Bahadur Singh vs State Of Maharashtra
2010 Latest Caselaw 310 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
                CRIMINAL APPELLATE JURISDICTION




                                                  
                CRIMINAL WRIT PETITION NO.2129 OF 2008


    Reshma Singh D/o.Late Achal




                                                 
    Bahadur Singh, Age 35 years,
    permanently residing at Flat No.7,
    Lilly Apartment, B-Wing,
    St.John Baptist Road,
    Bandra (West), Mumbai - 400 050.                   ...Petitioner




                                       
          Versus        
    1.State of Maharashtra,
      through the Public Prosecutor,
                       
      High Court (A.S.),
      Mumbai.

    2.The Senior Inspector of Police,
      


      Anti Corruption Bureau,
      having his office at
   



      Madhuban Industrial Estate,
      Mumbai - 400 013.                                ...Respondents

                                         ......





    Mr.Subhash Jha with Ms.Janki Doshi i/b M/s.Law Global for Petitioner.

    Mr.A.S.Gadkari, A.P.P. for State.





                                         ......

                                  CORAM:- A.M.KHANWILKAR AND
                                          P.D.KODE, JJ.

JUDGMENT RESERVED ON :- OCTOBER 26, 2010.

JUDGMENT PRONOUNCED ON :- DECEMBER 21, 2010.

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JUDGMENT : (Per A.M. Khanwilkar, J.):

1. By this Petition under Article 226 of the Constitution of India, it is

prayed that the Special Case No. 39/1999 pending in the Court of Special

Judge for Greater Mumbai at Mumbai be quashed and set aside qua the

Petitioner before this Court on the ground that continuation of the said

proceedings against the Petitioner is violative of Article 21 of the

Constitution of India.

2. The relevant facts which gave rise to the filing of the present Petition

are as follows:-

a) The Petitioner alongwith her mother Smt. Mani Kaul and step

brother Vikram Kaul and one Manjit Singh Kaur who was employed as

Inspector of the State Excise Filing Squad are facing prosecution for

offences punishable under Section 13(2) read with Section 13(1)(e) of the

Prevention of Corruption Act, 1988 read with Section 109 of Indian Penal

Code instituted in the Court of Sessions for Greater Mumbai at Mumbai

being Special Case No. 39/1999.

    b)    The prosecution case against the said Manjit Singh Khera (accused





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no. 1) is that the during the period from 1st January, 1980 to 13th October,

1992 he had ill-gotten wealth and properties which were disproportionate

to his known source of income. Thus a discreet enquiry was undertaken by

the Anti Corruption Bureau, Mumbai bearing VER No. 77/1987 against the

said Manjit Singh Khera. That was commenced on 20th May, 1987. The

said discreet enquiry was converted into an open enquiry with effect from

8th December, 1987. It was numbered as VER No. 31/1987. On the basis

of the information gathered during the said enquiry raid was conducted.

c) Thereafter, FIR came to be registered on 13th October, 1992 being

C.R. No. 29/1992. The investigation was then handed over and after

completion of investigation the chargesheet came to be filed in the

concerned Court on 23rd September, 1999, after complying with the

formalities of grant of sanction to prosecute the original accused no. 1 Mr.

Manjit Singh Khera.

d) The Court after taking cognizance against the accused eventually

framed charges on 3rd December, 2007. Whereas, the examination-in-chief

of PW-1, ACP - Vilas Tupe commenced only on 12th November, 2009.

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    e)    After the charges were framed, the Petitioner rushed to this Court by




                                                                               

way of present Writ Petition on 3rd October, 2008 praying for quashing of

the criminal case pending against her on the ground that continuation

thereof would infringe her fundamental right guaranteed under Article 21

of the Constitution of India.

3. The Respondents have resisted this Petition by filing two affidavits

of Vijay D. Meru - Senior Inspector of Police dated 5th August, 2010 and 7th

October, 2010 respectively. By these affidavits the allegation in the Petition

to the effect that there has been unwarranted and oppressive delay in the

matter of investigation or before the trial Court has been refuted. Insofar

as delay in the progress of trial, it is specifically stated that it is attributable

to the accused persons themselves as on most of the occasions, the matter

was required to be adjourned at their instance.

4. The principal controversy that needs to be examined by us is whether

in the fact situation of the present case there has been delay of such nature

and magnitude, both at the stage of investigation and at the trial which

would warrant quashing of the proceedings on the ground that it has

violated fundamental right of the Petitioner guaranteed by Article 21 of the

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Constitution of India.

5. Insofar as the grievance regarding unwarranted delay in the trial, it

will have to be considered in two parts namely between the stage of filing

of chargesheet and framing of charges and secondly post framing of charges

till the institution of this Writ Petition. Insofar as no progress made before

the trial Court after institution of the Writ Petition in October 2008 much

less after recording of examination-in-chief of PW-1 on 12th November,

2009 is concerned, that is not a matter of serious debate since it is noticed

that the accused including the Petitioner has taken adjournment from time

to time on the ground of pendency of the Writ Petition before this Court.

6. Before we proceed to analyse the factual matrix of the case, it may be

apposite and useful to refer to the legal position expounded by the

Constitution Bench consisting of seven Judges of the Apex Court in the

case of P. Ramachandra Rao v/s. State of Karnataka reported in 2002 4

SCC 578. This is an authoritative pronouncement on the mandate of

Article 21 of the Constitution of India which guarantees right to speedy

trial. The opening part of the Judgment makes it amply clear that speedy

trial would encompass within its sweep all its stages including

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investigation, enquiry, trial, appeal, revision and re-trial. It is observed that

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 accusation. This decision has restated the legal position

expounded in the case of Abdul Rehman Antulay v/s. R.S. Naik (1992) I

SCC 225. In Paragraph 9, the Guidelines 8 - 11 of Antulay's case have

been re-produced, which read thus:-

"(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 time- limit for trial of offences. Any such rule is bound to be a 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

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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 USA too has

repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not 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."

These guidelines are still relevant. In Paragraph 20 of this decision

the Court had occasion to observe thus:-

"20. Several cases coming to our notice while

hearing appeals, petitions and miscellaneous petitions (such as for bail and quashing of proceedings) reveal, apart from inadequate judge strength, other factors contributing to the delay at the trial. Generally speaking,

these are : (I) absence of, or delay in appointment of, Public Prosecutors proportionate with the number of courts / cases; (ii) absence of or belated service of summons and warrants on the accused / witnesses; (iii) non-production of undertrial prisoners in the court; (iv) presiding Judges proceeding on leave, though the cases

are fixed for trial (v) strikes by members of the Bar; and

(vi) counsel engaged by the accused suddenly declining to appear or seeking an adjournment for personal reasons or personal inconvenience...."

