It is to be kept in mind that on one hand, the right of the accused is to have
a speedy trial and on the other, the quashment of the indictment or the acquittal
or refusal for sending the matter for re-trial has to be weighed, regard being had
to the impact of the crime on the society and the confidence of the people in the
judicial system. There cannot be a mechanical approach. From the principles
laid down in many an authority of this Court, it is clear as crystal that no time
limit can be stipulated for disposal of the criminal trial. The delay caused has to
be weighed on the factual score, regard being had to the nature of the offence
and the concept of social justice and the cry of the collective.
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 50 OF 2012
Niranjan Hemchandra Sashittal
and another ... Petitioners
Versus
State of Maharashtra ...Respondent
Citation;AIR2013 SC 1682
The gravamen of grievance of the petitioners in this petition
preferred under Article 32 of the Constitution of India pertains to
procrastination in trial, gradual corrosion of their social reputation,
deprivation of respectable livelihood because of order of suspension passed
against the petitioner No. 1 during which he was getting a meagre
subsistence allowance and has reached the age of superannuation without
being considered for promotion, extreme suffering of emotional and mental
stress and strain, and denial of speedy trial that has impaired their
Fundamental Right enshrined under Article 21 of the Constitution. The
asseverations pertaining to long delay in trial have been made on the
constitutional backdrop leading to the prayer for quashment of the
proceedings of Special Case No. 4 of 1993 pending in the court of learned
Special Judge, Greater Bombay.
2. Before we proceed to state the factual score, it is necessary to
mention that this is not the first time that the petitioners have
approached this Court. They, along with others, had assailed the
order of the High Court of Bombay declining to quash the criminal
proceedings against the petitioners and others on the ground of delay
in investigation and filing of charge sheet in three special leave
petitions which were converted to three criminal appeals, namely,
Criminal Appeal Nos. 176 of 2001, 177 of 2001 and 178 of 2001. This
Court adverted to the facts and expressed the view that there was no
justification to quash the criminal prosecution on the ground of delay
highlighted by the appellants in all the appeals. However, this Court
took note of the allegations against two senescent ladies who were
octogenarians relating to their abetment in the commission of the
crime and opined that the materials were insufficient to prove that
the old ladies intentionally abetted the public servant in acquiring
assets which were disproportionate to his known sources of income and
further it would be unfair and unreasonable to compel them, who by
advancement of old age, would possibly have already crossed into
geriatric stage, to stand the long trial having no reasonable prospect
of ultimate conviction against them and, accordingly, on those two
grounds, allowed the appeals preferred by them and quashed the
criminal prosecution as far as they were concerned. The other
appeals, preferred by the public servant and his wife, stood
dismissed.
3. Be it noted, in the said judgment, while quashing the proceedings
against the two ladies, this Court referred to the decision in Rajdeo
Sharma v. State of Bihar[1] and observed that the trial was not likely
to end within one or two years, even if the special court would
strictly adhere to the directions issued by this Court in Rajdeo
Sharma’s case.
4. The facts as uncurtained are that the Anti Corruption Bureau (ACB),
after conducting a preliminary enquiry, filed an FIR on 26.6.1986
against the petitioner No. 1 who was a Deputy Commissioner in the
Department of Prohibition and Excise, Maharashtra Government, for
offence punishable under Section 5(2) of the Prevention of Corruption
Act, 1947. The lodgement of the FIR led to conducting of raids at
various places and, eventually, it was found that the petitioner, a
public servant, had acquired assets worth Rs.33.44 lakhs which were in
excess of his known sources of income. After the investigation, the
Government of Maharashtra was moved for grant of sanction which was
accorded on 22.1.1993 and thereupon, the charge-sheet was lodged
against the petitioners along with two old ladies on 4.3.1993 before
the Special Court. The offence alleged against the petitioner, the
public servant, was under Section 13(2) read with Section 13(1)(e) of
the Prevention of Corruption Act, 1988. Allegations against the
ladies were abetment for the main offences. As there was delay in
conducting the investigation and filing of charge-sheet and disposal
of certain interlocutory applications, the High Court of Bombay was
moved on 15.4.1997 for quashing of the criminal proceedings. As has
been stated earlier, the High Court declined to interfere and, hence,
all the accused persons approached this Court in appeal, wherein the
criminal case in respect of the old ladies was delinked and quashed.
