QUASH – if the constitutional right to a speedy investigation and trial has been denied

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1067 OF 2008
(Arising out of S.L.P. (Criminal) No. 2843 of 2006)

PANKAJ KUMAR — APPELLANT (S)
VERSUS
STATE OF MAHARASHTRA & ORS. — RESPONDENT (S)

JUDGMENT D.K. JAIN, J.:

Leave granted.

2. This appeal arises from the final judgment and order dated 2nd/4th May, 2006 rendered by the High Court of Judicature at Bombay, Bench at Aurangabad, in Criminal Writ Petition No.149 of 1999. By the impugned judgment, the learned Single Judge has dismissed the petition preferred by the appellant and his mother under Article 227 of the Constitution read with Section 482 of the Code of Criminal Procedure, 1973 (for short `CrPC’), seeking quashing of the chargesheet and the consequential proceedings initiated against them in Special Case No.3 of 1991 pending in the court of Special Judge, Latur.

3. A few material facts, necessary for disposal of this appeal can be stated thus :
0n 12th May, 1998, a First Information Report was lodged against one Sayyad Mohammad Sayyad Ibrahim and eight other persons, inter alia8 alleging that during the period from 1st October, 1980 to 22nd February, 1982, while working as District Dairy Development Officer, Government Milk Scheme , Bhanara, Sayyad Mohammad Sayyad Ibrahim had conspired with the appellant and his father and had committed misappropriation of huge amounts in the purchase of spare parts etc., for the plant. The case was referred to the Anti Corruption Bureau for investigation.

4. Investigations dragged on for over three years and
ultimately on 22nd February, 1991, a chargesheet was filed
in the court of Special Judge, Latur against twelve persons
for offences punishable under Sections 120B, 409, 420,
465, 468, 471, 477 (A) 101 and 34 of the Indian Penal
Code, 1860 (for short `IPC’) and Sections 5(1)(c)(d) along
with Section 5(c) of the Prevention of Corruption Act, 1947.
In addition thereto, Sections 13(1)(c)(d) read with Section 13
(2) of the Prevention of Corruption Act, 1988 have also been
invoked against accused Nos.1 to 9. The first nine accused
were the employees of the Government Milk Plant and the
remaining three being the appellant and his father and
mother, arraigned as accused Nos.11,10 and 12 respectively.

5. As per the chargesheet, the case of the prosecution, in brief
is that the said Sayyad Mohammad Sayyad Ibrahim
(accused No.1) and one Pashubhai Narsi Shah (accused
No.10), father of the appellant, were friends since 1976.
Accused No.10 had two concerns styled as India Trading
Agency, Mumbai and Dairy Equipment Industries, Mumbai,
in the name of his wife (accused No.12). Accused No.1,
without calling for the quotations for purchase of spare
parts for the Milk Plant, got prepared from accused Nos.10
and 11, bills in small amounts of Rs.10,000/- each for
purchase of spare parts valued at Rs.2,03,705; got the bills
processed from the staff members (accused Nos. 2 to 9) of
the said Milk Dairy Unit and made payments in cash and
by way of demand drafts to the present appellant. The
second accusation is that for two air compressors
purchased from M/s Ingersol Rand (India), Mumbai in the
year 1978, spare parts of the total value of Rs.91,469/-
were again purchased from the concerns of accused Nos.10
and 11 despite the fact that quotation had been received
from the original supplier. No inspection and verification of
the spare parts supplied by the said concerns was carried
out; bills were got processed by accused No.1 from other
staff members and payment was again made to accused
No.11 in cash and by demand drafts. The third accusation
against all the accused is that an amount of Rs.64,100/-
was paid to one M/s Pankaj Chemicals, Mumbai, managed
by accused No.10, the father of the appellant, for cleaning
of the water softening plant supplied by M/s Ingersol Rand
(India) Ltd., without actually doing any such work. The
Special Judge took cognizance of the complaint and
summoned all the accused.

6. Aggrieved, the appellant and his mother (A-12) filed the
afore-stated writ petition. During the pendency of the writ
petition, the mother of the appellant expired. Accused
No.10, namely, the father of the appellant had also expired earlier.

7. Rejecting the main plea of the appellant that being born on
18th September, 1963, the appellant was a minor at the
time of transactions in question in the year 1981 and,
therefore, he could not be proceeded against and that even
otherwise the chargesheet did not disclose any offence
against the appellant and his mother, by the impugned
order, the High Court dismissed the petition. The High
Court has come to the conclusion that the appellant has
failed to produce any document showing his date of birth
and that the chargesheet prima facie discloses commission
of offences by the appellant. Aggrieved by the said decision,
the appellant has preferred this appeal.

