Calcutta High Court
Sewa Singh vs K.C. Kanungo on 20 December, 1991
Equivalent citations: 1992CRILJ2569
ORDER Sunil Kumar Guin, J.
1. This criminal revision is for quashing the proceeding being Special Case No. 12 of 1976 pending before the learned Additional Sessions Judge (Special Court), Asansol. It appears that the petitioner a Senior Electronic Data Processing Manager of Indian Railways who is now posted at Bombay was posted at Chittaranjan Locomotive Works in 1969 as District Controller of Stores and that the offence is alleged to have been committed sometimes in 1969. It has been alleged that eight wagons loaded with steel plates and/or cuttings were despatched between 23-9-69 and 15-10-70 in the names of different firms which are alleged to be bogus ones and that the accused persons including the present petitioner entered into criminal conspiracy with each other and in pursuance thereto cheated the Railway Department by despatching eight wagons of new steel plates and steel plate cuttings from Chittaranjan Locomotive Works against bogus railway receipt and forwarding notes and thereby committed offences punishable under Sections 120B/420/468/471 of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act. After completion of investigation a charge-sheet was submitted and a petition of complaint was filed before the learned Judge, Special Court on 3-9-76. It also appears that on examination of the complainant K. C. Kanungo and after hearing the submission of the prosecution, the learned Judge, Special Court took cognizance and issued processes against the accused persons including the present petitioner fixing 29-10-76 for appearance. It gave rise to Special Court Case No. 12 of 1976. After the accused persons had appeared before the learned Judge, 36 prosecution witnesses were examined during the period from 6-6-77 to 14-3-80 and a date was fixed for consideration of charge on 24-4-80. Thereafter for various reasons the charge could not be framed. On 16-3-89 the present petitioner and another accused appear to have filed petition for their discharge. By order dated 13-5-89 the learned Judge, Special Court dismissed those petitions for discharge and held that charge would be framed against the accused person as indicated in the order passed by him. But as one of the accused persons was absent the charge could not be framed and the case was adjourned to 22-6-89 for appearance of all the accused persons and drawing up of the charge. On the dates between 22-6-89 to 7-9-90 charge could not be framed and thereafter on 13-11-90 the petitioner filed the instant revisional application for quashing the entire proceeding on the ground of inordinate delay in the matter of disposal of the case and the further proceeding was stayed by this Court.
2. Mr. Ghose learned advocate appearing for the petitioner has argued that there has been inordinate delay in the matter of disposal of the impugned proceeding inasmuch as the same has been pending in the Court from 3-9-76 i.e. more than 14 years, though the offence is alleged to have been committed in 1969, that such inordinate delay for no fault of the present petitioner is violative of the fundamental right to speedy trial as enshrined in Article 21 of the Constitution and is abuse of the process of the Court and that this Court in exercise of its inherent power under Section 482 of the Code of Criminal Procedure should quash the entire proceeding. In support of his argument he has referred to catena of decisions of the Supreme Court and of this High Court and other High Courts. He has relied upon the decisions of the Supreme Court in the cases of Machander v. State of Hyderabad, ; Mahendra Singh v. State of West Bengal, AIR 1973 SC 228 : 1973 Cri LJ 1450; Hussainara Khatun v. Home Secretary, State of Bihar, ; T.V. Vatheeswaran v. State of Tamil Nadu, ; State of Bihar v. Umashankar Kotriwal, ; Rakesh Saksena v. State, and Srinivas v. Union Territory of Arunachal Pradesh, . He has also referred to the decisions of the Full Bench of the Patna High Court in the case of Madheshwardhari v. State of Bihar, and in the case of State v. Maksudan Singh, . He has also referred to the decision of the learned Judge of this Court sitting singly in the case of Sri T. R. Mullick v. State, 1986 Cal Cri LR (Cal) 116, Mihir Kumar Ghose v. State of West Bengal, (1989) 1 Cal HN 538 : 1990 Cri LJ 26; Gopal Mukherjee v. State, (1991) 1 Cal HN 389 and Tarapada Dey v. State, 1991 Cal Cri LR (Cal) 188. Referring to the abovementioned decisions he has argued that since there has been delay of more than 14 years in the matter of disposal of the impugned proceeding and since no charge could be framed by the Court for 10 years after the prosecution had closed its evidence the continuation of the instant proceeding any further is violative of the fundamental right to speedy trial as enshrined in Article 21 of the Constitution and is gross abuse of the process of the Court and that the said proceeding should be quashed in exercise of inherent jurisdiction of the Court under Section 482 of the Code of Criminal Procedure.
