Patna High Court
Arjun Das vs State Of Bihar on 19 December, 1986
Equivalent citations: 1988(36)BLJR95
JUDGMENT S.S. Sandhawalia, C.J.
1. The curse of delays in the administration of criminal justice-some times for more than a decade or two-which had straddled the State of Bihar, is epitomised by this set of twenty-eight criminal writ jurisdiction cases. Indeed, facts in some of the cases need not like those of a current prosecution but as a chronicle of old history. All the petitioners herein invoke the constitutional right of speedy public trial under Article 21 and allege the most glaring infraction thereof. The legal issue is identical and the relevant facts focussed on gross delays bear the closest similarity. Learned counsel not only agreed but prayed that all these cases be disposed of by a common judgment.
2. The representative matrix of facts may be taken from Cr. W. J. C. No. 191 of 1986 and the briefest synopsis of others would suffice because gross and fatal delay herein is writ large on the face of impugned proceedings, some of which have come close to two decades. In Cr. W. J. C. No. 191 of 1986 the genesis of the crime goes back to nearly 19 years. On the basis of the statement of one Neyamat Hussain, dated the 20th of July, 1968, Kotwali (Patna) P. S. Case No. 111, dated 20-7-1968, was instituted against the petitioner and others under Section 385 of the Indian Penal Code. It is unnecessary to recount the facts therein, but the broad allegation was that the petitioner along with another had snatched the wrist watch of the first informant, whilst the alleged co-accused had taken Rs. 40/- from the cash box. It would seem that the investigation for this simple occurrence took well nigh 6 years and it was not till the 30th of April, 1974 that the charge-sheet against the petitioner and two others was submitted. This came up for consideration by the learned Magistrate nearly a year and 7 months thereafter on the 29th November, 1975, on which date cognizance was taken. Three more years had to pass before the petitioner was committed to the Court of Session by the Chief Judicial Magistrate on the 3rd of July, 1978. Yet again it was not till eight years later that on the 17th of January, 1986, the charge came to be framed against the petitioner and his co-accused. In this long travail of nearly 19 years, one of the co-accused Anand Kumar Lal died and a petition was filed on the 21st of March, 1986 intimating the said fact. The Court called a report from the concerned Police Station regarding the death of the accused. It is averred that since then the case is pending before the learned Assistant Session Judge No, III at Patna and the prosecution has not chosen to put a single witness in the box so far despite the passage of nearly two decades. It has been categorically averred on behalf of the petitioner that barring a marginal absence way back in 1976 the petitioner has continuously remained present and corporated in the trial and the horrendous delay of 18 years has not in the least been contributed by any default on his part.
3. Aggrieved by the protracted prosecution against him for well nigh 19 years and to which as yet no end was in sight, the present writ petition has been filed.
4. On behalf of the respondent State no counter-affidavit has been filed and the facts are not controverted. Indeed, learned counsel for the State in view of the uncontroverted facts inevitably was somewhat half-hearted in defence of a delay so glaring as herein.
5. The facts in the other cases equally bespeak for themselves, but now it is unnecessary and not possible to pointlessly delve into the same. These may at best be noticed in a tabulated form as under :
Cr. W. J. C. Date of Date of filing Stage of trial or pro-
No. F.I.R. of charge-sheet ceeding
180/86 25-4-77 29-10-79 Only five witnesses exa-
mined so far.
182/86 30-8-73 " Pending after cognizance
charge framed but no witness
examined so far.
186/86 20-3-76 22-8-79 No witness examined as
yet.
187/86 " " "
188/86
191/86 20-7-68 30-4-74 Case committed and charge
framed. One accused died.
Pending for death report of
that accused.
209/86 2-6-76 6-3-81 Order passed for framing
of charge, but no charge
framed as yet.
210/86 29-7-75 8-6-77 Pending after cognizance.
Out of 11 not a single
witness examined as yet.
212/86 2-6-76 13-1-80 Pending after cognizance.
