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Shri I.P. Shankaran vs Deputy Superintendent Of Police … on 31 March, 1999

Bombay High Court Shri I.P. Shankaran vs Deputy Superintendent Of Police … on 31 March, 1999Equivalent citations: 1999 (5) BomCR 670, 1999 CriLJ 2194 Author: A Savant Bench: A Savant, . M Upasani

ORDER

A.V. Savant, J.

1. Heard all the learned Counsel; Mr. Bagaria for the petitioner-original accused, Dr. Chandrachud for respondents Nos. 1 and 2 and Mrs. Tahilramani for respondent No. 3.

2. This is a petition under Article 226 of the Constitution of India, seeking to quash the Order dated 2nd February 1999, passed by the learned Special Judge for C.B.I., Greater Mumbai in Misc. Application No. 70 of 1999 for closure of prosecution evidence in Special Case No. 6 of 1989. Under the impugned Order, the learned Special Judge (Shri S.R. Mehra) has followed his earlier Order dated 2nd February 1999 in Misc. Application Nos. 1128 of 1998, 25 of 1999 and 26 of 1999 in Case No. 54 of 1988 and has rejected the prayer for closure of the prosecution case and/or acquittal of the petitioner. The prayer was made only on the ground that the charge for the offence punishable under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 was framed against the petitioner on 5th December 1996; his plea was recorded on the same day and despite the lapse of a period of more than two years, the trial had not concluded and hence, the petitioner was entitled to the relief in terms of the prayers in the said application dated 30th January 1999 viz. (a) closure of the prosecution evidence and (b) an order of acquittal in accordance with law.

3. The few relevant facts may now be stated. The petitioner was working with the Oil and Natural Gas Commission as a Deputy Superintending Engineer. He was charge-sheeted for the offence punishable under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947. The case was registered as Special Case No. 6 of 1989 in the Court of the Special Judge for C.B.I., Greater Mumbai and, as stated above, the charges were framed on the 5th December, 1996. The petitioner pleaded not guilty. It is common ground that the recording of evidence has not yet commenced. In the application made by the petitioner on 30th January 1999, he contended that though a period of two years had expired from the date on which his plea was recorded viz. 5th December 1996, no evidence had been tendered by the prosecution and hence, in view of the Judgment of the Apex Court in Raj Deo Sharma v. State of Bihar, 199(5) Bom.C.R. 1 : 1998(6), L.J. (S.C.) 41, the prosecution evidence was liable to be closed and he was entitled to an order of acquittal.

4. In the reply filed by respondent No. 1, it was contended that the ratio of the decision in Raj Deo Sharma’s case was not applicable to the petitioner’s case since the prosecution was under the Prevention of Corruption Act, 1947. Reliance was placed on the earlier decisions of the Apex Court in (i) Common Cause, Registered Society v. Union of India, (for short Common Cause No. I) and (ii) Common Cause Registered Society v. Union of India, (for short Common Cause No. II) where a reference is made to the decision of the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak, (for short Antulay’s case). Relying on the aforesaid decisions, it was contended that directions (i) and (ii) contained in para 16 of the Judgment in Raj Deo Sharma’s case would not be applicable where the offence related to mis-appropriation of public funds, cheating or offences under the Prevention of Corruption Act. It was then contended that the said directions (i) and (ii) were also inapplicable to other offences like smuggling, foreign exchange violation, offence under the N.D.P.S. Act, 1985, Essential Commodities Act, 1955, Food Adulteration Act and under the Acts dealing with Environment and other economic offences. Placing reliance on the decision in Common Cause No. II, it was contended that the Apex Court had thought it fit to extend the exclusion of directions No. 1 and 2 given in Common Cause No. I to some more offences which are enumerated in para III of the decision in Common Cause No. II. They include matrimonial offences, offences under the Negotiable Instruments Act, offences relating to criminal misappropriation of property, offences under section 304A of the Indian Penal Code, offences affecting public health, safety, convenience, decency and morals. Respondents No. 1 and 2, therefore, opposed the petitioner’s application for closure of the prosecution case and an order of acquittal.

