Telangana High Court
Sri. T Surva Satish vs The State Of Telangana And Another on 9 November, 2020
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.2461 OF 2020
ORDER:
This Criminal Petition is filed under Section 482 of Cr.P.C. to quash the proceedings in C.C.No.349 of 2012 pending on the file of XV Additional Chief Metropolitan Magistrate, Nampally, Hyderabad (for short, Court below). The petitioner herein is accused No.1 in the said CC. The offences alleged against the petitioner are under Sections 498-A and 323 of IPC and Sections 4 and 6 of the Dowry Prohibition Act.
2. Heard Sri Ashok Anand Kumar, learned counsel representing Sri Nehad Ur Rahman Khan, learned counsel for the petitioner and learned Public Prosecutor. Perused the record. Despite service of notice, none appeared for the second respondent.
3. This Court has ordered notice to the second respondent on 12.06.2020. Pursuant to the same, learned counsel for the petitioner took out notice to the two addresses of the second respondent on 13.06.2020. Learned counsel for the petitioner has filed returned cover with the postal endorsement that 'no such person available' in respect of the address of the second respondent i.e., H.No.1-24-414/3, Laxmi Nagar, Venkatapuram Road, Lothkunta, Secunderabad. He has also filed postal tracking report in 2 KL,J Crl.P.No.2461_2020 proof of service of the said notice dated 13.06.2020 in respect of another address of the second respondent i.e., Flat No.201, Padmaja Plaza, Lothkunta, Alwal, Secunderabad. This Court vide order dated 10.09.2020 directed the Registry to verify and put up the notice served on the second respondent. Pursuant to the said order, the Registry has put up the postal tracking report which shows that the notice was served on the second respondent. Learned counsel for the petitioner did not file copy of acknowledgment card and filed postal tracking report. The Registry of this Court also did not place the acknowledgment card in proof of service of notice on the second respondent and placed only the postal tracking report.
4. Learned counsel for the petitioner has relied upon a Division Bench judgment of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Ramakotaiah Vs. Assistant Commissioner, Central Excise and Service Tax, Div-IB (Ser. Tax), Visakhapatnam1, wherein the Division Bench, by relying upon Section 27 of the General Clauses Act, held as under:
"10. In this regard, it will be relevant to take note of Section 27 of the General Clauses Act, 1897, which reads as follows:
'27. Meaning of service by post:- Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly 1 W.P.No.22947 of 2017 dated 02.08.2017 3 KL,J Crl.P.No.2461_2020 addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.'
11. By producing the printout of the online tracking system, the Revenue has proved in this case that they addressed, pre-paid and posted by registered speed post, the letter containing the Order-in-Original. Once these requirements of Section 27 of the General Clauses Act, 1897, are satisfied, the requirements of Section 37C of the Central Excise Act, 1944, would also stand satisfied. In view of the above, we do not accept that the petitioner was ignorant of the order.
Hence, the writ petition fails and is dismissed."
5. Learned counsel for the petitioner has also relied upon the office report of Apex Court in Contempt Petition (Civil) No.466 of 2020 in Civil Appeal No.262 of 2020 dated 07.08.2020, wherein the Apex Court held that the service of notice is complete in the contempt petition relying upon the postal tracking report filed by the learned counsel for the petitioner therein. By referring the same, learned counsel for the petitioner would submit that service in respect of the second respondent is completed and the second respondent has received the notice sent by him as well as this Court. He would further submit that the second respondent, despite receiving the notice, did not choose to appear before this Court.
6. Thus, online tracking system/report is sufficient to prove the service of notice. In the present case also, learned counsel for the petitioner has filed postal tracking report in proof of service of notice on the second respondent. Likewise, 4 KL,J Crl.P.No.2461_2020 the Registry of this Court also placed postal tracking report in proof of service of notice on the second respondent. Therefore, service of notice on the second respondent is completed. Despite service of notice, the second respondent did not enter her appearance.
7. On perusal of the charge sheet would reveal that the marriage of the petitioner and the second respondent was performed on 12.03.2000. Thereafter, disputes arose between them and the same are matrimonial disputes. The second respondent herein has lodged a complaint dated 23.10.2012 with WPS, Begumpet, Hyderabad, who in turn, registered a case in Crime No.56 of 2012 for the offences punishable under Sections 498-A and 323 of IPC and Sections 4 and 6 of the Dowry Prohibition Act. On completion of investigation, the Police have filed charge sheet for the above said offences and the same was taken on file vide C.C.No.349 of 2012 by the Court below.