Not a single witness examined
as yet.
222/86 13-3-76 23-7-82 Pending after cognizance.
Charge not framed.
225/86 9-8-77 31-12-79 One witness examined.
After five years from the
date of framing of charge.
226/86 3-8-79 14-3-81 Pending after cognizance.
227/86 24-4-76 26-10-76 Only four witnesses exa-
mined. No sanction obtained.
229/86 20-11-73 14-2-76 Police papers not yet sup-
plied.
231/86 7-9-77 9-5-79 Charge framed but not a
single witness examined as
yet.
232/86 10-7-76 20-12-76 Charge framed and pending
thereafter.
233/86 19-7-79 30-8-81 Pending after cognizance
no police papers furnished.
243/86 13-9-79 30-1-81 Only two out often wit-
nesses examined.
245/86 20-12-76 3-11-78 Out of 21 only 11 witnesses
examined.
246/86 13-1-77 1-10-83 Pending after cognizance.
247/86 15-1-78 " Four P. Ws. examined.
Now defence witness to be
examined.
249/86 27-10-77 20-12-83 No evidence recorded as
yet.
253/86 25-7-77 2-6-78 Only two witnesses examined.
257/86 9-11-78 " Copies of police papers not
supplied as yet, after
cognizance on 15-9-80.
259/86 12-10-75 10-3-76 Not a single witness exami-
ned after commitment made in
1976.
261/86 20-4-78 " Pending after cognizance.
262/86 7-1-73 " Only one witness examined.
263/86 31-5-79 22-11-79 Case was closed after
framing of charge,
144/86 24-7-74 2-2-77 Pending after cognizance
charge not framed yet.
189/86 23-7-76 15-12-77 Pending after cognizance
no witness examined as yet.
190/86 7-8-73 9-4-75 Prosecution evidence com-
pleted.
211/86 29-11-75 26-6-76 Charge not framed as yet.
213/86 23-4-68 25-1-71 Pending after framing of
charge on 1-9-86.
215/86 11-4-71 25-9-79 Cognizance not taken; case
diary not submitted as yet.
216/86 22-4-71 24-5-79 Do
217/86 11-4-71 24-7-79 Cognizance not taken as
yet.
220/86 27-8-78 2-6-80 Pending after examination
of 15 witnesses.
223/86 11-4-71 24-5-79 Pending after cognizance;
Case diary and police papers
not filed.
6. It is manifest from the above that the facts and the quantum of delay are too glaring to call for any further elaboration. With the aforesaid reason thereof one may now straight go to the law applicable thereto. Within this jurisdiction this seems to be now well settled by a trilogy of cases beginning with the Division Bench judgment in the State of Bihar v. Ramdaras Ahir 1985 Cr. L.J. 584 : 1984 B.B.C.J. 749. Therein after a somewhat exhaustive discussion of principle and precedent, the following relevant ratios were arrived at :
(i) That now by precedential mandate the basic human right to speedy trial has been expressly written as if with pen and ink into the constitutional right relating to the right of life and liberty guaranteed by Article 21 of our Constitution.
(ii) That the constitutional right of speedy trial envisages an equally expeditious conclusion of a substantive appeal and not merely a technical completion of the proceeding in the original court alone.
(iii) That a grave, inordinate delay in reversing an acquittal on a capital charge, though not identical, is yet in a way akin to similar delay in the execution of a capital sentence.
(iv) That a horrendous delay, extending beyond a decade in a criminal trial (including a substantive appeal) on a capital charge, involving the reversal of a double presumption of innocence, would violate the constitutional guarantee of a fair, just and reasonable procedure, and, equally infract the fundamental right to a speedy trial vested in accused under Article 21.
(v) That American decisions on the Sixth Amendment to the American Constitution with regard to accused's right to speedy and public trial would now have a direct bearing under Article 21 of our Constitution.
(vi) That once a constitutional guarantee to speedy trial and the right to a fair, just and reasonable procedure has been violated, then the accused is entitled to unconditional release and the charges against him would fall to the ground.
