Patna High Court - Orders
Sri Haridwar Pandey (Advocate) vs The State Of Bihar Thru. Vig. on 10 April, 2013
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.65 of 2002
======================================================
Haridwar Pandey aged 75 years S/o Late Ram Dutt Pandey resident of
Laxmi Bhawan, South Patliputra Colony, Patna-13.
.... .... Petitioner/s
Versus
The State of Bihar through Vigilance Commissioner, Bihar, Bailey Road,
Patna.
.... .... Respondent/s
======================================================
with
Criminal Miscellaneous No.18970 of 2001
======================================================
Haridwar Pandey S/o Late Ramdutt Pandey, a resident of Laxmi Bhawan,
South Patliputra Colony, Patna-800013. Presently at Delhi in connection
with the treatment at A.I.I.M.S.
.... .... Petitioner/s
Versus
The State of Bihar through the Vigilance Commissioner, Bihar, 12, Bailey
Road, Patna.
.... .... Opposite Party/s
======================================================
with
Criminal Writ No.112 of 2003
======================================================
Sri Haridwar Pandey aged 75 yrs S/o Late Sri R.D. Pandey permanent
Resident of village-Baghakol, P.S.-Ara Muffasil, District-Bhojpur but
presently at Laxmi Bhawan South P.P. Colony, Patna-13.
.... .... Petitioner/s
Versus
The State of Bihar through Vigilance Commissioner, 12 Bailey Road,
Patna-80001.
.... .... Respondent/s
======================================================
with
Criminal Writ No.113 of 2003
======================================================
Sri Haridwar Pandey aged 76 yrs S/o Late Sri R.D. Pandey, permanent
resident of Village-Baghakol, P.S.-Ara Muffasil, District-Bhojpur but
presently residing at Laxmi Bhawan, South Patliputra Colony, Patna-13.
.... .... Petitioner/s
Versus
The State of Bihar through Vigilance Commissioner, 12 Bailey Road,
Patna-80001.
.... .... Respondent/s
======================================================
with
Criminal Writ No.199 of 2003
======================================================
Haridwar Pandey aged 75 yrs S/o Late Sri R.D. Pandey, permanent resident
2 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
2 / 47
of Village-Baghakol, P.S.-Ara Muffasil, District-Bhojpur but presently at
Laxmi Bhawan, South P.P. Colony, Patna-13.
.... .... Petitioner/s
Versus
The State of Bihar through Vigilance Commissioner, 12 Bailey Road,
Patna-80001.
.... .... Respondent/s
======================================================
with
Criminal Writ No.235 of 2003
======================================================
Haridwar Pandey aged 75 yrs S/o Late Sri R.D. Pandey, permanent resident
of Village-Baghakol, P.S.-Ara Muffasil, District-Bhojpur but presently at
Laxmi Bhawan, South P.P. Colony, Patna-13.
.... .... Petitioner/s
Versus
The State of Bihar through Vigilance Commissioner, 12 Bailey Road,
Patna-80001.
.... .... Respondent/s
======================================================
with
Criminal Miscellaneous No.466 of 2004
======================================================
Haridwar Pandey aged 76 years S/o Late Ram Dutt Pandey, resident of
Laxmi Bhawan, South Patliputra Colony, At & P.O.-Patliputra, Patna-13.
.... .... Petitioner/s
Versus
The State of Bihar through Vigilance Commissioner, Bihar, 12, Bailey
Road, Patna.
.... .... Opposite Party/s
======================================================
with
Criminal Miscellaneous No.25768 of 2010
======================================================
Sri Haridwar Pandey (Advocate) aged over 82 years S/o Late Sri R.D.
Pandey Permanent resident of village-Baghakol, P.S.-Ara Mufassil,
District-Bhojpur but presently residing at Laxmi Bhawan South Patliputra
Colony, Patna-800013, P.S.-Patliputra (Bihar).
.... .... Petitioner/s
Versus
The State of Bihar through the Vigilance Commissioner, Patna.
.... .... Opposite Party/s
======================================================
with
Criminal Writ No.187 of 2012
======================================================
Sri Haridwar Pandey, Advocate, son of Late Shri R.D. Pandey, permanent
resident of village-Baghakol, P.S.-Ara Mufassil in the district of Bhojpur,
presently residing at Laxmi Bhawan, South Patliputra Colony, Patna-13.
.... .... Petitioner/s
Versus
3 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
3 / 47
The State of Bihar through Vigilance Commissioner, Patna.
.... .... Respondent/s
======================================================
Appearance:
For the Petitioner : Mr. Haridwar Pandey (in person)
For the Vigilance : Mr. Patanjali Rishi, Advocate
Mrs. Babita Kumari, Advocate, A.Cs. to Mr.
Ramakant Sharma, L.O. (I/c) Vigilance.
====================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV ORDER
37 10-04-2013The petitioner has been made accused in Vigilance P.S. Case No. 37(4) of 1978 corresponding to Special Case No. 158 of 1983 registered for the offence punishable under Sections 5(2) read with 5(1)(e) of the Prevention of Corruption Act, 1947.
2. In the said case, the FIR was instituted on 30.4.1978. On completion of investigation the police submitted charge sheet in the court concerned pursuant to which, finding a prima facie case to be made out, cognizance of the offence was taken by order dated 20th June, 1987.
3. The petitioner has filed altogether nine applications either under Section 482 of the Code of Criminal Procedure (For short "the Code") or under Article 226 of the Constitution of India before this Court making several prayers. All the cases filed by him arise out of the aforesaid vigilance case and, as such, they have been heard together and are being disposed of by a common order.
4. Heard the petitioner Haridwar Pandey, who 4 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 4 / 47 appeared in person and Mr. Patanjali Rishi, advocate for the Vigilance.
5. For the sake of convenience, the prayers made by the petitioner in the applications filed by him before this Court are being reproduced hereinbelow:-
(i) Cr. Misc. No. 18970 of 2001 "That this petition is being preferred for quashing of the order dated 29.08.1998 passed by the Spl. Judge (Vigilance) South Bihar, Patna in Vigilance P.S. Case No. 37(4)/78 pending as Spl. Case No. 158/83 whereby and whereunder the prosecution case has been shown to be closed in a most perfunctory and arbitrary manner".