The observations in Paragraph 21 of this decision are also useful to

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answer the controversy on hand. The same read thus:-

"21. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The

Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression.

Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every enquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has

once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same

beyond the following day to be necessary for reasons to be recorded. Explanation 2 to Section 309 confers power on the court to impose costs to be paid by the prosecution

or the accused, in appropriate cases, and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the courts. Section 258, in Chapter

XX Cr. P.C, on trial of summons cases, empowers the Magistrate trying summon cases instituted otherwise than

upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has

been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused having effect of discharge. This provision is almost never used by the courts. In appropriate case, inherent power of the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order

under the Code of Criminal Procedure or to prevent abuse of the process of any court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reasons amounting to oppression or harassment in

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any trial, inquiry or proceedings. In appropriate cases, th High Courts have exercised their jurisdiction under

Section 482 CrPC for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made

out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A. R. Antulay case referred to such power,

vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making

appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis

supplied)

7. From these observations it is amply clear that the trial Court itself has

wide powers and if the same are judiciously and consciously exercised, can

take care of almost all the situations where interference by the High Court

becomes necessary on account of delay in proceedings or for any other

reason amounting to oppression or harassment in any trial, enquiry or

proceedings. Secondly, the Court opined that even if the High Court can

exercise jurisdiction under Section 482 of Criminal Procedure Code for

quashing of First Information Report and investigation and terminating

criminal proceedings, if it were to be a case of abuse of process of law was

clearly made out. Such power can certainly be exercised on a case being

made out of breach of fundamental right guaranteed by Article 21 of the

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Constitution. Then, it will have to be shown that there has been undue or

inordinate delays in criminal matters or proceedings if they remain pending

for too long and putting an end, by making appropriate orders, to further

proceedings when they are found to be oppressive and unwarranted.

Besides, quashing of criminal action is not the only order that ought to be

passed. In a given case, the Court can pass appropriate orders so as to

direct the trial Court to judiciously and consciously exercise powers

bestowed in it by virtue of Section 309, 311 and 258.

ig This view is

reinforced by the exposition in Paragraph 28 of the same decision. After

referring to the bars of limitation enacted in Common Cause (I) and

common cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II), the

Court went on to observe thus:-

".....It must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to

violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trail has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and

unwarranted, as suggested in A. R. Antulay. In Kartar Singh case the Constitution Bench while recognizing the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state:

"92. Of course, no length of time is per se too long to

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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 of the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay." (SCC pp.639-40, para 92)." (emphasis supplied)

8. Thus, the test to be applied to examine the controversy on hand is

whether the investigation or trial as the case may be, remained pending for

such a length of time that the inordinate delay can legitimately be called

oppressive and unwarranted. The Court has to adopt the 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 proceedings has been deprived of his right of having

speedy trial with unreasonable delay.

In Paragraph 29 of the same decision the Court has recorded its

conclusion in the following words:-

"29. For all the foregoing reasons, we are of the opinion that in Common Cause case (1) [as modified in Common Cause (II)[ and Raj Deo Sharma beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an

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order acquitting or discharging the accused. In conclusion we hold:

(1) The dictum in A. R. Antulay 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. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions.

(3) The guidelines laid down in A. R. Antulay case are not exhaustive but only illustrative. They are

nor 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

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cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings

and as mandatory 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 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 CrPC and Articles 226 and 227 of the 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 to 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." (emphasis supplied)

9. Keeping the above guidelines in mind we shall now first advert to the

grievance of the Petitioner that there has been undue and unwarranted delay

at the stage of investigation itself which has infringed her right guaranteed

under Article 21 of the Constitution of India. In this context, it is alleged

that discreet enquiry was commenced on 20th May, 1987 against the accused

no.1 Manjeet Singh khera. The said discreet enquiry was converted into

open enquiry on 8th December, 1987 in relation to the ill gotten wealth and

properties which were disproportionate to the known source of income of

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the accused no. 1. The period covered under investigation was from 1st

January, 1980 to 13th October, 1992 in relation to properties worth around

Rs. 43.54 lacs. On completion of the said enquiry FIR came to be

registered on 13th October, 1992 and the investigation was completed and

culminated with filing of final report or chargesheet before the concerned

Court on 23rd September, 1999. The question is whether any explanation

has been offered by the Respondents with regard to such long time spent

from the stage of initiation of discreet enquiry on 20th May, 1987 till

registration of FIR on 13th October, 1992. This aspect has been explained

in Paraghraph - 2 of the second affidavit. It is stated as under:-

"2. I say that as per the record maintained by the Anti Corruption Bureau, the discreet enquiry with respect to

the disproportionate asset and the properties gathered by the original Accused No. 1 Mr. Manjit Singh Khera started on 20.05.1987 bearing VE.R.No. 77 of 1987. I say that the said enquiry was conducted by ACP Shri.

Shukla, then attached to the Anti Corruption Bureau. I say that on 08.12.1987 the said discreet enquiry was subsequently converted into open enquiry and the same was numbered as V.E.R. No. 31 of 1987. I say that ACP Shri. Tupe conducted the said open enquiry from

08.12.1987 to 09.10.1992 for the period from 01.01.1980 to 13.10.1992. I say that during the course of the said open enquiry, it was revealed that the said accused No. 1 Mr. Manjit Singh Khera, a public servant has purchased properties either in the names of his close relatives or in the name of co-accused in the present C. R. No. 29 of 1992. I say that after completion of the said open

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enquiry, ACP Shri. Tupe lodged FIR bearing C. R. No. 29 of 1992 on 09.10.1992 and it has been stated in the said

First Information Report that at the initial stage of FIR the original Accused No. 1 Mr. Manjit Singh Khera was having disproportionate assets to the tune of Rs.

7,91,04.64 than his known sources of income."

10. We have no hesitation in taking the view that the time spent between

20th May, 1987 till 8th December, 1987 in the discreet enquiry conducted by

the Anti Corruption Burueu, Mumbai, cannot be termed as unreasonable or

unwarranted. Obviously, on the basis of the material gathered during such

discreet enquiry, the authority thought it appropriate to convert the enquiry

into open enquiry. Going by the dates mentioned by the Petitioner it may

appear that the concerned officials took almost five years to complete the

enquiry before registration of FIR on 13th October, 1992. No doubt the

open enquiry commenced on 8th December, 1987 with registration of VER

No. 31/1987. The ACP Tupe conducted the said open enquiry from 8th

December, 1987 till 9th October, 1992. However, it cannot be overlooked

that the open enquiry was in relation to disproportionate assets of accused

no.1 which revealed that accused no. 1 purchased properties either in the

names of his close relatives or in the names of co-accused. Having regard

to the nature of enquiry, and due diligence, as the enquiry was required to

be made with regard to circular transactions between the accused persons to

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ascertain the extent of disproportionate assets belonging to the accused

no.1, it was bound to take some time. On such enquiry, the conclusion

arrived at by the officer was that the accused no. 1 possessed

disproportionate assets to the tune of Rs. 7,91,04.64 than his known source

of income. Only thereafter raid was conducted and FIR was registered on

13th October, 1992.

