Jammu & Kashmir High Court - Srinagar Bench
Abdul Qayoom Dar vs State Of J&K on 17 August, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 05.08.2022
Pronounced on:17.08.2022
CRMC No.195/2018
ABDUL QAYOOM DAR ... PETITIONER(S)
Through: - Mr. Salih Pirzada, Advocate, with
Ms. Sharaf Wani, Advocate.
Vs.
STATE OF J&K ...RESPONDENT(S)
Through: - Ms. Asifa Padroo, AAG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged proceedings arising out of FIR No.28/209 for offences under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and Section 161 of RPC registered with Police Station, Vigilance Organization, Kashmir, that are pending before the Court of Special Judge, Anticorruption, Kashmir, Srinagar.
2) It appears that on 06.10.2009, a complaint was lodged by one Shri Wahid Jeelani Dar before Vigilance Organization, Kashmir, stating therein that he had approached the petitioner, who was posted as Patwari Halqa Kralpora at the relevant time, for obtaining a report 2 regarding the land to be mortgaged to J&K Bank Branch Nowgam for the purpose of raising loan. It was further alleged in the complaint that the petitioner demanded a bribe of Rs.2000/ for furnishing the requisite report but the same was negotiated at an amount of Rs.1000/. On the basis of this complaint, the aforesaid FIR came to be registered and a trap was laid against the petitioner herein. During the trap proceedings, the petitioner was found to have demanded and accepted a bribe of Rs.1000/ from the complainant and after investigation of the case, offences under Section 5(1)(d) r/w Section 5(2) of the J&K Prevention of Corruption Act and Section 161 of RPC were found established against the petitioner. After obtaining the requisite sanction for launching prosecution against the petitioner from the competent authority, the challan was laid before the trial court on 12.03.2010. It further appears that after the trial of the case was completed and the defence evidence was over, the petitioner approached this Court through the medium of instant petition challenging the proceedings.
3) It is contended in the petition that investigation in the FIR has been conducted by a non-designate officer as according to Section 3 of the J&K Prevention of Corruption Act, no police officer below the rank of Dy. SP can investigate the offence under Section 5 of the said Act without the order of a Magistrate, whereas in the instant case, the investigation has been conducted by an officer of the rank of Inspector. On this ground it is urged that the whole investigation 3 is void. It has been further contended that the petitioner belongs to lowest tier of Government service and he has been put to adversities as a result of meritless prosecution.
4) In its response, the investigating agency has reiterated the contents of the charge sheet and it has been submitted that the main case is pending for final arguments before the trial Court.
5) I have heard learned counsel for the parties and perused the record of the case including the trial court record.
6) So far as the contention of the petitioner that investigation of the case has been conducted by a non-designate police officer is concerned, in this regard it has to be noted that an entrustment order has been issued by Senior Superintendent of Police, Vigilance Organization, Kashmir, vide his No.SSP/VOK-FIR-2919 dated 06.10.2009, whereby investigation of the FIR in question has been entrusted to Inspector B. A. Mir and he has been authorized under Section 3 of the J&K PC Act to arrest the accused whenever and wherever necessary. The entrustment order further provides that the said Inspector will conduct the investigation under the supervision of the Senior Superintendent of Police (SLK).
7) . In terms of second proviso to Section 3 of the J&K PC Act, Senior Superintendent of Police is vested with the power to issue an order of aforesaid nature, authorizing a non-designate police officer to investigate an offence under the PC Act. The entrustment order, 4 which is subject matter of instant case, clearly exhibits application of mind on the part of the issuing authority Legality and validity of a similar order has been upheld by this Court in the case of Anis Ahmad Choudhary vs. State of J&K & Ors. (CRMC No.167/2018 c/w CRMC No.168/2018 & CRMC No.169/2018 decided on 04.08.2022). Therefore, contention of the petitioner in this regard is without any merit.
8) It has been contended by learned counsel for the petitioner that trial in this case has gone on for about eight years which is unduly long period of time, particularly having regard to the fact that the case involves allegations relating to acceptance of illegal gratification of a petty amount of Rs.1000/. Learned counsel has submitted that right to speedy trial has been elevated to the status of a fundamental right and once this right is violated, the High Court should exercise its powers under section 482 of the Cr. P. C to bring to an end agony of trial against an accused. In this regard, learned counsel has relied upon the judgments of the Supreme Court in the following cases:
(I) A. R. Antulay vs. R. S. Nayak,
1992(1) SCC 225;
(II) P. Ramachandra Rao vs. State of Karnataka,
(2002) 4 SCC 578;
(III) Mohd. Hussain alias Julfikar Ali vs. State (Government of NCT of Delhi), (2012) 9 SCC 408 5
9) In A. R. Antulay's case (supra), the Supreme Court has observed that right to speedy trial is implicit in the broad sweep and content of of the Constitution. It has been further laid down that unless the procedure prescribed by law ensures a speedy trial it cannot be said to be reasonable, fair or just. The Court went on to hold that expeditious trial and freedom from detention are part of human rights and basic freedoms and that a judicial system which allows incarceration of men and women for long periods of time without trial must be held to be denying human rights to such under trials.