(vii) That a callous and inordinately prolonged delay of 10 years or more, which, in no way arises from the accused's default (or is otherwise not occasioned due to any extra-ordinary and exceptional reasons), in the context of the reversal of a clean acquittal on a capital charge, would plainly violate the constitutional guarantee of a speedy trial under Article 21.
On behalf of the State the reasoning and ratio in Ramdaras Ahir's case (supra) were thereafter challenged but re-affirmed by the Full Bench in The State of Bihar v. Maksudan Singh 1985 (33) B.L.J.R. 747 (F.B.) with the following conclusions :
To finally conclude, it is held-
(i) That the constitutional right of the accused to a speedy and public trial in all criminal prosecutions now following from Article 21 of the Constitution by virtue of precedential mandate is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution :
(ii) that once the constitutional guarantee of a speedy trial and the right to a fair, just and reasonable procedure under Article 21 have been violated then the accused is entitled to an unconditional release and the charges levelled against him would fall to the ground :
(iii) that the American precedents on the Sixth Amendment of the constitution would be equally attracted and applicable as persuasive on this fact of Article 21 of our Constitution as well:
(iv) that inordinately prolonged and callous delays of 10 years or more entirely because of the prosecution's default in the context of the reversal of a clean acquittal on a capital charge would be per se prejudicial to the accused ; and
(v) that the ratio and reasoning of Ramdaras Ahir's case is hereby affirmed.
However, the decision that clinches the issue is that of the subsequent Full Bench in Madheshwardhari Singh v. The State of Bihar 1986 (34) B.L.J.R. 624 (F.B.), and it would suffice to notice the final summing up of the undermentioned propositions therein :
(i) 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 restricted to either serious or capital offences only.
(ii) 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.
(iii) That a speedy investigation and trial equally mandated both by the letter and spirit of the Code of Criminal Procedure, 1973.
(iv) That the ratio in Ramdaras Ahir's 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.
However, the specific ratio which is directly attracted to the present set of cases is to be noticed with a little more elaboration in the following observations and conclusions of the Full Bench aforesaid :
Ere I come to a close, I cannot help expressing some surprise at the somewhat vehement stand taken on behalf of the respondent State against the very right of a speedy public trial. It has been repeatedly asserted and in our view rightly, that a prompt trial is in the interest of the prosecution itself. Inordinate delays only tend to fade memories and bring in a host of factors which militate against the successful culmination of a criminal prosecution. One would, therefore, have imagined that the respondent State would, in its own interest, be solicitous of speed in criminal prosecution launched by it. Equally it seems to me that a prompt trial is in the interest of the accused and a fair defence as well. Though not unoften an attempt is even made on behalf of the accused persons to gain time and protract the proceedings, it is axiomatic that an accused may also be hampered in his defence by too long a passage of time. Equally a speedy trial avoids the stigma of a long pending accusation and the obloquy of a criminal charge against the citizen if he happens to be innocent. However, as has been authoritatively stated, even leaving out the interest of the prosecution or the defence, there is a societal interest in ensuring a speedy public trial. Indeed, public cannot be allowed to be whittled down for considerations of any private advantage.
To conclude on this aspect, the answer to question no. 5 is rendered in the affirmative and it is held that an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. It is further held that 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 reasons) in investigation and original trial for offences other than capital one could plainly violate the constitutional guarantee of a speedy public trial under Article 21.
