Calcutta High Court
Mulchand Agarwalla vs K.C. Kanungo And Anr. on 15 April, 1994
Equivalent citations: (1994)2CALLT283(HC), 99CWN277
JUDGMENT Arun Kumar Dutta, J.
1. A question of law of the first impression raised in this proceedings is : whether a direction issued by the High Court upon a subordinate Court to dispose of a case within a specified period is mandatory or directory; and whether failure/neglect to comply therewith makes the subsequent proceedings a nullity. The aforesaid question arises in the following facts and circumstances:
2. The petitioner-accused Mulchand Agarwalla (hereinafter referred to as accused) has been prosecuted, along with others, for having allegedly entered into criminal conspiracy with each other, and in pursuance of the said conspiracy cheating the Railway Department by despatching eight wagons of steel plates and steel plate cuttings from Chittaranjan against bogus R.R. and Forwarding Notes between the period from 23.9.69 to 15.10.70 in the names of different firms, alleged to be bogus ones, and thereby committing offences punishable under Sections 120B/420/468/471 of the Indian Penal Code, read with Section 5(2) of the Act II of 1947, for which he is facing trial before the learned Special Judge (Additional District Judge) at Asansol in Special Case No. 12 of 1978.
3. In view of the delay in the trial of the relevant case one of the accused, Sewa Singh, had previously filed a Revisional Application before this Court, being Criminal Revision No. 1882 of 1990, for quashing of the relevant proceedings for alleged infringement of his right to speedy trial. A Learned Single Judge of this Court, instead of quashing the relevant proceedings, had disposed of the said Revisional Application by judgment and order dated 20th December, 1991 directing the case record to be sent down to the court below with the specific direction upon the learned Special Judge to fix a firm date for framing of charge within one' month from the date of receipt of the case record and dispose of the case within six months from the date of framing of charge" in terms thereof for the reasons recorded therein.
4. But despite the aforesaid specific direction issued by this Court in the aforesaid judgment and order, the Learned Special Judge concerned has failed of to dispose of the case within the aforesaid period.
5. The present accused-petitioner, Mulchand Agarwalla, has thus now come up before this Court in Revision for quashing of the relevant proceedings on the ground of delay, and on the ground of the failure of the Learned Special Judge to dispose of the relevant case within the period specified by this Court under the aforesaid order. It had been strongly urged on behalf of the Petitioner that the aforesaid direction of this Court in the aforesaid Criminal Revision directing the Learned Special Judge to dispose of the relevant case within the aforesaid period was mandatory; and the failure/neglect to comply therewith has rendered the subsequent proceedings taken therein to be nullity, which is liable to be quashed.
6. The learned Advocate for the contending Opposite Party-C.B.I., on the contrary, had waxed eloquent that the aforesaid direction of this Court was directory, and the failure of the Court below to comply therewith could at the most make the relevant proceedings irregular, which could not vitiate the same so as to make it a nullity.
7. It had been submitted by both the learned Advocates for the contending parties that there is no decision on the aforesaid point raised herein from any High Court or the Supreme Court; and has, accordingly, sought for a decision from this Court on the point posed.
8. The learned Senior Advocate for the Petitioner, Mr. Pradip Ghosh, had referred to the following decisions in support of his aforesaid contention which I propose to discuss one-by-one :
(1) Jiban Kumar Banerjee and Anr. v. The State of West Bengal and Ors., 1993 (II) CHN 282 wherein it has been held that if in the contempt proceedings the contemnor is impleaded in his personal capacity, his retirement from service during the hearing of the contempt proceedings is immaterial. Where the High Court had referred a Writ Petition to the respondent to treat the same as representation and to pass a reasoned order within a time-frame clarifying; that ratio of a decision relied on by it (respondent) is inapplicable to the case, and the respondent passing order on reconsideration relying on the same decision and passing order beyond the time-frame it amounts to contempt of court. The said decision seems to have little bearing on the facts of the instant case. If the lower court had wilfully disobeyed the direction of this Court (to dispose of the relevant case within a specified period) it would indeed be guilty of disobedience of the order of this Court. But there is nothing in the aforesaid decision to suggest that the relevant proceedings would become nullity as a result of such wilful disobedience of the Court's order.