10) Again, in P. Ramachandra Rao's case (supra), the Supreme Court, while holding that periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue should not be prescribed, went on to observe that the dictum in A. R. Antulay's case is correct and still holds the field. The Court further laid down that the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial.
11) Again, in Mohd. Hussain alias Julfikar Ali vs. State (Government of NCT of Delhi) (supra), the Supreme Court held that speedy trial and fair trial to a person accused of a crime are integral part of Article 21.
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12) From the foregoing enunciation of law laid down by the Supreme Court, there can be no manner of doubt that right to speedy trial is a fundamental right of a person facing prosecution but the question that would arise is whether in a given case, delay in conclusion of trial has resulted in violation of such right to an extent that the accused has been prejudiced to put up his defence thereby vitiating the whole proceedings. In order to find an answer to this question we need to take note of the guidelines laid down by the Supreme Court in its various judgements on this aspect.
13) In A. R. Antulay's case (supra), the Supreme Court has, after discussing and analyzing the law as regards speedy and fair trial, laid down the following propositions:
(1) Fair, just and reasonable procedure implicit in Article 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 social 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.
(2) Right to speedy trial flowing from Article 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.
(3) 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;7
(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, disappearance or non-availability of witnesses or otherwise.
(4) 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 witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings.
Therefore, in every case, where the right to speedy trial is alleged to have been 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 proceedings 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 frivolous. Very often these stays are obtained on ex parte representation. (5) 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 workload of the court concerned, prevailing local conditions and so on -- what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
8(6) 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 [33 L Ed 2d 101] "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 idea has been stated by White, J.
in U.S. v. Ewell [15 L 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 the 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 persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
(7) 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 a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker [33 L Ed 2d 101] and other succeeding cases.
(8) Ultimately, the court has to balance and weigh the several relevant factors -- 'balancing test' or 'balancing process' -- and determine in each case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that 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 9 be in the interest of justice. In such a case, it is open to the court to make such other appropriate order
-- including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded
-- as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. 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 USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
(11) An 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, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
14) In P. Ramachandra Rao's case (supra), the Supreme Court held that the aforesaid guidelines laid down in A. R. Antulay's case are not exhaustive but only illustrative. The Court went on to observe that these guidelines are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula and that their applicability would depend on the fact-situation of each case.
15) Similarly, in Mohd. Hussain alias Julfikar Ali's case (supra), the Supreme Court held that deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. Para 40 10 of the judgment is relevant to the context and the same is reproduced as under:
"40. Speedy trial' and 'fair trial' to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-a-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered."
16) In Ranjan Dwivedi vs. Central Bureau of Investigation, (2012) 8 SCC 495, the Supreme Court while dealing with a similar issue and while holding that a reasonably expeditious trial is an integral and essential part of fundamental right to life and liberty enshrined in Article 21 of the Constitution, observed as under:
20. The guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on the court and the prosecution an obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. Firstly, it protects the accused against oppressive pre-trial imprisonment; secondly, it relieves 11 the accused of the anxiety and public suspicion due to unresolved criminal charges and lastly, it protects against the risk that evidence will be lost or memories dimmed by the passage of time, thus, impairing the ability of the accused to defend him or herself. Stated another way, the purpose of both the criminal procedure rules governing speedy trials and the constitutional provisions, in particular, Article 21, is to relieve an accused of the anxiety associated with a suspended prosecution and provide reasonably prompt administration of justice.
21. The reasons for the delay is one of the factors which the courts would normally assess in determining as to whether a particular accused has been deprived of his or her right to speedy trial, including the party to whom the delay is attributable. Delay, which is occasioned by action or inaction of the prosecution is one of the main factors which will be taken note of by the courts while interjecting a criminal trial. A deliberate attempt to delay the trial, in order to hamper the accused, is weighed heavily against the prosecution. However, unintentional and unavoidable delays or administrative factors over which the prosecution has no control, such as, overcrowded court dockets, absence of the Presiding Officers, strike by the lawyers, delay by the superior forum in notifying the Designated Judge (in the present case only), the matter pending before the other forums, including the High Courts and the Supreme Court and adjournment of the criminal trial at the instance of the accused, may be a good cause for the failure to complete the trial within a reasonable time. This is only illustrative and not exhaustive. Such delay or delays cannot be violative of the accused's right to a speedy trial and needs to be excluded while deciding whether there is unreasonable and unexplained delay. The good cause exception to the speedy trial requirement focuses on only one factor i.e. the reason for the delay and the attending circumstances bear on the inquiry only to the extent to the sufficiency of the reason itself. Keeping this settled position in view, we have perused the note prepared by Shri Raval, learned ASG. Though, the note produced is not certified with copies of the order-sheets maintained by the trial court, since they are not disputed by the other side, we have taken the information furnished therein as authentic. The note reveals that the prosecution, apart from seeking 4-5 adjournments, right from 1991 till 2012, is not responsible for delay in any manner whatsoever.
