Ram Kishore Gupta vs Y.S. Bisht
2003 Latest Caselaw 441 Del

JUDGMENT

Mahmood Ali Khan, J.

1. Petitioner seeks quashing of the criminal complaint filed against him by the respondent for his prosecution for offence under Section 135(1)(b)(i) of Customs Act and Section 85(i) and (ii) of the Gold Control Act 1968 by invoking power of this Court under Section 482 of Cr.P.C.

2. Shorn of unnecessary details the relevant facts are that the Customs Officer apprehended a car driven by the petitioner on 7.11.1986 and recovered Indian currency of the value of Rs. 1.80 lacs which was seized under Section 110 of the Customs Act, 1962. The petitioner was taken into custody. His statement under Section 108 of the Customs Act was also recorded, where after the officers of the DRI again searched the car of the accused and allegedly recovered 50 gold biscuits bearing foreign markings of 24 carate purity of 10 tolas each Along with Rs. 10,000 in one polythene bag. The total value of the gold biscuits was Rs. 13,88,135. A criminal complaint was filed on 7.11.1986 for petitioner's prosecution under Section 135(1)(b)(ii) of the Customs Act, 1962 and Section 85(1)(ii) of the Gold Control Act in the court of Additional Chief Metropolitan Magistrate. Prior to that requisite permission was obtained from Collector of Customs for the prosecution of the petitioner. Other two accused, however, could not be apprehended. Petitioner was released on bail on 2.1.1987. 12 witnesses were cited by the prosecution but during the pre-charge evidence during the past 15 years only two of them were examined. The petitioner has contended that the prosecution is vitiated as out of 49 dates fixed for hearing in the case on nine occasions the Presiding Officer was on leave, on three occasions the petitioner sought exemption from personal appearance and on the remaining 37 occasions the prosecution sought for adjournment to produce the pre-charge evidence. The petitioner, as such, has been denied speedy trial violating fundamental right of the petitioner enshrined in Article 21 of the Constitution of India. Petitioner on 7.12.2000 filed an application for closing of the pre-charge evidence and his discharge on the ground of delay and violation of Article 21 of the Constitution of India. The ACMM has closed the evidence but has not discharged him for the reasons of delay on the basis of the principles of law laid down by the Supreme Court in various judgments. The petitioner, therefore, prayed this Court that the criminal complaint filed by respondent No. 1 against him and proceeding arising there from may be quashed.

3. Though a number of judgments have been cited on behalf of the petitioner in support of his plea but a judgment of 7 Judges bench of the Supreme Court in P. Ramachandra Rao v. State of Karnataka, has now settled the law. Therefore, the judgments cited may be referred to briefly.

4. In Seeta Hemchandra Shashittal and Anr., v. State of Maharashtra and Ors., 2001 II AD (SC) 202 the Supreme Court referring to the judgment of the Constitution Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak, observed:

"While laying down the propositions the Constitution Bench encompassed investigation as part of the amplitude for registering speedy trial. At the same time the bench struck a note of caution that a realistic and practical approach should be made regard being had to "all attending circumstances, including the nature of the offences, the number of accused and witnesses etc." Each case, therefore, must be considered on its own facts, without being pedantically persuaded merely because delay had occasioned during investigation stage.

5. In State of Andhra Pradesh v. P.V. Pavithran, the Supreme Court observed:

"The determination of the question whether the accused has been deprived of a fair trial on account of delayed or protracted investigation would also depend on various factors including whether such delay was unreasonably long or caused deliberately or intentionally to hamper the defense of the accused or whether such delay was inevitable in the nature of things or whether it was due to the dilatory tactics adopted by the accused. The court, in addition, has to consider whether such delay on the part of the investigating agency has caused grave prejudice or disadvantage to the accused."

The court further observed:

"It follows from the above observations that no general and wide proposition of law can be formulated that wherever there is any inordinate delay on the part of the investigating agency in completing the investigation such delay is a ground to quash the FIR."

6. In Hussainara Khatoon and Ors. (I) v. Home Secretary, State of Bihar, it was held:

"That imprisonment of under trials is a denial of human rights and withholding of basic freedoms. It was further observed that speedy trial of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. Speedy trial alone has a fundamental right, is implicit in the broad sweep and content of Article 21. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is in integral and essential part of the fundamental right to life and liberty enshrined in Article 21."