5. It is asserted in this petition that after this Court disposed of the
earlier criminal appeals, charges were framed only on 15.12.2007
nearly after expiry of seven years. It is put forth that during the
pendency of the trial, the wife of the petitioner No. 1 has breathed
her last on 23.5.2008. It is averred that nearly after four years of
framing of charges, on 1.2.2011, Shri Vasant S. Shete, the
Investigating Officer, was partly examined by the prosecution and,
thereafter, the matter was adjourned on many an occasion. Despite the
last opportunity being granted by the learned Special Judge, the
Investigating Officer was not produced for examination. As pleaded,
the Investigating Officer appeared before the Special Judge on
20.7.2011 and sought further time instead of getting himself examined.
Thereafter, the matter was adjourned on 25.8.2011, 21.9.2011 and
18.10.2011 and the examination of the Investigating Officer could not
take place. On 15.11.2011, the Investigating Officer submitted a
letter to the Assistant Commissioner of Police, ACB, stating that he
had already taken voluntary retirement and due to bad health was
unable to attend the court and follow up the case. He made a request
to the ACP to appoint some other officer for prosecuting the case.
Thereafter, the Investigating Officer absented himself before the
learned trial judge to give his evidence. It is contended that
because of the said situation, the examination-in-chief of PW-1 has
not yet been completed and the other witnesses have not been produced
for examination by the prosecution. It is urged that despite prayer
made by the petitioner that the prosecution case ought to be closed
because of its inability to produce the witnesses, the learned Special
Judge has not closed the evidence. It is urged that more than ten
years have elapsed since the earlier judgment of this Court was
rendered and, therefore, the whole proceeding deserved to be quashed.
Emphasis has been laid on the loss of reputation, mental suffering,
stress and anxiety and the gross violation of the concept of speedy
trial as enshrined under Article 21 of the Constitution.
6. The stand of the State of Maharashtra, respondent No. 1, is that after
delivery of the judgment in the earlier appeals, the accused on
29.3.2001 moved numerous miscellaneous applications seeking various
reliefs and made a prayer that framing of charges should be deferred
till all the miscellaneous applications were decided. He moved the
High Court in its revisional jurisdiction and writ jurisdiction and
though the High Court did not grant stay, yet the case was adjourned
at the instance of the accused. On number of occasions, the accused
himself moved applications for adjournment and some times sought
adjournment to go out of the country to Bangkok, Thailand and
Singapore.
7. Even after the trial commenced, the accused did not cooperate and
remained non-responsive. A chart has been filed showing the manner in
which adjournments were taken by the accused at the stage of framing
of charge on the ground that the matter was pending before the High
Court. A reference has been made to the order dated 30.1.2003
directing all the accused to remain present on the next date of
hearing, i.e., 07.2.2003, for framing of charge. Reference has been
made to the orders passed wherefrom it is clear that the accused
persons had sought adjournment on the ground that writ petitions were
pending before the High Court. It is also put forth that certain
applications were filed by the accused persons seeking longer date by
giving personal reasons and sometimes on the ground of non-
availability of the counsel. It is the case of the prosecution that
because of adjournments, the charges could not be framed within a
reasonable time but ultimately, on 15.12.2007, the charges were
framed. The factual narration would further reveal that certain
miscellaneous applications were filed and they were ultimately
dismissed on 20.2.2008. On 04.4.2009, an order was passed requiring
the counsel for the accused to submit admission and denial of the
documents as per the description mentioned in the application under
Section 294 of the Code of Criminal Procedure. Some time was consumed
to carry out the said exercise. The matter was also adjourned as PW.1
had undergone an operation. On 26.8.2012, the trial Court recorded
that the witness, Shetye, was unable to attend the Court and on the
next date, i.e., 13.7.2012, the Prosecution Witness No. 1 stated that
he was suffering from mental imbalance and was not in a position to
depose and in view of the said situation, the Court directed the
prosecution to lead evidence of other witnesses on the next date.