11. Considering the nature of enquiry undertaken and the material

required to be gathered regarding the circular transactions during such

enquiry, it is not possible to countenance the grievance of the Petitioner that

the delay in the enquiry was of such nature that it was oppressive and

unwarranted, that too qua the Petitioner who is one of the co-accused. It is

also not possible for us to take the view that there was inordinate,

unwarranted and oppressive delay during the enquiry as such.

Accordingly, this challenge of the Petitioner cannot be sustained.

12. The next question is whether the time spent between registration of

FIR on 13th October, 1992 till filing of charge sheet on 23rd September, 1999

can be said to be of such nature that it has infringed the fundamental right

guaranteed under Article 21 of the Constitution of India of the Petitioner

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before us. Insofar as this delay is concerned, it will be useful to refer to the

averments in the first affidavit in Paragraph 4 and 7, it is stated as under:

"4. I say that initially the investigation of the aforesaid crime was being carried out by Shri. Pravin More, Police Inspector, Anti Corruption Bureau from

13.10.1992 to June 1994 and thereafter it was transferred to Shri. D. Y. Dal, Police Inspector, Anti Corruption Bureau. I say that the investigation with respect to the aforesaid crime was transferred to me on 12.01.1995 and

after completion of the investigation, I submitted the final report with respect to the Competent Authority for

according sanction in the matter in the Month of March, 1998. I say that on 16.07.1998 I was transferred from Anti Corruption Bureau and chargesheet in the aforesaid

matter was filed by Shri. J. N. Ghadge, Assistant Commissioner of Police, Anti Corruption Bureau, Maharashtra State on 23.09.1999, after getting the sanction from the competent authority with respect to the Orig. Accused No. 1 Shri Manjitsingh Khera."

"7. I say that the Petitioner has filed the present petition for quashing of the Special Case No. 39 of 1999 on the ground that the same is pending for more than 10 years. I say that as per the record it appears that the

Petitioner or the other co-accused on various occasions has sought adjournments for one or the other pretext and therefore, the trial of the aforesaid Special Case has been delayed. I further say that the charge in the aforesaid Special Case No. 39 of 1999 has been framed on

03.12.2007. I further say that even after framing of the charge the petitioner and/or the other co-accused kept on seeking adjournments from the Hon'ble Special Court and the matter was protracted for no fault on the part of the prosecution. It further appears from the record that the Petitioner has filed the present petition in October 2008 and thereafter on the ground on pendency of the present petition, the Petitioner and/or the other co-

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accused sought adjournment in the matter. I say that as per the record the recording of the evidence of the

complainant Shri. Vilas Tupe is in progress and the Hon'ble Special Court has fixed the matter for recording the further evidence of the complainant Shri. Vilas Tupe

on 13.08.2010."

13. In the second reply affidavit, the Respondents have elaborated in the

following manner:

"3. I say that after lodging of FIR on 09.10.1992 by ACP Shri. Tupe, the complainant, the case was transferred to

PI Shri. More for investigation in the matter. I say that as per the record, it appears that PI Shri More conducted investigation of the said case till June, 1994. I say that in

June, 1994 investigation of the said C. R. No. 29 of 1992 was transferred to PI Shri. D. Y. Dal and he conducted the investigation upto 12.01.1995.

4. I say that the investigation pertaining to C. R. No. 29 of 1992 was transferred to me on 12.01.1995 and I

completed the investigation on 29.09.1997 and submitted my final report to the Additional Commissioner of Police, Anti Corruption Bureau, Mumbai for further action in the matter. I say that during the course of

investigation on various dates, I established the link of disproportionate assets of original Accused No. 1 such as flat Nos. 1 and 2 situated at Shalimar Garden, Aurangabad, the flat situated at Bandra, Mumbai, entries in the Bank accounts with respect to Fixed Deposits in

the names of other co-accused involved in the present case, which was revealed during the course of open enquiry conducted by ACP Shri Tupe and other related and further aspects of the investigation. I say that as stated hereinabove after completion of investigation I submitted my final report to the Additional Commissioner of Police, Anti Corruption Bureau on 29.09.1997.

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5. I say that the Additional Deputy Commissioner of

Police, Anti Corruption Bureau, Mumbai by his letter dated 02.03.1998 informed me to submit the papers with

respect to the C. R. No. 29 of 1992 to the Competent Authority to get sanction from the said Competent Authority in the matter. I say that I was transferred on 17.07.1998 from Anti Corruption Bureau to the Mumbai Police and further investigation was thereafter handed

over to ACP Shri Ghadge. I say that it further appears from the record that the Competent Authority granted sanction to prosecute the original Accused No. 1 Mr. Manjit Singh Khera on 12.02.1999 and the chargesheet in

the present matter came to be filed on 23.09.1999 before the Hon'ble Special Court, Greater Mumbai. I say that

the said chargesheet has culminated into the Special Case No. 39 of 1999."

14. It is thus noticed that after registration of FIR, investigation was

handed over to PI Shri More. He conducted investigation till June 1994.

The investigation was then transferred to PI Shri D.Y. Dal who conducted

the same until 12th January, 1995. The investigation was then transferred to

P.I. Shri V.D. Meru on 12th January, 1995 who in turn completed the same

on 29th September, 1997. This investigation resulted in establishing the

link of disproportionate assets of original accused no. 1 and the entries in

the Bank Account with respect to the fixed deposits in the names of other

accused involved in the case. The time spent for investigating matter of

such nature, from 13th October, 1992 till 29th September, 1997, cannot be

said to be oppressive or unwarranted qua the Petitioner. So long as the

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financial transactions effected by the accused no.1 were not fully

scrutinized and which enquiry or investigation would be dependent on the

information to be furnished by the bankers and others associated in such

transaction, no fault can be found with the Investigating Officer. All that

the Investigating Officer is expected to do is to complete the investigation

without unreasonable or unnecessary delay. There is no averment in the

Petition that the Investigating Officer was biased or intentionally delayed

the investigation and did not submit the final report even though the

investigation was complete much earlier. It is noticed that as soon as the

investigation was completed by the Investigating Officer, he submitted his

final report to the Additional Commissioner of Police, Anti Corruption

Bureau on 29th September, 1997. The said authority after examining the

papers on 2nd March, 1998, informed the Investigating Officer to submit

papers in respect of the case to the Competent Authority for sanction.

