Subrata Brahma vs State
2010 Latest Caselaw 1492 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CRL.M.C.804/2010

%                     Reserved on:     15th March, 2010
                      Date of Decision: 17th March, 2010

#     SUBRATA BRAHMA                            ..... Petitioner
!                Through:          Mr.Satish Aggarwala, Adv.


                      versus


$     STATE                                     ..... Respondent
^                     Through:     Mr. Jaideep Malik, APP

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN


      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?               No

      2.    To be referred to the Reporter or not?            No

      3.    Whether the judgment should be
            reported in the Digest?                           No



: V.K. JAIN, J.

1. This is a petition under Section 482 of the Code of

Criminal Procedure for quashing the criminal proceedings

pending against the petitioner before ACMM, New Delhi under

Section 420 of IPC. The grievance of the petitioner is that

though the chargesheet against him was filed way back on 21st

December, 1998 and order for framing charge was passed on

5th October, 2004, the examination of the complainant-Neera

Malik, who was partly examined on 6 th September and 3rd

August, 2006 has not been concluded. The petitioner filed

Crl.M.C.No. 2311 of 2008 for quashing the proceedings against

him. Vide order dated 23rd July, 2009, this Court, while

disposing of the above-referred Crl.M.C., directed the Trial

Court to ensure that the trial was concluded within a period of

six months from the date of the order. The grievance of the

petitioner is that the trial has not been concluded despite the

time fixed vide order dated 23rd July, 2009 having expired.

2. Since the petitioner claimed that complete documents

had not been supplied to him, this Court, while disposing of

Crl.M.C.2311 of 2008, directed the petitioner to inspect the

Court Record by 25th July, 2009 and give a list of documents,

which he had not received, to the concerned PP on 25th July,

2009 itself. Those documents were to be supplied to the

petitioner by 29th July, 2009, so that the Trial Court would

examine the witness on 30th July, 2009, which was the date

already fixed before it.

3. A perusal of the order-sheets and documents filed by the

petitioner would show that he did not give list of deficient

documents to the learned APP on 25th July, 2009. It was on

27th July, 2009 that a letter was sent to the learned APP

posted in the Court of ACMM, New Delhi requesting him to

ensure availability and organizing of all the documents, as

mentioned in the list of documents, as available on the Court

File. He specifically referred to documents at serial No.9 and

serial No.16 of the list, documents pertaining to taking the

specimen signatures of accused persons and the report of FSL

dated 27th August, 1996. The case of the petitioner is that this

letter to the APP was sent by speed post, as the Naib Court

refused to accept the letter. A perusal of the order-sheet dated

30th July, 2009 would show that on that day, the order of this

Court dated 23rd July, 2009 was not brought by the petitioner

to the notice of the Trial Court. An application dated 30 th July,

2009 was filed by the petitioner before the Trial Court on the

same day and finds mention in the order-sheet. A copy of the

application, which the petitioner has filed as Annexure-D to

this petition, shows that even in this application, the petitioner

did not inform the Trial Court that this Court had directed

conclusion of evidence, within six months from the date of the

order passed by it on 23rd July, 2009. In para 2 of the

application, the petitioner specifically stated that copy of the

order had not been made available to him and he would be

producing the same immediately on its being made available.

Pursuant to the application filed by the petitioner on 30 th July,

2009, the matter was adjourned to 22 nd August, 2009 for

PE/FP. On 22nd August, 2009, the Presiding Officer has gone

for training and, therefore, the Link Magistrate adjourned the

matter to 4th September, 2009. On 4th September, 2009, the

Trial Court was informed that this Court had directed supply

of deficient copies to the petitioner before 30 th July, 2009. The

Trial Court directed that the documents be supplied on that

very day. The counsel, who was appearing for the petitioner,

was requested to mark all the documents which he wanted to

be supplied, but, he requested that the matter may be taken

up at 2.00 pm so that the main counsel, who had inspected

the file, may come and see what documents were required.

When the matter was again taken up at 2.00 pm, the Court

was informed that the learned counsel for the petitioner was

busy in this Court and adjournment was sought. Accordingly,

the matter was adjourned to 5 th September, 2009. On 5th

September, 2009, the learned counsel for the petitioner was

again not present and the proxy counsel, who appeared on his

behalf, stated that remand papers, FSL report with documents

and copies of bill book were to be supplied to them, which were

on record. The counsel was given liberty to flag all those

documents so that no further dispute remained on the point of

supply of documents. The proxy counsel, however, was

unwilling to flag the documents, since he was not sure, which

documents were to be supplied and senior counsel was not

available. On his request, the matter was adjourned till 2.00

pm. When the matter was again at 2.00 pm, the main counsel

was still not available and the proxy counsel again stated that

he was not sure about the documents and requested that the

matter may be taken up on any Saturday. The matter was

accordingly adjourned to 19th September, 2009. On 19th

September, 2009, the learned counsel for the petitioner was

again not available to assist the Court and the matter was

passed over on the request of the petitioner. When the matter

was taken up again, the learned counsel for the petitioner

appeared and was heard. Since the learned APP wanted some

time to file reply, the matter was again taken up at 2.00 pm.

Reply by learned APP was filed at that time and the matter was

adjourned to 24th September, 2009 with a direction to call IO.

On 24th September, 2009, the petitioner appeared with a proxy

counsel. IO was also present on that day and copies of

documents were supplied to the accused under his signatures.

