Calcutta High Court
Mohanlal Khandelwal And Ors. vs The State Of West Bengal And Ors. on 20 November, 1992
Equivalent citations: (1993)1CALLT59(HC)
JUDGMENT Amal Kanti Bhattaeharji, J.
1. In this revisional application the accused petitioners pray for the quashing of a criminal proceeding against them pending in the Court of Metropolitan Magistrate, Third Court, Calcutta, The petitioners were accused of entering into a criminal conspiracy and in pursuance thereof forging three railway receipts a? genuine and inducing the complainant to part with a sum of Rs. 1,20,000/- between 4.8.75 and 19.8.75, It appears- that the criminal proceeding against the accused persons was initiated in 1975 and they were produced in custody on 6.1.76, Since then the proceeding has been continuing and after the framing of charge the P.W. 1 has been examined in part. It has been alleged that the examination of the P.W. 1 was started in January 1986 and the same is still incomplete. The solo ground for quashing, the proceedings is that there has been inordinate delay in the conduct of the proceedings and that there is no possibility of completing the same in near future. It has been argued that the indefinite prolongation of the matter has caused immense mental strain on the accused persons and that they have been put to serious mental agony on this account. The petitioners have stated that they have been deprived of prompt justice and that the same has affected their fundamental: right under Article 21 of the Constitution of India.
2. On behalf of the petitioners Mr. Debabrata Mukherjee submits that the inordinate delay in proceeding with the criminal prosecution against the petitioners speaks for itself. He relies on different decisions of the Supreme Court and other High Courts and argues that in. the present circumstances of the case the prosecution against the petitioners should be quashed. As Mr. Mukherjee has relied solely on the point of delay in this revision petition it is necessary to see how far his submission is correct.
3. The petitioners have enclosed copies of a good number of order sheets to substantiate their point that the delay caused so far for the prosecution of the case has affected their fundamental right of having a speedy trial. As stated above, four accused persons were produced in custody on 6.1.76. Since then the case was adjourned to 16.1.76, 28.1.76, 8.4.76, 27.7.76, 27.8.76, 20.11.76, 12.2,77, 19.2.77, 21.2.77, 22.2,77, 16.3.77, 1.7.3.77, 18.5.77, 25.7.77, 27.8.77,17.11.77, 30.12.77, and 20.3.78 on different grounds for concluding the investigation. On 20.3.78 challan under Section 120B/20/471, I.P.C. was submitted against the accused persons. Thereafter the case was transferred from the file of the Additional Chief Metropolitan Magistrate, to the Metropolitan Magistrate, Third court. The case was further adjourned to 28.5.78, 14.6.78 and 17.7.78 for the supply of copies of police papers to the accused persons and 14.8.78 was fixed for the consideration of charge. On that date the charge was not framed as the trying Magistrate was transferred. The matter was adjourned to 5.10.75 on which date the trying Magistrate was on leave. At last 18.11.75 was fixed for consideration charge. On 18.11.78 the date of framing of charge was again shifted as two of the accused persons were not physically present and were represented by their lawyers. Thereafter, after one adjournment on 24.12.78 the charges were framed on 19.1.79. Thereafter 19.3.79 was fixed for evidence of the prosecution. The case was further adjourned to 24.5.79 and in the mean time by an order of the High Court further proceedings of the case were stayed. Record was. received back from the High Court on 4.2.80. Thereafter several adjournments were taken on different grounds sometimes at the instance of the accused and sometimes on other grounds and at last the accused filed a revision petition before the High Court against an order of the Magistrate rejecting their prayer for discharge. Further proceedings were again stayed and the order of stay was received by the Court on 26.11.82. The record was subsequently received back from, the High Court with the direction to complete the trial of the case and dispose of the same upon evidence by final order. Notice was issued thereafter on the accused persons for their appearance. The accused persons having been found absent warrant of arrest was issued on 25.4.85. The accused persons having' been brought to Court were again granted bail. Thereafter after several adjournments one witness was heard in part on 17.1.76. The case was then adjourned to 4.4.86 and thereafter to 20.6.86 for further evidence of P.W. 1. Since then adjournments were taken on various dates in majority of the cases all the accused persons not being present together and the result is that P.W. 1 is still to be examined in full.
4. From an analysis of the above detailed estimate of adjournments it would appear that there was inordinate delay in the completion of investigation and in the matter of framing of charge. Even after the framing of charge when evidence began there were adjournments after adjournments on one or other pretext, sometimes at the prayer of the defence sometimes on account of their absence, sometimes on account of the absence of the trying Magistrate and on other different grounds. The result is that although 16 years have passed from the first appearance of the accused persons there has not been much progress in the conduct of the case.