(ii) Criminal Writ No.65 of 2002 "That this petition is being filed for issuance of an appropriate writ, order/direction commanding the respondent to comply with all the directions and orders passed by the learned Trial Court from 11.1.1991 (when the charge was framed) till date in Vigilance P.S. Case No. 37(4) 78/Spl. Case No. 158 of 1883 pending in the court of learned Special Judge, Vigilance (South Bihar) Patna".
(iii) Criminal Writ No.112 of 2003 "That this Crl. Writ Petition is being filed under Article 226 of the Constitution of India for calling the 4 witnesses under the provisions of Section 311 of Cr.P.C. 1973 based on the latest Ruling given by 5 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 5 / 47 the Hon'ble Supreme Court New Delhi in Crl. Appeal No. 621 of 1999 as reported in 1996(6) Supreme 4. The 4 witnesses which are prayed to be re-called for their cross-Examination are as here under:
(i) Sri K.B. Singh DSP
(ii) Sri Ramesh Kr. Singh DSP
(iii) Sri B.C. Verma, DSP
(iv) Sri Arvind Prasad DSP."
(iv) Criminal Writ No.113 of 2003
"That this Petition is being under Article 226 of the Constitution of India for issuance of Writ for calling the 3 DSP/SP Investigating Officers of the Case for their Examination in the case. Those 3 Investigating officers has done 2 Investigations one after the other and concluded both the Investigations as Final Report "Mistake of Fact" vide reports dated 3.4.1981 and 8.7.1982."
(v) Criminal Writ No.119 of 2003 "That this petition is being filed under Article 226 of the Constitution read with Section 173(8) of Cr. P. C. 1973 for writ of prohibition in use of the deposition of the 12 witnesses examined illegally by the police after submission of charge sheet but either without taking permission of the trial court or without following the order and direction given by Court on 27.3.1991 in Crl. Misc. No. 2368 of 1991."
(vi) Criminal Writ No.235 of 2003 6 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 6 / 47 "That this Crl. Writ Petition is being filed u/s 226 of the Constitution read with Section 33 of the Indian Evidence Act, 1872 for writ of prohibition of the of EXT 22 series which are forged statements of four dead persons said to have been recorded u/s 161 Cr.P.C. 1973, when they were alive but actually those four statements have been recorded after their death with malafide and those four statements have been inserted in the Case Diary by Inspector Vigilance Sri Ram Dahin Sharma on changing and replacing his original case diary and those forged statements have been filed in the Court in form of the part of the Case Diary of Inspector Shri Ram Dahin Sharma, which is illegal vide Section 33 of the Indian Evidence Act,1972."
(vii) Criminal Miscellaneous No.466 of 2004 "That this petition is being filed for quashing of 26 years old false and concocted First Information Report of Vigilance P.S. Case No. 37(4)78 pending as Special Case No. 158/1983 in the court of Learned Special Judge (Vigilance) Patna."
(viii) Criminal Miscellaneous No. 25768 of 2010 "That this petition being filed under Criminal Miscellaneous Jurisdiction under provisions of section 482 of the Cr.P.C. 1973 is being filed for quashing of order dt. 25.05.2010 which has illegally rejected the petition dt. 27.04.2010 filed under provisions of section 7(A) of P.C. Act, 1947, the petition filed on behalf of the accused 7 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 7 / 47 petitioner as the 9th reminder to the petition dt. 22.07.06 filed on Affidavit under the provisions of same law vide section 7(A) of the P.C. Act 1947, which is also equivalent to section 22 of P.C. Act 1988 with further prayers for fair Trial with directions below that:-
(i) The petitioner may be called for giving his defence as per law on calling him legally afresh for his defence which is only possible after compliance of the provisions of law under Section 7(A) of P.C. Act 1947 under which the case is filed which is not yet complied with from 22.7.06, when petition filed under Section 7(A) of the P.C. Act, 1947 with a reminder after 22.7.06.
(ii) On making the defence records made available to the accused petitioner as per provisions of law as in petition dt. 22.07.06 as well as on calling in the court, the "Final Report Mistake of Fact dt. 8.7.82 not sent in court for 28 years as well as, as per directions given in the orders of trial court from 20.02.1991 to 10.03.1995 for which Cr.W.J.C. 65/02 is pending in Hon'ble High Court for direction and in the 3 orders dt. 28.11.78, 22.2.89 and 11.02.2000 of Hon'ble Supreme Court passed in Cr. Appeal No. 368/78, S.L.P. (Cr.) 176/89 and in Cr. Appeal No. 169/2000 respectively.
(iii) And After the defence records are made available to the petitioner as in (ii) above, to get those prosecution witnesses to be examined as his 8 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 8 / 47 defence witnesses first of all those who were named in charge sheet filed in the case but were not brought intentionally in court to be examined by prosecution only because these prosecution witnesses had found the Vigilance P.S. Case No. 37(4)78 to be false and concocted on concluding the Two detailed investigations as "Final Report Mistake of Fact" vide reports dt. 3.4.81 and 8.7.82 but the latest report dated 8.7.82 which was the last and ultimate report has not been sent in Trial court even till today for 28 years which is requested to be called in court vide (ii) above. There has been no investigation after 8.7.82.
(iv) For disposing of those 10 petitions along with this petition which are pending in High Court from 2001 because the prosecution has not filed counter affidavit in any one due to malafide in this false case kept pending for over 32 years, the list of pending petition is placed as Annexure No. 10 page 97.
(v) And thereafter to get his other D.W's examined if so needed i.e. either examination of report dt. 8.7.82 as Final Report Mistake of Fact."