8. A-2 and A-3, parents of A-1, have filed Crl.P.No.2882 of 2013 to quash the proceedings in C.C.No.349 of 2012 and the same was dismissed by this Court vide order dated 30.04.2013 holding that since specific instances of harassment and the manner in which the harassment was meted out were clearly stated in 161 Cr.P.C., statement, the continuation of proceedings in Crime No.349 of 2012 against them cannot be interdicted. It is trite to note that A-2 and 5 KL,J Crl.P.No.2461_2020 A-3 died and therefore the proceedings against them were abated by the Court below. It is also relevant to note that the petitioner herein has filed Crl.P.No.348 of 2014 seeking to quash the proceedings in C.C.No.349 of 2012 and this Court vide order dated 22.03.2016 dismissed the said petition, however, directed the Court below to dispose of the CC as expeditiously as possible preferably within a period of six months, if it not already disposed of. By referring the same, Sri S.Ashok Anand Kumar, learned counsel for the petitioner, would submit that despite the said direction by this Court to the Court below to dispose of C.C.No.348 of 2012, the Court below has not concluded the trial so far. The second respondent is not cooperating with the trial and due to the same, the Court below failed to conclude the trial. He has filed copies of e-court daily status in C.C.No.349 of 2012 to show that the Court below is unable to conclude the trial due to non-cooperation of the second respondent, L.W.2 and other witnesses. The same are as follows:
"Proceedings dated 09.01.2019 A3 case is already abated. A2 case is already abated. A1 is absent. Petition is filed and allowed. Issue BW to PW.1. The cousin sister of PW.1 is present. She reported that PW1 is ill. Call on 31.01.2019.
Proceedings dated 31.01.2019 PW.1 is absent. On the other day it was reported she is ill. A1 is absent. Petition is filed and allowed. The high Court directed to dispose of this case on or before 31.03.2018. Even though a letter is addressed to Hon'ble High Court no response. For further chief of PW.1 call on 15.02.2019, issue NBW to LW.2. On 19.02.2018 it is the docket proceedings that LW.2 BW is executed but called absent. Call on 15.02.2019.
6 KL,J Crl.P.No.2461_2020 Proceedings dated 15.02.2019 PW.1 is absent. A1 is absent. Petition is filed and allowed. For further chief of PW.1 call on 1.03.2019. As APP is on EL.
Proceedings dated 13.03.2019 For further chief of PW.1. PW.1 is called absent. A1 is called absent. Petition is filed and allowed. A2 and A3 case is already abated. High Court is directed to dispose of this case by 31.03.2018. Even though a letter addressed no response. APP is on leave due to his wife (13th MM at Ranga Reddy Court) is on ventilator due to brain harmomue. Only 4 witnesses including PW.1 call on 01.04.2019.
Proceedings dated 01.04.2019 A1 is absent. Petition is filed and allowed. LW.2 is present. PW.1 is absent. APP is on leave call on 29.04.2019. LW2 says put on next month, but due to High Court direction no long date is possible.
Proceedings dated 29.04.2019 A1 is absent. Petition is filed and allowed. A2 and A3 case is already abated. Further chief of PW.1. PW.1 is called absent. There is High Court direction to dispose of this case by 1.03.2018. High Court did not given any fresh extension of time. LW2 is called absent on the other day she was present. Issue BWs to PW.1 for Rs.5,000/- WPS north zone through WPC 8980 is present. Call on 15.05.2019. Proceedings dated 15.05.2019 A1 called absent. PO is on CL call on 06.06.2019. Complainant present.
Proceedings dated 06.06.2019 A1 is absent. Petition is filed and allowed. PW.1 is present. LW.2 is absent. On the other day PW.1 is present. She says some documents are with her father to whom by pass surgery was performed. He is still on bed at house. At her request call on 08.07.2019. Proceedings dated 08.07.2019 Complainant absent. Accused absent. Call on 22.08.2019.
Proceedings dated 22.08.2019 A1 absent. PW.2 absent. Call on 26.09.2019.
