposition of law laid down by the Patna High Court in the above referred three judgments. A learned Judge of this Court in petitioner's case, which came up before him in S.B. Cr. Misc. Petition No. 209/1987, for quashing the proceedings of special Criminal Case No. 9 of 1978, in the Court of Special Judge for CBI Cases, which was decided by him on 18th September, 1987, considered thoroughly the various judgments of the Supreme Court and held that the accused has a right of speedy trial and, the right of the accused for speedy trial is a fundamental right and this right is available to an accused in all cases. It is available to an accused in all cases. It is available to the accused even in cases under the Prevention of Corruption Act. How ever, the learned Single Judge held that the period during which the trial should be completed would depend on the facts and circumstances of each case. That case related to the same criminal trial which is under challenge in this case and the learned Single Judge after considering the special facts and circumstances of the case and without going into the merits of the case directed the prosecution to complete the evidence within three months. Unfortunately the trial court not be completed by the Court within the said period of three months and the petitioner had to file this writ petition for seeking direction of this Court to quash the criminal proceedings.
7. In view of the discussion of the various authorities of the Supreme Court and the Full Bench of the Patna High Court, the remains no dispute and it is well settled that in all criminal prosecutions, the right to speedy trial is an unalienable fundamental right and the right to a speedy public trial is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution and once the constitutional guarantee of a speedy trial and the right to a fair, just and reasonable procedure under Article 21 has been violated then the accused is entitled to an unconditional release and the charge levelled against him would fall to the ground.
8. After deciding the right of the petitioner, we are now required to decide as to whether an outer limit should be fixed by this Court within which if the criminal proceedings ere not over, they must be quashed. There are series of cases decided by the Supreme Court where the Supreme Court quashed the criminal proceedings on the ground of delay in deciding the cases, or the Supreme Court did not interfere with the High Court's order for quashing the proceedings against the accused on the ground of protracted trial. We may enumerate some of such cases. For the first time, the Supreme Court in Machander v. Hyderabad State made very weighty observations and echoed its voice in the following words:
We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial Judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to See that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go.
9. In Chhaju Ram v. Radhey Shyam AIR 1971 SC 774, the Supreme Court held that lapse for a long time, in that case, of 10 years was a proper ground for holding that launching of prosecution in the matter of perjury was inexpedient. In State of U.P. v. Kapil Deo Shukla 1972 CAR 459, the Supreme Court relied upon Chajoo Ram v. Radhey Shyam (supra) and Machander v. Hyderabad cases and held that long lapse of time is enough to hold that the trial was not fair and just. In Bihar State Electricity Board v. Nand Kishore Tamakuwala the Supreme Court considered lapse of time to be an important factor in quashing the prosecution launched against the appellant. In State of Bihar v. Uma Shankar Ketriwal Supreme Court quashed the trial as the same remained pending for 20 years. In that case, the accused respondents were themselves utterly responsible for slow progress of the trial and the same involved commission of serious offence. In Madheshwardhari Singh v. State of Bihar (FB) 1986 C.R.L.J. 1771, a Full Bench of the Patna High Court, referred to above, considered the implications of delay in investigation and trial and quashed the proceedings and released the accused. In another Full Bench judgment the same Court in Surya Narain Singh v. State quashed the criminal proceeding holding that prolonged delay in investigation and original trials of pending cases for capital offence is violative of Article 21, but refused to quash the proceedings in two cases on the ground that the accused-petitioner were themselves responsible and were guilty for contribution of delay which had taken place in the conclusion of the trial of capital offence, but in one case watch was dealt in the same judgment, the criminal prosecution was quashed as there was delay of 14 years in the trial of the capital investigation.