5. As stated earlier, the learned Special Judge by his impugned Order dated 2-2-1999 rejected the petitioner’s application dated 30-1-1999. While doing so, he has placed reliance on his earlier Order dated 2-2-1999 passed in similar applications made in the Companion Case No. 54 of 1988. He was of the view that directions (i) contained in para 16 of the judgment in Raj Deo Sharma’s case was inapplicable to economic offences which were not minor offences. Since the offences relating to corruption, misappropriation of public funds, cheating and offences under the Prevention of Corruption Act were specifically excluded by the judgments of the Apex Court in the two Common Causes cases, the learned Judge held that direction (i) in Raj Deo Sharma’s case was not applicable. Since the petitioner is on bail, direction (ii) is not attracted. In the result, the petitioner’s application has been rejected.

6. Having heard all the learned Counsel at length, the short question which arises for our consideration is whether having regard to the law laid down by the Constitution Bench of the Apex Court in Antulay’s case and in the two Common Cause cases, the petitioner’s case would be covered by direction (i) in para 16 in Raj Deo Sharma’s case. The said direction (i) reads as under:- ” 16. After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulay’s case (supra) with the following directions:

(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the

accused is in jail or not, the Court shall close the prosecution

evidence on completion of a period of two years from the date

of recording the plea of the accused on the charges framed

whether the prosecution has examined all the witnesses or

not, within the said period and the Court can proceed to the

next step provided by law for the trial of the case”.

7. There can be no dispute that the right to a speedy trial is a part of the

right to life guaranteed under Article 21 of the Constitution. However, it is

difficult to say as to how much delay would amount to too long a delay and whether a delayed trial is necessarily an unfair trial, It would depend upon a variety of factors such as (i) the nature of the offence alleged, (ii) the extent to which the accused is responsible for the delay, (iii) whether the delay has occurred due to systemic reasons on which the prosecution or defence has no control, (iv) whether any prejudice has been caused to the accused by the delay (v) whether the interest of fairness in the administration of criminal justice would be better served by an order of expedition of the case, may be on a day to day basis and similar other factors.

8. We must first consider the decision of Constitution Bench in Antulay’s case. The petition was filed under Article 32 of the Constitution by the former Chief Minister of Maharashtra. He was prosecuted for the offences punishable under the Prevention of Corruption Act pursuant to the sanction granted by the Governor of Maharashtra under section 6 of the Prevention of Corruption Act. The sanction was granted on July 28, 1982. Certain objections were raised before the Special Judge, where the case was pending. The matter had come to this Court on the question of competence of the Special Judge to take cognisance and validity of the sanction. The matter was then taken to the Apex Court which agreed with the view taken by this Court that the investigation by a Police Officer under section 50 was not a condition precedent for taking cognisance under section 8 of the Criminal Law Amendment Act, 1952 and that cognisance could be taken by a Special Judge even on a private complaint. Later on, a challenge before the Apex Court to the validity of the proceedings pending before a Judge of this Court was upheld as a result of which all the proceedings which were taken in this Court including the recording of evidence for a period of over one year became non-est and the case had to be tried before the Special Judge in accordance with the 1952 Act. However, there was no progress after April 29, 1988 on which day the decision of the Apex Court was delivered. A contention was raised that the case which was instituted in 1982 was still pending. The petitioner therefore prayed under Article 32 for quashing the pending proceedings on the ground of violation of the right to a speedy trial which according to him, was implicit in the right under Article 21 of the Constitution. The Apex Court inter alia, considered its earlier decisions in (i) A.K. Gopalan v. State of Madras, , (ii) Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 567 (iii) Hussainara Khatoon v. Home Secretary, State of Bihar, and (iv) State of Maharashtra v. Champalal Punjaji Shah, . In the light of the ratio of these decisions, the Court came to the conclusion that while speedy trial was an implicit ingredient of a fair trial, the converse was not necessarily true. A delayed trial was not necessarily an unfair trial. The delay may have been occasioned on account of several factors beyond the control of both, the prosecution as well as the accused. A reference was then made to the decision in Strunk v. United States, 37 L.Ed. 2d 56 and also Bell v. Director of Public Prosecution, Jamaica, 1985(2) All.E.R. 585. The following observations in the judgment in Raghubir Singh v. State of Bihar, have been reproduced in para 54 of the judgment, at page 256 in Antulay’s case:-