8. Learned counsel appearing on behalf of the appellant submitted that there was sufficient material on record to show that when the alleged acts of malfeasance took place,the appellant was a minor and had nothing to do with the affairs of the concerns, which had made supplies to the milk plant. He was neither the proprietor nor a partner in the said concerns/firms which were managed by his father,accused No.10. In support of the proposition that the reckoning date for determining the age of an accused, who claims to be a child, is the date of occurrence and not the date when the offender is produced before the court,reliance was placed on the decision of the Constitution Bench in Pratap Singh Vs. State of Jharkhand & Anr.1.Referring us to certain portions of the chargesheet, learned counsel contended that except for the bald averment that the appellant had prepared bogus bills and had received the payment, no other incriminating material has been brought on record, to show that the appellant was looking after the affairs of the concerns/firms owned or managed by his father and mother, namely accused No.10 and 12 (since deceased) and, therefore, the conclusion of the High Court that a prima facie case had been made out against the appellant is without any basis. Lastly, it was pleaded that the appellant has been deprived of his constitutional right to have a speedy investigation and trial, inasmuch as the FIR was registered on 12th May, 1987 for the offences allegedly committed some time in the year 1981;chargesheet was filed on 22nd February, 1991 but till date not a single witness has been examined by the prosecution.
In support, reliance was placed on a decision of this Court in Santosh De Vs. Archna Guha & Ors.2, wherein a delay of eight years in commencing the trial was held to be violative of the right of the accused to a speedy trial and the High Court’s decision quashing the criminal proceedings on that ground was affirmed.

9. Learned counsel for the State, on the other hand, submitted
that in the light of clear averment in the chargesheet,
implicating the appellant, the High Court was justified in
dismissing the writ petition by applying the correct
principles to be kept in view while exercising power under
Article 227 of the Constitution or under Section 482 CrPC,
recently reiterated by a three-Judge Bench of this Court in
Som Mittal Vs. Government of Karnataka3. Regarding
delay in trial, learned counsel submitted that the
prosecution cannot be held responsible for delay at least
from the year 1999, when the records had been summoned
by the High Court. It was also submitted that even if the
date of birth of the appellant is taken as 18th September,
1963, being more than 16 years of age in March, 1981, still
he could not be treated as a juvenile under the 1986
Juvenile Justice Act. Learned counsel also placed reliance
on the decisions in Pratap Singh (supra) and Jameel Vs.
State of Maharashtra4. It was also urged that since
offences, punishable under the Prevention of Corruption
Act, 1988 have been committed by the appellant, in view of
the observations of this Court in Satya Narayan Sharma
Vs. State of Rajasthan5, this Court should be loath to interfere in the matter.

10. The scope and ambit of powers of the High Court under
Section 482, CrPC or Article 227 of the Constitution has
been enunciated and reiterated by this Court in a series of
decisions and several circumstances under which the High
Court can exercise jurisdiction in quashing proceedings
have been enumerated. Therefore, we consider it
unnecessary to burden the judgment by making reference
to all the decisions on the point. It would suffice to state
that though the powers possessed by the High Courts
under the said provisions are very wide but these should be
exercised in appropriate cases, ex debito justitiae to do real
and substantial justice for the administration of which
alone the courts exist. The inherent powers do not confer
an arbitrary jurisdiction on the High Court to act according
to whim or caprice. The powers have to be exercised
sparingly, with circumspection and in the rarest of rare
cases, where the court is convinced, on the basis of
material on record, that allowing the proceedings to
continue would be an abuse of the process of the court or
that the ends of justice require that the proceedings ought
to be quashed. [See: Janata Dal Vs. H.S. Chowdhary &
Ors.6, Kurukshetra University & Anr. Vs. State of
Haryana & Anr.7 and State of Haryana & Ors. Vs.Bhajan Lal & Ors.8]

11. Although in Bhajan Lal’s case (supra), the court by way of
illustration, formulated as many as seven categories of
cases, wherein the extra-ordinary power under the aforestated
provisions could be exercised by the High Court to
prevent abuse of process of the court yet it was clarified
that it was not possible to lay down precise and inflexible
guidelines or any rigid formula or to give an exhaustive list
of the circumstances in which such power could be exercised.