(2) Mulraj v. Murti Raghumth Maharaj, : It has been observed in this decision that an order of Injunction is generally issued to a party who is forbidden from doing certain acts. Such a party must have knowledge of the Injunction order before it could be penalised for disobeying it. The injunction order not being addressed to the Court, if the Court proceed in contravention of the injunction order, the proceedings would not be a nullity. In the case of Stay order it is addressed to the Court prohibiting it from proceeding further. As soon as the Court has knowledge of the order it is bound to obey it and if it does not, it acts illegally and all proceedings taken after the knowledge of the order would be a nullity. Unless the Court to which it is addressed has knowledge of it, it cannot deprive it of the jurisdiction to proceed with the execution before it. The Court has power under Section 151 of the Code of Civil Procedure to' set aside the proceedings taken in between the time when the stay order was passed and the time when it was brought to the notice, if it is asked to do so and it considers it necessary to do so in the interest of justice that the interim proceedings should be set aside. In terms of the aforesaid decision if a subordinate court proceeds with a case despite knowledge of stay order issued by a Superior Court all the proceedings taken thereafter would be a nullity. But if the proceedings are taken (by a subordinate court) without knowledge of a stay granted by a Superior Court the proceedings taken after the issue of the stay order could be set aside by the court concerned, if it is asked to do so and if it considers that it is necessary in the interest of justice that the interim proceedings should be set aside. In terms of the said decision proceedings taken by a subordinate court with the knowledge of prohibitory order of Stay of superior court renders the same to be a nullity. But a direction of a superior court to a subordinate court to dispose of a particular case within a specified period could hardly be deemed to be a prohibitory order, being itself a direction to do a thing within a specified period. The aforesaid decision is no authority on the point that failure/neglect to comply with such-like direction renders the subsequent proceedings taken null and void-a nullity, (3) The State of Maharashtra v. R. Mahadevan Iyer, 1992 Cr LJ 1008 : This decision deals with a case where an order had been passed by a High Court in unequivocal terms that if the trial is not completed within a certain time, the accused would stand acquited. The decision clearly is not applicable to the facts and circumstances of the relevant proceedings before us in the absence of any such direction, and is of little avail to the petitioner. There is neither any question here of such an order being reviewed, or the time so granted being extended in view of a finality of the said order.
(4) Babulal Agarwalla and Anr. v. The State, 1987 Cr LJ 1287 : It has been held in this decision that where the Judge did not allow the prayer of the Investigating Officer to investigate the case beyond the statutory period of six months, and discharged the accused after dropping the case, the order passed by him could not but be a final order. Such an order cannot be subsequently recalled by the Judge, because the Judge has got no power to review a final order in view of the bar imposed under Section 362 of the Code of Criminal Procedure. This decision does neither appear to have any bearing on the facts and circumstances of the relevant proceedings before us. There is no question of reviewing any order passed by this Court in this proceeding. The Court here has only been called upon to consider the effect on an order/direction issued by a superior court upon a subordinate court in another/separate proceedings.
(5) Mahanth Ram Das v. Ganga Das, 1992(1) SCA 294 : The Supreme Court has held here that the High Court has jurisdiction to extend the time on the application which was filed on the last day of the time fixed for payment of the deficit court fee and also under the inherent power of the court under Section 151 of the Civil Procedure Code. It has been observed that Section 148 of the Code of Civil Procedure in terms allows extension of time even if the original period has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked when the time had not actually expired. Such procedural orders, though peremptory, are in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. But in the relevant proceedings before us there is no question of extension of time. The decision is of little avail to the Petitioner as such.