(ix) Criminal Writ No.187 of 2012 "That this writ petition is being filed under Articles 226 & 227 of the Constitution of India for direction to the court below for disposal of petition dated 22.7.2006 filed on affidavit for compliance of Section 7(A) (a) of the P.C. Act, 1947, which is 9 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 9 / 47 equivalent to Section 22 of the P.C. Act, 1988, in connection with calling records from Vigilance Department but neither the prosecution has filed counter nor the petition dated 22.07.2006 has been disposed of for five years. This petition dated 22.07.2006 is pending in the court of Special Judge Vigilance, South Bihar, Patna in Special Case No. 158/83 arising out from Vigilance P.S. Case No. 37(4) 78 and no writ has been filed ever for compliance of disposal of petition dated 22.7.2006 pending with Special Judge".
6. The petitioner submitted that the FIR is for a false and concocted case instituted without any complaint against him either written or even oral. He submitted that the case was instituted as a pretext to make house search for recovery of the letters of the then Chief Minister, Sri Karpoori Thakur. According to him, the apprehension was that on production of those letters in the pending election case in the High Court, Sri Thakur was not only to loose the election case but, was to be debarred from contesting election for the next six years.
7. The petitioner further submitted that the two initial investigation reports submitted by the Vigilance found him to be innocent but, subsequently, a malicious report was submitted in the court, on the basis of which, cognizance has been taken. He further submitted the even one allegation either of the FIR or of 10 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 10 / 47 the charge sheet has not been substantiated or supported by even one prosecution witness. According to him, three prosecution witnesses relied upon by the prosecution, such as, P.W. 19, Sri Ram Dahin Sharma, P.W. 16, Sri Ram Yash Singh and P.W. 15 Sri P.N. Mishra have denied to have made any investigation on the allegation of disproportionate assets.
8. He submitted that the respondents have failed to comply with the directions and orders passed by the trial court. He further submitted that the prosecution case has been closed by order dated 29.8.1998 in a most perfunctory and arbitrary manner. According to him, he did not get any opportunity to cross-examine some of the witnesses. He submitted that the three investigating officers of the case, who have done two investigations one after the other and concluded that the case was "a mistake of fact" have not been examined by the prosecution.
9. The petitioner further submitted that he has filed a petition on 22.7.2006 on affidavit in the court below for compliance of Section 7A of the Prevention of Corruption Act, 1947 which is equivalent to Section 22 of the Prevention of Corruption Act, 1988 in connection with calling records from Vigilance Department but, neither the prosecution has filed counter affidavit nor the petition dated 22.7.2006 has been 11 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 11 / 47 disposed of.
10. He submitted that the original FIR is not on record and the FIR on record is a fabricated document and has not been signed by the competent officer. He submitted that he has become victim of a hostile and malicious prosecution. According to him, a false and concocted case has been dragged for 35 years which in itself is sufficient to show that the right of the petitioner for speedy trial as guaranteed under Article 21 of the Constitution has been grossly violated.
11. The petitioner submitted that the statements of witnesses recorded under Section 161(3) of the Code were not supplied to him in compliance of Section 207 of the Code and in absence of that he could not cross-examine them properly. He also submitted that the prosecution has changed and replaced the original case diary and forged statements have been filed in the court in the form of part of the case diary.
12. Per contra, Mr. Patanjali Rishi, learned counsel for the Vigilance, submitted that the applications filed by the petitioner are based on false facts. According to him, he is in habit of filing various petitions on frivolous grounds repeating the prayers made in each of the petition and they bear the same prayer with different wordings. He submitted that the case of the 12 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 12 / 47 petitioner has lingered for more than three decades and for the same, none, but the petitioner himself is responsible. He is constantly taking advantage of the flexible legal system. He has left no stone unturned to delay the trial.
13. Learned counsel further submitted that the prosecution witnesses have been cross-examined at length by the petitioner. According to him, P.W. 19 was cross-examined on 27 dates. Similarly, P.W. 16 has also been subjected to lengthy cross- examination on altogether 12 dates, whereas P.W. 15 has been cross-examined by the petitioner on 20 dates.
14. Learned counsel for the Vigilance referring to Annexure A of the counter affidavit filed in Cr.W.J.C. No. 65 of 2002, submitted that earlier the petitioner had filed a writ petition, being Cr. W.J.C. No. 716 of 1996, before this Court seeking quashing of the prosecution case on the ground of delay in disposal of the case. A Bench of this Court considered the arguments advanced on behalf of the parties in detail and dismissed the said writ petition vide order dated 27.10.1997 holding in Para 18 to 20 as under:-
"18. After going into the entire facts of the case I am of the view that the prosecution cannot be blamed for delay in disposal of the case. The prosecution has been taking effective 13 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 13 / 47 steps but in view of the nature of the crime and the tactics adopted by the accused which has been noticed above, the trial has not come to an end. The system is also responsible for disposal of the case as the Special Court is over burdened with the cases. It has not enough time to do this case only. This apart the Special Court was not available for a number of days. Thus, the present case is not a case wherein it can be said that the prosecution has to be blamed for delay.
19. Accordingly, no case for quashing the prosecution is made out. The nature of the evidence, which is to be adduced in this case, and the way, in which the petitioner has been conducting himself in the proceeding, refrains this Court from issuing any specific direction fixing a date for disposal of the case. However, as the case is old one the trial court will make all efforts to dispose of the case at an early date. It is made clear that if the accused petitioner is found unnecessarily creating hindrance in progress of the case as noticed by the court in its order dated 23.1.199, the trial court will take an appropriate action against the petitioner for creating disturbance in the court.
20. In the result, there is no merit in this application and the same is dismissed".14 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
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15. The petitioner being, aggrieved by the aforesaid order dated 27.10.1997 passed in Cr. W.J.C. No. 716 of 1996, filed Special leave to Appeal (Crl.) No. 790 of 1998 before the Apex Court. A two Judges Bench of the Apex Court heard the application field on behalf of the petitioner and disposed of the same by order dated 12.05.1998, as contained in Annexure-B to the counter affidavit filed in Cr.W.J.C. No. 65 of 2002, which reads as under:-
"UPON hearing counsel the court made the following ORDER We have heard the petitioner at length. 22 witnesses have already been examined. It is very old trial. The respondents are directed to proceed with the trial, if necessary, on day- to- day basis, and conclude it on or before 31st of December, 1998. If the trial does not conclude on or before 31st December, 1998, the proceedings shall stand quashed".