7. It appears to me that the view aforesaid now bears the stamp of approval by the Final Court itself. On behalf of the State it had been earlier argued in the aforesaid case that a time-frame as suggested by precedent was impermissible and in the absence of statutory provisions of it could not possibly be so spelt out. The last nail in the coffin of such an argument appears to be now struck on its head squarely by Sheela Barse and Anr. v. Union of India and Ors. . Their Lordships in the said case, in the context of the trial of children for criminal offences laid down a time-frame, not in years only, but in months, and yet again not for trials alone, but even for investigations and for riling the complaints or charge-sheets in court, in the following terms:
We would also direct that where a complaint is filed or first information report is lodged against a child below the age of 16 years for an offence punishable with imprisonment of not more than 7 years, the investigation shall be completed within a period of three months from the date of filing of the complaint or lodging of the first information report and. if the investigation is not completed within this time, the case against the child must be treated as closed. If within three months, the charge-sheet is filed against the child in case of an offence punishable with imprisonment of no more than 7 years, the case must be tried and disposed of within a further period of 6 months at the outset and this period should be inclusive of the time taken up in committal proceedings, if any....
We would direct every State Government to give effect to this principle or norms laid down by us in so far as any further cases are concerned, but so far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months from today if the investigation has not already resulted in filing of charge sheet and if a charge-sheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed.
8. It is manifest from the above that not only has a precise time frame been spelt out, but a mandatory direction to quash prosecutions violating the same has been laid. However, lest it be misunderstood that this was in any way confined to the case of children alone, it is well to quote the following observations from the said judgment, reiterating the earlier" view with regard to the other criminal trials as well :
We have already held in Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1979) 3 S.C.R. 168, 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 session court 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 on account of some interim order passed by a superior court or the accused is responsible for the delay in the trial of the case. The consequence of violation of the 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.
9. Perhaps, the recent reiteration of the rule in Raghubir Singh and Ors. v. State of Bihar (1986) 4 S.C.C. 451 : 1987 (36) B.L.J.R. 8 (Sum.) equally calls for notice which is in the terms following :
The constitutional position is now well settled that the right to a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by Article 21 of the Constitution (Sic) Hussainara Khatoon v. State of Bihar , Kadra Phadiya (I) v. State of Bihar 1981 (29) B.L.J.R. 300 (S.C.), Kadra Pahadiya (II) v. State of Bihar A.I.R. 1982 S.C. 1167 and State of Maharashtra v. Champalal Punjaji Shah . In foreign jurisdictions also, where the right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been held in appropriate cases sufficient to quash a conviction or to stop further proceedings. Strunk v. United States 37 L. Ed. 256 and Barkar v. Wingo 407 U.S. 514 two cases decided by the United States Supreme Court and Boll v. Director of Prosecution Jamaica (1985) 2 All ER 585 a case from Jamaica decided by the Privy Council.
10. Now once the legal position is settled as above, it is manifest that the cases of virtually all the petitioners (barring those to which separate reference follows at the end) came amply within the ambit of the ratio thereof. As has been noticed at the outset, the genesis of the crime lay nearly 19 years ago in 1968. In all these cases the mortal threat of a criminal prosecution has now hung over the head of the petitioners like the proverbial Damocles' sword for years and decades. In every one of them it is far beyond the time frame of seven years and admittedly herein the charges levelled against them are in cases other than those of a capital nature. It is not in dispute either that the blame for the gross delays herein could not even remotely be laid at the door of the petitioners. In many of the cases it is common ground that as yet even the investigation has not been completed nor even a charge framed or a single witness examined. In Madheshwardhari Singh's case it was held that an inordinately prolonged delay of seven years or more in investigation and trial for offences other than capital ones would violate the guarantee of a speedy public trial under Article 21. Herein instead of seven in many cases nearly twice or thrice that period has elapsed and one can only guess how many more years would pass before the alleged trial comes to a conclusion. With great regret, it has to be held unreservedly that the constitutional right to speedy public trial by fair, just and reasonable procedure, now recognised under Article 21 of the Constitution stands patently violated herein. As has been authoritatively laid down in Maksudan Singh's case (supra), the petitioners will as entitled to an unconditional release and the charges levelled against them would fall to the ground. All these Criminal Writ Jurisdiction cases, except Cr. W. J. C. Nos. 209 and 247 of 1986 to which reference follows hereinafter, are allowed and the investigation and the trial against the petitioners are hereby quashed.