7 KL,J Crl.P.No.2461_2020 Proceedings dated 26.09.2019 A1 and A3 absent call on 14.10.2019.
Proceedings dated 14.10.2019 A1 and A3 absent call on 31.10.2019.
Proceedings dated 31.10.2019 A1 called absent. Petition filed and allowed. Issue BWs to PW.1 call on 20.11.2019.
Proceedings dated 20.11.2019 A1 absent. PW.1 absent. Call on 04.12.2019. Proceedings dated 04.12.2019 A1 absent PW.1 absent. Call on 12.12.2019. Proceedings dated 12.12.2019 A1 present. PW.1 absent. Call on 20.12.2019. Proceedings dated 20.12.2019 A1 absent. PW.1 absent call on 21.01.2020 Proceedings dated 21.01.2020 A1 absent. PW.1 absent. Call on 17.02.2020. Proceedings dated 17.02.2020 A1 absent. PW.1 absent. Call on 26.03.2020. Proceedings dated 26.03.2020 A1 absent. PW.1 absent. Call on 30.04.2020. Proceedings dated 30.04.2020 In view of circular instructions of the Hon'ble High Court vide ROC No.394/SO/2020, dated 16.03.2020. Call on 16.06.2020.
Proceedings dated 16.06.2020 In view of circular instructions of the Hon'be High Court vide ROC No.394/SO/2020, dated 16.03.2020. call on 04.08.2020.
8 KL,J Crl.P.No.2461_2020 Proceedings dated 04.08.2020 In view of circular instructions of the Hon'be High Court vide ROC No.394/SO/2020, dated 16.03.2020. Call on 04.08.2020."
9. By referring the above proceedings, learned counsel for the petitioner would submit that the second respondent is not cooperating with the trial in disposal of the case and thus, she is trying to harass the petitioner. He would further submit that due to the said harassment, the parents of A-1 died. The second respondent has also filed a petition under Section 125 of Cr.P.C., vide M.C.No.31 of 2017 seeking maintenance and the same was also dismissed for default. In proof of the same, he has filed status of the Court below. The petitioner has also filed FCOP.No.220 of 2012 under Section 13(1)(ia) & (iii) of the Hindu Marriage Act, 1955 before the Jude, Family Court, Secunderabad, against the second respondent and another seeking dissolution of his marriage with the second respondent. In the said FCOP, the second respondent has filed counter-clam for restitution of conjugal rights. The said Court dismissed the counter-claim of the second respondent and dissolved the marriage vide order dated 02.02.2017. Feeling aggrieved by the said order, the second respondent preferred an appeal vide FCA No.172 of 2017. The same was also dismissed for default vide order dated 27.09.2018 passed by a Division Bench of this Court. Learned counsel for the petitioner has fairly would submit that the second respondent has filed an application for 9 KL,J Crl.P.No.2461_2020 restoration of the said FCA and the same is pending. With the said submissions, learned counsel for the petitioner would submit that the second respondent is not cooperating with the trial. Despite the direction by this Court in the order dated 23.02.2016 in Crl.P.No.348 of 2014 to dispose of the CC.No.349 of 2012 within a time frame, the Court below is unable to dispose of the same due to non-cooperation of the second respondent and the other witnesses. Despite issuing bailable warrants and non-bailable warrants, the second respondent (L.W.1) and L.W.2 (sister of L.W.1) are not cooperating with the trial.
10. Learned counsel for the petitioner would further submit that the second respondent has developed illegal intimacy with one Mr.K.Srinivas, S/o. K.Narasimha during the subsistence of marriage with the petitioner and the same amounts to adultery. On the said ground, the petitioner has filed FCOP No.220 of 2012 and the same was allowed by order dated 02.02.2017. In proof of the same, he has filed several documents, including Ex.A.33, in-patient admission record of Yashoda Hospital, wherein the name of the second respondent is mentioned as Dharanija.T and her husband's name is mentioned as Mr.Srinivas. He has also filed General Consent form of the Yashoda Hospital, wherein also, the name of the husband of the second respondent is mentioned as Srinivas. By referring the same, learned counsel for the 10 KL,J Crl.P.No.2461_2020 petitioner would submit that the Jude, Family Court, Secunderabad, by considering the entire evidence, both oral and documentary, granted decree of divorce in FCOP No.220 of 2012 dated 02.02.2017. The appeal filed by the second respondent was dismissed for default. Though she has filed an application for restoration, not pursing the said application. The petition filed under Section 125 of Cr.P.C., by the second respondent vide MC.No.31 of 2017 was also dismissed for default. She has not taken any steps for restoration of the said MC. By referring the same, learned counsel for the petitioner would submit that the second respondent intentionally is not cooperating with the trial to conclude the trial in C.C.No.349 of 2012 and harassing the petitioner by keeping the proceedings pending against the petitioner. He would further submit that there is no useful purpose would be served in keeping the proceedings in C.C.No.349 of 2012 pending. The said CC is of the year 2012 and this Court directed the trial Court to dispose of the said CC within a time frame. Even then, the trial Court is unable to conclude the trial due to the non-cooperation of the second respondent and other witnesses. With the said contentions, learned counsel for the petitioner sought to quash the proceedings in C.C.No.349 of 2012.