12. The purport of the expression “rarest of rare cases” has
been explained very recently in Som Mittal (supra).
Speaking for the three-Judge Bench, Hon’ble the Chief Justice has said thus:
“When the words ‘rarest of rare cases’ are
used after the words ‘sparingly and with
circumspection’ while describing the
scope of Section 482, those words merely
emphasize and reiterate what is intended
to be conveyed by the words ‘sparingly
and with circumspection’. They mean
that the power under Section 482 to
quash proceedings should not be used
mechanically or routinely, but with care
and caution, only when a clear case for
quashing is made out and failure to
interfere would lead to a miscarriage of
justice. The expression “rarest of rare
cases” is not used in the sense in which it
is used with reference to punishment for
offences under Section 302 IPC, but to
emphasize that the power under Section
482 Cr.P.C. to quash the FIR or criminal
proceedings should be used sparingly
and with circumspection.”

13.Bearing in mind the above legal position, we are of the opinion that, for the reasons stated hereafter, the ends of justice require that prosecution proceedings in the instant case be quashed.

14. Time and again this Court has emphasized the need for
speedy investigations and trial as both are mandated by the
letter and spirit of the provisions of the CrPC. (In particular,
Sections 197, 173, 309, 437 (6) and 468 etc.) and the
constitutional protection enshrined in Article 21 of the
Constitution. Inspired by the broad sweep and content of
Article 21 as interpreted by a seven-Judge Bench of this
Court in Maneka Gandhi Vs. Union of India & Anr.9, in
Hussainara Khatoon & Ors. Vs. Home Secretary, State
of Bihar10, this Court had said that Article 21 confers a
fundamental right on every person not to be deprived of his
life or liberty except according to procedure established by
law; that such procedure is not some semblance of a
procedure but the procedure should be ‘reasonable, fair
and just’; and therefrom flows, without doubt, the right to
speedy trial. It was also observed that 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.
The Court clarified that speedy trial means reasonably
expeditious trial which is an integral and essential part of
the fundamental right to life and liberty enshrined in Article 21.

15. The exposition of Article 21 in Hussainara Khatoon’s
case (supra) was exhaustively considered afresh by the
Constitution Bench in Abdul Rehman Antulay & Ors. Vs.
R.S. Nayak & Anr.11. Referring to a number of decisions
of this Court and the American precedents on the Sixth
Amendment of their Constitution, making the right to a
speedy and public trial a constitutional guarantee, the
Court formulated as many as eleven propositions with a
note of caution that these were not exhaustive and were
meant only to serve as guidelines. For the sake of brevity,
we do not propose to reproduce all the said propositions
and it would suffice to note the gist thereof. These are: (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 retrial; (iii)
in every case where the speedy trial is alleged to have been
infringed, the first question to be put and answered is —
who is responsible for the delay?; (iv) while determining
whether undue delay has occurred (resulting in violation of
right to speedy trial) one must have regard to all the
attendant circumstances, including nature of offence,
number of accused and witnesses, the work-load of the
court concerned, prevailing local conditions and so on–
what is called, the systemic delays; (v) each and every delay
does not necessarily prejudice the accused. Some delays
may indeed work to his advantage. However, inordinately
long delay may be taken as presumptive proof of prejudice.
In this context, the fact of incarceration of accused will also
be a relevant fact. The prosecution should not be allowed to
become a persecution. But when does the prosecution
become persecution, again depends upon the facts of a
given case; (vi) ultimately, the court has to balance and
weigh several relevant factors–‘balancing test’ or ‘balancing
process’–and determine in each case whether the right to
speedy trial has been denied; (vii) 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 and having regard to the
nature of offence and other circumstances when the court
feels that quashing of proceedings cannot be in the interest
of justice, it is open to the court to make appropriate
orders, including fixing the period for completion of trial;
(viii) it is neither advisable nor feasible to prescribe any
outer time-limit for conclusion of all criminal proceedings.
In every case of complaint 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; (ix) 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.