Accordingly, the proposal was submitted to the Competent Authority for

sanction soon thereafter. The Investigating Officer, however, was

transferred on 17th July, 1998 and the investigation was handed over to ACP

Shri Ghadge. Thereafter, the Competent Authority accorded sanction to

prosecute the original accused no.1 Mr. Manjeet Singh Khera on 12th

February, 1999. After the sanction was accorded, obviously, after

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processing the papers, the Investigating Officer presented the chargesheet

before the Special Court at Mumbai on 23rd September, 1999. The case

was registered as Special Case No. 39/1999. The time spent for processing

the final report submitted by the Investigating Officer on 29th September,

1997 initially to the Additional Commissioner of Police Anti Corruption

Bureau and thereafter to the Competent Authority who in turn accorded

sanction eventually on 12th February, 1999, the period so spent cannot be

said to be unreasonable, unnecessary or unwarranted muchless being

oppressive to the Petitioner. Similar grievance made has been negatived

by the Apex Court on the reasoning that considering the voluminous

documents involved in such cases, the approving authority or the competent

authority granting sanction, cannot be expected to rush through the process.

(See Seeta Hemchandra Shashittal vs. State of Maharashtra (2001) 4 SCC

525 paras 19 and 20). Suffice it to observe that the time spent between

September 1997 till September 1999 also cannot be considered as undue or

inordinate delay and more so being oppressive and unwarranted.

15. The next grievance is about inordinate delay in framing of the

charge. In that, although the chargesheet was filed on 23rd September,

1999, the charge has been framed only on 3rd December, 2007. It means

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that almost eight years period was spent in framing of the charge.

16. This challenge has been refuted by the Respondents in the two

affidavits. Besides those affidavits, we may usefully place reliance on the

Roznama of the trial Court which being record of the Court, the fact

mentioned therein will have to be taken as it is and would be binding on the

parties. The Roznama commences from 23rd September, 1999 when the

charge sheet was presented and marked as Exhibit 1.

                           ig                                             The Court issued

    bailable warrants against the accused persons.              We may give the gist of
                         

contents of the Roznama against the respective dates when the matter

appeared before the Court on 28th October, 1999 until 3rd December, 2007

when the charges were eventually framed.

          Date                               Gist of Particulars





     28/10/1999      All four accused remained present. Formality regarding surety
                     bond was required to be completed.





     23/12/1999      M.A. No. 960/1999 was moved. P.P. took time to file say on
                     the Application.


     13/1/2000       M.A. No. 960/1999 rejected.





                                   23                                     wp.2129.08.sxw


    7/2/2000     All four accused present. Adjourned to 2nd May, 2000.




                                                                            
    2/5/2000     A/1 and A/3 present. A/2 and A/4 exempted. Police papers




                                                    

handed over to all the accused. Acknowledgment given by A/1 on behalf of A/2 and A/4. Adjourned to 11th August, 2000 for attendance.

11/8/2000 All accused absent. Adjourned to 2nd December, 2000 for attendance.

    2/12/2000    A/1 and A/3 present.
                       ig                 A/2 and A/4 exempted. Adjourned to
                 27th March, 2001 for attendance.
                     
    27/3/2001    A/1 and A/3 present.     A/2 and A/4 exempted. Adjourned to
                 18th July, 2001 for attendance.
      


    18/7/2001    A/1 and A/3 present.     A/2 and A/4 exempted. Adjourned to
   



                 24th October, 2001.


    24/10/2001   A/1 and A/3 present.     A/2 and A/4 exempted. Adjourned to





                 13th February, 2002 for attendance.


    13/2/2002    A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to
                 10th July, 2002 for attendance.





    10/7/2002    A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to
                 12th November, 2002 for attendance.





                                  24                                     wp.2129.08.sxw


    16/7/2002    M.A. No. 64/02 filed by accused for return of National Saving

Certificate and for early hearing of the matter. Accused absent.

Application was also on board on 15th July, 2002 when no one

appeared. Court fixed the matter for framing of charge alongwith the said Application on 3rd August, 2002.

03/08/2002 Applicant-Accused present. M.A. No. 64/02 disposed of.

Special case adjourned to 12th November, 2002.

12/11/2002 Accused 1, 2 and 3 absent. A/4 present. Later on A/1 appeared. Adjourned to 24th January, 2003 for attendance.

24/1/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 16th

April, 2003 for attendance.

16/4/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 19th

July, 2003 for attendance.

19/7/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 9th October, 2003 for attendance.

9/10/2003 Court is vacant. A/1 and 3 present. A/2 and A/4 exempted.

Adjourned to 2nd January, 2004 for attendance.

                                    25                                    wp.2129.08.sxw


    2/1/2004    A/1 and A/3 present. A/2 and A/4 absent. Adjourned to 3rd

May, 2004 with order of bailable warrant against accused 2

and 4. Later on Advocates for A/2 and A/4 appeared and

applied for exemption. Order issuing bailable warrant recalled.

30/4/2004 Since 3rd May, 2004 declared public holiday. Board for 3rd May, 2004 discharged. Adjourned to 29th July, 2004.

29/7/2004 Court on leave. Board discharged. Adjourned to 7th October, 2004. ig It is noted that A/1 and A/4 absent. A/2 and A/3 present.

7/10/2004 A/2 and A/4 present. A/1 absent. Bailable warrant issued against A/1. Later on A/1 appeared. Order issuing bailable warrant recalled.

10/1/2005 A/1, A/2 and A/3 present. A/4 absent. Bailable warrant issued against A/4. Adjourned to 11th March, 2005.

12/1/2005 Cancellation of order of bailable warrant. M.A. No. 6/2005 filed by A/4 was allowed.

11/3/2005 A/1 present. A/2 to A/4 absent. Their Advocate also absent.

Conditional bailable warrants issued if the said accused failed to appear in later session. Adjourned to 13th June, 2005.

                                    26                                    wp.2129.08.sxw


    13/6/2005   A/1 to A/3 present. A/4 absent.       Exemption Application on
                his behalf filed.       The same is allowed.        A/4 exempted.




                                                                            

Adjourned to 26th July, 2005 for framing of charge.

26/7/2005 A/1 to A/3 present. A/4 absent. Advocate for defence requested for keeping back. Later on Advocate for A/4 filed

Application for exemption. That was granted. Adjourned to 30th September, 2005 for framing charge.

30/9/2005 All accused present. Kept back at the request of defence.

Later on defence Advocate made Application for longer date

for the grounds mentioned in the Application. Adjourned to 3rd December, 2005.

3/12/2005 All accused present. IO absent. Adjourned to 27th January, 2006 to keep IO present alongwith detail charge.

