State Of U.P. vs Matloob & Others
2013 Latest Caselaw 3999 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

												A.F.R.
 
Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 2476 of 2002
 
Appellant :- State Of U.P.
 
Respondent :- Matloob & Others
 
Counsel for Appellant :- A.G.A.
 
Counsel for Respondent :- Sunil Kumar,Manoj Vashisth,Sunil Vashisth
 

 
Hon'ble Dharnidhar Jha,J.

Hon'ble Pankaj Naqvi,J.

1. We have heard Sri A.K.Srivastava, learned A.G.A. on the merits of the present government appeal and Sarva Sri Sunil Kumar and Sri Sunil Vashisth learned counsel appearing for respondents.

2. We have perused the lower court records. There is no dispute in it that after the case was committed, it was transferred to Fast Track Court No.2, Ghaziabad by the learned Sessions Judge for trial. Thus, the Presiding Officer of Fast Track Court received the records of Sessions Trial No. 745 of 2001 and framed the charges on the first day of appearance of the accused persons, i.e., on 30.7.2001. It appears from the perusal of different orders passed by the trial court that neither summons nor warrant of arrest was issued for procuring the presence of witnesses by the trial court and by another order of transfer dated 211.2001, the case was made over to Fast Track Court no. 3, Ghaziabad and again we do not find any mention in the order sheet that any process had ever been issued by the court or directed to be issued by any authority for ensuring the attendance of witnesses except as appears from order passed on 5.2.2002 on which date 27.2.2002 was fixed for evidence on which date no witness was in attendance, as a result of which the next date was 14.3.2002 and on that date, the learned Trial Judge passed the order that in view of the non production and non attendance of the witnesses for the prosecution in spite of warrant of arrest against the witnesses having been handed over to the prosecution party (order does not specify the name either of the person or the authority), no witness had been produced and that the learned Presiding Judge was satisfied that the prosecution was either not interested in procuring the attendance of the witnesses or the witnesses themselves were not interested in coming to support the charge. The trial court shut down the evidence of prosecution and passed a one-line order acquitting the respondents for the charges under Section 307 and 452 IPC.

3. Speedy trial is one of the fundamental rights of the accused, but that right which was initially recognized in several cases including Common Cause-I reported in (1996) 4 SCC 33 was subsequently reconsidered in Common Cause-II reported in (1996) 4 SCC 775. Both the cases and other cases, like, that of Raj Deo Sharma Vs. State of Bihar reported in 1999(7) SCC 607 were reviewed in P.Ramchandra Rao Vs. State of karnataka reported in 2002(4) SCC 578 by the Constitution Bench of the Supreme Court and the ultimate directions of the Court were laid down in paragraph 29 of the said judgment, which are reproduced as under:-

"29-.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and (II) , the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceedings cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-

(1) The dictum in A.R. Antulays' case is correct and still holds the field.

(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulays' case , adequately take care of right to speedy trial. We uphold and re-affirm the said propositions.

(3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket 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's 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 to terminate the same and acquit or discharge the accused.

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

(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary quantitatively and qualitatively-by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act."

4. What we may find from the above judgment in P.Ramchandra Rao is that the criminal courts were not obliged to terminate the trial or criminal proceedings merely on account of lapse of time as prescribed by Common Cause -I and II and further, the criminal courts were required to exercise their own powers, such as, those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right of speedy trial. It was observed that a watchful and a diligent trial Judge can prove to be a better protector of such right than any guidelines.

5. In another decision in Niranjan Hemchandra Sashittal and another vs. State of Maharashtra reported in (2013) 4 SCC 642, the principles of speedy trial was again reiterated and it was pointed out that the right could not be such as to be always available to the accused as it was an exceptional right and the court has also to consider the impact of dropping of criminal proceedings keeping in view the impact of commission of the crime on the society and the faith of the people in judicial system.

