Dhirajlal Deepchand Shah vs State Of Gujarat & 2 on 21 April, 2015

[Cites 20, Cited by 0]

Gujarat High Court

Dhirajlal Deepchand Shah vs State Of Gujarat & 2 on 21 April, 2015

Bench: J.B.Pardiwala

       R/CR.MA/20191/2014                                            CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO.
                                20191 of 2014

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1   Whether Reporters of Local Papers may be allowed to see No
    the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy of the No
      judgment ?

4   Whether this case involves a substantial question of lawNo
    as to the interpretation of the Constitution of India or any
    order made thereunder ?
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                  DHIRAJLAL DEEPCHAND SHAH....Applicant(s)
                                 Versus
                   STATE OF GUJARAT & 2....Respondent(s)
================================================================
Appearance:
MR NIRAL R MEHTA, ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3
MR LB DABHI, APP for the Respondent(s) No. 1
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           CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                  Date : 21/04/2015


                                  CAV JUDGMENT

1. Rule, Mr. Dabhi, the learned APP waives service of notice of Rule for and on behalf of the respondents.

2. By this application under Section 482 of the Code of Criminal Procedure, the applicantoriginal accused No.3 seeks to invoke the Page 1 of 18 R/CR.MA/20191/2014 CAV JUDGMENT inherent powers of this Court praying for quashing of the proceedings of the Criminal Case No.2106 of 1994 pending in the Court of the learned Additional Chief Metropolitan Magistrate, Court No.22, Ahmedabad, substantially on the ground that on account of inordinate delay in completing the trial his right of speedy trial as embodied under Article 21 of the Constitution has been infringed.

3. The applicant also seeks to challenge the legality and validity of the order dated 20th August 2014 passed by the Additional Chief Metropolitan Magistrate, Court No.22, Ahmedabad, below Exhibit 23 in Criminal Case No.2106 of 1994 by which the learned Judge rejected the application filed by the applicant for discharge.

4. The facts giving rise to this application are as under:

5. The applicant aged 70 was serving as a head clerk in the Direct Payment Branch in the Office of the District Education Officer Ahmedabad. On 15th June 1993, a First Information Report was lodged by the respondent No.2., in his capacity as the District Education Officer against the applicant herein and other coaccused for the offence alleged to have been committed between 25th October 1990 and 2nd of August 1991. The First Information Report being C.R. No.I293 of 1993 was lodged for the offence punishable under Sections 409, 420, 465 read with Section 114 of the Indian Penal Code.

6. It is the case of the prosecution that a coaccused running a school availed of payment towards salary of the staff and maintenance for the period between 1.7.1986 and 31.3.1989 twice in collusion with the other accused. It is the case of the prosecution that the school was paid salary/maintenance grant of Rs.4,38,500/ vide order dated 26th March 1989. However thereafter again on 19th June 1991, a bill was produced Page 2 of 18 R/CR.MA/20191/2014 CAV JUDGMENT for the very same period i.e. 1.7.1986 to 31.3.1989 and the school procured a cheque dated 2nd August 1991 for the very same amount. The First Information Report was lodged against one Mohanbahi Kapadia of the Bharat Secondary School and Employees of the DEO Office which includes the applicant herein.

7. It appears that in the FIR, the name of the applicant herein does not figure. However, in the course of the investigation, the involvement of the applicant herein, prima facie, surfaced and, therefore, chargesheet came to be filed against the applicant also. The filing of the chargesheet culminated in Criminal Case No.2106 of 1994 which as on today is pending in the Court of the learned Additional Metropolitan Magistrate, Court No.22, Ahmedabad. Thus, it appears that the school derived monitory benefit for two times of the very same amount which in fact was already paid towards the salary/maintenance grant. It appears that the case of the prosecution is that the applicant and other coemployees working in the Office of the District Education Officer are responsible for the same.

8. The applicant herein preferred a discharge application before the trial Court on 23rd June 2014, which came to be rejected vide order dated 20th August 2014.

9. The applicant being dissatisfied, has come up with this application.

10. Mr. Niral R. Mehta, the learned advocate appearing for the applicant vehemently submitted that even after a period of 21 years, there is no progress worth the name in the trial. He submitted that his client is nowhere responsible for the delay caused in conclusion of the trial. He submitted that his client is aged 70 years and is a heart patient.

Page 3 of 18 R/CR.MA/20191/2014 CAV JUDGMENT

In the past, he had suffered a brain hemorrhage and has also undergone four vessel cerebral angiography (DSA) on 19th February 2009. He submits that his client as on today is not keeping well and there is not an inch of a progress in the trial inasmuch as even charge has not been framed till this date.