27/1/2006 Investigating Officer present. All accused present. At the request of IO adjourned to 5th April, 2006 for framing of charge.

5/4/2006 All accused present. Investigating Officer present. At the request of prosecution for framing of charge and considering the pending old assets cases of the earlier year, adjourned to

17th June, 2006.

                                     27                                  wp.2129.08.sxw


    17/6/2006    All four accused present. IO absent. Defence Advocate absent.

Later on defence advocate appearing as regular PP attended

the case and IO absent. Adjourned to 29th July, 2006 for

framing of charge.

29/7/2006 All accused present. Defence advocate absent. IO absent.

Since it is assets case and considering the pending old assets cases, FSI cases prior to year 1997 adjourned to 7th October, 2006.

7/10/2006 All accused present. Defence Advocate absent. Investigating

Officer absent. It been assets case, considering the old assets cases, forgery cases and FSI cases prior to 1997, adjourned to

20th December, 2006.

20/12/2006 IO present. All accused present. As Court was busy in

dictating Judgment in another case and considering the

pending FSI and old assets cases of the year 1989, 1990 and 1992, adjourned to 17th March, 2007.

17/3/2007 A/1 to A/3 present. A/4 absent. Adjourned to 12th April, 2007 for charge.

12/4/2007 All accused present. Advocate for accused absent. Application

for adjournment filed by accused Exhibit 8. Court records that the cases being old cases, last chance granted. Adjourned to 29th May, 2007 at the request of accused.

28 wp.2129.08.sxw

29/5/2007 All accused present. IO absent. At the request of prosecution, adjourned to 25th June, 2007.

25/6/2007 All accused absent. Finally adjourned to 2nd July, 2007. Later on all accused present. Advocate for accused absent. Time given to prosecution to reply to M.A. No. 333/2007.

Adjourned to 2nd July, 2007.

2/7/2007 Accused No. 4 absent. Exemption granted. Time given to

State to file reply to the Applications. Adjourned to 16th July, 2007.

16/7/2007 All accused present. IO present. At the request of Advocate

for accused adjourned to 30th July, 2007 for hearing on M.A.

30/7/2007 All accused present. IO present. Adjourned to 10th August,

2007.

10/8/2007 All accused present. Advocate for accused absent. IO absent.

APP directed to file draft charge. Accused directed to keep

their Advocate present on the next date. Adjourned to 27th August, 2007.

27/8/2007 All accused present. IO absent. Head Constable Ghag

attached to ACB present. APP directed to file draft charge before 28th September, 2007.

                                    29                                     wp.2129.08.sxw


     28/9/2007    All accused present. IO absent. HC Ghag attached to ACB
                  present.      Advocate informed Court that Application for




                                                                             

discharge filed by accused no.2 is pending before the Court.

Hearing on the said Application kept on 4th October, 2007. No further adjournment.

4/10/2007 All accused present. IO present. As advocate for accused not present, kept back. Later on Application for discharge partly heard. Kept on 15th October, 2007 for further hearing.

15/10/2007 All accused present. IO absent till 1.20 p.m. At the request

of APP hearing on discharge application adjourned to 23/10/2007.

23/10/2007 Accused 2-4 present. IO present. Hearing on discharge Application proceeded. Adjourned to 31st October, 2007 for

hearing on citation.

31/10/2007 All accused present. Discharge Application is dismissed. Case adjourned for framing charge to 12th November, 2007.

12/11/2007 All accused present. Time to file draft charges extended till 3rd December, 2007.

3/12/2007 All accused present. Charge framed against all accused.

Adjourned to 13th December, 2007. (emphasis supplied)

17. Considering the movement of the case before the trial Court as is

30 wp.2129.08.sxw

reflected from the Roznama, it is unfathomable that the prosecution can be

said to be responsible for the delay in framing of charge. The time taken

for framing of charge after filing of chargesheet on 23rd September, 1999 till

the charge was framed on 3rd December, 2007, the matter was adjourned

mostly because of the absence of one or the other accused. Besides, it was

adjourned also because the Court felt that there were other older cases than

the present case to be dealt with by that Court. Out of several

adjournments, the number of adjournments caused on account of non-

appearance of Investigating Officer or at the instance of prosecution are

quite insignificant. Even if the prosecution is to be blamed for taking those

adjournments, it is not possible to take the view that the delay caused on

account of such adjournments was such that it can be legitimately called as

oppressive and unwarranted qua the accused or the Petitioner before us. It

is certainly not unreasonable delay and there is good justification for the

time spent till the charges were framed by the Court.

18. To get over this position, it was argued that insofar as the present

Petitioner is concerned, she cannot be penalised for the adjournments

caused on account of non-appearance of co-accused. The present

Petitioner is accused no. 4. The gist of roznama as is elaborately referred

31 wp.2129.08.sxw

to, it is not as if the Petitioner was present on all the occasions. The

Petitioner being accused no. 4, did not remain present on several occasions.

Indeed, she was exempted by the Court on Application made in that behalf.

The prosecution cannot be blamed for the adjournments caused on account

of the absence of the Petitioner as well. Suffice it to observe that on

analysing the contents of the Roznama between 23rd September, 1999 until

3rd December, 2007 it is not possible for us to take the view that in the

present case the length of time is such that it is inordinate delay and can be

legitimately called as oppressive and unwarranted qua the accused

muchless the Petitioner before us. In any case, mere delay, by itself,

cannot be the basis to quash the proceedings. The Court can exercise

judicious discretion and pass such other appropriate order including to

direct the trial Court to exercise powers conferred on it by virtue of

provisions amongst others Sections 309, 311 and 258 of the Code. It is

certainly not a matter for quashing of prosecution as such.

19. The next grievance of the Petitioner is that although charge has been

framed as back as on 3rd December, 2007, the trial did not make any

semblance of progress. As noticed earlier, this Writ Petition has been filed

on 3rd October 2008. In other words, the grievance of the Petitioner

32 wp.2129.08.sxw

regarding no progress made in the trial will have to be considered for the

period between 3rd December, 2007 and 3rd October, 2008. Once again, we

will have to revert back to the Roznama. The same spells out the manner in

which the trial progressed from 3rd December, 2007. As aforesaid, the

charge was framed on 3rd December, 2007 and the case was adjourned to

13th December, 2007. We would now refer to the events which unfolded

after 13th December, 2007 as can be culled out from the Roznama.

                                        
       Date
                        ig           Gist of Particulars

13/12/2007 A/1, 3 and 4 present. A/2 absent. Advocate for all accused

absent. IO present. Medical Certificate of A/2 submitted by A/3. A/2 exempted from personal appearance for a day. A/2 directed to remain present on the next date. Case

adjourned to 10th January, 2008.