9. As against the aforesaid decisions referred to by the learned Advocate for the Petitioner, the Learned Advocate for the Opposite-Party-C.B.I. had also referred to a number of decisions in support of his contention which I shall discuss while dealing with the point raised herein.
10. Before dealing with the question whether the direction of a superior court to a Subordinate court to dispose of a particular case within a specified period is mandatory or directory I would propose to deal with the principles of interpretation of Statutes for considering when the provisions of a Statute could be held to be directory or mandatory.
In Maxwell on Interpretation of Statutes, Eleventh Edition at page 362 it is stated as under :
"Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt can be entertained as to the intention; that is to say, such a requirement would be imperative."
It is further stated on page 364 that:
"The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative."
In Craies' Statute Law, Seventh Edition, at page 62 it is stated thus :
"When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory."
At page 250 it is further stated thus :
"The question whether the provisions in a statute are directory or imperative has frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at. .. .When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injustice to persons who have no control over the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable not affecting the validity of acts done."
11. The Supreme Court in Re : Presidential Election 1974, AIR 1974 SC 1682 had observed as follows:
"In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the psovision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponents, the intention of the law maker expressed in the law itself, taken as a whole"."
12. The Supreme Court in Govind Lal Chaggan Lal Fatal v. The Agriculture Produce Market Committee and Ors., had also observed thus :
"Thus the governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. In other words, the use of the word 'shall' or 'may' is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstances that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a. statute are themselves precise and unambiguous, no more is necessary than to expound these words in their natural and ordinary sense the words themselves in each case best declaring the intention of the legislature."
13. The Supreme Court in the decision in the State of Punjab v. Balbir Singh, while holding the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to be mandatory has observed as follows :
"In considering whether a provision in a statute is mandatory and the effect of non-compliance of the same, the courts should keep in mind the real intention of the legislature keeping in view the whole scope of the Act and the particular provisions to be construed in the context."
14. Their Lordships had also observed that "in the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a gazetted officer or a magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the perron to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right."
Their Lordships' went on to add :
"When such is the importance of a right given to an accused person in custody in general the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a magistrate."
In Dattatraya v. State of Bombay, , the Supreme Court has held as under :
"Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."
15. The Supreme Court in the decision in Dakhand v. Municipal Corporation, Bhopal and Anr., wherein the question was whether Rule 9(j) of Prevention of Food Adulteration Rules under which report of the public analyst has to be supplied within ten days, is mandatory or directory had held as under:
"There are no ready tests or invariable formulas to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. When the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot be statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must, be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period."
16. Having regard to the principles of interpretation of Statutes and the principles of law laid down by the Supreme Court as to when the provisions of a Statute can be held to be mandatory or directory, as discussed above, it clearly seems to me, on the same analogy and on the same principles, that in determining whether a direction of a Superior Court upon a subordinate Court would be mandatory or directory, the real intention and the broad purpose/object of such direction must be ascertained. When such direction contains language of compulsive force, the same ought to be construed as peremptory. When such direction confers valuable right to an accused, the non-compliance of which is likely to affect the safeguard given to him, resulting in prejudice to him (accused), the direction must be held to be imperative. Where, therefore, a High Court issues direction upon a subordinate court to complete the trial of a criminal case within a specified period, clearly indicating therein in unequivocal terms that if the trial is not completed within the said period the accused would stand acquitted/discharged, conferring a valuable right to the accused to be acquitted/discharged in case of non-compliance therewith, such direction must clearly be held to be mandatory. Such direction/order being final could neither be reviewed nor the time so allowed could be extended, which would amount to amendment of the final order. But where the High Court simply issues a direction upon a subordinate court to dispose of a particular case within a specified period, without anything more-without any default clause therein, viz. that the accused shall stand discharged/acquitted on the failure of the Subordinate Court to dispose of the case within the said specified period, no valuable right is conferred upon the accused, who is not likely to suffer any prejudice should the Subordinate Court fail to comply with such direction. Such direction must be held to be directory as such, and not mandatory ; though the failure/neglect of the subordinate court to comply with such direction must be held to be contrary to settled principles of judicial discipline and propriety, not affecting the validity of the acts done; making the subordinate court liable for appropriate action therefor.