11. Learned Public Prosecutor would submit that this Court dismissed the earlier quash petitions filed under Sections 482 11 KL,J Crl.P.No.2461_2020 of Cr.P.C., by A-1 to A-3 on the ground that there are specific overt-acts against them. With the said contention, he sought to dismiss the present application.
12. Learned counsel for the petitioner has also relied upon the principle laid down by Madras High Court in E.Baskaran and others Vs. State2, wherein the Madras High Court held that though the case is pending for the past ten years, not even a single witness has been examined by the prosecution. Though the Second Petitioner/Second Accused was not appearing before the Court from 1.10.2007 to 31.1.2009, during other periods, there is no progress in the case. The prosecution is not in a position to explain regarding the delay. In fact, the prosecution had admitted that L.W.1, defacto complainant could not be produced. Even though the summon was served to the first informant, L.W.1, he had not appeared before the trial Court. It is not possible in this case to say that the delay in conducting the case has been caused by the Petitioner/Accused. Right to speedy trial is the right of the Accused. Due to long delay in conducting the trial, the right of these Petitioners/Accused for a speedy trial has been infringed. The Madras High Court has also relied upon the principle laid down by the Apex Court in Abdul Rehman Antulay Vs. R.S.Nayak3 and Raj Deo Sharma Vs. State of 2 2011 (2) MWN (Cr.) 3 1992 SCC (Crl.) 93 12 KL,J Crl.P.No.2461_2020 Bihar4. Accordingly, the Madras High Court quashed the proceedings against the accused therein on the ground of delay in concluding the trial.
13. It is opt to note that in Abdul Rehman Antulay's case (supra), the Apex Court issued certain guidelines which are as follows:
"54. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:
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 societal 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 retrial. 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;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an 4 1998 (7) SCC 507 13 KL,J Crl.P.No.2461_2020 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 a frivolous. Very often these stays 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 work-load 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.
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 "it cannot be said how long a delay is loo long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White, J. in U.S. v. Ewell, (1966) 15 Law Ed. 2nd 627, in the following words:
14 KL,J Crl.P.No.2461_2020 "...the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than more speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an un-
constitutional 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 prosecution, 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 U.S.A., the relevance of demand rule has been substantially watered down in Barker 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 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.
15 KL,J Crl.P.No.2461_2020 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 U.S.A. too as 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 in effectuates 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. It was further held that right to speedy trial and the worry, anxiety, expenses and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal and 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 the witnesses or otherwise. In the present case, both A-2 and A-3, parents of A-1, died and the Court below abated the proceedings against them.
15. Learned counsel for the petitioner has also placed reliance upon the principle laid down by the Apex Court in Dr.Ashwani Kumar Vs. Union of India5, wherein it has been held as follows:
"29. In V.K.Naswa v. Home Secretary, Union of India and Others {(2012) 2 SCC 542}, this Court in clear and categoric terms had observed that we do not issue 5 2002(4) SCC 578
16 KL,J Crl.P.No.2461_2020 directions to the legislature directly or indirectly and any such directions if issued would be improper. It is outside the power of judicial review to issue directions to the legislature to enact a law in a particular manner, for the Constitution does not permit the courts to direct and advice the executive in matters of policy. Parliament, as the legislature, exercises this power to enact a law and no outside authority can issue a particular piece of legislation. It is only in exceptional cases where there is a vacuum and non- existing position that the judiciary, in exercise of its constitutional power, steps in and provides a solution till the legislature comes forward to perform its role."