5. Mr. Mukherjee speaking strongly for the petitioners submits that speedy trial is a fundamental right of the accused and is an essential component of his right to liberty and immunity from deprivation of personal liberty under Article 21 of the Constitution. He submits that it is the delay which matters and not necessarily the cause of delay. According to him the long continuance of a criminal proceeding for any reason brings a mental agony on the accused persons and unless there are justifiable reasons for the delay the accused should in all cases get the benefit of acquittal. He refers to a decision of the Supreme Court (S. Guin and Ors. v. Grindlays Bank Ltd.) and argues that on the basis of the principle discussed in the said decision the High Court should quash the proceedings which have been pending for about sixteen years. In the aforesaid case the accused persons were acquitted of the charge of obstructing bank officers for entering bank premises and transacting normal business. On appeal the High Court itself disagreeing with the order of acquittal ordered a retrial. The Supreme Court held that the appeal itself was pending before the High Court for six years and that although the acquittal was improper the High Court ought not to have ordered retrial considering the inordinate delay that had already been made in the disposal of the matter. The Supreme Court further considered the nature of the offence and found that the same did not warrant a retrial.
6. Another decision relied on by Mr. Mukherjee is 1989(1) CHN 538 (Mihir Kumar Ghosh v. State of West Bengal and Ors.) in which this High Court held that Article 21 of the Constitution included within its wide scope the right to speedy and better trial and that notorious delay in a criminal trial would by itself constitute a denial of justice.
7. That an expeditious trial in a criminal case is a just right of an accused has been accepted by the Courts of this country in various decisions. The question is whether such delay by itself constitutes a denial of justice to an accused. While intentional delay in which an accused contributes to the length of the trial should be ignored, a long continuance of a case without any appreciable progress can be deemed to be a negation of the right of an accused. A criminal, trial itself creates a mental strain and various provisions of the Criminal Procedure Code, therefore, point to a speedy trial. Thus in Section 309 of the Code it has been specifically provided that once evidence begins in a criminal case the same shall be continued from day to day until all the witnesses in attendance have been examined unless the Court finds the adjournments of the same beyond the following day to be necessary for reasons to be recorded. Unfortunately such a mandatory procedure is seldom observed by the lower courts. In the present case from the fact that even the deposition of one witness could not be completed although the accused persons appeared in 1976 is a deplorable fact. Avoidable delay invites other inevitable delay and the Court should therefore, try to dispose of a case at the earliest possible convenience in accordance with the provisions of law.
8. In Antulay's case (A.R. Antulay v. R..S. Nayak and Anr.) the Supreme Court has elaborately dealt with the problem of making unconscionable delay in the disposal of criminal cases and its effect on the accused in the context of his constitutional right under Article 21 of the Constitution. It has discussed all important decisions of the Supreme Court starting from A. K. Gopalaris case relating to the scope of interpretation of Article 21 of the Constitution and the marked deviation from the decision of the said case in the subsequent cases beginning with Maneka Gandhi's case . The new concept of the "law" mentioned in Article 21 has since been interpreted giving a reasonably clear idea as to its true meaning It has now been established in a good number of cases decided by the Supreme Court and accepted with encouraging development by other High Courts that right to speedy trial is a fundamental right as a component of a fair and reasonable trial. In the Supreme Court has discussed all the important previous cases touching this particular right and on an elaborate analysis of these cases has tried to formulate certain propositions as guidelines for coming to a decision as to how a delayed trial shall be considered in the background of a prayer for quashing such, a trial for such delay. It has been held that the right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. Another guideline is that while determining whether undue delay has occurred resulting in violation of the right to speedy trial all the attending circumstances including the nature of offence, number of the accused and witnesses, the workload of the court, prevailing local conditions etc. should also be gone into, the Supreme Court has rejected the suggestion that an outer limit of a certain number of years should be fixed to determine if the right to a just, fair and reasonable procedure under Article 21 has been violated. Ultimately the Supreme Court has held that the Court has to balance and weigh the several relevant factors "balancing test" or "balancing process" to determine in each case whether right to speedy trial has been denied in a given case.
9. Adverting now to the facts of the present case and applying the principles enumerated by the Supreme Court it cannot but be said that the delay in this case has caused real prejudice to the accused. While the accused were produced in custody on 6.1.76 not even one witness has yet been examined in full. Even a direction from the High Court as far back as in 1982 to complete the trial expeditiously by taking evidence has not improved the situation and the matter remains in the present condition although ten years have elapsed. Prejudice is inherent in such delay and it must be held that the accused petitioners' right to speedy trial has been affected by such delay.
10. Considering all the relevant factors I am of the opinion that further continuance of the trial would be to the prejudice of the accused and that it is a fit case where the High Court should interfere to quash the proceedings.
11. This revision, therefore, succeeds. Let the proceedings of the G. R. Case No. 684 of 1978 pending in the 3rd Court of Metropolitan Magistrate Calcutta, be hereby quashed. The accused petitioners be released from, their bail bonds and discharged.
12. At the request of the learned advocate for opposite Party No. 2 let the operation of the order be stayed for seven weeks.