Relying on the documents annexed to the counter affidavit, it is
contended that on most of the dates, the accused has taken adjournment
on some pretext or the other.
8. In the body of the counter affidavit, various dates have been referred
to and, computing the same, it has been stated that delay attributable
to the accused is 15.5 years and the delay in bringing the matter in
queue in the trial Court is one year. The rest of the delay is caused
as the prosecution has taken time on certain occasions and on some
dates, the learned trial Judge was on leave. In this backdrop, it has
been contended that it is not a fit case, where this Court should
quash the proceedings in exercise of powers under Article 32 of the
Constitution of India.
9. An affidavit-in-rejoinder has been filed stating, inter alia, that
applications were filed for release which were within the legal rights
and hence, the delay cannot be attributed to the accused persons. It
is urged that though number of orders have been passed, yet not a
single witness has been examined. The allegation that the accused had
gone on vacation has been seriously disputed. Emphasis has been laid
on the order dated 18.3.2005 passed by the High Court clarifying the
position that it had not granted stay and the pendency of the matter
should not be a ground to adjourn the case. It is contended that the
Investigating Officer is neither serious nor interested to see the
progress of the trial but is desirous of delaying as he is aware that
the case of the prosecution is totally devoid of merit. It is further
stated that there has been gross and unexplained delay at each stage
of the proceedings and hence, the same deserves to be quashed.
10. We have heard Dr. Rajeev Dhavan, learned senior counsel for the
petitioner, and Mr. Sanjay V. Kharde, learned counsel for the
respondent-State.
11. To appreciate the centripodal issue whether in such a case this Court,
in exercise of powers under Article 32 of the Constitution, should
quash the criminal trial on the ground of delay, it is requisite to
state that in the present petition, we are only concerned with the
time spent after 02.3.2001, i.e., the date of pronouncement of the
judgment in the earlier criminal appeals, and further the factual
matrix as already exposited shows how the delay has occurred. The
factum of delay and its resultant effect are to be tested on the basis
of the exposition of law by this Court.
12. In Abdul Rehman Antulay and others v. R.S. Nayak and another[2], a
proponement was advanced that unless a time limit is fixed for the
conclusion of the criminal proceedings, the right to speedy trial
would be illusory. The Constitution Bench, after referring to the
factual matrix and various submissions, opined that there is a
constitutional guarantee of speedy trial emanating from Article 21
which is also reflected in the Code of Criminal Procedure.
Thereafter, the Court proceeded to state as follows:-
“83. But then speedy trial or other expressions conveying the
said concept – are necessarily relative in nature. One may ask –
speedy means, how speedy? How long a delay is too long? We do
not think it is possible to lay down any time schedules for
conclusion of criminal proceedings. The nature of offence, the
number of accused, the number of witnesses, the workload in the
particular court, means of communication and several other
circumstances have to be kept in mind.”
After so stating, the Court gave certain examples relating to a
murder trial where less number of witnesses are examined and certain trials
which involve large number of witnesses. It also referred to certain
offences which, by their very nature, e.g., conspiracy cases, cases of
misappropriation, embezzlement, fraud, forgery, sedition, acquisition of
disproportionate assets by public servants, cases of corruption against
high public officials, take longer time for investigation and trial. The
Court also took note of the workload in each court, district, regional and
State-wise and the strikes by the members of the Bar which interfere with
the work schedules. The Bench further proceeded to observe that in the
very nature of things, it is difficult to draw a time limit beyond which a
criminal proceeding will not be allowed to go, and if it is a minor
offence, not an economic offence and the delay is too long, not caused by
the accused, different considerations may arise but each case must be left
to be decided on its own facts and the right to speedy trial does not
become illusory when a time limit is not fixed.