16. Learned counsel for the Vigilance submitted that after disposal of Special leave to Appeal (Crl.) No. 790 of 1998, the petitioner failed to appear in court at the moment for recording of his statement under Section 313 of the Code on the ground that he suffered heart attack. The prosecution moved an application before the Apex Court for modification of the 15 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 15 / 47 aforesaid order dated 12.05.1998 passed in Special Leave to Appeal (Crl.) No. 790 of 98 by filing Crl. M.P. No. 7208 / 98.
17. The modification application filed by the State was allowed by the Apex Court vide order dated 11.12.98, as contained in Annexure-D to the counter affidavit filed in Cr. W.J.C. No. 65 of 2002, which reads as under:-
"UPON hearing counsel the court made the following ORDER Since the petitioner is unwell and is not able to appear in court at the moment for the recording of his statement under Section 313, we modify our order of 12.05.98 to the following effects.
The portion "If the trial does not conclude on or before 31st of December, 98, the proceedings shall stand quashed." is deleted.
We also make it clear that the trial need not be concluded on or before 31.12.98 in the facts and circumstances of this case. The Crl. M.P. is disposed of accordingly".
18. Learned counsel for the Vigilance submitted that the petitioner filed numerous Special Leave Petitions as well as Writ Petitions under Article 32 of the Constitution in the matter. The Apex Court clubbed all those petitions being S.L.P. (Crl.) No. 1899 / 99, 1900 / 99, 2919 /99, D13956 /99, WP(CRL) D18775 16 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 16 / 47 /99, Crl. M.P. 1144 /2001 In SLP (CRL) No. 790/98, WP(CRL) D5292, D5291, 5931/2001 with S.L.P.(CRL) No. 1901/1999. The Apex Court passed a composite order in all the aforesaid cases vide order dated 7.9.2001, as contained in Annexure-E to the counter affidavit in Cr.W.J.C. No. 65 of 2002, which reads as under:-
ORDER "These Special Leave Petitions as well as the Writ Petitions under Article 32 are by one accused Haridwar Pandey. The records of all these cases unequivocally reveal that the accused has tried to abuse the process of Court and has taken undue advantage of certain leniency having been shown on the ground that he was unwell, and was being treated in the All India Institute of Medical Sciences. The reports of the Doctors indicate that he is in a fit condition to move out of Delhi. Having regard to the circumstances in each of the orders, which are assailed in the SLP, we see no infirmity with any of those orders requiring our interference under Article 136 of the Constitution. It may be stated that as the criminal proceedings was continuing for a long time at one point of time, this Court had itself indicated that the criminal proceedings should be concluded by a specified date or else the 17 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
17 / 47 proceedings would stand quashed. But then, it is only the accused, who prevented the proceedings from being concluded, which forced this Court to modify the earlier order. We have no manner of doubt, after examining the relevant papers, that the accused is bent upon seeing that the criminal proceedings would not come to a conclusion. In the circumstances, we dismiss all these cases and direct that if the accused does not appear before the Special Judge within two weeks from today, then the order of the High Court issuing non-bailable warrant of arrest should be operative, and the accused could be arrested and presented in Court. The Court where the matter is pending would do well in trying to dispose it of at an early date".
19. Learned counsel submitted that the prosecution evidence was closed on 29.8.1998 and, thereafter, despite repeated dates having been fixed for recording of the statement of the petitioner under Section 313 of the Code, he absented himself from the court on frivolous ground of illness. The court below initiated proceedings under Sections 82 and 83 of the Code for compelling his appearance but, he did not appear. On 16.12.1998, a permanent warrant of arrest was issued against him and he was declared absconder.
18 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
18 / 47
20. Learned counsel submitted that after issuance of permanent warrant of arrest, the records were deposited in the court room by the trial court by order dated 7.7.1999. However, after lapse of more than two years, the petitioner surrendered before the court concerned with a prayer for bail on 19.9.2001 on the ground of ill-health. The court below remanded him to judicial custody and on 6.12.2001, when the petitioner was produced in the court for recording of his statement under Section 313 of the Code, he refused to answer the questions put to him and started making arguments in the court. The order dated 6.12.2001 passed by the trial court has been reproduced in para 48 of the supplementary counter affidavit filed in Cr. W.J.C. No. 187 of 2012 on behalf of the respondents which reads as under:-
"Accused Haridwar Pandey produced from custody.
Today for petitions have been filed on his behalf, two of them signed by his lawyer Vinay Kr. Pandey and two of them have been signed by the accused himself.
The accused is produced in court and his lawyer is also present. Today is the date fixed for recording the statement of the accused U/sec. 313 Cr.P.C. The accused was brought in the dock and he gave out his name, age, parentage and address but refused to answer 19 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 19 / 47 the questions put to him U/sec. 313 Cr. P.C. and started making arguments. The accused was directed to ask his lawyer to make submissions on his behalf or else he should file petition that he does not want to engage a lawyer and would defend his case himself. Upon this the accused started arguing and mentioning provisions of C.P.C. and said that he will not file a petition that he will not engage a lawyer and he would himself make submissions and the court must hear it. The lawyer standing by side did not even move the petition signed by him. The accused made utterances even in respect to this court which should not have been done by him. Several times he was tried to be checked but he paid no heed and flatly refused to answer the questions of 313 Cr.P.C.
In this case, I find that the Hon‟ble Supreme Court in SLP (Cr. 1901/99 on 7.9.2001 had dismissed all the ten petitions filed by the accused before the Hon‟ble Supreme Court. The Hon‟ble Supreme Court has also observed that it was only the accused who prevented the proceedings from being concluded. It was also observed that the accused is bent upon seeing that the criminal proceeding would not come to a conclusion. The Hon‟ble Supreme Court has further 20 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 20 / 47 directed this court to do well in trying to dispose of the case at an early date. It was in view of the aforesaid order that the accused was asked to be produced today. From the perusal of the record I find that the accused has always been filing petitions with a motive to delay the disposal of the case. Order dt. 20.2.91, 9.9.92, 16.9.92, 18.9.92, 19.9.92, 9.11.92, 20.11.92, 16.3.93, 15.4.93, 20.4.93, 12.1.94 and several other orders thereafter would speak from itself how the proceeding of the case and its disposal has been delayed.