Therefore, in our opinion the delay in the trial of the 12 petitioners from 1991 to 2012 is solely attributable to the petitioners and the other accused persons.
22. The second limb of the argument of the learned Senior Counsel Shri Andhyarujina is that the failure of completion of trial has not only caused great prejudice to the petitioners but also to their family members. Presumptive prejudice is not alone dispositive of a speedy trial claim and must be balanced against other factors. The accused has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. When the accused makes a prima facie showing of prejudice, the burden shifts on the prosecution to show that the accused suffered no serious prejudice. The question of how great a lapse it is, consistent with the guarantee of a speedy trial, will depend on the facts and circumstances of each case. There is no basis for holding that the right to speedy trial can be quantified into specified number of days, months or years. The mere passage of time is not sufficient to establish denial of a right to a speedy trial, but a lengthy delay, which is presumptively prejudicial, triggers the examination of other factors to determine whether the rights have been violated.
23. The length of the delay is not sufficient in itself to warrant a finding that the accused was deprived of the right to a speedy trial. Rather, it is only one of the factors to be considered, and must be weighed against other factors. Moreover, among factors to be considered in determining whether the right to speedy trial of the accused is violated, the length of delay is least conclusive. While there is authority that even very lengthy delays do not give rise to a per se conclusion of violation of constitutional rights, there is also authority that long enough delay could constitute per se violation of the right to speedy trial. In our considered view, the delay tolerated varies with the complexity of the case, the manner of proof as well as the gravity of the alleged crime. This, again, depends on case-to-case basis. There cannot be universal rule in this regard. It is a balancing process while determining as to whether the accused's right to speedy trial has been violated or not. The length of delay in and itself, is not a weighty factor.
24. In the present case, the delay is occasioned by exceptional circumstances. It may not be due to failure of 13 the prosecution or by the systemic failure but we can only say that there is a good cause for the failure to complete the trial and in our view, such delay is not violative of the right of the accused for speedy trial.
17) From the foregoing analysis of the law on the subject, it is clear that while speedy trial is a fundamental right of every accused but then it is not possible to lay down any hard and fast rule that delay in holding the trial would always result in quashing of criminal proceedings. The considerations which are to be kept in mind by the Court(s) are the circumstances which are responsible for the delay, whether the accused is prejudiced in any manner by such delay and the nature of offence with which the accused is charged. Thus, each case of delay in conclusion of criminal trial has to be seen in the light of facts and circumstances peculiar to the said case.
18) Now coming to the instant case. The FIR in this case has been registered on 6th October, 2009 and the challan was laid before the court on 12th March, 2010, meaning thereby that the investigation of the case including the grant of sanction for prosecution etc. was completed in around five months. A perusal of the trial court record reveals that on the very next date, i.e. 4 th May, 2010, the charges were framed against the petitioner and the prosecution was directed to produce witnesses. The trial court file reveals that on as many as on 20 occasions, the matter had to be adjourned for the reasons not attributable to the prosecution. These include either absence of accused or his counsel, unfavourable conditions on account of law and order situation or absence of the Presiding Officers. So, it cannot 14 be stated that delay in conclusion of trial has occasioned only because of the reasons attributable to the prosecution. The same, as already noted, has occasioned due to several other factors including those attributable to the petitioner/accused. Thus it cannot be stated that delay in completion of the trial has resulted in violation of the petitioner's right to speedy trial in this case.
19) Learned counsel for the petitioner has argued that whatever may be the reasons for delay, the benefit has to go to the accused. I am afraid such a submission cannot be accepted because only if it is shown, that the prosecution was responsible for the delay either on account of their negligence or for the reason that it did so intentionally for any oblique motive, that the accused can get benefit of the delay. It has also to be shown by the accused that due to the delay occasioned in completion of the trial, some prejudice has been caused to him either in putting up his defence or in any other manner. In the instant case, the petitioner has led evidence in defence and thereafter he has voluntarily chosen not to lead any further evidence. Thus, it is not a case where on account of delay in conclusion of the trial the petitioner has been prejudiced in putting up his defence. In fact, even in his pleadings, the petitioner has not whispered anything on this aspect of the matter. The petitioner has, therefore, failed to discharge his burden of showing that due to delay in trial of the case, he has suffered any prejudice. 15
20) Apart from the above, in the instant case, the trial has been completed and the case is set down for final arguments. The petitioner has all along, during the trial of the case, remained on bail. If at all the petitioner is innocent, it is only upon the delivery of the judgment by the trial court, the truth will come out. Thus, on consideration of the facts and circumstances for and against the petitioner, this Court is of the opinion that quashing the proceedings against the petitioner at this final stage would not be just and proper.
21) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. The trial court is directed to decide the case within a period of one month from the date of receipt of the record.
22) The trial court record along with a copy of this judgment be sent to the learned trial court.
(SANJAY DHAR) JUDGE Srinagar, 17.08.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No