10/1/2008 A/1, 3, 4 present. A/2 absent. APP applied for further time to comply with earlier directions as Office was on sick leave.

Time granted till 28th January, 2008. Case adjourned to 28th January 2008.

28/1/2008 All accused present. Kept back till 2.30 p.m. Again till 3.00 p.m. IO held up in Sewri Court. Time to comply earlier direction extended till 4th February, 2008.

     4/2/2008     A/1 and 3 present. A/2 and 4 absent. Advocate for accused





                                  33                                        wp.2129.08.sxw

absent. IO present. APP filed list of witnesses. Witness summons issued. List of documents taken on record.

Application filed by APP under Section 294 Cr.P.C. Defence

Advocates called upon to admit or deny the documents before 25/2/2008. APP filed application along with the list of original. Case adjourned to 3rd March, 2008 on the

application of accused as Advocate has gone abroad.

3/3/2008 All accused present. IO absent. Summons issued to IO.

Returnable 10th March, 2008.

10/3/2008

A/1 and 3 present. A/2 and 4 absent. IO absent. APP applied for issuance of bailable warrant against IO. Adjourned 24th

March, 2008.

24/3/2008 A/1, 2 and 4 present. A/3 absent. IO present. APP filed list of articles. Prosecution permitted to produce articles during

the stage of recording of evidence. Accused told to engage

Advocates and keep them present on the next date without fail. Adjourned to 7th April, 2008.

7/4/2008 All accused present. Case adjourned to 13th May, 2008. Last chance given to accused to keep their Advocate present.

29/4/2008 Writ from High Court in Criminal Application placed before

the Judge noted and sent back to the Department.

13/5/2008 Court is on leave. All accused present. IO present. Case adjourned to 16th June, 2008.

16/6/2008 Court is vacant. All accused present. Case adjourned to 5th

34 wp.2129.08.sxw

July 2008.

5/7/2008 All accused present. Advocate for accused absent. Witnesses absent. Adjourned to 1st August, 2008 for evidence.

1/8/2008 All accused present. Advocate for accused absent. At the request of A/1 to 4, adjourned to 6th October, 2008.

(emphasis supplied)

20. Going by the contents of the Roznama for the relevant period

between 3rd December, 2007 and 3rd October, 2008 when the present Writ

Petition came to be filed, it is not possible to take the view that it is a case

of inordinate delay at any stage, muchless which is oppressive and

unwarranted qua the Petitioner. It is not in dispute that the recording of

evidence has commenced with the examination-in-chief of PW 1 on 12th

November, 2009. But because of the pendency of the present proceedings,

it is the Petitioner who has been taking adjournments before the Trial Court,

which fact, is conceded by the Petitioner in the rejoinder affidavit.

21. Suffice it to observe that neither the prosecution nor the Court can be

said to be responsible for the situation after the framing of charge on 3 rd

December, 2007 until the filing of the present Petition.

35 wp.2129.08.sxw

22. As is noticed earlier, before filing this Petition, the accused filed

three Miscellaneous Applications for discharge which kept the Trial Court

engaged. The recording of evidence obviously could not proceed on

account of pendency of those Applications. In any case, it is not possible to

countenance the grievance of the Petitioner that the time spent between 3rd

December, 2007 till 3rd October, 2008 was so unreasonable or unnecessary

that it had the effect of causing oppression to the Petitioner. There is good

justification for the time spent between this period. Neither the prosecution

nor the Court, can be blamed for this situation. Assuming that it was a case

of resulting in oppression to the Petitioner, that by itself, cannot be the basis

to straight away quash the proceedings. The Court has to exercise judicious

discretion on case-to-case basis and after taking into account totality of

circumstances, instead, can issue appropriate directions or make appropriate

order requiring the Trial Court to ensure that the trial proceeds

expeditiously.

23. Although, the Petitioner has not amended the present Writ Petition so

as to assert that even during the pendency of the present Petition since 3rd

October, 2008, the fundamental right of the Petitioner guaranteed under

Article 21 of the Constitution has been infringed, however, feeble attempt

36 wp.2129.08.sxw

was made by the Counsel for the Petitioner to persuade us to take the view

that even time spent in this Court in pursuing the present matter may be

reckoned in deciding the controversy on hand. As is noticed earlier, the

Petition has been filed on 3rd October, 2008. The same came up for

admission on 18th November, 2008 and the Court after hearing the

arguments, admitted the matter but declined to grant any interim relief.

Against refusal to grant interim relief, the Petitioner carried the matter

before the Apex Court by way of SLP (Cri.) 11/2009, which however, was

disposed of on 6th April, 2009 with request to the High Court to dispose of

the Writ Petition expeditiously. No doubt, soon thereafter, the Petitioner

moved Criminal Application before this Court for early hearing of the Writ

Petition which was disposed of on 15th April, 2009 with direction to place

the Writ Petition for final hearing on 23rd April, 2009. Since the matter did

not reach for hearing, it was once again circulated on 22nd June, 2009.

Petitioner's request for taking up the Writ Petition for hearing was acceded

to. The Petition was taken up for hearing on 24th June, 2009, but was

required to be adjourned to 9th July, 2009 to enable the State to file reply

affidavit. Thereafter, since the matter could not be taken up for hearing, the

Petitioner did make attempt to circulate it from time to time. The matter

was taken up for hearing on 21st January, 2010 but was adjourned to 27th

37 wp.2129.08.sxw

January, 2010 and compilation filed by the Petitioner was taken on record.

When the matter thereafter reached for hearing on 30th March, 2010, none

appeared for the Petitioner. Even though Rule was already granted, the

Court directed it to be placed under caption admission on 13 th April, 2010.

It appears that the Petitioner caused the matter to be circulated and on 8 th

April, 2010, the Court ordered that the matter be placed for final hearing in

the week commencing from 26th April, 2010. Thereafter, the matter was

taken up for hearing on 19th July, 2010 when the Court thought it

appropriate to call for the certified copy of the Roznama of the Trial Court

for the relevant period. Accordingly, the hearing was deferred to 11th

August, 2010 and thereafter, to 26th August, 2010.

24. On 26th August, 2010, when the matter appeared before our Bench for

the first time, we were informed that the Advocate for the Petitioner is busy

with some other case before the Apex Court and request for adjournment

was made. Accordingly, the matter was adjourned to 9th September, 2010.