17. The view so taken by me would seem to be supported by the decision in Ramanand v. State of U.P., 1992 (1) Crimes 278 where a Learned Judge of Allahabad High Court had refused to quash the relevant criminal proceedings therein on the ground of delay upon consideration of the nature of the proceedings even though the Trial Court could not conclude the trial despite an earlier direction of the Supreme Court to do so within a specified period (six months from the date of the order), presumably treating such direction of the Supreme Court to be directory, and not mandatory. I find nothing to differ from the view so taken by the Learned Single Judge in view of my foregoing discussions.
18. The following observation of the Supreme Court in Dakhand v. Municipal Corporation, Bhopal and Anr., seems worth-bearing in mind in this context:
"It is as well to realise that every prescription of a period within which an act must be done is not the prescription of a period of limitation with painful consequences if the act is not done within that period."
19. The question raised, as set out at the outset, is accordingly answered in the negative.
20. In the relevant case before us, Sunil Kumar Guin, J., in the aforesaid Criminal Revision Case No. 1882 of 1990 by another accused Sewa Singh, by the aforesaid order dated 20th December, 1991 had merely directed the Special Court to fix a firm date for framing of charge within a [Specified period and to dispose of the case within six months from the date of framing of charge in terms thereof, without anything more. The failure/ neglect of the Learned Special Judge to comply therewith, though extremely unfortunate, does not render the proceedings taken thereafter void to make it a nullity, even though the Learned Special Judge and the Bench Clerk concerned appear to be liable for appropriate action therefor. The mere fact that the Learned Special Judge could not comply with the aforesaid direction of this Court, by itself, would be no ground for quashing of the relevant proceedings, as urged by the Learned Counsel for the Petitioner.
21. Let me now consider whether the relevant proceedings could be quashed on the ground of delay, in the facts and circumstances of the relevant case.
22. It is about fourteen years that the Hon'ble Supreme Court had declared in Hussainara Khatoon, (1993) 3 SCR 169 ; 1979 Cr LJ 1086 that right to speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution of India. A series of decisions had since thereafter reaffirmed the said principle and there seems to have never been a dissenting note therefrom. A Division Bench of this Court in Ranjit Kumar Pal v. The State 1990 Cr LJ 643 had held about eleven, years thereafter that the broad interpretation of the fundamental rights guaranteed under Article 21 of the Constitution includes) the right of an accused to have speedy trial, further observing therein that the prosecution cannot have the luxury of dragging a case in a court of law for years together. It had further been held therein that long delay in the disposal of criminal proceeding prejudicially affects the defence of an accused. Administration of justice requires that the accused is entitled to have as much protection as the prosecution is entitled to. A Single Bench of the Bombay High Court in Shyam Lachmandas Ajwani v. The State of Maharashtra, 1991 Cr LJ 970, had as well held that inordinate delay and laches in the prosecution without any progress of a criminal proceedings amounts to harassment of the accused warranting interference under inherent powers of the Court. In another Single Bench decision of the Bombay High Court in R. Mahadevan Iyer v. State of Maharashtra and Anr., 1992 Cr LJ 1388, it had been held that criminal proceedings not completed even after lapse of 12 years heavily prejudiced the accused in his defence in respect of the incidents extremely' old in point of time. It had been held therein that the High Court is justified in quashing prosecution exercising its powers under Section 482 of the Code if the right to speedy trial is violated. The Orissa High Court in the decision in Rabindranath Rout v. The State of Orissa, 1992 Cr LJ 2309, had also quashed a criminal proceedings on the ground of delayed trial holding that the same constitutes denial of justice. In a Writ; Petition, being No. 268 of 1987, and a few other Criminal Appeals before the Division Bench of the Supreme Court, it was further urged on behalf of the accused that a time limit should be fixed for concluding all criminal proceedings as without such a time limit, the guarantee of right to speedy trial would remain a mere platitude. The Division Bench was of the opinion that the said contention raised a very important constitutional question which is likely to arise more often in many cases and that the decision on the question would have far-reaching consequences in a large number of criminal cases pending in Courts all over the Country. The Bench had accordingly directed the cases to be placed before a Constitution Bench. The Constitution Bench of the Supreme Court in Abdul Rehman Antulay etc. etc. v. R.S. Nayak and Anr. etc. etc., 1992 Cr LJ 2717 has held "Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances." The Court had further observed that "the provisions of the Code of Criminal Procedure provide for an early investigation and for a speedy and fair trial. If only the provisions of the Code are followed in their letter and spirit, there would be little room for any grievance. The fact, however, remains unpleasant, as it is, that in many cases, these provisions are honoured more in breach. Be that as it may, it is sufficient to say that -the Constitutional Guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions; of the Code." Their Lordships in the aforesaid decision had issued certain guidelines in regard to speedy trial in terms thereof, some of which are set out below :
(1) "One cannot ignore the fact 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 providing 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. O£ 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 ?"