3. Mr. Mukherjee learned advocate appearing for the State has resisted this re-visional application. Referring to the case record he has argued that since 24-4-80 fifty five dates were fixed for hearing, that the case was adjourned on the prayer of the accused persons on twenty two dates, that case was adjourned on P.P's ground on nine dates, that Court had no power to try the case on eight dates arid that the Presiding Officer was absent on six dates. He has further argued that since the major part of the delay in the matter of disposal of the case was attributable to the acts and conduct of the accused person the decisions as referred to and relied upon by Mr. Ghose have got no application to the facts and circumstances of the present case. Referring to unreported decision of the learned Judges of this Court sitting singly, he has submitted that a time bound programme may be drawn up by this Court and the Court below may be directed to dispose of the cases within the time schedule to be fixed by this Court.
4. The petitioner has prayed for quashing the impugned proceeding on the ground of inordinate delay in the matter of disposal of the case. The legal position in this regard appears to be well settled. It has been held by the Supreme Court in several decisions that right to speedy trial is a fundamental right as enshrined in Article 21 of the Constitution. It has also been held that an inordinate delay in the matter of disposal of the case is violative of the said right and is an abuse of the process of the Court and that Court may in exercise of its inherent powers quash the proceeding for such inordinate delay. In the case of Machander v. State of Hyderabad, 1955 Cri LJ 1644 (supra) the Supreme Court observed that the Court should not be prepared to keep persons who are on trial for their lives under indefinite suspense because trial Judges omitted to do the duty and that the accused persons must be given a fair and impartial trial. It has further been observed that while every reasonable latitude must be given to those concerned with the detection of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. In the case of Mahindra Singh v. State of West Bengal (1973 Cri LJ 1450) (supra), the Supreme Court has also observed that undue delay in the final disposal of criminal cases tends to, to some extent to defeat the very purpose of criminal justice. Speedy disposal of criminal cases for commission of offences promote confidence of the society in the administration of criminal justice which is essential for sustaining the faith of the law abiding members of the society in the effectiveness of the rule of law and that it also saves the accused from avoidable harassment inherent in unreasonably prolonged trials and appeals. In the case of Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 Cri LJ 1036 (supra) the Supreme Court has held that speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. In the case of T.V. Vatheeswaran v. State of Tamil Nadu, 1983 Cri LJ 481 (supra), the Supreme Court has observed that fiat of Article 21 is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable, that just fair and reasonable procedure implies aright to free legal services where he cannot avail them and also implies a right to speedy trial. In the case of State of Bihar v. Uma Shankar Kotriwal 1981 Cri LJ 159 (SC) (supra) there was a delay for a period of twenty years in disposal of the case under Section 7 of the Essential Commodities Act. The High Court quashed the proceeding and the Supreme Court refused to interfere with the order of the High Court in appeal by Special Leave even though the accused themselves were responsible in the large measure for slow pace of case and the allegation in the public report disclosed serious offence. In the case of Rakesh Saksena v. State, (supra) the accused was not an officer but a mere trader in Foreign Exchange Division of the Bank and the chance of conviction in that case was extremely doubtful so the Supreme Court has held that the continuance of the prosecution would serve no useful purpose and quashed the charges against the accused though the offence was six years old and gave a liberty to the Bank to pursue civil remedies that may be available to it. In the case of State v. Maksudan Singh, 1985 Cri LJ 1782 (supra) the Full Bench of Patna High Court held that the constitutional right of the accused to a speedy and public trial in all criminal prosecution now flowing from Article 21 of the Constitution is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution. The Full Bench of the Patna High Court also held that inordinately prolonged and callous delay of ten years or more occasioned entirely by the prosecutions default, in the context of reversal of clean acquittal on a capital charge, would be per se pre-judicial to the accused. In the case of Madheshwardhari Singh v. State of Bihar, 1986 Cri LJ 1771 (supra) the Full Bench of the Patna High Court has 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 reason) in investigation and original trial for offences other than capital ones clearly violates the constitutional guarantee of a speedy public trial under Article 21. In the case of Srinivas Gopal v. Union Territory of Arunachal Pradesh, 1988 Cri LJ 1803 (SC) (supra) the accused persons were charged with the offence of rash and negligent driving under Section 279 read with Section 304-A/338 of I.P.C. and the case was pending for nine and half years. The Supreme Court has held that the alleged offence not being a grave or heinous one keeping a person in suspended animation for nine and half years without any cause at all cannot be with the spirit of the procedure established by law. The Supreme Court, therefore, thought it just and fair and in accordance with equity to direct that trial of the accused not to proceed any further.