“Several questions arise for consideration. Was there delay? How long was the delay?.—Was the delay inevitable having regard to the nature of the case, the sparse availability of legal services and

other relevant circumstances? Was the delay unreasonable? Was

any part of the delay caused by the wilfulness or the negligence

of the prosecuting agency? Was any part of the delay caused by

the tactics of the defence? Was the delay due to causes beyond

the control of the prosecuting and defending agencies? Did the

accused have the ability and the opportunity to assert his right

to a speedy trial? Was there a likelihood of the accused being

prejudiced in his defence? Irrespective of any likelihood of prejudice in the conduct of his defence, was the very length of the

delay sufficiently prejudicial to the accused? Some of these factors have been identified in Barker v. Wingo. A host of other

questions may arise which we may not be able to readily visualise just now. The question whether the right to a speedy trial

which forms part of the fundamental right to life and liberty guaranteed by Article 21 has been infringed is ultimately a question

of fairness in the administration of criminal justice even as ‘acting fairly’ is of the essence of the principles of natural justice (In

re K.(H) (an infant) and a ‘fair and reasonable procedure’ is what

is contemplated by the expression ‘procedure established by law

in Article 21 “(Maneka Gandhi)”.

9. The Apex Court in Antulay’s case then considered the import of Article21 in the light of the decision in Maneka Gandhi’s case (supra) and observed

in para 81 of the Judgment, at page 267, that it was in the interest of the

accused, as well as the society that a criminal case was concluded soon. If

the accused was found guilty, he ought to be declared so. The Court observed

that the social interest lay in punishing the guilty and exonerating the innocent. What is further relevant for deciding the controversy raised before us

are the observations in para 83 of the decision at page 268 and we think it

proper to reproduce the same:-

“83. 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 anytime schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular Court, means of communication and several other circumstances have to be kept in mind. …..

………………………….

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A murder case may be a simple one involving say a dozen witnesses which can be concluded in a week while another case may involve a large number of witnesses and may take several weeks. (Some offences by their very nature e.g. conspiracy cases, cases of misappropriation, embezzlement, fraud, forgery, sedition acquisition of disproportionate assets by public servants, cases of corruption against high public servants and high public officials take longer time for investigation and trial. Then again, the workload in each Court, district, region and State varies This fact is too well known to merit illustration at our hands. In many places requisite number of courts are not available. In some places,

frequent strikes by members of the bar interferes with the work schedules. In short, it is not possible in the very nature of things and present day circumstances to draw a time-limit beyond which a criminal proceeding will not be allowed to go. Even in the U.S.A. the Supreme Court has refused to draw such a line. Except for the Patna Full Bench decision under appeal, no other decision of any High Court in this country taking such a view has been brought to our notice. Nor, to our knowledge in United Kingdom…..)

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In some cases, delays may occur for which neither the prosecution

nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable-broadly speaking. Of

course, if it is a minor offence not being an economic offence and

the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on

its own facts having regard to the principles enunciated hereinafter. For all the above reasons, we are of the opinion that it is

neither advisable nor feasible to draw or prescribe any 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 become

illusory”.

10. The above observations make it clear that no time-schedule has been

prescribed. It would depend upon a variety of factors enumerated above.