(2) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. 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.
(3) 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 U.S.A. too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor it can be said that non-fixing any such outer limit ineffectuates the guarantee of Right to Speedy trial.
(4) 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."
23. Turning to the relevant proceedings before us I, note that the aforesaid Criminal Revision Case No. 1882 of 1990, had been filed by another accused Sewa Singh (not the present petitioner-accused Mulchand Agarwalla for quashing of the relevant proceedings on the ground of delay, infringing his right to speedy trial, as guaranteed by Article 21 of the Constitution of India, which was disposed of by Sunil Kumar Guin, J. by his Judgment and Order dated 20th December, 1991, as noted above. From the xerox copy of the Certified Copy of the aforesaid Judgment and Order on record, it would oddly appear that till the filing of the said Criminal Revisional Application all the Prosecution Witnesses before charge had already been examined, but the charge could not be framed against the accused person therein for various reasons. The petition of complaint in the relevant case was filed on 3rd September, 1976. Between 6.6.77 and 14.3.80, the prosecution had examined 36 witnesses before charge, and the case was fixed for consideration of charge on 24.4.80. On perusal of the order-sheets of the relevant case record, the Learned Judge had found that the delay during the last 10 years was "attributable to the acts and conduct of the accused persons". The relevant case was fixed for consideration) of charge on a number of days since 24.4.80 but the matter could not be taken up for the purpose primarily because one or the other accused had remained absent on the dates fixed for the purpose. The Learned Judge had further held that the relevant case could not be taken up for consideration of charge due to persistent absence of one or the other accused on dates fixed for the purpose; and the major part of the delay in the disposal of the relevant case is attributable to the acts and conduct of the accused persons. It has further been observed that at least some of the accused persons had made deliberate attempts to delay the disposal of the case, and they had been successful to some extent in their said endeavour. But despite the aforesaid findings that it was the accused persons who had contributed to the delay in the trial of the relevant case, the learned Single Judge (in the aforesaid Criminal Revision Case No. 18,82 of 1990) had preferred to fix a time schedule for, the conclusion of the trial. The Learned Judge by his aforesaid order dated 20th December, 1991 had accordingly directed the Learned Special Judge to fix a firm date for framing of charge within one month from the date of receipt of the case record....... .and dispose of the case within six months from the date of framing charge in terms thereof.