11. Mr. Mehta submits that the right to speedy trial as enshrined under Article 21 of the Constitution of India, could be said to have been violated in the present case. Mr.Mehta submits that the prosecution should be quashed so far as the applicant herein is concerned, on the ground of violation of Article 21 of the Constitution of India. Mr. Mehta submits that if the Court is not inclined to quash the prosecution on the ground of violation of Article 21 of the Constitution, then the applicant deserves to be discharged as there is no case worth the name to frame charge against the applicant.

12. This application has been vehemently opposed by Mr.L.B. Dabhi, the learned APP appearing for the State. He submits that having regard to the nature of the offence, which is criminal misappropriation by a public servant, the prosecution should not be quashed solely on the ground that the trial has not commenced till this date. Mr. Dabhi pointed out that there is a prima facie, case against the applicant herein so far as his involvement in the alleged offence is concerned. He, therefore, prays that there being no merit in this application, the same be rejected.

13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the prosecution should be dropped against the applicant herein on the ground that his right to have a speedy trial as embodied under Article 21 of the Constitution could be said to have been violated.

Page 4 of 18 R/CR.MA/20191/2014 CAV JUDGMENT

14. On 9th December 2014, the following order was passed: "Issue notice to the respondents, returnable on 22 nd January, 2015. Mr. Dabhi, the learned APP, waives service of notice for and on behalf of the respondent Nos. 1 and 2.

The Registry shall call for the explanation from the learned Metropolitan Magistrate, Court No.22 as to why the case has not proceeded till date despite the fact that the chargesheet was filed way back in the year 1994. The respondents shall showcause as to why the criminal proceedings should not be quashed solely on the ground that the right of speedy trial as enshrined under Article 21 of the Constitution of India has been infringed."

15. In response to the aforesaid order passed by this Court, the Additional Chief Metropolitan Magistrate, Court No.22, Ahmedabad forwarded his report to this Court dated 5th of January 2015 which reads as under:

"I take charge of this court on 07/05/2014 prior date this case was on 23/06/14. On that day, Advocate for Accused No.1 give an application for Exemption, It was granted and on that day Discharge Application was given by Accused No.3 and it was keep pending for Hearing on next date was fixed on 02/07/2014. A photo copy of Exemption report and discharge application for your Honou'r kind perusal.

On 02/07/2014, again Adjournment application was given by the accused No.3 on ground that his Advocate is not present due to illness. Hence, the matter was adjourn for hearing of discharge application on next date 15/07/2014. A photo copy of Exemption report for your Honou'r kind perusal.

On 15/07/2014, against Adjournment application was given by the accused No.3 on ground that his Advocate is not present due to his advocate is admitted in Hospital. Hence, the matter was adjourn for hearing of discharge application on next date 28/07/2014. A photo copy of Exemption report for your Honou'r kind perusal.

On 28/07/2014 the Accused No.4 is not present and exemption application was given by her Advocate and it was granted and thereafter, Page 5 of 18 R/CR.MA/20191/2014 CAV JUDGMENT discharge application was heard both the parties and was kept for order on 20/08/2014.

On 20/08/2014, Discharge application was decided by this court and it was disposed and the same date Accused No.1 was not present hence, exemption application was given by his Advocate and it was granted and fixed the next dated on 16/09/2014 for Framing of Charge. A photo copy of Exemption report for your Honou'r kind perusal.

On 15/09/2014, Accused No.3 advocate has given for application for Adjournment because of they want to challenge the order passed by this court for Discharge application on 20/08/2014 to the Hon'ble High Court of Gujarat and it was granted hence the matter is adjourn on 30/09/2014. A photo copy of Exemption report for your kind perusal.

On 30/09/2014, an application was given on behalf of Accused No.3 for bring some certified copies and it was not make by this court office, hence, the adjournment application was granted and the matter was fixed on 07/11/2014. A photo copy of Exemption report for your Honou'r kind perusal.

On 07/11/2014, Accused No.1 is present in this Court and Accused No.3 and 4 was not present, hence, exemption application was given on behalf of Accused No.3 and 4 and on that day they have mentioned in this adjournment application that they have filed a petition in the Hon'ble High Court of Gujarat and they will produced a number of petition in next date and it was granted the matter was adjourn for Frame of Charge on 08/12/2014. A photo copy of Exemption report for your Honou'r kind perusal.