One of the petition signed by the accused speaks that his ten petitions before the Hon‟ble Supreme Court was dismissed un- heard, he has dared to give out the name of their Lordships also in his petition. Since the accused was not permitted to argue his petitions for the reasons set above, let all the four petitions be put up for hearing on 20.12.2001 whereafter necessary order will be passed.
In the interest of justice I feel to give one more chance to the accused for answering the questions put to him u/sec. 313 Cr.P.C. if he does not do so on the next date necessary orders will follow. Put up on 20.12.2001. Accused remanded to custody to be produced 20.12.2001. The accused refused 21 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 21 / 47 to sign on the order sheet in token of he being produced in court."
21. Learned counsel for the Vigilance further submitted that even thereafter the petitioner kept on filing frivolous petitions for supply of papers. He refused to cross- examine some of the prosecution witnesses yet he filed several petitions seeking to recall them for cross-examination. He submitted that the petitioner is a vexatious litigant. He also filed more than hundred cases in different courts with different prayers and all the cases filed by him arise out of Vigilance P.S. Case No. 37(4) of 1978 corresponding to Special Case No. 158 of 1983. He submitted that a Division Bench of this Court by order dated 14.7.2004 passed in Original Cr. Misc. No. 7 of 2004 (Haridwar Pandey v. State of Bihar & Ors.) since reported in 2004 (4) PLJR 356, took cognizance of the conduct of the petitioner in defending himself in the aforesaid case and the petitioner was punished to undergo simple imprisonment for six months in that proceeding. In the aforesaid case, the Division Bench elaborately dealt with the nature of litigation generated by the petitioner observing as under
in paragraph nos. 1 to 8.
"By this petition the applicant Haridwar Pandey desires that the persons who have been named in his relief clause be punished and sent 22 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 22 / 47 to jail for contempt. The persons named in his relief clause are; Sri B.P. Pandey, Sr. advocate, the Hon‟ble Mr. Justice Chandramauli Kr. Prasad, the Hon‟ble Mr. Justice R.S. Garg, and the Hon‟ble Mr. Justice. B.N.P. Singh. The Hon‟ble Mr. Justice B.N.P. Singh retired in April this year.
2. In this petition seeking criminal contempt action against judges of the Superior Judiciary, the applicant has not spared even others; named in the text with derogatory language. Then on the records from Supreme Court, New Delhi, to Patna district courts he has not even had regard for Hon‟ble Supreme Court Judges. The disparaging remarks have been on them also. Any judge; subordinate judiciary judge, High Court Judge, Supreme Court Judge who has decided cases against him, has come under his tongue-lashing.
3. The petitioner submitted that the court is obliged to issue notice on his petition mechanically otherwise limitation will bar his petition and complicate issues for not being considered on a technicality. The petition has been filed under Section 16 of the Contempt of Courts Act, 1971.
4. The court intimated him that his address that the court is obliged to issue notice would amount to delivering a notice to a Hon‟ble 23 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 23 / 47 judge on the Bench without examining the cause of the petition. A judge of a superior court of record, judges of the Supreme Court and judges of the High Courts, only because they are judges of superior courts of record, cannot be in contempt of their own court. The petition reads of many things said and done by the Hon‟ble judges in discharge of their judicial functions. If a case is decided not adverse to the petitioner, he is not aggrieved but if the case is decided against the petitioner, according to him, the judge is in contempt because the applicant says so. The notice cannot be issued so easily as the applicant wants it.
5. The applicant appears to be in litigation as a habit as if there is an obsessional neurosis to file cases and abuse judges. What would be the reason? The Court will examine this subsequently.
6. First, a bird‟s eye view is needed of the number of the cases in which the applicant is involved and the nature of the case. The numbers of cases in which the applicant Haridwar Pandey is involved and the applicant has filed in the District Courts, Patna High Court and the Supreme Court, in as much information as could be gathered are noted below:24 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
24 / 47 (A) District court: 1 (Special Case no. 158/83 arising out of Vigilance P.S. Case No. 37 of 1978.) (B) Patna High court: 75 cases, out of which
15 cases are pending.
(C) Supreme Court: 22 SLPs (all disposed of).
7. About 99 cases were filed. Why so many cases? Have the cases been filed or the applicant has generated litigation. The nature of the litigation has a genesis. The applicant had been charged to face trial after the charges were brought under the Prevention of Corruption Act, 1988. It is alleged that the applicant Haridwar Pandey is answerable to a charge of having properties and assets which are disproportionate to his known means of income. He has engineered a defence that the proceedings must never close. A closure of the proceedings would mean a result. The applicant does not want a final result. Thus, he baits the Judge, abuse the Judge, calls him name and in this exercise he has left no one neither the Subordinate Judiciary, nor Judges of the High Court or the Judge of the Supreme Court. The applicant Haridwar Pandey says he have been an engineer. Now, past retirement age, he says he has taken to law which he understands well, more than lawyers who do not know it. He has and is in process of writing 25 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 25 / 47 books on law. The Bar Council of India should check his credentials in law, his degree, his enrolment. He preaches morals and advertises his honesty and integrity. But, that is pending trial in Special Case No. 158/83 arising out of Vigilance P.S. Case No. 37 of 1978.
(8) The following materials, all matters of record, give a sample on how the applicant Haridwar Pandey bullies Judges and interferes with the administration of justice. Any Judge who decides against him comes under a comment by him. The comments made by the applicant are derogatory which are done with the sole purpose of lowering the dignity of the Court and the Judge who presides over it. The records have been compiled, in as much as could be located, in which the applicant has made derogatory statements against Judges. The applicant also writes letters to Judges specially those Judges who are seized of the trial of his cases. This is clearly done to harass the Judge or intimidate him".