24. It would pretty clearly appear from the relevant lower court record that the case record, as also the copy of the aforesaid relevant order of this Court, had been received by it (lower court) on or before 16.3.92. The Learned Special Judge concerned appears to have passed an order in the case record on 16.3.92 vacating the Stay Order in view of the aforesaid order of this Court (dated 20.12.91), and directing the Sureties of the accused persons to produce them (accused) on 5.5.92, beyond the period specified by this Court in the aforesaid order for fixing the case for consideration of charge. The Learned Special Judge concerned strangely had not cared to look to the copy of the order of this Court received by him wherein the specific directions, as indicated above, had been given to him. Had he perused the same he would have fixed the case for consideration of charge within the period specified therein. It is extremely unfortunate that the Learned Special Judge had preferred to keep his eyes closed to the order passed by this Court, giving him certain specific directions thereunder. However that may be, none of the accused persons, including the present petitioner-Mulchand Agarwalla, had been present before the Court on 16.3.92. On the date fixed for appearance of the accused on 5.5.92, "accused (3)" had appeared, and "accused (1)" on bail was absent by petition and had prayed for time. The remaining other accused persons had all been absent without any step. The Learned Special Judge by his order dated 5.5.92 had accordingly directed the Sureties of the absentee-accused to produce them on the next day on 4.6.92. The case was fixed on that day for appearance of all the accused persons and for consideration of charge. On the said adjourned date on 4.6.92, "accused (5)" had only appeared, and "accused (3)" on bail was absent by petition, and had prayed for time. On submissions of the Learned Advocates for both sides, the case was adjourned to 18.8.92 for consideration of charge. The Learned Special Judge in his said order dated 4.6.92 had further indicated that on the failure of the accused to appears before the court on the next date, warrant of arrest shall be issued against them. On the said adjourned dated on 18.8.92 as well "accused (6)" on bail had only appeared, and "accused (2)" on bail was absent by petition, who had prayed for time. The remaining other accused persons had all absented themselves even on that date, despite the previous orders passed by the Learned Special Judge, as indicated above. The Learned Special Judge by his order dated 18.8.92 had accordingly given the absentee-accused persons last opportunity to appear before the Court on 15.9.92, further indicating therein that on their failure to do so, warrant of arrest would be issued against them. He had accordingly fixed 15.9.92 for appearance of all the accused persons and for consideration of charge.
25. In 16.9.92, all the accused persons, in the long last, had appeared before the Learned Special Judge, and the case was taken up for consideration of charge long beyond the period specified in the aforesaid order of this Court dated 20.12.91. He had framed charges against them under his order dated 16.9.92 which was read over and explained to them (accused), who had pleaded not guilty thereto. The relevant case had thus been fixed for cross-examination of the P.W.s, who had been examined before charge, on 12.1.93, 13.1.93, 14.1.93 and 15.1.93 in terms thereof. The lower court record, as it is, would at once clearly indicate that since the receipt of the case record and the aforesaid order of this Court (dated 20.12.91) on 16.3.92, the accused persons had again started adopting the same old tactics of absenting themselves by rotation, one or the other, presumably under mutual arrangement amongst them, on the different dates fixed by the Court, as indicated above, so as to prevent the court from taking up the matter for consideration of charge because it was incompetent for the Learned Special Judge to frame charge against them in the absence of any one of the accused without splitting up the case in respect of the accused present by exhausting processes, against the absentee-accused. It is indeed unfortunate that the Learned Special Judge concerned had submitted to the tactics adopted by the accused persons, which they had previously adopted before filing the aforesaid Criminal Revision Case No. 1882 to 1990. The Learned Special Judge, in the circumstances of the case and in view of the specific directions given by this Court in the aforesaid order, should have issued processes for compelling the attendance of the absentee accused for taking up the matter for consideration of charge, instead of allowing them to adopt dilatory devices by absenting themselves, the way they did. The lower court record being, what it is, there could be no mistaking that it is the accused themselves who had mainly contributed handsomely to the delay in the trial of the relevant case ail-throughout, in the manner indicated above, to serve their purpose. They cannot certainly therefore, be allowed to take advantage of their own wrong, being themselves responsible for the delay caused. And, the provisions of Section 482 of the Code could neither be invoked and called in aid of such accused persons. Per contra, having regard to' the facts and circumstances of the relevant proceedings, amply and appallingly made clear above, the nature and gravity of the allegations made against the accused, and the manner in which the alleged offence had allegedly committed by them, it would, to my judgment, be in the interest of justice to compel them (accused) to face the trial which they had stalled for so long a period by adopting every conceivable means, they could. In the aforesaid circumstances, it does not seem to me that it would in the interest of justice to quash the relevant proceedings, even though there had been considerable delay in the trial of the same by the learned Special Judge, in the circumstances indicated above.