5. In the case of T.R. Malik v. State, 1986 Cal Cri LR (Cal) 116 (supra) a learned Judge of this Court sitting singly has held that inordinate delay of fifteen years before framing the charge although the allegations were serious is an abuse of the process of the Court and that the High Court can interfere when the process of law is misused to harass a citizen. In the case of Mihir Kumar Ghose v. State of West Bengal, 1990 Cri LJ 26 (Cal) (supra) there was delay in criminal trial for fifteen years for no default on the part of the accused the learned Judge sitting singly has held that the constitutional right to speedy trial now recognised under Article 21 of the Constitution stands plainly violated in that case. In the case of Gopal Mukherjee v. the State, 1991(1) Cal HN 389 (supra) there was inordinate delay of twelve years even before commencement of trial without any reason. In that case no steps for sanction and allotment of the case to any Special Court were taken and the Special Court has not taken cognizance as yet and the petitioners have little contribution to such inordinate delay of twelve years even before commencement of the trial. It has been held that such delay was violative of the fundamental right to speedy trial as enshrined under Article 21 of the Constitution and was accordingly quashed. In the case of Tarapada Dey v. State, 1991 Cal Cri LR (Cal) 189 (supra) the charge did not disclose the existence of all the ingredients constituting the alleged offence and the proceeding was dragged for long thirteen years. In the facts and circumstances of the case it was held by the learned Judge of this Court sitting singly that continuation of the proceeding was an abuse of the process of the Court and was liable to be quashed for ends of justice.
6. So on consideration of the decisions as referred to and relied upon by the learned advocate for the petitioner, it appears to this Court that the right to speedy trial is a fundamental right as enshrined in Article 21 of the Constitution, that inordinate delay in the matter of disposal of the criminal proceeding is violative of the said right to speedy trial and is an abuse of the process of the Court and that the Court may, in exercise of its inherent powers, quash the proceeding in a fit and proper case having regard to the nature of the offence and other circumstances in a given case and each case is to be considered in the light of the facts and circumstances involved therein. In a recent decision Constitution Bench of the Supreme Court has held that it is neither advisable nor practicable to fix any time limit for trial of offences. It is true that in the case of State of Bihar v. Uma Shankar Kotriwal, 1981 Cri LJ 159 (SC) (supra) the proceeding under Essential Commodities Act was quashed by the High Court on the ground that trial had not made much headway even though a period of twenty years had gone by and that Supreme Court refused to interfere with the order of the High Court in appeal though the accused themselves were responsible to a large major for the slow pace of the case. But that the facts of the said case are distinguishable from the facts of the present case. In the reported case the proceeding had been pending for more than twenty years and no progress had been made in the trial. But in the instant case the proceeding has been pending for fourteen years prior to the filing of the instant revisional application and all the prosecution witnesses before charge had already been examined. For various reasons the Court could not frame charge against the accused persons though it has already decided by its order dated 13-5-89 that charge should be framed against the accused persons. So the aforesaid decision in the Supreme Court cannot be made applicable to the instant case. Undboutedly there has been delay in disposal of the instant case and the case has been pending for about fourteen years. Now let it be considered whether in view of the above-mentioned legal position this Court in the facts and circumstances of the case should exercise its inherent power to quash the instant proceeding. The petition of complaint was filed on 3-9-76. The present petitioner appeared before the learned Judge, Special Court on 29-10-76. It appears from the case record that on different dates between 6-6-77 to 14-3-80 the prosecution examined thirty six witnesses before charge and that thereafter the learned Judge fixed 24-4-80 for consideration of charge. But, unfortunately, for some reason or other charge could not be framed within ten years thereafter. Referring to the case record learned advocate for the opposite party has submitted that during the period from 24-4-80 to 16-3-89 the case was fixed for hearing on fifty days, that the case was adjourned due to absence of one or other of the accused persons for twenty two days, that case could not be taken up for nine days due to absence of the public prosecutor, that case could not be taken up for hearing for eight days due to lack of power of the Court and that the case was adjourned for six days due to absence of the Presiding Officer of the Court. The learned advocate for the petitioner, however, has disputed the correctness of the submission as made by the learned advocate for