7. A Division Bench of this Court in P.O. Sharma v. Union of India and Anr., in a case where three of the accused had died during the pendency of the case which was pending for the last 16 years and not a single witness was examined ant that the court was not sure as to how many witnesses would be available now and how many have passed away and how many have changed addresses and not available at the given address held that undue delay has in fact vitiated the trial due to violation of Article 21(4) of the Constitution and that the right of speedy trial of the accused had been infringed and quashed the proceeding.

8. A single Bench of this Court in Vijay Kumar v. State, 2000 I AD (Delhi) 659 quashed a criminal proceeding under Prevention of Food Adulteration Act on the fact that the complaint was filed on 19.4.1989 when the accused had also entered appearance but the charge was framed on 20.1.1998 and out of 9 witnesses only two witnesses were examined during the period of 10 years.

9. Another single Bench of this Court in J. Joseph v. Shri A.P. Nandy, 1999 II AD (Cr.) DHC 286 also quashed a criminal complaint on the ground that there was unexplained inordinate delay on the part of the prosecution for 13 years and the right of the petitioner/accused for speedy trial was infringed.

10. Now, I advert to the law which has been laid down by the Larger Bench of the Supreme Court in P. Ramachandra Rao (supra). After analysing the principles of law enunciated in the judgments in "Common Cause" A Regd. Society through its Director v. Union of India and Ors., JT 1996 (4) SC 701; Common Cause v. Union of India, ; Raj Deo Shrama v. State of Bihar, ; Raj Deo Sharma (II) v. State of Bihar, ; Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr. (supra); Mrs. Maneka Gandhi v. Union of India and Anr., ; Hussainara Khatoon and Ors. (I) v. Home Secretary, State of Bihar (supra) Supreme Court has summed up proposition of law in para-30 of the judgment, which is as under:

(1) The dictum in A.R. Antulay's 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's 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 Government shall Act."

11. The law laid down by the Supreme Court above cited may now be applied to the fact to the case in hand. The petitioner is standing trial for an economic offence on his being found in possession of the gold of total weight of 500 grams of foreign markings. He is alleged to have committed offence under Section 135 of the Customs Act and 85 of the Gold Control Act. He was apprehended on 7.11.1986 and after obtaining necessary sanction from the Collector of Customs, the complaint was filed on 2.1.1987. On the same date he was released on bail. The complainant had cited 12 witnesses. Out of them till the year 2000, two, witnesses were examined. The accused, moved the ACMM for closing the evidence and for discharging him because of delay in the trial. The Magistrate disposal of the application by passing order dated 9.2.2001, which reads as under:

Order dated 9.2.2001

Present: Sh. Satish Aggarwal, SPP

Accused with counsel.

Argument on application moved on behalf of accused for closing pre-charge evidence heard.

After considering the submissions made before me by the parties and in view of the peculiar facts and circumstances of this case, I consider it proper to close precharge evidence of complainant. However it is made clear that ratio of law laid down in Raj Deo Sharma is not applicable in Customs case. Now to come on 5.3.2001 for arguments. The date of 19.4.2001 and 20.4.2001 for recording evidence is hereby cancelled in view of the present order. However, prayer of discharging of accused will be considered at the time of framing of charge after considering the evidence already on the file."

12. Now the case is fixed for hearing on the question of framing of the charges against the petitioner. The petitioner has approached this Court for quashment of the proceedings in the meantime complaining inordinate delay in the trial.