On 08/12/2014, court was on leave hence, the matter is adjourn on 30/12/2014 for Framing of Charge.

On 30/12/2014, Accused No.1 is present and Accused No.3 & 4 was not present and on behalf of Accused No.3 & 4 Advocate gave the adjournment application for adjournment due to Accused No.3 is admitted in hospital for treatment of paralysis, hence, the matter is keep pending for Framing of Charge. A photo copy of Exemption report for your Honou'r kind perusal.

Now, matter is pending for Framing of Charge on 12/01/15."

16. Thus, the plain reading of the report would indicate that the Court has not said a word regarding the events prior to 2014. There is no explanation as to what had transpired between 1994 and 2013. There is Page 6 of 18 R/CR.MA/20191/2014 CAV JUDGMENT no explanation why the trial did not proceed further. There is no explanation why even charge has not been framed till this date.

17. There are three medical certificates on record dated 18th February 2009, 9th February 2009 and 19th February 2009. It appears that in the year 2009, the applicant had suffered a brain hemorrhage, the opinion reads as under:

"Opinion: The MR findings show right medial frontal intracerebral haemorrhage, with associated subarachnoid intraventricular haemorrhage, secondary to anterior communicating and anterior cerebral arteries aneurysm. Mild changes of cerebral atrophy noted."

18. It appears that in the very same year, the applicant suffered a cardiac attack and had to undergo angiography. The discharge summary reads as under:

"A 64 years old male patient named Mr.Dhirajlal D.Shah came to Emergency Room of Shalby Hospital at 7:15 a.m. on 19.02.2009 under care of Dr.Sandeep Jhala with sudden onset of headache, vomiting and giddiness. After consultation, the patient required Four vessel cerebral angiography (DSA) which was done on 19.02.2009 by Dr.Sandeep Jhala under local anesthesia. There is no periprocedural complication. Patient is discharged on 19.02.2009 with following vitals, T - Normal, Pulse - 84/min, RR - 15 min, BP - 140/80 mm/Hg on dopamine 1.5ml/hr., SPO2 - 99% on room air. Patient to be shifted to Gayatri Heart and Medical Hospital in ambulance for further care.

19. I am told that since 2009, the health of the applicant has deteriorated to a considerable extent and as on today he is aged 70 years. Till this date, the trial Court has not been able to frame charge. I could have directed the trial Court to proceed further with the trial expeditiously and finish it of within a stipulated period of time, but it appears that despite many such orders being passed in the past in different matters the Courts have not be able to complete the trials. Nothing has been pointed out by the State that the delay has occurred Page 7 of 18 R/CR.MA/20191/2014 CAV JUDGMENT on account of any delaying tactics adopted by the applicant herein.

20. The Supreme Court in the case of State through CBI Vs. Dr.Narayan Waman Nerukar and another reported in (2002) 7 SCC 6 has observed as under:

"6. "Recently a 7Judges Bench of this Court in P. Ramachandra Rao vs. State of Karnataka held as under:(SCC pp.58788,para 1) "No person shall be deprived of his life or his personal liberty except according to procedure established by law declares Article 21 of the Constitution. 'Life and liberty', the words employed in shaping Article 21, by the founding fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Embarking upon the interpretation thereof, feeling the heartthrob of the Preamble, deriving strength from the Directive Principles of state policy and alive to their constitutional obligation, the courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and retrial in short, everything commencing with an accusation and expiring with the final verdict the two being respectively the terminus a quo and terminus ad quem of the journey which an accused must necessarily undertake once faced with an implication. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far off peak. Myriad factsituations bearing testimony to denial of such fundamental right to the accused persons, on account of failure on the part of prosecuting agencies and executive to act, and their turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate of Article 21 of the Constitution have persuaded this Court in devising solutions which go to the extent of almost enacting, by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold. In its zeal to protect the right to speedy trial of an accused, can the court devise and almost enact such bars of limitation though the Legislature and the statutes have not chosen to do so is a question of farreaching implications which has led to the constitution of this bench of sevenjudge strength."

7. It was held that the decisions in the two "Common Cause" cases and Page 8 of 18 R/CR.MA/20191/2014 CAV JUDGMENT Raj Deo Sharma v. State of Bihar and Raj Deo Sharma (II) v. State of Bihar, were not correctly decided on certain aspects. It is neither advisable nor feasible, nor judicially permissible or draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in the aforesaid four cases could not have been so prescribed or drawn and, therefore, are not good law. Criminal courts are not obliged to terminate trial of criminal proceedings merely on account of lapse of time, as prescribed by the directions made in the aforesaid cases.