However, the Court recognized the fact that by their very nature, the offences

involving misappropriation, embezzlement, fraud, accumulation of disproportionate assets by a public servant, as in the case before us, take longer

time, both for investigation as well as for trial. There are difficulties in making adequate number of courts available. A reference was made to the fact

that even in the United States of America, the Supreme Court had refused to

draw a line for determining the length of time, nor was any such decision

available from the United Kingdom. The Apex Court categorically excluded

economic offences from the operation of any rule being laid down on account

of a delayed trial. Then, in para 86 of the decision in Antulay’s case at pages

269/270 the Court referred to its observations in the case of Sheela Barse v.

Union of India, and in

American case of Strunk v. United States (supra) and observed that in the

matter of certain economic offences, the offence was really against the society. It is really the society, the State which prosecutes the offender. Then, in

para 86 of the judgment, the Court laid down certain propositions which are

meant to serve as guidelines. We may only reproduce proposition (5), (9) and

10 as under :—

“(5) 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 workload of the Court concerned, prevailing local conditions and go on what is called the systemic delays. It is true that it is the obligation of the State to ensure a

speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of pedantic one”.

“(9) Ordinarily speaking, where the Court comes to other 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 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 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. Finally, in para 94 of the decision at page 276, on a consideration of all the facts and circumstances of Antulay’s case, the Court held that it was not a fit case for quashing the criminal proceedings and the proper order to make was to direct the expeditious disposal of the case on a day to day basis. Accordingly, the petition filed by Antulay was dismissed and the Special Court was directed to take the case on a day to day basis until it was concluded. In our view, the decision of the Constitution Bench in Antulay’s case makes it abundantly clear that for offences of misappropriation, forgery, acquisition of disproportionate assets and other economic offences under the Customs and Excise Law, as also the N.D.P.S. Act, no fixed time-schedule has been laid down. The approach in these matters is clear. It is not an individual, who is the aggrieved person, but it is the entire society, the State, which is aggrieved by the act of the public servant, who is charged with the offence of acquisition of assets disproportionate to his known source of income, as is the case before us. Since the petitioner was an accused in a case under the Prevention of Corruption Act, which was pending since 1982, the Apex Court did not quash the proceedings. All that was done while dismissing the petition under Article 32 was to direct a speedy trial on a day to day basis.

12. The ratio laid down by the Constitution Bench in Antulay’s case came up for consideration in Common Cause-I where the petitioner, a registered Society espousing public causes, sought certain directions in a petition under Article 32 with respect to cases pending in Criminal Courts all over the country. After issuing notices to the Union of India, the State Governments and the Union Territories, the Apex Court has given certain directions in

para 4 of its decision at page 35 of . However, direction (4) in para 4, which appears at page 37 of the Report, makes it clear that directions 1 and 2 in para 4 were not applicable to cases of offences involving (a) corruption, misappropriation of public funds, cheating whether under the Indian Penal Code, Prevention of Corruption Act, 1947 or any other statute, (b) smuggling, foreign exchange violation and offences under the Narcotics Drugs and Psychotropic Substances Act, 1985, (c) Essential Commodities Act, 1955, Food Adulteration Act, Acts dealing with environment or any other economic offences, (d) offences under the Arms Act, 1959, Explosive Substances Act, 1908, Terrorists and Disruptive Activities Act, 1987, (e) offences relating to the Army, Navy and Air Force, (f) offences against public tranguillity, (g) offences relating to public servants, (h) offences relating to coins and government stamp, (i) offences relating to elections, (j) offences relating to giving false evidence and offences against public justice, (k) any other type of offences against the State, (1) offences under the taxing enactments and (m) offences of defamation as defined in section 499 I.P.C.

13. It is of relevance to note that in the second Common Cause case, , the Apex Court thought it fit to add a few more categories of offences to those which are mentioned in direction 4 in para 4 in Common Cause-I. After category (m) appearing in direction 4 in Common Cause -I, the following categories have been added by virtue of Para III in Common Cause II, which appears at page 776(S.C.C. and Bom.C.R. page 637):– “III. In para 4 of our judgment in the list of offences to which directions contained in paras 1 and 2 shall not apply, the following additions shall be made;

(n) matrimonial offences under Indian Penal Code, including section 498A or under any other law for the time being force; (o) offences under the Negotiable Instruments Act, including offences under section 138 thereof; (p) offences relating to criminal misappropriation of property of the complainant as well as offences relating to criminal breach of trust under the Indian Penal Code or under any other law for the time being in force; (q) offences under section 304A of the Indian Penal Code or any offence pertaining to rash and negligent acts which are made punishable under any other law for the time being in force; (r) offences affecting the public health, safety, convenience, decency and morals as listed in Chapter XIV of the Indian Penal Code or such offences under any other law for the time being in force”.