22. After considering the facts of the case in detail, the Division Bench observed in the aforesaid case in paras 24 to 27 as under:-
"24. The applicant, Haridwar Pandey, is a vexatious litigant. This is sufficiently projected from the record. From its origins in trying to 26 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 26 / 47 stall proceedings of a charge which he faces under the Prevention of Corruption Act 1988, in the matter of Special Case no. 158/83, to ensure that this proceeding lingers, never terminates, almost one hundred litigations were engineered. The Supreme Court has certified that "the petitioner has been abusing the advantage that is granted to him merely because he appears in person". At one stage, the Supreme Court, anticipating that the applicant would make an apology, observed "the allegations made therein be withdrawn with unconditional apology." No apology was given. The Supreme Court further observed when it came to the conclusion that the petitioners does not desire the criminal case against him to conclude, that "we have no manner of doubt after examining the relevant papers, that the accused is bent upon seeing that the criminal proceeding will not come to a conclusion." That the applicant comments upon judges with indignity in his pleadings is a matter of record. The applicant writes to judge who does his case, and threatens him with embarrassment, expressing his impressions about the judge. The applicant, Haridwar Pandey is a nighttime prowler, he stabs the Court from the back. He is a vexatious litigant and a contemptuous contemnor. He intimidates 27 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 27 / 47 the Court by words and by publication. He scandalizes the Court and does so to lower the authority of the Court. He interferes with the due course of judicial proceedings, he obstructs the administration of justice. He expects an order in his favour, else he has scurrilous remarks against the judges who try his case, with a verdict that is not palatable to him. From the lowest court of the land to the highest, the applicant has no respect for the public justice system and abuses it with impunity. He does not apologize to the Court. He was tested on this once by the Supreme Court. This leaves the court with no option. With his vexatious conduct to barrage the courts with litigation, and in them abuse the judges, he commits repeated contempt. The Court finds him guilty of contempt in the face of the Court. In these very proceedings he justifies making remarks against the trial judge, the High Court judges. He desired the Court to see the record and it reveals that he has unsavoury remarks for the Supreme Court judges also, to put it mildly. Such a person cannot be shown any compassion or kindness. The applicant uses the Court as a theatre to abuse judges and courts. Such a litigant must receive the maximum sentence which the law provides. This is six months.28 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
28 / 47
25. The applicant Haridwar Pandey declares himself as old and sick, in an attempt to win more lenient treatment. He has enough energy to file a record breaking 100 cases and write volumes, and further energies which go into the making of allegations against judges. He has the strength, the determination and all the energy of a school boy, in making scurrilous allegations against the Courts as a system and the Hon‟ble Judges who discharge their functions within the system. It is best that he bides his peace and the curtailment of his liberty in the confines of the jail.
26. For having committed contempt in the face of the Court, the applicant be taken into custody to serve a sentence with simple imprisonment for a term of six months. It is no use imposing a fine on such an applicant. Let him be taken into custody to serve out the sentence.
27. The trial judge before whom special case no. 158/83 arising out of Vigilance PS Case no. 37 of 1978 is pending shall proceed, with recording the applicant‟s statement under section 313 of the Code of Criminal Procedure, 1973, for which ample opportunities have been provided to the applicant. This aspect has been noticed by the Supreme Court also. The Supreme Court also directed that the matter 29 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 29 / 47 will proceed on a day to day basis, on the day fixed, the applicant shall appear at the trial. If he is difficult with the trial court it shall proceed according to law".
23. Learned counsel for the Vigilance submitted that after having been punished for contempt the petitioner again absented from the trial on numerous grounds. His bail bonds were cancelled and only thereafter, he surrendered on 16.01.2006 and his statements were recoded thereafter under Section 313 of the Code. The case was posted thereafter, for defence evidence. The defence examined altogether 15 witnesses till 23.2.2012. On 7.3.2012, the defence evidence was closed and since then the matter is going on for argument on behalf of the defence.
24. I have heard the parties at length. Admittedly, the parties have already adduced evidence in the court. The case is fixed for arguments. The power to recall a witness is vested in the trial court. No party as a matter of right can insist to recall a witness. Section 311 of the Code invest the trial court with a wide discretion to call and examine any one as a witness, if the court is of the opinion that his examination is necessary for a just decision of the case but, this power can be exercised only in the interest of justice.
25. In my view, the prayer to call three Investigating 30 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 30 / 47 Officers of the case is not tenable in the eye of law as it is the prerogative of prosecution to examine its best witnesses and an accused cannot compel the prosecution to produce certain witnesses as per his choice.
26. So far as the question regarding appreciation of evidence is concerned, this is the prerogative of the trial court to see the admissibility of the evidence. This Court cannot direct the trial court either at the stage of trial or at the stage of argument to decide the admissibility or non-admissibility of any evidence. As a matter of fact, such facts can be seen by the higher court in appeal or revision. Similarly, when the trial has come to the verge of conclusion, the veracity or otherwise of the FIR cannot be looked into. In case, there is any procedural lapse in holding investigation, the petitioner can highlight the same at the time of argument.
27. So far as the petition filed by the petitioner under Section 7-A of the P.C. Act, 1947 in the trial court is concerned, in my view the same is not tenable. The petitioner has already examined 15 witnesses in order to disprove the charges. From the facts narrated above, it is obvious that the petitioner has been afforded sufficient opportunity to lead evidence. The legislative intent under Section 7-A of the P.C. Act, 1947 is mainly for achieving expeditious trial. This section is pari materia 31 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 31 / 47 with Section 22 of the P.C. Act of 1988.
28. Act 40 of 1964, through which Section 7-A was introduced in the PC Act, 1947 was passed by Parliament on the basis of Bill 67 of 1964. It has been mentioned in the Statement of Objects and Reasons of the said Bill, inter alia, as under:-
"The Committee on Prevention of Corruption was appointed in 1962 to review the problem of corruption and to suggest measures to combat it. The Committee has made various suggestions for dealing with the problem and has, inter alia, recommended certain changes in the law to ensure speedy trial of cases of bribery, corruption and criminal misconduct, and to make the law otherwise more effective. The Bill is intended to give effect to such of these recommendations that have been accepted."