However, on 2nd September, 2010, the matter was got produced before us

with request to adjourn the matter beyond 9th September, 2010 on the

ground that the Counsel for the Petitioner was in personal difficulty on 9th

September, 2010. Accordingly, the hearing was deferred to 27th September,

38 wp.2129.08.sxw

2010, which was the available date. On 27th September, 2010, after hearing

the Counsel for the parties, in deference to the observation made by the

Court, the learned A.P.P. sought time to file further affidavit. That liberty

was given by us. The matter then appeared on 8th October, 2010 and was

ordered to be placed for hearing on 26th October, 2010 after the additional

affidavit was filed in the Registry. Accordingly, the matter proceeded for

hearing on 26th October, 2010 and was closed for orders. The Counsel

appearing for the parties asked for time to file written submissions until 30th

October, 2010 which request was accepted.

25. Even going by these dates, it is unfathomable that the prosecution or

for that matter the Court can be blamed for the delay in the final disposal of

the Writ Petition. As aforesaid, the Petitioner has not chosen to amend the

Writ Petition to make out such ground. Even if we were to consider this

grievance, we would straight away reject the argument of the Petitioner that

the delay occurred on account of pendency of Writ Petition from 3rd

October, 2008 has resulted in infringement of her fundamental right

guaranteed under Article 21 of the Constitution. As noticed earlier, citing

the pendency of Writ Petition in this Court, the Petitioner has been

successful in taking adjournments before the Trial Court during all this

39 wp.2129.08.sxw

period. Suffice it to observe that the grievance of the Petitioner of any

prejudice caused to the Petitioner during the pendency of the Writ Petition,

to say the least, is after thought and untenable.

26. We shall now refer to the other decisions on which reliance was

placed by the Petitioner to persuade us to quash the prosecution pending

against the Petitioner. Reliance was placed on the decision in the case of

Moti Lal Saraf vs. State of Jammu & Kashmir & Anr. reported in

(2006) 10 SCC 560. Indeed, in this case, the Court proceeded to quash the

criminal proceedings pending against the Petitioner therein. However, on

fair reading of this Judgment, there is no manner of doubt that the said

conclusion is based on the fact situation of that case. In that case, the

Petitioner was prosecuted for offence in connection with challan filed under

Section 173 of the Cr.P.C. on 30th April, 1981. The same was challenged by

the Petitioner by way of Criminal Petition before the High Court on the

ground that that Court had no jurisdiction to try the case for want of

sanction. The High Court agreed with the said challenge of the Petitioner.

Thereafter, the Respondents filed another challan against the Petitioner on

the same set of facts in the Court of Special Judge, Anti-Corruption,

Srinagar on 25th July, 1986. The Petitioner in the first place, got the said

40 wp.2129.08.sxw

case transferred from Srinagar to Jammu. Thereafter, he filed application

for quashing of trial on the ground that he was prosecuted without sanction.

According to the Petitioner, the successive criminal case registered against

the Petitioner was gross abuse of process of law. The High Court, however,

rejected his Petition on this occasion. It was the grievance of the Petitioner

that he was being persecuted by filing repeated challans by the

Respondents without any sanction which had caused immense mental,

physical and emotional stress and harassment for more than 26 years. The

Apex Court accepting the challenge of the Petitioner, proceeded to quash

the criminal prosecution against the said Petitioner. In other words, in the

fact situation of the said case, the Apex Court entertained the said grievance

of the Appellant before it and ordered quashing of criminal prosecution,

since the same was abuse of the process of law. Indeed, the Apex Court has

adverted to all the relevant decisions on the point including the decision of

seven Judges' Bench in P.Ramchandra Rao (supra). In our opinion, this

decision is of no avail to the Petitioner, unless the Petitioner is able to show

that it was a case of inordinate delay at any stage and which can be

legitimately called oppressive and unwarranted.

27. Reliance is also placed on another decision of the Apex Court in the

41 wp.2129.08.sxw

case of Pankaj Kumar vs. State of Maharashtra & Ors. reported in

AIR 2008 SCC 3077. In this case, the Apex Court quashed the criminal

proceedings pending against the said Petitioner on the ground of inordinate

delay which had the effect of infringing the fundamental rights guaranteed

to the Petitioner under Article 21 of the Constitution. Even this decision is

on the fact situation of that case. The main grievance of the Appellant

before the Supreme Court was that he was minor at the time of transaction

in question in the year 1981 and he could not be proceeded against for the

said offence. Further, the charge-sheet did not disclose any offence against

him and his mother. The investigation dragged on for over three years

before filing of the charge-sheet. The Apex Court analysed the facts of that

case and found that it was common ground that the FIR was recorded on

12th May, 1998 for the offence allegedly committed in 1981 and after

unwarranted prolonged investigation, charge-sheet was submitted in Court

on 22nd February, 1991. Further, nothing happened till 1999 until filing of

the Writ Petition seeking quashing of proceedings before the Trial Court.

The Apex Court then went on to record the "concession of the Counsel for

the State" who had fairly stated before the Court that he had no explanation

to offer for the delay in investigation and the reason why the trial did not

commence for eight long years. Thus, the said decision primarily rests on

42 wp.2129.08.sxw

the concession of the Counsel for the State. In addition, the Court has found

that nothing could be pointed out to show that the delay was in any way

attributable to the Appellant before it. Having said this, the Court then

proceeded to observe that continuation of criminal action against the

Appellant who was a young boy of 18 years in the year 1981 when the acts

of commission and omission were allegedly committed by the concerns

managed by his parents, who have already died, it would result in extreme

mental stress and strain of prolonged investigation by the Anti Corruption

Bureau and the sword of damocles hanging perilously over his head for

over 15 years must have wrecked his entire career. In other words, the order

passed by the Apex Court of quashing of criminal action in that case was

essentially on the basis of the fact situation of that case.

28. Counsel for the Petitioner in his written submissions has then

adverted to the decision in Seeta Hemchandra Shashittal (supra). We fail

to understand as to how this decision will be of any avail to the Petitioner.

Even in this case, the main ground urged in the Writ Petition was that there

was gross delay of 11 years in filing the charge-sheet and that such delay

violates Article 21 of the Constitution. That delay had caused unbearable

mental trauma, fear psychosis and tension to the Appellants as well as to

43 wp.2129.08.sxw

other members of the family, besides tremendous humiliation and

defamation heaped on them. Further, the abnormal delay had caused

colossal financial losses to the Appellants and the impact of it had shattered

the prospects of personal, professional and business development of the

members of the family. In view of the finding recorded by us in the earlier

part of this Judgment rejecting the Petitioner's contention that there has

been inordinate delay in filing of the charge-sheet after registration of

F.I.R., it would necessarily follow that the Petitioner is not entitled for the

relief as claimed. Significantly, the dictum in Paragraph Nos.19 and 20 of

this decision would go against the Petitioner. The Court has rejected the

grievance of the Appellant in that case that there was unreasonable delay in

grant of sanction, considering the fact that the sanction was applied for on

6th April, 1991 and the Government accorded sanction on 21st February,

1993. More or less, similar contention has been raised before us which we

have already negatived for the same reason. The Apex Court observed that

two years time taken for grant of sanction cannot be said to be

unreasonable, considering the number of Desks over which the matter has

to be passed and the voluminous record to be studied at all levels.