14. It is clear that directions 1 and 2 in para 4 of the decision in Common Cause I contemplate release of the accused on bail in certain categories of cases which are pending for a period stipulated in those directions. However, this is inapplicable to certain categories of offences stipulated in direction 4, which are reproduced above. The categories of offences enumerated in direction 4 were extended and a few more categories, viz., (n) to (r), have been added by para III of Common Cause case-II. This, in our view, makes it clear that the Apex Court did not intend to extend the benefit of directions 1 and 2 to economic offences or offences of misappropriation of public funds, offences under the Prevention of Corruption Act, offences relating to public servants, offences under the N.D.P.S. Act and similar other offences. The reason is

obvious. There is a vital social interest in prosecuting such offences, particularly those which affect the society and the community at large. They stand on a different footing and there may be a systemic delay due to inadequacy of infrastructure, such as, lack of sufficient number of courts or Judges. The Apex Court in none of the above three decisions has laid down a fixed time-schedule relating to the trial of economic offences or offences under the Prevention of Corruption Act or the N.D.P.S. Act or the like where the interests of the society/and, indeed, of the Nation are at stake. The offences with which the petitioner has been charged in the present case do not concern an individual victim. They affect the Society at large. They concern the probity of administration in public service. They concern the social and moral values, which are dear to the society and the State.

15. We may at this juncture refer to some of the observations of the Constitution Bench in K. Veeraswami v. Union of India and others, . Dealing with the question of grant of sanction to prosecute a public servant for the offence punishable under section 5(1) of the Prevention of Corruption Act, the Apex Court observed that the question of grant of sanction was dependant on the material collected and the case made out as to whether the public servant had, prima facie, committed an offence. If the material collected lend credence to the offence complained of, then normally sanction is granted. Yet, another reason for taking away the discretion of the investigating agency to prosecute or not to prosecute a public servant was that when a public servant is prosecuted for an offence which challenges his honesty and integrity, then it is not only a case between the prosecutor and the offender, but the Apex Court emphasized that the State was also vitally concerned with it as it affected the morale of the public servant, as also the administrative interests of the State. It is for this reason that the discretion to prosecute the public servant is taken away from the prosecuting agency and is vested with the authority which is competent to remove the public servant. Observations to this effect are to be found in paragraph 28 of the judgment at pages 693/694. Then, in paragraph 44 of the judgment, at page 701, the Apex Court referred to its earlier decision in S.A. Venkataraman v. State, and M. Narayanan Nambiar v. State of Kerala, where it was observed that the Prevention of Corruption Act created new offences of criminal misconduct of public servant and to some extent, it was overlapping the existing offences. The Prevention of Corruption Act aimed to protect public servants from harassment by prescribing that investigation against them should be made only by a Police Officer of a particular status and provided for sanction of the Government or other appropriate officer as a pre-condition for prosecution. It was a socially useful measure conceived in public servant and it should be liberally construed so as to bring about the desired object, which the Apex Court emphasised was “to prevent corruption among public servants and to prevent harassment of the honest against them”.

16. The approach of the Apex Court in the two cases, Antulay’s case and Veeraswami’s case which are decisions of the Constitution Benches dealing with offences under the Prevention of Corruption Act shows that it would be manifestly contrary to public interest to allow persons facing trial under the

said Act to be discharged or acquitted merely on the ground of delay which is unfortunately inherent in our legal system. It is not as if the petitioner is complaining of any dilatory tactics adopted by the prosecution. He is only complaining of systemic delay.