13. In the said case, in paragraph 86, the Court culled out 11
propositions which are meant to sub-serve as guidelines. The
Constitution Bench observed that the said propositions are not
exhaustive as it is difficult to foresee all situations and further,
it is not possible to lay down any hard and fast rules. The
propositions which are relevant for the present purpose are reproduced
below:-
“(5) While determining whether undue delay has occurred
(resulting in violation of Right to Speedy Trial) one must have
regard to all the attendant circumstances, including nature of
offence, number of accused and witnesses, the workload of the
court concerned, prevailing local conditions and so on – what is
called, the systemic delays. It is true that it is the
obligation of the State to ensure a speedy trial and State
includes judiciary as well, but a realistic and practical
approach should be adopted in such matters instead of a pedantic
one.
xxx xxx xxx
(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.
It has been laid down therein that it is neither advisable nor
practicable to fix any time-limit for trial of offences inasmuch as any
such rule is bound to be qualified one.
14. In Kartar Singh v. State of Punjab[3], another Constitution Bench,
while accepting the principle that denial of the right to speedy trial
to the accused may eventually result in a decision to dismiss the
indictment or a reversal of conviction, further went on to state as
follows:-
“92. Of course, no length of time is per se too long to pass
scrutiny under this principle nor the accused is called upon to
show the actual prejudice by delay of disposal of cases. On the
other hand, the court has to adopt a balancing approach by
taking note of the possible prejudices and disadvantages to be
suffered by the accused by avoidable delay and to determine
whether the accused in a criminal proceeding has been deprived
of his right of having speedy trial with unreasonable delay
which could be identified by the factors — (1) length of delay,
(2) the justification for the delay, (3) the accused's assertion
of his right to speedy trial, and (4) prejudice caused to the
accused by such delay.”
15. However, thereafter, certain pronouncements, namely, “Common Cause”, A
Registered Society through its director v. Union of India and
others[4], “Common Cause”, A Registered Society through its director
v. Union of India and others[5], Raj Deo Sharma (supra) and Raj Deo
Sharma (II) v. State of Bihar[6], came to the field relating to
prescription of outer limit for the conclusion of the criminal trial
and the consequences of such delay, being either discharge or
acquittal of the accused. The controversy required to be addressed
and, accordingly, the matter was referred to a Seven-Judge Bench in
P. Ramchandra Rao v. State of Karnataka[7] and the larger Bench by the
majority opinion, analyzing the dictum of A.R. Antulay’s case and
Kartar Singh’s case and other legal principles relating to the power
of the Legislature, the power of the Court and spectrums of
jurisdiction, recorded certain conclusions. The conclusion Nos. 3 and
4, which are pertinent for the present case, are as under:-
“(3) The guidelines laid down in A.R. Antulay case are not
exhaustive but only illustrative. They are not intended to
operate as hard-and-fast rules or to be applied like a
straitjacket formula. Their applicability would depend on the
fact situation of each case. It is difficult to foresee all
situations and no generalization can be made.
4) It is neither advisable, nor feasible, nor judicially
permissible to draw or prescribe an outer limit for
conclusion of all criminal proceedings. The time-limits or
bars of limitation prescribed in the several directions made
in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma
(II) could not have been so prescribed or drawn and are not
good law. The criminal courts are not obliged to terminate
trial or criminal proceedings merely on account of lapse of
time, as prescribed by the directions made in Common Cause
Case (I), Raj Deo Sharma Case (I) and (II). At the most the
periods of time prescribed in those decisions can be taken by
the courts seized of the trial or proceedings to act as
reminders when they may be persuaded to apply their judicial
mind to the facts and circumstances of the case before them
and determine by taking into consideration the several
relevant factors as pointed out in A.R. Antulay case 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 by
themselves be treated by any Court as a bar to further
continuance of the trial or proceedings and as mandatorily
obliging the court of terminate the same and acquit or
discharge the accused.”
[Emphasis added]
16. At this juncture, we may notice few decisions to show how the
principles laid down in Abdul Rehman Antulay (supra) and P.