8. As was observed in P. Ramchandra Rao's case (supra), at the most periods of time prescribed in those decisions can be taken by the Courts in seisin of the trial or proceedings to act as reminder when they may be persuaded to apply to their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration several relevant factors as pointed in A.R. Antulay's case (supra) and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time limits cannot and will not be treated by any court as a bar to further trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused.

9. While considering the question of delay the court has a duty to see whether the prolongation was on account of any delaying tactics adopted by the accused and other relevant aspects which contributed to the delay. Number of witnesses examined, volume of documents likely to be exhibited, nature and complexity of the offence which is under investigation or adjudication are some of the relevant factors. There can be no empirical formula of universal application in such matters. Each case has to be judged in its own background and special features if any. No generalization is possible and should be done. It has also to be borne in mind that the criminal courts exercise available powers such as those under Sections 309, 311 and 258 of the Cr.P.C. to effectuate right to speedy trial.

21. The Supreme Court in the case of Mahendra Lal Das vs. Stgate of Bihar and others reported in (2001) Cri.L.J. 4718 has observed as under:

"Abdul Rehman Antulay & Ors. v. R.S. Nayak & Anr, [ 1992] 1 SCC 225 while interpreting the scope of Article 21 of the Constitution held that every citizen has a right of speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest also. It is in the interest of all concerned that guilty or innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely, stage of Page 9 of 18 R/CR.MA/20191/2014 CAV JUDGMENT investigation, enquiry, trial, appeal, revision and retrial. While determining the alleged delay, the court has to decide each case on its facts having regard to all attending circumstances including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions, etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case. Inordinate long delay can be taken as a presentive proof of prejudice."

22. In Hussainara Khatoon's case (AIR 1979 SC 1360) (supra), the Hon'ble Apex Court gave anxious consideration to the pathetic plight of under trial prisoners languishing in jail for years together and held that any procedure which would not ensure a speedy trial could not be regarded as reasonable, fair or just and that the right of an accused to speedy trial rather 'a reasonably expeditious trial' is imbibed in Article 21 of the Constitution of India. In paragraph 5 thereunder, it was held thus : "We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India (AIR 1978 SC 597). We have held in that case that article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, far or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21."

In Abdul Rehman Antulay's case (AIR 1992 SC 1701) (supra), a Constitution Bench of the Hon'ble Supreme Court held that right to speedy Page 10 of 18 R/CR.MA/20191/2014 CAV JUDGMENT trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in S. 309, Cr. P. C. and that the said right comprehends all stages viz., investigation, inquiry, trial, appeal, revision and retrial. In paragraph 81, it was held : "81. Article 21 declares that no person shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The main procedural law in this country is the Code of Criminal Procedure, 1973. Several other enactments too contain many a procedural provision. After Maneka Gandhi v. Union of India (AIR 1978 SC 597), it can hardly be disputed that the 'law' (which has to be understood in the sense the expression has been defined in clause (3)(a) of Article 3 of the Constitution) in Article 21 has to answer the test of reasonableness and fairness inherent in Articles 19 and 14. In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary, such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatch reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. In Abdul Rehman Antulay's case (AIR 1992 SC 1701) (supra), a Constitution Bench of the Hon'ble Supreme Court held that right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in S. 309, Cr. P. C. and that the said right comprehends all stages viz., investigation, inquiry, trial, appeal, revision and retrial. In paragraph 81, it was held : "81. Article 21 declares that no person shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The main procedural law in this country is the Code of Criminal Procedure, 1973. Several other enactments too contain many a procedural provision. After Maneka Gandhi v. Union of India (AIR 1978 SC 597), it can hardly be disputed that the 'law' (which has to be understood in the sense the expression has been defined in clause (3)(a) of Article 3 of the Constitution) in Article 21 has to answer the test of reasonableness and Page 11 of 18 R/CR.MA/20191/2014 CAV JUDGMENT fairness inherent in Articles 19 and 14. In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary, such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatch reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. (Emphasis added) In paragraph 86, it was held thus : "86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are :

(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves that 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 retrial. That is how, this Court has understood this right and there is no reason to take a restricted view.

(3) The concerns underlying the right to speedy trial from the point of view of the accused are :

(a) the priod of remand and preconviction detention should be as short as possible. In other words, the accused should not be subjected to Page 12 of 18 R/CR.MA/20191/2014 CAV JUDGMENT 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 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. Nonavailability of witnesses, disappearance of evidence by lapse of time really works against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.