26. It would not be out of place to refer to the following recent observations of the Supreme Court in the decision in Santosh De and Anr. v. Archana Guha and Ors., :
"The facts; of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to their stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind, the principle behind Section 465 Cr PC. Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to' the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocutory stages tends to defeat the ends of justice instead of serving those: ends. It should not be that a man with enough means is able to keep the law at bay. That would mean the failure of the very system".
27. In view of the discussions above, the Revisional Application is clearly liable to fail, as it must. The same fails and is rejected accordingly. But since the relevant proceedings is pending for long, the Learned Special Judge shall seek to dispose of the same, as early as possible, preferably within a period of nine months from the date of communication of this order. Should any one of the accused fail to appear before the Court on the dates fixed for trial of the case, he (Learned Judge) shall compel his/ their (accused's) attendance before the Court by issuing processes against them. Should he (Learned Judge) fail to secure the attendance of any of the accused on the dates fixed for reasons beyond control, he shall take steps for splitting up the case in respect of the accused present by exhausting processes against the absentee-accused according, to law for trial of the accused present separately from the absentee-accused. He shall also sternly deal with the Sureties concerned for failing to produce the accused before the Court on the dates fixed by forfeiting Bail Bonds and starting appropriate proceedings against them, should any such occassion arise.
28. This Revisional Application having thus been rejected I would like to express an word of caution that the possibility of filing such-like Revisional Application/s by the remaining accused jointly or severally for quashing of the relevant proceedings on the ground of delay to stall further proceedings thereof, and to add to further delay thereto to serve their, purpose cannot be ruled out. I would only hope that in the light of the observations made by the Supreme Court in Archana Guha's case, as referred to above, the court/s concerned shall not fall prey to such-like stratagems of the accused, if there be any.
29. While parting with the matter, I would also like to add that I cannot lose sight of the fact that the learned Judge, 5th Special Court, Burdwan at Asansol, who had dealt with the relevant proceedings from 16.3.92 to 16.9.92 had failed to comply with the specific direction of this Court, contained in the aforesaid order dated 20.12.91, for reasons not disclosed in the record. The Learned Special Judge was directed thereunder to fix a firm date for framing charge within a month from the date of receipt of the case record, and to dispose of the case within six months from the dates of framing of the charge. But upon receipt of the case record, the Learned Judge by his order dated 16.3.92 had directed the Sureties of the accused persons to produce them on 5.5.92, fixing the said date for appearance of all the accused, beyond the specified period, and that too without fixing any firm date for consideration of charge, in gross violation of the aforesaid directions of this Court. Neither the Learned Judge, nor the Bench Clerk concerned of the Court (who had dealt with the relevant proceedings between 16.3.92 to 16.9.92) had even cared to look to the order of this Court, which cannot but earn frown from the Court. In view of the failure/ neglect on the part of the Learned Special Judge concerned to comply with the aforesaid specific directions of this Court dated 20.12.91 in the aforesaid Criminal Revision Case No. 1882 of 1990, and the failure/neglect of the Bench Clerk concerned to put up the matter properly before the Learned Judge, they both be hereby directed to appear before this Court on 13th May, 1994 at 10.30 A.M., and show-cause in person as to why they shall not be dealt with for Contempt of Court and/or otherwise appropriately dealt with therefor.
The Registrar, Appellate Side, High Court, is directed to immediately communicate this order to the said Learned Special Judge and the Bench Clerk concerned, who had dealt with the relevant case (Special Case No. 12 of 1976) from 16.3.92 to 16.9.92.
Let a copy of this order and the lower court record be forthwith sent down to the court below for compliance in terms of this order.