17. The fact that the Apex Court has been adopting a different approach in cases involving economic offences is further illustrated by its observations in State of Maharashtra v. Champalal Punjaji Shah, . The respondent Champalal was punished for offences punishable under section 135 of the Customs Act by the trial Magistrate. He was sentenced to suffer imprisonment for various terms, ranging from two to four years, and to pay different amounts of fine. On appeal, however, this Court had acquitted the accused. The State appealed to the Apex Court. Allowing the appeal, the Apex Court ordered conviction of the accused. When it came to the question of sentence, a contention was raised that & long time had elapsed since the commission of offence on 30th May 1965. The Apex Court decided the matter on 12th August, 1981. It was contended that this long lapse of time should be considered and the Court should refuse to interfere with the order of acquittal and in any case, not send the accused back to prison, particularly because the accused had also suffered preventive detention for over two years. In para 6 of the judgment, at pages 1679-80 the Court rejected the aforesaid contention and observed that the offence was one which jeopardised the economy of the country and it was impossible to take a casual or a light view of such offence. If the offences were of a trivial nature such as simple assault or theft, the Apex Court may, perhaps, have held otherwise. Since the offence related to violation of the provisions of the Customs Act, the accused was sentenced to a term of imprisonment.

18. The need for ensuring honesty and integrity in public life has again been emphasised by the Apex Court in Capt. Satish Sharma’s case viz. Common Cause A Registered Society v. Union of India and others, . This was a case where the Court was considering the complaint of arbitrary allotment of retail outlets by Capt. Satish Sharma, Minister of State for Petroleum and Natural Gas, who was exercising the powers of the Central Government. His action was challenged in the public interest litigation filed under Article 32 of the Constitution. In para 21 of the decision, at page 3550, the Apex Court observed that the Government today, in a Welfare State provided large number of benefits to its citizens. The Minister, who was the executive head of the department was elected by the people and was elevated to a position where he holds trust on behalf of the people. He, therefore, cannot commit breach of the trust reposed in him by the people. It was, therefore, held that such a person could not make allotments which were wholly mala fide and the allottees were the relations of his personal staff, and members of oil selection Boards and sons of Ministers. Then in paragraph 25 of the judgment, at page 3551, the Apex Court referred to its decision in Ramana Shetty’ case, , and in the case of Lucknow Development Authority v. M.K. Gupta, 1994 A.I.R. S.C.W. 97 and the fact that the Court had approved “Misfeasance in public officers” as a part of the law of tort. The Apex Court, therefore, held that the public servant would be liable to pay damages for malicious, deliberate or injurious wrong-doing. Reference was made to the treatise by Prof.. William Wade, who has observed “There is, thus, a tort which has been called misfeasance in public

office and which includes malicious abuse of power, deliberate mal-administration, and perhaps also other unlawful acts causing injury”.

19. In our view, the observations of the Apex Court in the cases to which we have made a reference above, clearly indicate that economic offences stand in a class by themselves where there is a vital social interest in pursuing the prosecution. The judgments of the Constitution Bench in Antulay’s case, as also in K. Veeraswami’s case exhibit a different approach while dealing with allegations of corruption made against high public functionaries in whom the people have reposed confidence. If the allegation is that a public servant has mis-used his office and amassed wealth disproportionate to his known sources of income, it is not any particular individual, who is the aggrieved party, but it is the Society and the State which are the aggrieved parties. Similar was the approach in Capt. Satish Sharma’s case where the Court expressed its disapproval of the mala fide exercise of power by a public servant, which has been held to be a tort viz. misfeasance in public office which includes malicious abuse of power, deliberate mal-administration and also other wrong acts causing injury. This approach of the Apex Court is further reiterated in the two Common Cause cases where even in the matter of grant of bail as a result of the delay in the progress of the trial, the Court has excluded certain categories of offences from the applicability of directions 1 and 2 in Common Cause -I. That list was extended by addition of some more categories in para III of Common Cause-II.