6. We have yet another case from the State of Bihar reported in AIR 2002 SC 270, Shailendra Kumar Vs. State of Bihar, in which the 3rd Additional Sessions Judge, Gaya had in somewhat in the same manner, shut down the prosecution evidence and had acquitted the accused persons. The matter went up to the Supreme Court and the Supreme Court held that the acquittal was not sustainable on the ground that the witnesses were not produced and further held that it was within the duty of the trial Judge to take appropriate steps by issuing notice to the officer In-charge of the police station to remain physically present with witnesses in his court for the evidence of such witnesses. The Supreme Court was not referring to any provision of the Cr.P.C., but we have in our minds Section 170(2) Cr.P.C. which requires the officer In-charge of the police station by which any offence has been investigated into to obtain bonds from such persons who appear acquainted with the facts and circumstances of the case to appear before the trial court in support of the charges at the time of the trial. In our opinion the above is one such provision which may require the trial court to call upon the officer In-charge of the police station by which the case had been investigated into by issuing a notice to him, to produce the witnesses before him for their evidence. If no such notice has been issued as per the judgment of the Supreme Court in the case of Shailendra Kumar Vs. State of Bihar, AIR 2002 SC 270, then in our opinion the trial court has simply abdicated its judicial duties towards administering justice fairly, substantially and properly. Besides, we may note that Chapter-XVII of the Cr.P.C., which contains the provisions for conducting a trial of a case before the court of Sessions, may have a provision that on an application made to it, the Sessions Judge may issue an appropriate process for compelling the attendance of a witness for production of any witness, document or anything, but we cannot undermine the powers of a trial court under section 311 Cr.P.C., which also creates an obligation upon it for the just decision of the case to summon and examine witnesses. It casts a duty upon him to issue necessary processes on its own for compelling the production of the witnesses for evidence. The law is well settled that while one part of Section 311 is discretionary and once the Judge had applied its discretion, then the other part of the provision is a mandate and creates an obligation upon the Judge to ensure that his order of calling upon a person to depose in a case as a witness is carried to its logical conclusion. Even the provision of Section 230 Cr.P.C. which envisages the filing of an application before the Court of Sessions for issuance of an appropriate process for compelling the attendance of witnesses casts such duty upon a trial Judge to issue processes seeking production of witnesses before him. In our opinion no Judge who conducts the trials under Chapter XVIII or under any Chapter of the Cr.P.C. could say that the procedure or settled law does not cast upon him any duty as an authority who is to impart justice to take his own steps and make his own efforts to ensure that witnesses are produced before him and their evidence is recorded. These are some of the reasons which appear from the very scheme of the Cr.P.C. Besides, the Supreme Court decision in the case of P. Ramchandra Rao (supra) has very well stated that there could not be any time frame for closure of a case by any Court as regards the administration of justice. Even in Common Cause - II, the Supreme Court had considered the stage from which the hearing in a case starts and had noted that hearing of a criminal case starts from the date on which the charges were framed. Though, both Common Cause-I & II were overruled by P.Ramchandra Rao by theConstitution Bench of Supreme Court, but we may revert to some of the findings of that case when it was stated that no evidence should be closed down in a case prior to three years from the date of framing of the charge.

7. Coming to the case in hand we have already indicated with reference to the orders passed by the trial court that the charges were framed on 30.7.2001 and except on one date, i.e., 5.2.2002 no order was passed indicating that any process was directed to be issued against the witnesses. Not only that the Court did not seek any explanation or directed the public prosecutor or the concerned police station which was ordained to execute the warrant of arrest against the witnesses to show cause as to why it had not executed the warrant of arrest non bailable and merely just after a month and a week or so it was proceeding in the most casual manner to close the prosecution case and pass the order of acquittal.

8. We are clear in our view that the order of acquittal was not only perverse but was not supportable in law. The learned trial Judge, Sri K.C.Sharma, who was presiding over Fast Track Court-3, Ghaziabad on 14.3.2002 was passing the judgment of acquittal after closing the evidence in a manner which was not only perverse but impinged upon the judicial impropriety by virtue of abdication of functions and duties cast upon him by the laws.

9. We set aside the order dated 14.3.2002 by which the three respondents had been acquitted and direct the retrial of the respondents as per law and as per the settled principles, some of which have been referred to by us in the present judgment. The respondents must appear in the court below to face the trial. In case they do not appear before the trial court, we trust, all coercive processes shall be issued by the trial court to ensure that they are either forced to appear before it or are arrested and produced before it.

10. In our opinion the order of acquittal dated 14.3.2002 passed by the FTC-III, Ghaziabad was not only atrocious, but rather appears passed under certain influence. We, as such, require that a copy of this judgment be placed before the Hon'ble the Chief Justice with a request to initiate an appropriate action/proceedings against the officer if he still continues in the service.

11. Let the records of the trial court with a copy of this judgment be transmitted immediately and preferably within a fortnight, to the District and Sessions Judge, Ghaziabad who may allocate the case to any of the Judges for trial.

12. The government appeal is, accordingly, allowed in terms just indicated.

Order Date :- 11.7.2013

Ashish Pd.