10. If we revert to Americal precedents on the Sixth Amendment of the Constitution, we would find that there are series of cases where the accused was held entitled to the relief of release for violation of his constitutional right on the ground of delay of five years or seven years In Barket v. Wingo (1972) 407 US 514 : 33 Law Ed 2d 101 on a murder charge a delay of five years to bring the accused to trial was held sufficient to entitled him to the relief for the violation of his constitutional rights. In Robbert Dean Dickey v. State of Florida (1970) 398 US 30. 26 Law Ed 2d 26, 90 SCT 1564, the constitutional right was invoked on the ground of delay of around seven years. In Clerance Eugene Sterunk v. United States (1973) 37 law Ed 2d 56, there was a delay of little more than ten months. In a case where the accused was facing minor charge, the delay of 10 months was held in violation of the Constitutional guarantee of speedy trial. It is, thus, clear that on the ground of callous and inordinately prolonged delay in the investigation in the original trials, the court had quashed the criminal proceedings and released the accused. But in none of the cases referred to above, the Supreme Court laid down any policy as to the outer limit of delay in investigation and trial for which the prosecution could be quashed. It appears, for the first time, the Supreme Court in Sheela Barse v. Union of India (Supra) considered for prescribing some outer limit for investigation and trial. It is true that Sheela Barse's case related to juvenile offenders and in that case, the Supreme Court was not called upon to decide the outer limit for an accused who is not a child below the age of 16 years and observed that this matter would be considered where this Court may be called upon to examine as to what is a reasonable long time for trial beyond which the Court would regard the right of speedy trial to have been violated But so far as child accused on an offence punishable with imprisonment of not more than seven years is concerned, the Supreme Court directed that a period of three months from the date of filing of the complaint and lodging of the First Information Report as the maximum time limit permissible for investigation and a period of six months from the filing of the chargesheet as a reasonable period within which the trial of the child must be completed. The Supreme Court also held that if the same is not done, the prosecution against the child would be liable to be quashed. In Sheela Barse's case (supra), direction was not only given to the State Government of Bihar, but direction was issued to every State Government to complete the investigation within a period of three months if the investigation has not already resulted in filing of the charge sheet and further directed that the trial must be completed within a period of six months from the date of the judgment and, if the same is not done, the prosecution shall be quashed. The Supreme Court, thus, in Sheela Barse's case (Supra) drew a distinction and fixed the period for the pending cases and the cases arising in future. It also appears that based on Sheela Barse's case, in Surya Narain Singh case (supra), the Full Bench of the Patna High Court laid down certain principles by prescribing certain period for the pending cases and certain period for completion of the criminal trials and held that if the same is not done, it would violate the right to speedy trial which is guaranteed under Article 21 of the Constitution of India. The voice echoed by the Patna High Court through the Chief justice S.S. Sandhanwalia appears to have been sanctified and fortified by the recent judgment of the Supreme Court in S. Guin v. Grindlays Bank Ltd. , in which having regard to the nature of the acts alleged to have been committed by the appellant and other attendant circumstances, the Court held that it was a case in which the High Court should have been directed dropping of the proceedings in exercise of its inherent powers under Section 482, Cr.P.C. and further observed that a fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process. This judgment indicates the mind of the Supreme Court wherein it was prescribed the outer limit of seven years for concluding of the original trial for offences other than capital ones. In L.N. Mishra's murder case one of the accused filed a writ petition for quashing of the criminal proceedings against him and others on the ground that continuance of the trial for about 12 years was violative of Article 21 of the Constitution Hon'ble B.C. Ray & K.J. Shetty, JJ. after hearing the petitioner decided to refer it to the constitutional bench considering that the matter involves certain fundamental questions of law which are yet to be settled by the Final Court. The matter is likely to be considered by the constitutional bench in the near future. From the trend of the various judgments of the Supreme Court and the decisions given by the Full Bench of the Patna High Court, it is clear that an outer limit may be fixed by the Court within which investigation and trial should be completed as in doing so, we would also follow the principle of law epitomised in the adage that 'justice delayed is justice denied' and the dictum of Katayan, who said that the king should not delay in examining the witnesses as a serious defect namely miscarriage of justice would result owing to delay in examination of the witnesses, and the advice given by Raja Ram is Ramayanan to his council of Ministers, when the security guards did not allow a woman who had came in the night to the Raj Bhawan for seeking justice, that it justice is delayed it amounts to injustice. We therefore, hold that if investigation and trial is not completed within the outer limit so fixed, it would bring the presumption of grave prejudice and would amount to infraction of the right of speedy trial. In the circumstances, the burden would shift heavily on to the shoulder of the State to show that the delay was either entirely handiwork of the accused himself or was occasioned by such special & exceptional circumstances so as to justify condonation thereof It is always asserted that prompt trial is in the interest of prosecution itself as inordinate delay tends to fad the memory and bring him a host of factors which militate against successful culmination of the prosecution. Depending upon special circumstances of the case, in a lesser period than so fixed, an accused person may be able to show that prejudice has been caused to him and the trial stands vitiated because of unfair trial. The fixing of outer limit only mean that in a given case if the trial is not completed within the period so fixed, it must be presumed that the infraction of the constitutional right has taken place. It is also true that the aforesaid rule of presumptive prejudice is not an absolute or conclusive one, but is a rebuttable one. The prosecution shall be within its right to show that the gross delay or callous delay occasioned not only by the prosecution itself, but the delay was equally contributed and that the accused cannot be permitted to take the advantage of his own wrong. The delay may be occasioned on account of absconding of the accused or by other obstructive or delaying tactics, including resorting to the practice of going to the superior court in revision petition and in other proceeding without any reasonable cause.