11. However, in Hare Krishna Sahay v. The State of Bihar Cr.W.J.C. Nos. 209 of 1986 the first information report was lodged on the 2nd of June, 1976 under Section 5 (1) (c) of the Prevention of Corruption Act and Sections 161, 468 and 471 of the Indian Penal Code, The State's stand herein is that about 22 cases relating to lottery defalcations involving a huge amount of approximately rupees three crores, were filed against this petitioner which ultimately forced the State to keep at a standstill the whole scheme of lotteries because the entire goodwill of the State agency for conducting the lottery scheme was put in doubt. Because of the nature of the crime it took a long time to investigate the same and it was not till the 6th of August, 1981 that the charge-sheet was submitted. The record thereafter exhibits unequivocally that the petitioner has himself signally contributed to the delay. A detailed counter-affidavit has been filed on behalf of the State pinpointing the obstructions in the way of the trial designedly laid by the petitioner himself. It suffices to notice that the petitioner moved Criminal Misc. No. 110 of 1962 (R) in the Ranchi Bench of the High Court and secured a stay which halted the proceedings for more than a year till the 1st April, 1983. Thereafter the petitioner again moved the High Court in Criminal Misc. No. 12281 of 1983 for quashing the cognizances itself which was apparently found without merit and dismissed. However, the proceedings in the trial court were mean while held up and on numerous dates thereafter the charge could not be framed due to the absence of the petitioner himself. Far from the co-operating, the petitioner, it would appear, insisted that the copies of the cash book and other voluminous documents be provided to him, and the court ultimately ordered that those be put in Court for the inspection and satisfaction of the petitioner. However, he took advantage of this order in surely pretending to inspect the documents and took as many as 29 dates extending over two years for the purported inspection of the records from the 28th of April, 1984 to the 3rd of March, 1986. On the latter date he again absented himself and the framing of the charge could not be concluded. Plainly enough the petitioner herein has himself materially contributed to the delay in the trial. He, therefore, is disentitled to invoke the rule of the speedy public trial and his criminal writ petition is hereby dismissed.
12. In Shiva Dutta Prasad v. The State of Bihar and Ors. Cr. W. J. C. No, 247 of 1986 the first information report was lodged on the 15th January, 1976 on a charge under Section 409 of the Indian Penal Code involving an amount of more than Rs. 20,000/-. There was relative despatch in the investigation of the crime and the filing of the charge sheet, and cognizance was taken on the 21st of March, 1978 and later in the year 1979 charges were framed. A detailed counter-affidavit has been filed on behalf of respondent No. 2 which is clearly indicative of the fact that the delay and default herein have been indeed the petitioner's own creation. It has been categorically averred that throughout the accused himself obstructed the trial and took various adjournments for prolonging the same himself. This in fact has been noticed in the orders of the trial court itself which has observed as under :
...The defence has been continuously taking time in this case on so many frivolous grounds and in that chain this is the fresh ground. Any way the accused is granted 17 days time for bringing stay order in this case from the Hon'ble Court....
It is not in dispute that the petitioner had moved transfer petitions and otherwise sought stay on the ground that he was to move the High Court in the case. It is further common ground that all the prosecution witnesses have been examined since long and the petitioner has also been examined under Section 313 of the Code of Criminal Procedure and only arguments were to be addressed in the case when the petitioner further prolonged the trial apparently with an eye to take advantage of the rule laid down in Madheshwardhari Singh's case (supra). It is somewhat plain that this petitioner also has contributed to the delay and at the later stage, perhaps, designedly to stall the judgment in the case and to bring it within the rule for delay beyond seven years. This petitioner's case clearly comes within the rule that if delay and default is occasioned by the conduct of the accused himself he must be deemed to have waived his right to speedy public trial in the case. On an over-all conspectus of the case I find that this petitioner is disentitled to the benefit under Article 21 of the Constitution of India. His application as well is consequently dismissed.