13. Petitioner has filed a summary of the order-sheets to buttress his argument that the delay in the trial is attributable to the complainant and not to him. It is, in fact, contended that in all 49 days were fixed for hearing in the case. Out of it on 9 occasions the presiding Magistrate was on leave and on 3 occasions the petitioner sought exemption from personal appearance and requested for an adjournment and that on the remaining 37 occasions the prosecution sought adjournment to produce pre-charge evidence. Argument of the counsel for petitioner that the delay is not attributable to the petitioner have been countered by the respondent/complainant. It was argued that the petitioner is also equally responsible for the delay. Original documents were filed on 24.12.1991. On 20.5.1994 the presiding Magistrate was on leave. On 3.2.1995 statement of witnesses Y.S. Bisht was partly recorded. On 8.10.1996 though the witness was present but the presiding Magistrate was on leave. On 23.4.1998 though the witness was present but the lawyers were on strike. On 16.4.1999 further statement of the witness was recorded and his cross-examination was also completed. It is also contended that another witness B.S. Vasudev, who had come from a long distance was not examined and the case was adjourned to 28.10.1999. On 28.10.1999 witness was present and his examination-in-chief was also recorded. But the petitioner did not cross-examine him completely so the case was adjourned to 15.3.2000 for concluding his cross-examination. On 15.3.2000 it was adjourned to 7.12.2000 and on that date the witness was cross-examined. Thereafter the court fixed 20th and 28th April 2001 for remaining evidence. The petitioner also filed an application for closing of the evidence, on which his reply was invited. Arguments were heard on it on 2.2.2001 and the court closed the evidence and has fixed the case for arguments on 5.3.2001. The petitioner did not address the argument on that date and the case was thereafter adjourned to 18.4.2001. It is, therefore, controverter that the delay was occasioned only by the acts and omissions on the part of the petitioner in view of the nature of the offence committed by the petitioner, also it was argued that the proceedings are not liable to be quashed.

14. There is no denying the fact that the complaint which was filed in 1987 is still at the stage of hearing of arguments on charge. The pre-charge evidence has been closed by the court after only two witnesses out of 12 witnesses, who are cited, were examined. But a perusal of the summary of the orders sheet filed by the respondent and the reply to the petition which has been filed by the respondent leaves in no doubt that the delay in the case is not attributable to the prosecution alone. The case is under Customs Act and Gold Control Act and is tried by ACMM, New Delhi, who apart from dealing with other judicial work is burdened heavily with administrative duties. That seems to be the reason why adjournments for over six months at a time have been given for recording the evidence. The Supreme Court in P. Ramachandra Rao's case (supra) upheld dictum of law laid down in Abdul Rehman Antulay's case (supra). It was observed:

"The constitution bench, in A.R. Antulay's case, heard elaborate arguments. The Court, in its pronouncement, formulated certain propositions, 11 in number, meant to serve as guidelines. It is not necessary for our purpose to reproduce all those propositions. Suffice it to state that in the opinion of the constitution bench (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial; (iii) who is responsible for the delay and what factors have been contributed towards delay are relevant factors. Attendant circumstances, including nature of the offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on -- what is called the systemic delays must be kept in view; (iv) each and every delay does not necessarily prejudice the accused as some delays indeed work to his advantage. Guidelines 8, 9, 10 and 11 are relevant for our purpose and hence are extracted and reproduced hereunder:

"(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, were 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 of denial or 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 or 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."

During the course of its judgment also the constitution bench made certain observations which need to be extracted and reproduced:

"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 work load in the particular court, means of communication and several other circumstances have to be kept in mind".

".....it is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory", (para 83)

".....even apart from Article 21, courts in this country have been cognizant of undue delays in criminal matters and wherever there was inordinate delay or where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put to an end by making appropriate orders" (para 65)".

15. It was observed by the Supreme Court that the guidelines laid down in A.R. Antulay's case (supra) were not exhaustive but only illustrative and there cannot be any hard and fast rule or a strait-jacket formula for quashing the criminal proceeding on account of inordinate delay in the trial. It was further observed that each case will depend upon its own facts.

16. The law laid down by the Supreme Court in AR. Antulay's case (supra) together with the proposition of law which have been laid down in P. Ramachandra Rao's case (supra), there is no escape from holding that in the present case though there is delay of 13 years in concluding the pre-charge evidence, but keeping in view of the nature of the offence which has been committed by the petitioner and the reasons for delay, it will be traversity of justice if the criminal proceedings are truncated at the conclusion of the pre-charge evidence and when the case is fixed for hearing of the arguments on charge. The court, in fact, could render justice to the petitioner by giving appropriate directions to the ACMM for expeditious disposal of the case in a time bound schedule.

17. The result of the above discussion in that the petition is dismissed but the trial court is directed to hear the parties on the question of framing of the charges and pass appropriate orders within two months from today and in case the charges are framed, conclude the trial by 31st December, 2003. In case the trial court is not able to decide the matter by the aforesaid date, he will send a report explaining the reasons in writing for delay to this Court in the month of January, 2004.

With these observations, the petition stands disposed of.