Ramachandra Rao (supra) have been applied by this Court either for the
purpose of quashing of the prosecution or refusal to accede to the
prayer in that regard. In Vakil Prasad Singh v. State of Bihar[8], the
two-Judge Bench took note of factual scenario that the investigation
was conducted by an officer who had no jurisdiction to do so; that the
accused-appellant therein could not be accused of causing delay in the
trial because he had successfully exercised his right to challenge an
illegal investigation; that despite direction by the High Court to
complete the investigation within a period of three months on
7.9.1990, nothing had happened till 27.2.2007 and the charge-sheet
could only be filed on 1.5.2007 and, accordingly, opined that it was
not a case where there was any exceptional circumstance which could be
possibly taken into consideration for condoning the inordinate delay
of more than two decades in investigation and, accordingly, quashed
the proceedings before the trial court.
17. In Sudarshanacharya v. Purushottamacharya and another[9], a criminal
prosecution was launched for commission of an offence for
misappropriation and criminal breach of trust. On an application
being filed for quashing of the proceedings, the High Court declined
to quash the proceedings taking note of the fact that the accused had
also played a role in the procrastination of the proceeding and
directed that the case be heard on day-to-day basis. The matter
travelled to this Court and a contention was advanced that it would be
unfair to submit the accused-appellant to the agony of a trial after a
lapse of long time. The Division Bench referred to the principles
laid down in P. Ramachandra Rao (supra) and, further taking note of
the conduct of the accused, declined to quash the proceedings.
18. At this stage, we think it apposite to advert to another aspect which
is some times highlighted. It is quite common that a contention is
canvassed in certain cases that unless there is a speedy trial, the
concept of fair trial is totally crucified. Recently, in Mohd.
Hussain alias Julfikar Ali v. State (Government of NCT of Delhi)[10],
a three-Judge Bench, after referring to the pronouncements in P.
Ramchandra Rao’s case, Zahira Habibulla H. Shekh and another v. State
of Gujarat and others[11], Satyajit Banerjee and others v. State of
West Bengal and others[12], pointed out the subtle distinction between
the two in the following manner:-
“40 “Speedy trial” and “fair trial” to a person accused of a
crime are integral part of Article 21. There is, however,
qualitative difference between the right to speedy trial and the
accused’s right of fair trial. Unlike the accused’s right of
fair trial, deprivation of the right to speedy trial does not per
se prejudice the accused in defending himself. The right to
speedy trial is in its very nature relative. It depends upon
diverse circumstances. Each case of delay in conclusion of a
criminal trial has to be seen in the facts and circumstances of
such case. Mere lapse of several years since the commencement of
prosecution by itself may not justify the discontinuance of
prosecution or dismissal of indictment. The factors concerning
the accused’s right to speedy trial have to be weighed vis-à-vis
the impact of the crime on society and the confidence of the
people in judicial system. Speedy trial secures rights to an
accused but it does not preclude the rights of public justice.
The nature and gravity of crime, persons involved, social impact
and societal needs must be weighed along with the right of the
accused to speedy trial and if the balance tilts in favour of the
former the long delay in conclusion of criminal trial should not
operate against the continuation of prosecution and if the right
of the accused in the facts and circumstances of the case and
exigencies of situation tilts the balance in his favour, the
prosecution may be brought to an end.”
[Emphasis added]
19. It is to be kept in mind that on one hand, the right of the accused is
to have a speedy trial and on the other, the quashment of the
indictment or the acquittal or refusal for sending the matter for re-
trial has to be weighed, regard being had to the impact of the crime
on the society and the confidence of the people in the judicial
system. There cannot be a mechanical approach. From the principles
laid down in many an authority of this Court, it is clear as crystal
that no time limit can be stipulated for disposal of the criminal
trial. The delay caused has to be weighed on the factual score,
regard being had to the nature of the offence and the concept of
social justice and the cry of the collective. In the case at hand,
the appellant has been charge-sheeted under the Prevention of
Corruption Act, 1988 for disproportionate assets. The said Act has a
purpose to serve. The Parliament intended to eradicate corruption and
provide deterrent punishment when criminal culpability is proven. The
intendment of the legislature has an immense social relevance. In the
present day scenario, corruption has been treated to have the
potentiality of corroding the marrows of the economy. There are cases
where the amount is small and in certain cases, it is extremely high.