16. Notwithstanding elaborate enunciation of Article 21 of the
Constitution in Abdul Rehman Antulay (supra), and
rejection of the fervent plea of proponents of right to speedy
trial for laying down time-limits as bar beyond which a
criminal trial shall not proceed pronouncements of this
Court in “Common Cause” A Registered Society Vs.
Union of India (UOI) & Ors.12, “Common Cause”, A
Registered Society Vs. Union of India & Ors.13, Raj Deo
Sharma Vs. State of Bihar14 and Raj Deo Sharma II Vs.
State of Bihar15 gave rise to some confusion on the
question whether an outer time limit for conclusion of
criminal proceedings could be prescribed whereafter the
trial court would be obliged to terminate the proceedings
and necessarily acquit or discharge the accused. The
confusion on the issue was set at rest by a seven-Judge
Bench of this court in P. Ramachandra Rao Vs. State of
Karnataka16. Speaking for the majority, R.C. Lahoti, J. (as
his Lordship then was) while affirming that the dictum in
A.R. Antulay’s case (supra) is correct and still holds the
field and the propositions emerging from Article 21 of the
Constitution and expounding the right to speedy trial laid
down as guidelines in the said case adequately take care of
right to speedy trial, it was held that guidelines laid down in
the A.R. Antulay’s case (supra) 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 as it is difficult to foresee all situations and no
generalization can be made. It has also been held that it is
neither advisable, nor feasible, nor judicially permissible to
draw or prescribe an outer limit for conclusion of all
criminal proceedings. Nonetheless, the criminal courts
should exercise their available powers such as those under
Sections 309, 311 and 258 of CrPC to effectuate the right to
speedy trial. 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. The outer limits or power of
limitation expounded in the aforenoted judgments were
held to be not in consonance with the legislative intent.

17. It is, therefore, well settled that the right to speedy trial in
all criminal persecutions is an inalienable right under
Article 21 of the Constitution. This right is applicable not
only to the actual proceedings in court but also includes
within its sweep the preceding police investigations as well.
The right to speedy trial extends equally to all criminal
persecutions and is not confined to any particular category
of cases. In every case, where the right to speedy trial is
alleged to have been infringed, the court has to perform the
balancing act upon taking into consideration all the
attendant circumstances, enumerated above, and
determine in each case whether the right to speedy trial has
been denied in a given case. Where the court comes to the
conclusion that the right to speedy trial of an accused has
been infringed, the charges or the conviction, as the case
may be, may be quashed unless the court feels that having
regard to the nature of offence and other relevant
circumstances, quashing of proceedings may not be in the
interest of justice. In such a situation, it is open to the
court to make an appropriate order as it may deem just and
equitable including fixation of time for conclusion of trial.

18. Tested on the touchstone of the broad principles,
enumerated above, we are of the opinion that in the instant
case, appellant’s constitutional right recognised under
Article 21 of the Constitution stands violated. It is
common ground that the First Information Report was
recorded on 12th May, 1987 for the offences allegedly
committed in the year 1981, and after unwarranted
prolonged investigations, involving afore-stated three
financial irregularities; the chargesheet was submitted in
Court on 22nd February, 1991. Nothing happened till April,
1999, when the appellant and his deceased mother filed
criminal writ petition seeking quashing of proceedings
before the trial court. Though, it is true that the plea with
regard to inordinate delay in investigations and trial has
been raised before us for the first time but we feel that at
this distant point of time, it would be unfair to the appellant
to remit the matter back to the High Court for examining
the said plea of the appellant. Apart from the fact that it
would further protract the already delayed trial, no fruitful
purpose would be served as learned Counsel for the State
very fairly stated before us that he had no explanation to
offer for the delay in investigations and the reason why the
trial did not commence for eight long years. Nothing,
whatsoever, could be pointed out, far from being
established, to show that the delay was in any way
attributable to the appellant. Moreover, having regard to
the nature of the accusations against the appellant, briefly
referred to above, who was a young boy of about eighteen
years of age in the year 1981, when the acts of omission
and commission were allegedly committed by the concerns
managed by his parents, who have since died, we feel that
the 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 fifteen
years must have wrecked his entire career. Be that as it
may, the prosecution has failed to show any exceptional
circumstance, which could possibly be taken into
consideration for condoning the prolongation of
investigation and the trial. The lackadaisical manner of
investigation spread over a period of four years in a case of
this type and inordinate delay of over eight years (excluding
the period when the record of the trial court was in the High
Court), is manifestly clear. Thus, on facts in hand, we are
convinced that the appellant has been denied his valuable
constitutional right to a speedy investigation and trial and,
therefore, criminal proceedings initiated against him in the
year 1987 and pending in the court of Special Judge, Latur,
deserve to be quashed on this short ground alone.

19.For the view we have taken, we deem it unnecessary to go into the merits of the accusations against the appellant as also the question of his age, at the time of commission of alleged offences.

20.Consequently, the appeal is allowed and the proceedings against the appellant in criminal case arising out of FIR No.78 of 1987 are hereby quashed.

(C.K. THAKKER)

(D.K. JAIN)
NEW DELHI;
JULY 11, 2008.

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