Calcutta High Court
Mihir Kumar Ghosh vs State Of West Bengal And Ors. on 9 December, 1988
Equivalent citations: 1990CRILJ26
ORDER Shyamal Kumar Sen, J.
1. The question involved in this writ petition is whether the writ Court is entitled to quash criminal proceeding for inordinate delay in framing charges and keeping the trial pending for unusually long time.
2. It is the case of the writ petitioner that on the basis of First Information Report dated July 31, 1973 for the commission of alleged offence by the petitioner between the period of May, 1971 to March 1972 a case under Sections 468, 409 and 120B of the Indian Penal Code read with Section 5(1)(c)(d) of the Prevention of Corruption Act, 1946 was started against the petitioner and others. The learned Special Judge, 4th Additional Special Court took cognizance of the offence under the aforesaid sections examining the complainant under Section 200 of the Code of Criminal Procedure. The petitioner appeared before the Court on all the dates fixed except on 16th August, 1977 due to his illness. The public prosecutor incharge of the said case, however, did not examine all the witnesses during the long period commencing from 1976 to March, 1987. The petitioner states that no charge could be framed against the petitioner during this long period and as such on 25th June 1987 the petitioner moved this application under Article 226 of the Constitution of India for quashing of the trial. It is the case of the writ petitioner that as an accused person he has a constitutional right to speedy and public trial following from Article 21 of the Constitution of India which is in pari materia with the express constitutional guarantee inserted by the 6th amendment in the American Constitution. According to the petitioner the right to a fair, just and reasonable procedure as guaranteed by Article 21 has been violated and as such the petitioner is entitled to an unconditional relief and the criminal proceeding initiated against him should be halted. It has also been submitted on behalf of the petitioner that because of gross and inordinate delay in conducting trial the petitioner is entitled to claim that the trial itself should be halted and the charges levelled against him should be quashed. It is also the contention of the writ petitioner that under the provision of Sections 157, 167(2) and Section 173 of the Code of Criminal Procedure read with Police Regulations of Bengal speedy completion of investigation and also expeditious disposal of the public trial have been provided in the Criminal Procedure Code. It is the further contention of the petitioner that continuation of the trial for such long period from the date of offence is not to be permitted under Article 21 of the Constitution of India inasmuch as the petitioner has been grossly and gravely prejudiced by the sword of Damocles hanging over his head for more than 15 years. The delay in holding trialis not due to the default on the part of the petitioner in any event. On the basis of the allegations against the petitioner in respect of the offences and because of the pendency of the criminal procedure the pension and other retiring benefits of the petitioner have been withheld.
3. The learned Advocate for the petitioner submitted that because of inordinate delay on the part of the prosecution to frame charges and to conclude the trial the petitioner has been unnecessarily harassed for no fault of the petitioner. Because of such unusual delay the petitioner should not be made to suffer as he is not in default at all. Under such circumstances he prayed that the charges against the petitioner be quashed and criminal proceeding initiated against the petitioner be hailed for protecting the guarantee provided to the petitioner under Article 21 of the Constitution of India. In support of his contention he relied upon the following decisions : --
AIR 1978 SC 597, Maneka Gandhi v. Union of India; AIR 1979 SC 1360, 1369 : (1979 Cri LJ 1036), Hussainhara Khatoon v. State of Bihar); AIR 1981 SC 1675 : (1981 Cri LJ 1273); State of Maharashtra v. Champalal Panajee Shah; AIR 1983 SC 361 (2) : (1983 Cri LJ 481), T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1981 SC 641 : (1981 Cri LJ 159), State of Bihar v. Uma Shankar Kotniwal, AIR 1986 SC 289 : (1986 Cri LJ 255), S. Guin v. Grindlays Bank Ltd., AIR 1986 Pat 38 : (1985 Cri LJ 1782) (FB), State of Bihar v. Maksudan Singh and AIR 1986 Pal 324 : (1986 Cri LJ 1771) (FB), Madheshwardhari Singh v. State of Bihar.
4. Mr. P.K. Chatterjee, learned Advocate for the State submitted very fairly that he cannot defend the action of the State for its delay and laches in conducting the criminal proceeding against the petitioner and submitted that the Court should pass appropriate direction upon the concerned authorities. It is now well settled that Article 21 of the Constitution of India would include within its wide scope the renowned right to speedy and public trial which indeed is a basic human right. Undoubtedly an expeditious trial is the very sole essence of criminal justice and there can be no manner of doubt that notorious delay in such trial, if occasioned entirely by the default of the prosecution would by themselves constitute denial of justice. It is in recognition of this fundamental principle that way back in 1790, the Sixth Amendment to the Constitution of United States provided as follows : --
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."
5. Though it is literally true that the aforesaid words have not been specifically enumerated in terms in Article 21, yet it is now well settled that the identical right is implicit in the broad sweep and content of Article 21 as authoritatively interpreted by the Supreme Court. Therefore, for the purpose of this case it is necessary to examine this on principle because it seems to me as settled beyond doubt by binding precedents. In Hussainara Khatoon v. State of Bihar, reported in AJR 1979 SC 1360 : 1979 Cri LJ 1036, with regard to delay in the context of undertrials, Bhagwati, J. as his Lordship then was categorically observed as follows (Para 5) :-
"Even a delay of one year in the commencement of the trial is bad enough; how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is speedy trial which is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial."
So also Article 3 of the European Convention of Human Rights provides that:
'every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial'.
Even under our Constitution though speedy trial is not specifically enumerated as a fundamental right. It is implict in the broad sweep and content of Article 21 as interpreted by the Supreme Court in Maneka Gandhi v. Union of India, reported in AIR 1978 SC 597. Article 21 confers a fundamental right on every person not to be deprived of his life or 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 the procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair and 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 is meant reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21".