29. The Apex Court in Arivazhagan v State since reported in (2000) 3 SCC 328 while dealing with the scope of section 7-A of the P.C. Act, 1947 and Section 22 of the P.C. Act, 1988 observed in Paras 16 and 17 as under:-
"16. It is thus noticeable that one of the main objects sought to be achieved through insertion of Section 7-A was speedy trial for cases relating to the problem of corruption. When we 32 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 32 / 47 read Section 22 of the P.C. Act which requires a particular procedure to be followed relating to the filing of list of witnesses and documents for the defence, it must be borne in mind that the legislative intent for the aforesaid change in the procedure is mainly for achieving expeditiousness of the trial. It is true that the concept of speedy trial must apply to all trials, but in the trials for offences relating to corruption the pace must be accelerated with greater momentum due to a variety of reasons. Parliament expressed grave concern over the rampant ever growing corruption among public servants which has been a major cause for the demoralisation of the society. When corrupt public servants are booked they try to take advantage of the delay proned procedural trammels of our legal system by keeping the penal consequences at bay for a considerable time. It was this reality which impelled the Parliament to chalk out measures to curb procrastinating procedural clues. Section 22 of the P.C. Act is one of the measures evolved to curtail the delay in corruption cases. So the construction of Section 243(1) of the Code as telescoped by Section 22 of the P.C. Act must be consistent with the aforesaid legislative intent.
17. The purpose of furnishing a list of witnesses 33 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 33 / 47 and documents to the Court before the accused is called upon to enter on his defence is to afford an occasion to the Court to peruse the list. On such perusal, if the Court feels that examination of at least some of the persons mentioned in the list is quite unnecessary to prove the defence plea and the time which would be needed for completing the examination of such witnesses would only result in procrastination, it is the duty of the Court to short list such witnesses. We may also add that if the Court feels that the list is intended only to delay the proceedings, the Court is well within its powers to disallow even the whole of it".
30. In the present case, as noticed, hereinabove, the petitioner succeeded in dragging on the proceedings for over 35 years with all sorts of dilatory tactics. The trial court, the High Court and the Apex Court have deprecated his conduct in delaying the trial. This Court cannot afford to grant any further indulgence to the petitioner at this stage. Sufficient opportunities have already been granted to the petitioner to lead defence witness. He can not have any genuine complain in this regard.
31. I find substance in the arguments advanced by the learned counsel for the vigilance that the petitioner is in the habit of filing various petitions on frivolous grounds repeating the 34 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 34 / 47 prayers made in each of the petition with different wordings. I find from the affidavits filed on behalf of the parties that the petitioner challenged the order of sanction for prosecution in Cr.W.J.C. No. 242 of 1988 before this Court. The same was dismissed by order dated 18.11.1988. The petitioner challenged the aforesaid order before the Hon'ble Apex Court in SLP No. 176 of 1989 but, the order passed by this Court was upheld by the Hon'ble Apex Court. The petitioner again came to this Court in Cr. Rev. No. 330 of 1990 challenging his prosecution and the same was dismissed on 13.11.1990. The petitioner once again came to this Court in Cr.W.J.C. No. 267 of 1992 for quashing the prosecution on the ground of denial of right to speedy trial. The said writ petition was dismissed on 30th July, 1992.The petitioner, thereafter, filed Cr.W.J.C. No. 716 of 1996 for quashing the prosecution on the ground of undue delay. By order 27.10.97, a Bench of this Court dismissed the said writ application. The petitioner challenged the aforesaid order dated 27.10.97 in SLA (Crl.) No. 790/98 before the Apex Court. The Apex Court by order dated 12.5.98, directed to proceed with the trial on day to day basis and conclude the same on or before 31st December, 1998, failing which the proceedings would stand quashed. The prosecution filed an application for modification of the order dated 12.5.98 passed in SLA (Crl.) No. 35 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 35 / 47 790 of 1998 before the Apex Court. The Hon'ble Apex Court took note of the fact that since the petitioner was unwell and was not able to appear in court for recording of his statement under Section 313 of the Code and as such by order dated 11.12.1998 modified the earlier order dated 12.5.98 observing the following:- "if the trial does not conclude on or before 31st of December, 1998, the proceedings shall stand quashed is deleted". The petitioner filed altogether ten petitions before the Apex Court thereafter. The Apex Court took up SLP (Crl.) No. 1901 of 1999 with other nine petitions filed by petitioner and by order dated 7.9.2001 while dismissing all the applications held that the records of all these cases unequivocally reveal that the accused has tried to abuse the process of court. The petitioner failed to appear for recording of his statement under Section 313 of the Code for over two years. He ultimately appeared in the court on 19.9.2001. On 6.12.2001, he refused to answer the questions put to him under Section 313 of the Code. He filed numerous petitions even thereafter before the trial court and this court. A Division Bench of this Court vide order dated 14th July, 2004 passed in Or. Cr. Misc. No. 7 of 2004 held him guilty for criminal contempt. The order in detail has already been reproduced hereinabove. The petitioner's statement under Section 313 of the Code could be recorded only in January 36 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 36 / 47 2006. The petitioner once again tried to rake up the issue of sanction for prosecution after the evidence for prosecution and defence was closed. As noted above the writ petition being Cr.W.J.C. No. 242 of 1988 was dismissed by a Bench of this Court on 18.11.1988. By filing Cr. Misc. No. 7987 of 2012, the petitioner sought for review of the aforesaid order dated 18.11.1988. A Division Bench of this Court of which I was also a member dismissed the said application vide order dated 22.2.2012. The petitioner filed another application vide Cr. Misc. No.13030 of 2012 under Section 482 of the Code of Criminal Procedure raising the issue of sanction and observations of the Apex Court. A Bench of this Court vide order dated 28.9.2012 disposed of the said petition with a direction to the trial court to conclude the trial positively within a period of six months without granting unnecessary adjournments to any party.
