Punjab-Haryana High Court
Hero Cycles Ltd vs State Of Punjab And Others on 11 December, 2024
Neutral Citation No:=2024:PHHC:165684
CRM M-62225 of 2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
127
CRM M-62225 of 2024
Date of Decision: 11.12.2024
Hero Cycles Ltd. ...Petitioner
Versus
State of Punjab and others ... Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Vaibhav Sehgal, Advocate, for the petitioner.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has filed the present petition under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 with a prayer to issue directions to the trial Court to decide the application for discharge filed by Lakshkant in a case bearing CHI No. 69412 of 2022, arising out of the FIR No. 212 dated 10.08.2022 registered under Sections 408, 420 IPC (Sections 120-B, 465, 467, 468 and 471 IPC added later on) at Police Station Division No. 6 Ludhiana (Annexure P-2). A further prayer has also been made to issue directions to the trial Court to conclude the trial in a time bound manner.
2. Learned counsel for the petitioner contends that initially a complaint was moved against the accused with the allegations that they had defrauded the Company by siphoning off the funds and had 1 of 11 ::: Downloaded on - 14-12-2024 21:21:08 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -2- caused unlawful loss to the Company. It was also alleged that unauthorized transactions had been made by transferring the funds of the Company to the personal bank account of the accused as well as their family members. Ultimately, FIR No. 212 dated 10.08.2022 Police Station Division No. 6, Ludhiana, was registered against the accused/respondents in the present case. During the course of investigation, sufficient evidence was found against the accused and the police finally presented a report under Section 173 Cr.P.C. before the Area Magistrate on 07.12.2022. After the presentation of the challan, exemption application was filed by Anjali, accused and the challan could not be handed over to her. On the next date, another application for exemption from personal appearance was moved by Lakshkant accused. On the next date, an application for exemption from personal appearance was filed by Hira Devi, accused. Similarly, some times, the accused did not appear on their own or they were not produced by the jail authorities before the trial Court. Later, just to delay the proceedings before the trial Court, separate discharge applications were moved by different accused. Learned counsel further contends that the FIR in the present case was registered on 10.08.2022 and the challan was presented on 07.12.2022. However, for the last two years, the accused are adopting the delaying tactics, just to ensure that the trial does not proceed before the trial Court. Consequently, appropriate directions may be issued to the trial Court 2 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -3- to decide the discharge applications filed by various accused and to decide the main trial also in a time bound manner.
3. Notice of motion.
4. On the asking of Court, Mr. I.P.S. Sabharwal, DAG, Punjab accepts notice on behalf of respondent-State.
5. I have heard learned counsel for the petitioner as well as learned State counsel and perused the record.
6. In view of the fact that only limited prayer has been for issuance of directions to the learned trial Court to decide the aforesaid case in a time bound manner and any order passed by this Court is not likely to prejudice respondents No.2 to 6 in any manner, consequently, this Court deems it appropriate not to issue notice to respondents No.2 to 6, at this stage, which would also save the time, energy and expenses of the respondents also.
7. The Hon'ble Supreme Court, while dealing with the scope of speedy trial and emphasizing that the speedy trial is one of the most important facets of the fundamental rights to life and liberty enshrined in Article 21, held in the matter of Kartar Singh Vs. State of Punjab and connect case, 1994(2) RCR 169 as follows:-
"Speedy Trial
89. The right to a speedy trial is a derivation from a provision of Magna Carta. This principle has also been incorporated into the Virginia Declaration of Rights of 1776 and from there into the Sixth Amendment of the Constitution of United States of America which reads, 3 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -4- "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial......
90. It may be pointed out, in this connection, that there is a Federal Act of 1974 called 'Speedy Trial Act' establishing a set of time-limits for carrying out the major events, e.g., information, indictment, arraignment, in the prosecution of criminal cases. See Black's Law Dictionary, (Sixth Edition) p. 1400.
91. The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge.
92. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted 4 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -5- that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.
93. This Court in Hussainara Khatoon (1) v. Home Secretary, State of Bihar, 1980 (1) SCC 81 at P. 89 while dealing with Article 21 of the Constitution of India has observed thus: "No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 2 1. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial is an integral and essential part of th e fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequent if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge leveled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21."
94. See also (1) Sunil Batra v. Delhi Administration, 1979 (1) SCR 392; (2) Hussainara Khatoon (1) v. Home Secretary, State of Bihar, 1979 (3) SCR 169; (3) Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, 1979 (3) SCR 532; (4) Hussainara Khatoon and others v. Home Secretary, State of Bihar, Govt. of Bihar, Patna 1979 (3) SCR 1276; (5) Kadra Pahadia v. State of Bihar, 1983 (2) SCC 104;, (6) T. V. Vatheeswaran v. State 5 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -6- of T.N., 1983(2) SCR 348; and (7) Abdul Rehman Antulay v. R. S. Nayak, 1992 (1) SCC 225".
8. Again, the Hon'ble Supreme Court laid down certain propositions, which govern the basic human right to a speedy trial in a criminal prosecution in the matter of Abdul Rehman Antulay and others Vs. R.S. Nayak and another 1992(2) RCR 634 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 6 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -7- unduly long incarceration prior to his conviction; (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 a frivolous. Very often these stays obtained on ex-parte representation.
7 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -8-
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, 15 Law Edn. 2nd 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 more 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 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 8 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -9- tried by the court at the behest of the prosecution. Hence, an accussed'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. In every case of complaint 9 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -10- 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 inspite 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".
9. The propositions emerging from Article 21 of the Constitution of India and expounding the right to speedy trial laid down the guidelines in Abdul Rehman Antulay case (supra), adequately took care of right to speedy trial and this Court is always guided by the said propositions, as, which are also binding precedents. The criminal courts should exercise their available powers such as those under Section 309, 311 and 258 of Cr.P.C. to effectuate the right to speedy trial. A watchful and diligent Judge can prove to be a protector of such rights within any guidelines.
10. In the present case also, the FIR in question has been registered on 10.08.2022 and the challan has been presented on 07.12.2022. However, it is apparent that for the last two years, there 10 of 11 ::: Downloaded on - 14-12-2024 21:21:09 ::: Neutral Citation No:=2024:PHHC:165684 CRM M-62225 of 2024 -11- has been no substantial progress before the trial Court. In fact, this Court has repeatedly held that the reasonable expeditious proceedings in a criminal trial is an integral and essential part of the fundamental right to life and liberty.
11. In view of the above discussion, the present petition succeeds and the trial Court is directed to conclude the trial in case bearing CHI No. 69412 of 2022, arising out of the FIR No. 212 dated 10.08.2022 registered under Sections 408, 420 IPC (Sections 120-B, 465, 467, 468 and 471 IPC added later on) at Police Station Division No. 6 Ludhiana (Annexure P-2) expeditiously preferably within a period of two years from the date of receipt of certified copy of this order.
12. Disposed off.
11.12.2024 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
11 of 11
::: Downloaded on - 14-12-2024 21:21:09 :::