29. Reliance is then placed on another decision of the Apex Court in the

44 wp.2129.08.sxw

case of Vakil Prasad Singh vs. State of Bihar reported in (2009) 3 SCC

355. In that case, the offence was allegedly committed on 8th April 1981 of

demanding a sum of Rs.1,000/- (Rupees One Thousand) as illegal

gratification for release of payment for the civil work executed by the

The charge-sheet was filed on 28th February 1982. The

Petitioner.

Magistrate took cognizance on 9th December, 1982. Nothing substantial

happened till 6th July, 1987. The Appellant filed Petition under Section 482

of Cr.P.C. on the ground that the "concerned Court had no jurisdiction to

take cognizance." The High Court accepted that plea with a direction to

prosecution to complete the investigation within a period of three months

from receipt of the order by an Officer of a rank of Deputy Superintendent

of Police or any other Officer duly authorised in this behalf. No further

progress was made in the case until in year 1988. The Petitioner, therefore,

filed yet "another Petition" under Section 482 of Cr.P.C. for quashing of the

entire investigation. After dismissal of the said Writ Petition, the Appellant

took the matter in appeal before the Supreme Court which was admitted for

hearing on 20th November, 1998 and was called out for final hearing after

almost nine years, on 11th May, 2007, when the Counsel for the Vigilance

Department sought time to seek instructions regarding the status of the

investigation. The Apex Court noted that the High Court had acknowledged

45 wp.2129.08.sxw

the fact that there has been substantial delay in conclusion of the

proceedings against the Appellant and some prejudice has been caused to

the Appellant in his professional career on account of continuance of the

criminal case against him as he was deprived of the promotion in the

meantime. Inspite of such finding, the High Court rejected the Petition.

Correctness of that view was put in issue before the Apex Court. On the

facts of that case, the Apex Court agreed with the challenge of the

Appellant therein that there was inordinate delay which can be legitimately

termed as oppressive and unwarranted and having infringed the

fundamental right of the Appellant guaranteed under Article 21 of the

Constitution. Suffice it to observe that even this decision is of no avail

considering the fact situation of the present case. More so, in view of the

conclusion reached by us mentioned hitherto that it is not a case of

inordinate delay as such and that it cannot be termed as oppressive and

unwarranted or having caused any prejudice to the Petitioner. Indeed, the

Petitioner has asserted that on account of pendency of the proceedings, she

has suffered immense mental agony and also affected her profession, but

going by her own averment in the Writ Petition as well as the rejoinder

affidavit, it seems that the Petitioner before us has all along engaged herself

in gainful activities inspite of the pendency of the criminal proceedings

46 wp.2129.08.sxw

against her. The grievance of the Petitioner that the prosecution has made

false and untenable allegation that she is the daughter of accused No.1, does

not take the matter any further. That contention will have no relevance to

answer the question as to whether the delay in proceeding with the criminal

action pending against the Petitioner can be said to be inordinate delay and

having the effect so as to term it as oppressive and unwarranted.

30. Reliance was then placed on the decision of the Apex Court in

T.J.Stephen & Ors. vs. M/s.Parle Bottling Co. (P) Ltd. & Ors. reported

in 1988 (Supp) SCC 458. Even this Judgment is on the facts of that case.

We fail to understand how this Judgment will be of any avail to the

Petitioner to answer the issue under consideration. In that case, the Court

was considering the application made to the Trial Court to discharge the

Managing Director, Respondent No.2 in exercise of inherent powers. In the

first place, the Court accepted the challenge that the matter could not have

proceeded against Respondent No.2. It also went on to observe that the

Respondent No.2 has no equity in his favour and the delay after the

complaint had been filed has been mostly on account of his mala fide move.

The benefit given to the Respondent No.2 is not on the principle of Article

21 of the Constitution as such.

47 wp.2129.08.sxw

31. Insofar as the decisions in the case of Hussainara Khatoon & Ors.

vs. Home Secretary, State of Bihar, Patna reported in AIR 1979 SC

1360 and of Abdul Rehman Antulay (supra), we need not burden this

Judgment with the same as it has been analysed by the seven Judges' Bench

of the Apex Court in the case of P.Ramchandra Rao (supra) to which we

have already alluded to in detail. Besides, reliance placed on the decision

in the case of Moreshwar D. Save & anr. v/s. State of Maharashtra

(CDJ 2008 BHC 1309) and in the case of M. Balan v/s. T. N. Water

Supply and Drainage Board and anr. (CDJ 2009 MHC 163) are of no

avail. The view taken therein is on the basis of fact situation of those

cases.

32. Reliance was then placed on the decision of the Apex Court in the

case of Suganthi Suresh Kumar vs. Jagdeeshan reported in (2002) 2

SCC 420, in particular, Paragraph 9 thereof. The Apex Court has held that

it is impermissible for the High Court to overrule the decision of the Apex

Court on the ground that the Supreme Court laid down the legal position

without considering any other point. Further, the High Court cannot

question the correctness of decision of the Supreme Court even though the

point sought before the High Court was not considered by the Supreme

48 wp.2129.08.sxw

Court. We fail to understand how this decision is of any avail to the

Petitioner. Insofar as the decisions on which the Petitioner has placed

reliance, we have already considered those decisions and found that the

same have no application to the fact situation of the present case. We are

not even remotely suggesting that any of those decisions are incorrect or

have overlooked any relevant point. Moreover, we have placed reliance on

the decision of the Constitution Bench of the Apex Court in support, which

reinforces the conclusion reached by us.

33. Considering the above, we have no hesitation in taking the view that

the grievance made by the Petitioner about infringement of her fundamental

right guaranteed under Article 21 of the Constitution of India is devoid of

merits in the fact situation of the present case. Accordingly, that challenge

should fail. Nevertheless, we think it apposite to direct the Trial Court to

proceed with the trial and take it to its logical end expeditiously. As

observed by the Apex Court in the case of P.Ramchandra Rao (supra),

the Trial Court has ample power to control the situation by invoking the

provisions such as Sections 309, 311, 258 of Cr.P.C., so that, the trial is

concluded expeditiously. Having regard to the fact that it pertains to year

49 wp.2129.08.sxw

1999, the Trial Court shall proceed with the Special Case No.39 of 1999 as

far as possible on day-to-day basis for early conclusion thereof.

34. The Writ Petition is accordingly disposed of on the above terms.

      (P.D.KODE, J.)                             (A.M.KHANWILKAR, J.)