(5) While determining whethr indue 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 (1972) 33 Law Ed "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 (1966) 15 Law Ed in the following words :

'....... the Sixth Amendment right to a speedy trial is necessarily relative, is Page 13 of 18 R/CR.MA/20191/2014 CAV JUDGMENT consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become 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 nonasking 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 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 timelimit 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. I n 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 can before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer timelimit in spite of the Sixth Amendment. Nor do we think that not Page 14 of 18 R/CR.MA/20191/2014 CAV JUDGMENT 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."

23. In P. Ramachandra Rao's case (AIR 2002 SC 1856) (supra), a Seven Judges Bench of the Hon'ble Supreme Court held that criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. In paragraph 29 in P. Ramachandra Rao's case (supra), the Hon'ble Supreme Court upheld and reaffirmed the propositions laid down in the matter of speedy trial in Abdul Rehman Autulay's case (AIR 1992 SC 1701) (supra). It was held thus : "The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions."

In paragraph 29(5) thereunder, it was held : " The criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482, Cr. P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. "

(Emphasis added)

24. In Pankaj Kumar's case (AIR 2008 SC 3077) (supra), the Hon'ble Supreme Court even considered the question of the duty of the Court on infringement of the right to speedy trial. In the light of the aforesaid decisions of the Hon'ble Supreme Court, the contra contention of the Page 15 of 18 R/CR.MA/20191/2014 CAV JUDGMENT respondent to the petitioners' contention that right to speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India can only be a claptrap and therefore, it must fail. In short, speedy trial is undoubtely a right flowing from Article 21 of the Constitution of India.

In A. R. Antulay's case (AIR 1992 SC 1701) (supra), the Hon'ble Supreme Court observed that the very fact of being accused to a crime is a cause for concern and it affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. It is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. Right to life means right to live with full human dignity, without humuliation and deprivation or degradation of any sort. The impact of being an accused is evident from the aforequoted observations of the Hon'ble Supreme Court and therefore, there can be no doubt that the tag of 'accused' would deprive a man the right to live with full human dignity. It is these facets and factors that fetched 'fair trial' the recognition as a human right. Speedy trial is an integral part of fair trial. Therefore, I ween that right to speedy trial is also a human right and no civilized society can deny the same to an accused. Furthermore, it should always be the concern of the society to see that a real culprit is given the condign punishment at the earliest and also to see that an accused is given an early opportunity to clear the cloud of suspicion shrouded around him and to remove the tag of 'accused'. The said purpose in view that is founded on social interest could not be achieved if trial is unduly delayed as trial is the sole device to decide the guilt or innocence of an accused. Therefore, while considering the grievance of denial of speedy trial, the decision in Zahira Habibulla H. Shaikh's case (AIR 2004 SC 3114) (supra) has to be borne in mind. At the same time, the Page 16 of 18 R/CR.MA/20191/2014 CAV JUDGMENT propositions laid in the form of guidelines, as observed by the Hon'ble Supreme Court, in A. R. Antulay's case (AIR 1992 SC 1701) (supra), more particularly, the first and eighth propositions are also to be borne in mind. At the risk of repetition I may advert to and quote the said propositions. They read thus : "(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.

25. I deem fit to take cognizance of one more fact that there is a charge of Section 465 of IPC i.e. forgery, I am of the view that even if the entire case of the prosecution as accepted as true, no case of forgery is made out. The case on hand is one in which a school availed of monitory benefit in the form of salary/maintenance grant twice by placing a bill knowingly well that the amount earlier had already been disbursed. The monitory benefit was in favour of the school. Of course, the case of the prosecution is that the applicant herein and other co accused had acted in collusion with the each other.

26. I am not going into the merit of the matter because I am of the view that this is a case wherein the prosecution deserves to be dropped so far as the applicant is concerned, on the ground that his right to have a speedy trial under Article 21 of the Constitution has been infringed.

27. In the result, this application is allowed. The proceedings of Page 17 of 18 R/CR.MA/20191/2014 CAV JUDGMENT Criminal Case No.2106 of 1994, pending in the Court of the learned Additional Chief Metropolitan Magistrate, Court No.22, Ahmedabad, are hereby ordered to be quashed so far as the applicant herein is concerned, original accused No.3. All consequential proceedings pursuant thereto stand terminated. Rule is made absolute.

(J.B.PARDIWALA, J.) ali Page 18 of 18

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Gujarat High Court