32. The guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on the court and the prosecution an obligation to proceed with the trial with a reasonable dispatch. The Constitution Bench in Abudul Rehman Antulay & Ors. v R.S. Nayak & Ors since reported in 1992(1) SCC 225 has formulated certain propositions in para 86, meant to serve as guidelines. They are -
37 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
37 / 47 "(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 social 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 re-trial. 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 unduly prolonged investigation, inquiry, or trial should be minimal; and
(c) undue delay may well result in impairment 38 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 38 / 47 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 indicate 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 39 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 39 / 47 superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are 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 workload 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 too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell 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 mere speed, as its essential ingredients;40 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
40 / 47 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 persecution, 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 USA, 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 41 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 41 / 47 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 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 USA too has 42 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 42 / 47 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 ineffectuates 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". (Emphasis supplied)
33. Subsequently, seven Judges of the Apex Court in P. Ramachandra Rao v. State of Karnataka since reported in 2002 (4) SCC 578, after an exhaustive consideration of authorities on right of speedy trial observed that the dictum in A.R. Antulay Case (Supra) is correct and still holds the field. The seven Judges Bench held that it is neither advisable nor feasible nor judicially permissible to draw or prescribe an outer limit for conclusion of criminal proceedings.
34. In Ranjan Dwivedi v Central Bureau of Investigation, since reported in (2012) 8 SCC 495, the Apex Court after an exhaustive consideration of authorities on the subject 43 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 43 / 47 observed in Paras 25 to 27 as under:-
"25. Prescribing a time-limit for the trial court to terminate the proceedings or, at the end thereof, to acquit or discharge the accused in all cases will amount to legislation, which cannot be done by judicial directives within the arena of judicial law- making power available to the constitutional courts; however, liberally the courts may interpret Articles 21, 32, 141 and 142. (P. Ramachandra Rao v. State of Karnataka) The seven-Judge Bench overruled four earlier decisions of this Court on this point: Raj Deo Sharma (2) v. State of Bihar, Raj Deo Sharma (1) v. State of Bihar and Common Cause (1) v. Union of India. The time-limit in these four cases was contrary to the observations of the five-Judge Bench in A.R. Antulay. The seven-
Judge Bench in P. Ramchandra Rao v. State of Karnataka has been followed in the State through State v. Narayan Waman Nerukar and State of Rajasthan v. Ikbal Hussen. It was further observed that that it is neither advisable, feasible nor judicially permissible to prescribe an outer limit for the conclusion of all criminal proceedings. It is for the criminal court to exercise powers under Sections 258, 309 and 311 CrPC to effectuate the right to a speedy trial. In an appropriate 44 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 44 / 47 case, directions from the High court under Section 482 CrPC and Articles 226/227 can be invoked to seek appropriate relief.
26. In view of the settled position of law and particularly in the facts of the present case, we are not in agreement with the submissions made by the learned Senior Counsel Shri T.R. Andhyarujina. Before we conclude, we intend to say, particularly, looking into long adjournments sought by the accused persons, who are seven in number, that the accused cannot take advantage or the benefit of the right of speedy trial by causing the delay and then use that delay in order to assert their rights.
27. The learned Senior Counsel would tell us, please do not look at who caused the delay in completing the trial but only look at whether there is delay in completion of the trial and if it is there, please put a big "full stop" to the trial. In our view, this submission of the learned Senior Counsel cannot be accepted by us, in view of the observations of this Court in P. Ramachandra case. Before parting with the case, we should certainly give credit to our judicial officers, who have painstakingly suffered with all the dilatory tactics adopted by the accused in dragging on the proceedings for nearly thirty-seven years. 45 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013
45 / 47 They are not to be blamed at all. In fact, they do deserve appreciation while conducting such trials where one of the accused is not only Bachelor of Laws but also Bachelor of Literature. We certainly say that our system has not failed, but, the accused was successful in dragging on the proceedings to a stage where, if it is drawn further, it may snap the justice delivery system. We are also conscious of the fact that more than thirty Judges had tried this case at one stage or the other, but, all of them have taken care to see that the trial is completed at the earliest. They are not to be blamed and certainly the system has not to be blamed, but, positively, somebody has succeeded in his or in their attempt. The system has done its best, but, has not achieved the expected result and certainly, will not fit into the category of cases where (late) N.A. Palkhiwala, one of the most outstanding Senior Advocates in the country had said that "...... the law may or may not be an ass, but in India it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in a community of snails". Therefore, we say, we will not buy this argument of the learned Senior Counsel that there is systematic failure. Therefore, in our view at this stage 46 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 46 / 47 the one and the only direction that requires to be issued is to direct the learned trial Judge to take up the case on day-to-day basis and conclude the proceedings as early as possible, without granting unnecessary and unwarranted adjournments".
(Emphasis supplied)
35. In the facts of the present case, I find that the delay in holding trial has taken place due to the conduct of the petitioner. He has filed numerous petitions not only in the trial court but before this Court and the Apex Court as well. The frivolous proceedings initiated merely for delaying the trial cannot be treated as proceedings taken in good faith. If the petitioner himself is responsible for the delay in trial, he cannot take the plea of infringement of right of speedy trial.
36. In view of my aforesaid analysis, I do not find any merit in the aforesaid applications and, accordingly, the applications filed by the petitioner are dismissed. However, I may clarify that I may not be understood to have expressed any opinion on the merits of the case one way or the other and my observations must be construed as limited to the prayers made in the applications filed by the petitioner and nothing more than that. The learned Special Judge (Vigilance) shall decide the case on its own merits without being influenced by any of my observations made 47 Patna High Court CR. WJC No.65 of 2002 (37) dt.10-04-2013 47 / 47 while dismissing these cases
37. Before I conclude, I must say that there is need for speeding up the trial of the petitioner. It is in the interest of all concerned that the guilt or innocence of the petitioner be determined as quickly as possible in the circumstances. In order to make the administration of criminal justice effective, vibrant and meaningful, it is the bounden duty of the court to prevent any further delay in the matter. Once the entire process of participation is over and the only thing to be done is hearing of arguments, no excuse can be found to further delay in adjudication of the trial. The trial court is directed to take up the hearing of arguments on day to day basis and pronounce its judgment in accordance with law.
Sanjeet/-
(Ashwani Kumar Singh, J.)