Calcutta High Court (Appellete Side)
Quadir Dad Khan vs Unknown on 5 April, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 05.04.2011 (19) mb C.R.R. 2560 of 2002 In Re.: An application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure filed on 8th October, 2002.
In the matter of : Quadir Dad Khan.
Mr. Subir Ganguly..........................for the petitioner Md. Kasem Ali Ahmed.....................for the State of W.B. This application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure is filed at the instance of Quadir Dad Khan praying for quashing of the proceeding in Bowbazar P. S. Case No. 218 dated 2.7.1992 wherein he is the sole accused.
Bowbazar P.S. Case No. 218 dated 2.7.1992 was started basing on one First Information Report lodged by one Rajia Khatoon alleging therein that on 30.6.1992 at about 23.30 hours in course of a dispute, the petitioner caused injury on her person with a wooden buttom. The case was investigated into and finally one charge sheet was filed against the petitioner herein for prosecuting him under Section 325 of the Indian Penal Code. The learned Magistrate had taken cognizance of the offence and since 1992 till this date, the learned Court could not get the case ready for hearing as copies of the documents relied on by the prosecution in that case could not be made ready for supplying to the petitioner/accused. On 9.7.1999 the petitioner filed an application for dropping 2 the proceedings, but the learned Trial Court rejected his prayer on 9.2.2000. The petitioner thereafter came up with this application in the year 2002 praying for quashing of the proceedings mainly on the ground of inordinate delay in trial for no laches on his part.
Mr. Subir Ganguly, learned advocate appearing on behalf of the petitioner, submits that Article 21 of the Constitution of India guarantees fair and speedy trial. In this case the mandate of the Constitution as well as the fundamental right of the petitioner has been infringed because of inordinate delay in commencing trial, which was initiated in the year 1992, i.e., about 19 years ago. Mr. Ganguly takes me to the copies of orders right from the order dated 13.7.1992 to order dated 19.7.1992 and submits that it is really painful and sad to see that the learned Court could not get copies of documents ready for supplying to the accused person within a period of 10 years. He also submits that the offence alleged is not serious in nature and, in true sense, it is really doubtful whether the offence alleged attracts Section 325 of the Code of Criminal Procedure or not. Mr. Ganguly submits that continuation of this proceeding would be amounting to abuse of the process of the Court and, accordingly, is liable to be quashed. In support of his contention Mr. Ganguly refers to a decision of this Court in Pasang Yolmo v. State of West Bengal & Anr., reported in (2008) 1 C Cr. LR (Cal) 308.
Mr. Kasem Ali Ahmed, learned advocate appearing on behalf of the State of West Bengal, contends that this revisional application was filed by the petitioner in the year 2002 and after obtaining an order of stay on 21.1.2003, the petitioner made no effort, whatsoever, for getting the revisional application heard by this 3 Court. He submits, with mala fide intention, the petitioner kept the matter pending from the year 2002, i.e., for about 9 years. Therefore, it cannot be said that the matter is pending for the last 9 years for no laches on the part of the petitioner.
There is no hard and fast rule, no straight jacket formula and no rigid test which must apply to every application under Section 482 of the Code of Criminal Procedure. Every case is to be decided in the context of its peculiar facts and circumstances and the pre-dominant concerned of the Court is to secure the ends of justice to prevent the abuse of the process of the Court.
There cannot be any dispute as to the fundamental right of fair trial and speedy justice of an accused guaranteed by Article 21 of the Constitution of India. This criminal action was set in motion by the lady for an offence under Section 325 of the Indian Penal Code. A cursory perusal of the orders passed by the learned Trial Court since 13.7.1992 to 19.7.2002 makes it abundantly clear that the learned Court failed to get the copy of the documents ready for supplying to the accused within a period of about 10 years. The petitioner, being frustrated, had taken out an application praying for his discharge from the case. The learned Court, however, was pleased to reject his prayer, but, at the same time, could not succeed in getting the copies of the documents ready for supplying to the accused/petitioner and arrange for a speedy trial.
The Code of Criminal Procedure also provides for an early investigation and/or a speedy and fair trial. In Abdul Rehman Antuley vs. R.S. Nayak, reported in (1992) CR L J 2717 (SC), the Hon'ble Court observed:-
"The Code provides for an early investigation and for a speedy and fair trial. If only the provisions of the Code are followed in their letter and spirit, 4 there would be little room for any grievance. In many cases, these provisions are honoured more in breach. But the Constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of the Code."
In Pasang Yolmo's case (supra) the Hon'ble Single Bench of this Court while coming to a conclusion that the proceeding before it should be quashed for the ends of justice because of inordinate delay, discussed the decisions in A.R. Antulay (supra), Motilal Sharaf vs. State of Jammu and Kashmir & Anr., reported in (2007)1 SCC (Cr) 180 and P. Ramchandra Rao v. State of Karnataka, reported in JT (2002)4 SC 92. In that case before the Hon'ble Single Judge one prosecution witness was examined and cross-examined in full and the next witness was examined in part. Thereafter, the prosecution failed to bring further witnesses although charge sheet was filed showing 45 number of witnesses. The learned Court found it difficult to accept the fact that the accused was not denied a fair and speedy trial.
If the decisions of the Hon'ble Apex Court are read minutely, it can well be said that the ratio over the issue is that delay in conclusion of the trial simpliciter cannot be a ground, ipso facto, for discharging the accused without conclusion of the trial. However, I have stated earlier that there is no hard and fast rule, no straight jacket formula and no rigid test, which must apply to every application under Section 482 of the Code. Each case is to be considered in the context of its peculiar facts and circumstances.
In the instant case, initially there was delay of 10 years. The Court could not supply copies of the documents to the accused within this period of time and, as a consequence, the trial could not be commenced and the petitioner/accused had to suffer for that period of 10 years without any laches on his part. Naturally, 5 he filed an application in the learned Trial Court praying for his discharge from the case, which was rejected. But the learned Trial Court failed to commence the trial because the copies of the documents could not be supplied to the petitioner/accused. The petitioner/accused had to rush to this Court and filed a revisional application praying for quashing of the proceeding. It is true that a stay order was passed by this Court on 21.1.2003 and the matter was not taken up by this Court for this reason or that reason. Therefore, the entire proceeding remains stayed for a period of 19 years. This appears to be a fit and proper case where this Court should interfere by exercising its inherent power under Section 482 of the Code of Criminal Procedure, because continuation of this kind of proceeding would be amounting to abuse of the process of the Court and, if allowed to proceed, then it would be amounting to violation of mandate of the Constitution of India and spirit of the Code of Criminal Procedure.
In the premises above, I allow the prayer. The proceeding stands quashed. The petitioner be discharged from bail bond, if any.
Accordingly, this revisional application is disposed of. Interim order, if any, stands vacated.
There will, however, be no order as to costs.
Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities.
(Kanchan Chakraborty, J) 6