16. Learned counsel for the petitioner has also placed reliance upon another judgment of the Apex Court in Vakil Prasad Singh Vs. State of Bihar6, wherein it has been held as follows:
"15. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as 6 2009 (3) SCC 355
17 KL,J Crl.P.No.2461_2020 the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial.
16. Tested on the touchstone of the broad principles enumerated above, we are convinced that in the present case appellant's constitutional right recognised under Article 21 of the Constitution stands violated. It is manifest from the facts narrated above that in the first instance investigations were conducted by an officer, who had no jurisdiction to do so and the appellant cannot be accused of delaying the trial merely because he successfully exercised his right to challenge an illegal investigation. Be that as it may, admittedly the High Court vide its order dated 7th September, 1990 had directed the prosecution to complete the investigation within a period of three months from the date of the said order but nothing happened till 27th February, 2007 when, after receipt of notice in the second petition preferred by the appellant complaining about delay in investigation, the Superintendent of Police, Muzaffarpur directed the Deputy Superintendent of Police to complete the investigation. It was only thereafter that a fresh chargesheet is stated to have been filed on 1st May, 2007. It is also pertinent to note that even till date, learned counsel for the State is not sure whether a sanction for prosecuting the appellant is required and if so, whether it has been granted or not. We have no hesitation in holding that at least for the period from 7th December, 1990 till 28th February, 2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution 18 KL,J Crl.P.No.2461_2020 and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or trial was in any way attributable to the appellant. The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution. We feel that under these circumstances, further continuance of criminal proceedings, pending against the appellant in the court of Special Judge, Muzaffarpur, is unwarranted and despite the fact that allegations against him are quite serious, they deserve to be quashed."
17. Learned counsel for the petitioner has also placed reliance upon another judgment of the Apex Court in Shri Sudarshanacharaya Vs. Shri Purushottamacharya7, wherein the Apex Court held as under:
"13. It is clear, therefore, that it is not open to a court to prescribe the time limit for disposal of a case and direct that after termination of that period if the case does not get over, the accused should be acquitted or discharged. As held in P. Ramachandra Rao, the court can always exercise its available powers under Sections 309, 311 and 253 of the Code to effectuate the right of an accused to speedy trial. In an appropriate case, in exercise of its jurisdiction under 7 (2012) 9 SCC 241 19 KL,J Crl.P.No.2461_2020 Section 482 of the Code, the High Court can undoubtedly quash the proceedings. Following the judgment in P. Ramachandra Rao, this court has in Vakil Prasad Singh v. State of Bihar (2009) 3 SCC 355 observed that where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and relevant circumstances, quashing of proceedings may not be in the interest of justice. This Court further observed that the power possessed by the High Courts under Section 482 of the Code is undoubtedly very wide but it has to be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. This Court further observed that the inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. This Court further observed that it is trite to state that the said powers have to be exercised sparingly and with circumspection only when the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed."
18. He has also placed reliance upon another decision of the Apex Court in Vineet Kumar Vs. State of U.P.8, wherein it has been held that inherent power given to the High Court under Section 482 of Cr.P.C., is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. 8 (2017) 13 SCC 369 20 KL,J Crl.P.No.2461_2020 The Court cannot permit the prosecution go to if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal {1992 SCC (Crl.) 426}. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is as follows:
"Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Above Category 7 is clearly attracted in the facts of the present case."
19. The Apex Court in another judgment reported in Raghuvir Vs. State of Maharashtra9, by relying on the principle laid down by it in Bhajan Lal's case (supra), held that Court cannot permit the prosecution go to if the case falls in one of the categories as illustratively enumerated by it in State of Haryana vs. Bhajan Lal. Similar observations were made by the Apex Court in Vineet Kumar's case (supra). With the said findings/observations, the Apex Court has 9 Manu/SC/1112/2018 21 KL,J Crl.P.No.2461_2020 quashed the proceedings against the accused therein on the ground of delay by relying upon the category 7 of Bhajan Lal's case (supra).
20. In view of the above said authoritative pronouncement of law, coming to the facts of the case on hand, as stated supra, on the complaint lodged by the second respondent dated 23.10.2012, the Police, WPS, Begumpet, have registered a case in Crime No.56 of 2012. After completion of investigation, the Police have filed charge sheet against the petitioner and other accused for the above said offence. The same was taken on file vide C.C.No.349 of 2012. Thus, the above said CC is pending since last eight years.