11. In Sheela Barse's case, the Supreme Court has pointed out that one of the primary reasons of why trial of criminal cases is delayed in the courts is the total inadequacy of judge strength and lack of satisfactory working conditions for Magistrates and Sessions Judges, and the Supreme Court in that case desired that every State Government must take necessary measures for the purpose of setting up adequate number of courts: appointing requisite number of judges and providing them the necessary facilities. We hope that this decision of the Supreme Court shall be given due and respectful consideration by the State Government, which is committed to social justice, if a feeling is to be nurtured in the minds of the citizens that the Government is by and for the people.
12. It is true that courts do not legislate and it is not true that they do not mould and make the law in their process of interpretation. The courts have seen the guardian of the Constitution and sentinels of the rights and liabilities of the citizens. The courts have administered justice even without law. In playing its role, the courts have enlarged the substantive law and innovated procedural one. As far as this case is concerned, we are laying the rule based on the principles of criminal jurisprudence as envisioned under Article 21 of the Constitution of India and the judgments of the Supreme Court of India which as precedents, are binding on all courts under Article 141.
13. After carefully considering the various facets of the problem and considering the various judgments of the Supreme Court and the Full Bench judgment of the Patna High Court in Madheshwardhari Singh's case, we agree with the proposition of law laid down by the Full Bench of the Patna High Court in that case, that in the ordinary circumstances, a callous inordinate prolonged delay of seven years or more which does not arise on account of fault of the accused or otherwise, not occasioned by any extraordinary or exceptional reason in investigation and trial for an offence other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Article 21.
14. Turning to the facts of the case. As already stated, this writ petition was filed in November, 1987 and by that time, after registration of the case more than 11 years have already been passed by the prosecution without any result. It is worthy to be noted that the petitioner inspite of various odds never sought a single adjournment in the entire period of prosecution running over more than 9 years, or so in the criminal miscellaneous petition No. 109/87. A learned Single Judge of this Court directed the prosecution to complete the evidence within three months. It is surprising that even after the direction given by this Court, the prosecution failed to complete the proceedings within time given by this Court. The learned Judge gave the direction in his order dated 18th September, 1987. After that the case was fixed before the trial court on 22nd September, 1987. The learned trial Judge directed the prosecution to produce witnesses within three days. The case was fixed on 26th October, 1987. The order sheet states that the prosecution did not file any list of witnesses and no witnesses were summoned. The Court on the request of the Public Prosecutor allowed three days' time to produce evidence on 17th and 18th December, 1987. On 17th December, 1987, PW-143 was examined, but no other witnesses were available. On 18th December, 1987, no witness was available for examination. The trial court fixed the case for further evidence on 27th January, 1988 and 28th January, 1988. On 27th, one witness Bhatta PW 107 was present, but his evidence could not be recorded. On 28th Jan. 1988, no witness was available. The case was adjourned to 17th March, 1988 and 18th March, 1988 On 17th March, 1988, no witness was produced. The same position took place on 18th March, 1988. On the next date viz. 25th April, 1988, the order sheet states that neither the witnesses were summoned nor they have been produced. It was directed that if the prosecution fails to produce evidence on the next date, the prosecution evidence will be closed; and the case was adjourned to 10th May, 1988. On 10th May, 1988, no witness was produced. On 11th May, 1988 and 12th May, 1988, the same position took place. On 15th May, 1988, no witness could be examined by the prosecution. On 15th June, 1988 two witnesses, PWs 144 and 145 were examined On 16th June, 1983, one witness PW/146 Papadi was partly examined, which remained incomplete on 12th July, 1988 and also on 6th December, 1988 and could be completed on 7th December, 1988. Thereafter the prosecution again sought time to produce further evidence. From the narration of these facts, it is evident that the prosecution could not complete its evidence upto 18th December, 1987 i. e. within the time allowed by the learned Single Judge, though a period of more than two years has elapsed since the direction was given by this Court, This inordinate delay completely remains unexplained. Now, if the trial is allowed to continue, it will take years to complete the same, and the end is not yet in sight.
15. The facts of the case, thus, clearly prove that there has been an inordinate delay in the trial of the case and the same cannot be condoned. It clearly proves that the trial is not fair and it amounts to infraction of constitutional guarantee of speedy trial enshrined in Article 21 of the Constitution.
16. In the premises aforesaid, we are of he opinion, that in the facts and circumstances of the case, the petitioner's right to speedy trial guaranteed to him by Article 21 of the Constitution of India stands plainly and manifestly violated. Consequently, the charges against him fall and the same are quashed. The writ petition is accordingly allowed.
17. The parties are left to bear their own costs.