the opposite party. However, without entering into detailed calculation in this regard and after looking into the order sheet of the case record it appears to this Court that the major part of the delay during the last ten years of the pendency of the case is attributable to the acts and conduct of the accused persons. It appears that after 24-4-80 several dates were fixed for consideration of the charge but hearing as to framing of charge could not be taken up primarily because either one or other of the accused persons remained absent on the date fixed for the purpose. On 20-12-85 the case was fixed for consideration of charge. Though seven accused persons were present but one accused was absent and for that reason charge could not be framed. Relevant portion of the order dated 20-12-85 as passed by the learned Judge, Special Court may be quoted here:--
"This case is pending for consideration of charge for a long time at least since 26-4-80. Till 4-9-81 the hearing on consideration of charge was stalled by constitutional point raised by the defence. That point was, however, disposed of by this Court on 4-9-81. Since then, the case is pending and the consideration of charge could not be taken up, primarily because either one or the other accused persons remained absent on the date fixed for the purpose. As if in a game of musical chair, one accused is absent on one day and on the other day the another accused and so on. This, however, cannot be allowed to be continued for years together. It appears that all the accused persons do not remain present on a single day in spite of direction for remaining to be so present passed by the Court."
7. This order clearly shows what role was played by the accused person in delaying consideration of the charge and consequently in delaying the disposal of the case. The Judge, Special Court, seems to have expressed his helplessness in the matter of consideration of charge due to persistent absence of one or other of the accused on the date fixed for the purpose. But the Court is not so helpless. To ensure the personal attendance of the accused persons before it, it may in fit and appropriate case cancel the bail of the accused person, who absented himself persistently. The case record also discloses that on 20-4-89, the learned Judge, Special Court concluded the hearing regarding charge and the petition of discharge filed by some of the accused persons and fixed 13-5-89 for order directing all the accused persons to be present on that date. On 13-5-89 the learned Judge, rejected the petition for discharge and held that charge should be framed against the accused persons. But as one of the accused persons absented himself the charge could not be drawn up and the plea could not be recorded. So, he fixed another date on 26-6-89 for appearance of all the accused persons and for drawing up of charges and recording their pleas. But unfortunately on the dates fixed between 22-6-89 to 7-9-90 the charges could not be framed as one or more of the accused persons remained absent on the date fixed. Thus it is abundantly clear that the major part of the delay in the matter of disposal of the case is attributable to the acts and conduct of the accused persons. Order dated 20-12-85 as passed by the learned Judge, Special Court and also subsequent orders as referred to above rather indicate that at least some of the accused persons made a deliberate attempt to delay the disposal of the case and that they have been successful to some extent in their attempt. So in the facts and circumstances of the case as stated above and having regard to the nature of the offence alleged to have been committed by highly placed official this Court is not inclined to exercise its inherent jurisdiction in favour of the present petitioner and to quash the instant proceeding though there has been delay for about fourteen years. In the facts and circumstances of the case this Court thinks it fit and reasonable that a time schedule should be fixed and the learned Judge, Special Court should be directed to conclude the trial within the time so fixed.
8. In that view of the matter the petitioner's prayer for quashing the proceeding being Special Case No. 12 of 1976 pending in the Special Court, Asansol is dismissed. Stay order is vacated.
9. The case record together with the copy of this order be sent down to the Court below immediately. On receipt of the case record the learned Judge, Special Court shall fix a firm date for framing of charge within a month from the date of receipt of the case record and frame the charge and record the plea of the accused persons within the said date. On receipt of the case record the learned Judge shall direct sureties of the accused persons to produce them before the Court on the date to be fixed for consideration of charge as indicated above. II for any reason any of the accused persons fails to appear personally before the Court on the date to be fixed, the learned Judge shall take appropriate legal steps against such accused persons to ensure their attendance before the Court. After framing charge as above the learned Judge shall dispose of the case within six months from the date of framing of the charge.
10. Revisional application is thus disposed of.