The gravity of the offence in such a case, in our considered opinion,
is not to be adjudged on the bedrock of the quantum of bribe. An
attitude to abuse the official position to extend favour in lieu of
benefit is a crime against the collective and an anathema to the basic
tenet of democracy, for it erodes the faith of the people in the
system. It creates an incurable concavity in the Rule of Law. Be it
noted, system of good governance is founded on collective faith in the
institutions. If corrosions are allowed to continue by giving
allowance to quash the proceedings in corruption cases solely because
of delay without scrutinizing other relevant factors, a time may come
when the unscrupulous people would foster and garner the tendency to
pave the path of anarchism.
20. It can be stated without any fear of contradiction that corruption is
not to be judged by degree, for corruption mothers disorder, destroys
societal will to progress, accelerates undeserved ambitions, kills the
conscience, jettisons the glory of the institutions, paralyses the
economic health of a country, corrodes the sense of civility and mars
the marrows of governance. It is worth noting that immoral
acquisition of wealth destroys the energy of the people believing in
honesty, and history records with agony how they have suffered. The
only redeeming fact is that collective sensibility respects such
suffering as it is in consonance with the constitutional morality.
Therefore, the relief for quashing of a trial under the 1988 Act has
to be considered in the above backdrop.
21. It is perceivable that delay has occurred due to dilatory tactics
adopted by the accused, laxity on the part of the prosecution and
faults on the part of the system, i.e., to keep the court vacant. It
is also interesting to note that though there was no order directing
stay of the proceedings before the trial court, yet at the instance of
the accused, adjournments were sought. After the High Court clarified
the position, the accused, by exhibition of inherent proclivity,
sought adjournment and filed miscellaneous applications for prolonging
the trial, possibly harbouring the notion that asking for adjournment
is a right of the accused and filing applications is his unexceptional
legal right. When we say so, we may not be understood to have said
that the accused is debarred in law to file applications, but when
delay is caused on the said score, he cannot advance a plea that the
delay in trial has caused colossal hardship and agony warranting
quashment of the entire criminal proceeding. In the present case, as
has been stated earlier, the accused, as alleged, had acquired assets
worth Rs. 33.44 lacs. The value of the said amount at the time of
launching of the prosecution has to be kept in mind. It can be stated
with absolute assurance that the tendency to abuse the official
position has spread like an epidemic and has shown its propensity
making the collective to believe that unless bribe is given, the work
may not be done. To put it differently, giving bribe, whether in cash
or in kind, may become the “mantra” of the people. We may hasten to
add, some citizens do protest but the said protest may not inspire
others to follow the path of sacredness of boldness and sacrosanctity
of courage. Many may try to deviate. This deviation is against the
social and national interest. Thus, we are disposed to think that the
balance to continue the proceeding against the accused-appellants
tilts in favour of the prosecution and, hence, we are not inclined to
exercise the jurisdiction under Article 32 of the Constitution to
quash the proceedings. However, the learned Special Judge is directed
to dispose of the trial by the end of December, 2013 positively.
22. The writ petition is accordingly disposed of.
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
March 15, 2013
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[1] (1998) 7 SCC 507
[2] (1992) 1 SCC 225
[3] (1994) 3 SCC 569
[4] (1996) 4 SCC 33
[5] (1996) 6 SCC 775
[6] (1999) 7 SCC 604
[7] (2002) 4 SCC 578
[8] (2009) 3 SCC 355
[9] (2012) 9 SCC 241
[10] (2012) 9 SCC 408
[11] (2004) 4 SCC 158
[12] (2005) 1 SCC 115
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