20. We will refer to two more decisions on the point where the Apex Court has expressed its reservations in applying any general rule as a result of delay, either in grant of bail or in the progress of the trial in certain categories of offences, (i) In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and others, dealing with the delay in disposal of cases under the N.D.P.S. Act, which, at times, involve foreigners either as accused or as detenues, the Court referred to its earlier decisions in Hussainara Khatoon v. Home Secretary, State of Bihar, , Kadra Pahadiya and others v. State of Bihar case, : and Raghubir Singh’s case, , and observed that having regard to the law laid down by the Constitution Benches in Antulay’s case (supra) and Kartar Singh v. State of Punjab, , the Court was not inclined to accept the extreme submission of quashing of the proceedings and setting free the accused whose trial was delayed beyond reasonable time for reasons mentioned earlier viz. systemic delays. The Apex Court, therefore, thought that since a violation of right guaranteed under Article 21 was alleged as a result of unduly long deprivation of personal liberty pending the trial, short of quashing the proceedings, a direction could be issued for release of the accused on bail if they had suffered imprisonment which was half of the maximum punishment provided for the offence. Having regard to the gravity of the offence with which the accused were charged, the Court in terms rejected the submission that the proceedings should be quashed and the accused should be set tree merely on account of the fact that the trials were delayed beyond reasonable time. The relevant observations are to be found in para 15 of the judgment, at pages 746 to 749, (ii) in Hussainara Khatoon v. Home Secretary, State of Bihar, , the Apex Court was considering its earlier guidelines issued for the release of under trials languishing in jail for want of expeditious disposal of cases. In para 2 of the judgment, at page 328, the Court reiterated that while there could be no doubt that under trial prisoners should not languish in jail on account of refusal to enlarge them on bail for want of their capacity to furnish bail, these were matters which were to be dealt with on a case to case basis. It was emphasised that sympathy for the under-trials, who were languishing in jail for long term on account of long pendency of cases, had to be balanced having regard to the impact of crime, more particularly, serious crime on society and these considerations have to be weighed having regard to the fact situation in pending cases. The Court, therefore, indicated that it was for the Chief Justices of the High Courts to undertake a review of such cases pending in their States and give appropriate directions. In conclusion, it was observed that withdrawal of cases from time to time may not always be an appropriate and acceptable remedy and what was required was to evolve a mechanism which would enable early disposal of cases.

21. It is in the light of the ratio of the above decisions that we must consider the effect of the directions issued by the Apex Court in Raj Deo Sharma’s case, 1998(6) L.J. (S.C.) 41. After considering its earlier decisions, certain directions have been issued in para 16 of the Judgment in Raj Deo Sharma’s case. The relevant direction (i) is quoted in para 6 above. Before we deal with the said direction and the facts of the case in which the same was issued, we must refer to the fact that the Apex Court has made it abundantly clear in direction (v) that the said directions were in addition to and without prejudice to the directions issued earlier in the two Common Cause Cases (supra). We find it appropriate to reproduce direction (v), which appears at page 49(S.C.C.) of the Report as under :-

“(v) Where the trial has been stayed by orders of Court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in “Common Cause” v. Union of India,

(4) Bom.C.R. 519(S.C.) as modified by the same Bench through the order reported in “Common Cause” A Registered Society v. Union of India, “

22. Raj Deo Sharma’s case dealt with a situation where there was unduly long delay in the progress of the trial for the offences punishable under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act. There were a large number of witnesses, as many as 40, a large number of documents and the extent of the disproportionate assets of the concerned public servant amounted to Rs. 9,10,932.41. The accused had filed a petition in the High Court for quashing the prosecution. The petition was dismissed. The delay in the progress of the prosecution was on account of the fact that there was only one Special Court for C.B.I. functioning in the State and there were large number of pending cases before the said Court. The Apex Court adverted to the reasons for the pendency of the cases and then issued certain directions in para 16 of the Judgment.