The matter was then adjourned to 24th October, 2009 on the

request of the petitioner. On 24th October, 2009, the

complainant-Neera Malik was present in person, but the

Presiding Officer was on leave, therefore, the matter was

adjourned to 13th November, 2009 by the Link Magistrate. On

13th November, 2009, the Presiding Officer was again on leave

and the matter was adjourned to 16th January, 2010 by the

Link Magistrate.

4. On 16th January, 2010, the complainant was not present

and was directed to be summoned for 30th January, 2010. On

30th January, 2010, the accused made a submission that his

application for supply of documents was still pending. The

matter was, therefore, adjourned to 2nd February, 2010. On

2nd February, 2010, the application stated to be pending could

not be located and the learned counsel was requested to

supply another copy of the application so that the same could

be disposed of. The matter was then adjourned to 08 th

February, 2010 and the petitioner was exempted from personal

appearance for next date of hearing.

5. On 08th February, 2010, copy of the application, whereby

correction of order-sheet dated 28th May, 2009, had been

sought, was supplied. The learned counsel for the petitioner

was also, however, not available when the matter was taken

up. When the matter was again taken up at 12.30 pm, the

learned counsel for the petitioner was not present. When the

matter was taken up at 2.00 pm, the learned counsel for the

petitioner was still not available and a proxy counsel, who

appeared on his behalf, stated that he was not aware about

the case or the application under consideration. The matter

was then adjourned to 09th February, 2010. In that day, the

application for correcting the order dated 28 th May, 2009 was

dismissed by a speaking order running into 6 pages and the

matter was adjourned to 28 th February, 2010 for P.E./cross-

examination of PW-1. On 28th February, 2010, two

applications were filed by the petitioner. Both the applications

were dismissed with costs, by passing a speaking order and

the matter was adjourned to 06th March, 2010. On 06th

March, 2010, no witness was present and the matter was

adjourned to 15th March, 2010.

6. It is, thus, clear from a careful analysis of the

proceedings of the Trial Court that the petitioner is at least

partly responsible for the delay in concluding the trial of the

case in terms of the directions given by this Court on 23 rd July,

2009. When directions for time-bound conclusion of the trial

are given by the Court on the request of an accused, the

expectation of the Court is that since the accused himself

claims to be interested in expeditious conclusion of the trial,

he will render his full cooperation and will not seek any

adjournment. But the proceedings before the Trial Court show

that on a number of dates, the learned counsel for the

petitioner was not present and the proxy counsel deputed by

him did not have knowledge about the facts of the case and

insisted upon the matter being taken up in the presence of the

main counsel. The matter had to be adjourned on 4 th

September, 2009, 5th September, 2009, 24th September, 2009

and 08th February, 2010 on the request of the petitioner.

Proceedings also show that the petitioner, instead of seeking

expeditious recording of evidence, filed applications, which the

Trial Court found having no merit and which were dismissed

by a speaking order which the petitioner has chosen not to

challenge. If the accused is at least partly responsible for

delaying the trial, it is not open to him to seek quashing of

proceedings merely on account of delay in conclusion of trial.

Some adjournments took place on account of non-availability

of the Trial Judge and the dates, in his absence, were fixed by

the Link Magistrate. On 22nd August, 2009, 21st October, 2009

and 13th November, 2009, the matter could not be taken up

since the Presiding Officer was not available and the next date

of hearing was given by the Link Magistrate and there is

nothing on record to show that the Link Magistrate was

apprised of the order of this Court dated 23rd July, 2009.

Therefore, it cannot be said that there has been any willful

disobedience of the order of this Court by the learned Trial

Judge. As noted earlier, the complainant Neera Malik was

present on 24th October, 2009, but her remaining deposition

could not be recorded as the Presiding Officer was on leave.

7. Taking into consideration the conduct of the petitioner,

as noted from the proceedings of the Trial Court and other

circumstances, including that the Presiding Officer was not

available on three dates of hearing, it will not be appropriate to

quash the criminal proceedings merely on account of the delay

in compliance of the order of this Court dated 23 rd July, 2009.

At the same time, it has to be ensured that the trial against the

petitioner does not drag unnecessarily. Hence, in order to

ensure an expeditious trial, the following directions are given:

(i) The Investigating Officer will take dasti summons of all

the remaining witnesses from the Trial Court, within one week

from today for a suitable dates to be fixed by the Trial Court in

the week commencing 12th April, 2010 and shall serve all of

them on his own responsibility;

(ii) If any witness, including the complainant Neera Malik,

remains absent without a reasonable ground, despite service of

summons upon him/her, it will be open to the Trial Court to

take coercive steps to ensure his/her presence;

(iii) If the entire remaining evidence of the prosecution cannot

be concluded in the week commencing 12th April, 2010, the

Trial Court will fix one or more dates in the week commencing

10th May, 2010 and will give dasti summons of the remaining

witnesses to the Investigating Officer in the Court itself and the

IO shall serve them within one week of obtaining the summons

from the Trial Court;

(iv) The Trial Court will ensure that the remaining evidence of

the prosecution is concluded on or before 31st May, 2010.

The petition stands disposed of with these directions.

One copy of this order be sent to the concerned DCP

within three days and one copy be given dasti to learned APP.

The DCP will ensure that the Investigating Officer remains

present before the Trial Court on every date of hearing fixed by

it for recording of prosecution evidence and serves the

summons upon the witnesses, in terms of this order.

(V.K.JAIN) JUDGE MARCH 17 , 2010 BG