In the case of Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369 : 1979 Cri LJ 1045, it was again reiterated by the Supreme Court as under (para 10) :
"Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Article 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial of the accused."
The aforesaid view was reiterated by Chinnappa Reddy, J. speaking for the Court in State of Maharashtra v. Champalal Punjaji Shah, AIR 1981 SC 1675; 1981 Cri LJ 1273. Yet again in T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361(2) : 1983 Cri LJ 481, it was observed as follows (para 20) : --
"The fiat of Article 21, as explained is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable. Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them. It implies a right to a speedy trial. It implies humane conditions of detention, preventive or punitive. 'Procedure established by law' does not end with the pronouncement of sentence; it includes the carrying out of sentence. That is as far as we have gone so far."
6. In the light of the aforesaid long line of unbroken precedents of the final Court itself, it is not possible for one to hold that even though it has been declared now in categorical terms that the right of speedy and public trial is as much a constitutional right in India under Article 21 as it is in America under the Sixth Amendment to the Constitution, yet here its content or effect would be in a way different or lesser. That no qualification or precondition has been laid down by their Lordships of the Supreme Court whilst unreservedly importing the Sixth Amendment within the sweep of Article 21 seems manifest. On the doctrine of binding precedent, therefore, it must be held that the basic human right of speedy trial is virtually written with pen and ink into the constitutional right relating to the right to life and liberty guaranteed by our Article 21.
7. It was observed by the Supreme Court about 30 years ago in the case of Machander v. State of Hyderabad reported in AIR 1955 SC 792 : (1955 Cri LJ 1644) as follows (para 20).
"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".
8. Again in the case of State of Bihar v. Uma Shankar Kotriwal reported in AIR 1981 SC 641 : (1981 Cri LJ 159), the Supreme Court reiterated (para 3) : --
"It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher Courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage."
9. In the case of Hussainara Khatoon v. The State of Bihar, AIR 1979 SC 1369 : (1979 Cri LJ 1045), Bhagwati, J. as his Lordship then was, indicated a time frame in these words :
"Even a delay of one year in the commencement of the trial is bad enough how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice."
10. The same view was expressed by the Supreme Court in the case of S. Guin v. Grindlays Bank Ltd., AIR 1986 SC 289. The facts thereof may call for a somewhat pointed notice. The accused persons therein were charged under Section 341, I.P.C. read with Section 36 AD of the Banking Regulation Act, 1949 for an offence allegedly committed by them on the 31st of October 1977. There was no delay in investigation and trial and the Magistrate, by his judgment dated 27th of June, 1978 (i.e. after barely eight months), acquitted the accused persons. An appeal against the acquittal was taken before the Calcutta High Court which was apparently admitted but could not come up for final hearing till six years. On the 19th December, 1984, the High Court set aside the acquittal and remanded the case for re-trial afresh. On appeal by the accused appellants (heir Lordships set aside the High Court judgment and restored the acquittal with the following unequivocal and categorie observations (para 3) :
"We are of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 482, Criminal Procedure Code, even if for some reason it came to the conclusion that the acquittal was wrong. A fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process."
and again (para 4) : --
"We are of the view that following the above principle the High Court should have dismissed the appeal before it even if it disagreed with the view taken by the trial Court with regard to the gist of the offence punishable under Section 34), Indian Penal Code, having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants and the difficulties that may have to be encountered in securing the presence of witnesses in a case of this nature nearly 7 yean; after the incident."
11. In the light of the above and on indepth analysis of the judgment there remains no manner of doubt that the inarticulate promise of the right to speedy trial and the necessity of spelling out an outer limit beyond which a prosecution in original trial cannot be allowed to trespass have been spelt out in brief and yet categorical judgment, Indeed, when viewed in the larger prospect their Lordships of the Supreme Court in the aforesaid judgment seemed to have spelt out that delay of years even de hors any question of default would defeat justice and, therefore, a trial beyond a period of 7 years from the date of the offence is not to be at all countenanced. Delay was by itself the ground for setting aside the order of the High Court without any attempt to apportion the causes therefor or any blame in this context appertaining to the accused. Indeed on facts of this case there was no delay whatsoever in the investigation and the trial was completed within eight months. The default, if any, could only be laid at the door of the High Court wherein the appeal against acquittal had remained pending for six years. Indeed, it was expressly noticed as follows : --
"The pendency of the Criminal Appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in serious prejudice to the appellants."
Nevertheless their Lordships in no uncertain terms took the view that they would not countenance the prolongation of the trial of the accused beyond a period of seven years from the date of the offence. In the instant case the delay is admittedly of 15 years. As I have already observed that the learned Advocate for the State also could not defend such inordinate delay on the part: of the State authorities to proceed with the trial.
12. Under such circumstances it appears to me that the learned Advocate for the petitioner is correct in his submission that the "sword of Damocles" is hanging over the head of the accused for an indefinite period and he is entitled to be released from the travail of the prosecution. In my opinion, the constitutional right to speedy trial of a fair, just and reasonable procedure now recognised under Article 21 of the Constitution stands plainly violated in this case.
13. The petition is consequently allowed.
14. The trial in respect of Special Case No. 13 of 1975 pending before the learned Special Judge, 4th Court, Calcutta is hereby quashed and the petitioner is released from all charges.
15. It has been stated that because of the pendency of the trial the retiring benefits of the petitioner was not given. The retiring benefits of the petitioner should be released if the same is payable otherwise in accordance with law within a period of 6 weeks from date of communication of this order.
16. All parties to act on signed copy operative portion of this judgment.