21. As discussed supra, this Court vide order dated 23.02.2016 in Crl.P.No.348 of 2014 directed the Court below to dispose of the CC.No.349 of 2012 within a period of six months. Despite the said direction, the Court below is unable to conclude the trial and dispose of C.C.No.349 of 2012. The docket proceedings filed by the petitioner in C.C.No.349 of 2012, which are extracted above, would reveal that the delay was caused due to non-cooperation of the second respondent (L.W.1) and also her mother (L.W.2). The above said docket proceedings would also reveal that the Court below has issued bailale and non-bailable warrants to both L.W.1 and L.W.2. Even then, there is no response from them. On one occasion, the sister of L.W.1 was present and thus, she has 22 KL,J Crl.P.No.2461_2020 observed the proceedings in C.C.No.349 of 2012. Once she has reported that P.W.1 (the second respondent herein) is not well. Thus despite the order dated 23.02.2016, the Court below could not complete the trial in C.C.No.349 of 2012.
22. The above stated facts would reveal that the second respondent is not cooperating with the trial for the reasons best known to her. The petition filed by her under Section 125 of Cr.P.C., vide M.C.No.31 of 2017 was dismissed for default. FCA No.172 of 2017 filed by the second respondent challenging the decree and judgment in FCOP No.220 of 2012 was also dismissed by a Division Bench of this Court for non-prosecution. The second respondent has filed an application for restoration of the said appeal and she is not pursuing the said application. The above stated facts would reveal that the second petitioner is not showing any interest and is not cooperating with the trial in concluding the proceedings in C.C.No.349 of 2012.
23. By referring the above, learned counsel for the petitioner would submit that the second respondent intentionally not cooperating with the trial to see that the proceedings in C.C.No.349 of 2012 are pending and to harass the petitioner, who is a practicing Advocate. Thus, as held by the Apex Court in the judgments cited supra, and including the category 7 of Bhajan Lal's case (supra), the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 23 KL,J Crl.P.No.2461_2020 of the Constitution of India. The said right is applicable not only to the actual proceedings in Court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial.
24. As stated above, this Court vide order dated 23.02.2016 declined to quash the proceedings in C.C.No.349 of 2012 against the petitioner herein. However, this Court directed the Court below to conclude the trial within six months. Even after lapse of 4½ years, the Court below is unable to conclude the trial in C.C.No.349 of 2012 due to non-cooperation of the 24 KL,J Crl.P.No.2461_2020 second respondent/L.W.1 and also her mother/L.W.2. The docket proceedings/daily order sheet filed by the petitioner from 9.1.2019 to 26.3.2020 would reveal that P.W.1 was absent on many hearings and the Court below has issued bailable and non-bailable warrants to L.W.1 and L.W.2 for their non-cooperation. Even then, they are not cooperating with the trial for concluding the proceedings in C.C.No.349 of 2012. In the charge sheet, only four witnesses were cited as listed witnesses. L.W.1 is the second respondent, L.W.2 is her mother and L.W.3 is her maternal uncle. L.W.4 is Investigating Officer. The time granted by this Court in the order dated 23.06.2016 in Crl.P.No.348 of 2014 is only six months. Thereafter, time was not extended by this Court. Even then, the Court below failed to conclude the trial due to non-cooperation of the second respondent and her mother (L.W.2). No purpose much less useful purpose would be served in keeping the proceedings in Crime No.349 of 2012 pending. The said proceedings are pending since last eight years. A-2 and A-3, parents of A-1, died during the pendency of the said proceedings in C.C.No.349 of 2012. Therefore, it is a fit case to quash the proceedings in C.C.No.349 of 2012 in exercise of power of this Court under Section 482 of Cr.P.C.
25. In view of the above said reasons, the Criminal Petition is allowed and the proceedings in C.C.No.349 of 2012 pending on the file of XV Additional Chief Metropolitan Magistrate, 25 KL,J Crl.P.No.2461_2020 Nampally, Hyderabad are quashed. Miscellaneous petitions pending, if any, shall stand closed.
__________________ K. LAKSHMAN, J Date: 9.11.2020 TJMR