We must hasten to add that para 16 makes it clear at the outset that the directions issued were “to supplement the propositions laid down by the

Constitution Bench in Antulay’s case”. It is, therefore, clear to us that the said directions cannot be a substitute to the law laid down by the Constitution Bench in Antulay’s case, nor do they detract from the efficacy of the directions issued in the two Common Cause cases. In our view, there is nothing in the decision is Raj Deo Sharma’s case, which militates against the efficacy of the propositions laid down by the Constitution Bench either in Antulay’s case or in the two Common Cause cases.

23. What is contended before us on behalf of the petitioner is that since the offences with which the petitioner is charged are punishable for a period not exceeding 7 years, the petitioner’s case would fall under direction (i) above. Secondly, Counsel contends, that it is obligatory to close the prosecution evidence on expiry of a period of two years from the date of recording of the plea of the accused irrespective of the question as to whether the prosecution has examined all the witnesses or not and the Court must proceed with the next step in accordance with law in the trial of the case. However, it is evident from para 17 of the judgment in Raj Deo Sharma’s case that the Apex Court only set aside the order passed by the High Court and directed the Special Judge, C.B.I., Bihar to pass appropriate orders in the case. There is no direction for closing the prosecution evidence on expiry of the period of two years, presumably because the Apex Court made it clear in para 16 itself that the directions given were to supplement the propositions of law laid down earlier by the Constitution Bench in Antulay’s case. This has been further reiterated in direction (v) that the directions given earlier, including direction (i), on which reliance is placed before us, were in addition to and without prejudice to the directions issued in the two Common Causes cases. Let us, therefore, consider the true effect of the directions issued in para 16 of the judgment in Raj Deo Sharma’s case.

24. In the first place, the Constitution Bench in Antulay’s case was dealing with the grievance of the accused that the criminal case was instituted in 1982 and on account of one reason or the other the trial had not progressed after the Apex Court had decided the earlier petition on 29th April, 1988. A reference was made to the interest of the Society and the State in offences punishable under the Prevention of Corruption Act where a public servant was charged with acquisition of disproportionate assets. A distinction was made between ordinary offences and offences committed by public servants. A reference was made to the decision of the United States Supreme Court in Strunk’s case. However, in the petition which was decided on 10th December, 1991 in respect of the criminal case which was instituted in 1982, the prayer for quashing of the criminal proceedings was refused and all that was done was to direct expeditious trial on a day to day basis.

25. Secondly, in Common Cause -I while issuing directions for quashing of certain proceedings relating to minor offences and giving directions for the release on bail of the accused, who were in custody for a specified period of time, offences under the Prevention of Corruption Act and similar other categories of offences were specifically excluded from the purview of the directions. Thus, it was made clear that the benefit of the said directions given in Common Cause-I was not to be extended to persons accused of offences under the Prevention of Corruption Act and similar other offences enumerated in direction 4 of Common Cause-I, the categories enumerated therein were extended in para III of Common Cause II and the exclusion was to be for some more categories of offences.

26. Thirdly, we have already referred to the approach of the Apex Court in offences where the conduct of a public servant is concerned, particularly in offences under the Prevention of Corruption Act, as is evident from the decision in K. Veeraswami’s case (supra). A reference has been made to the distinction between a case dealing with minor offences and a case dealing with an economic offence in Champalal Punjaji Shah’s case under the Indian Customs Act where the offence was committed on May 30, 1965 and the Apex Court ordered conviction on 12th August, 1981. Strong disapproval of the conduct of Capt. Satish Sharma has been expressed in eloquent terms in Paras 21 and 25 the decision in his case (supra).

27. Fourthly, even in matters of under-trial prisoners languishing in jails for want of expeditious disposal of cases, the Apex Court has made a distinction between ordinary crimes and serious crimes and has made it clear that withdrawal of cases was not a proper and acceptable remedy in all matters. Dealing with delay in disposal of cases under the N.D.P.S. Act which may, at times, involve foreigners as accused or detenus, on a consideration of the law laid down by the Constitution Bench in Antulay’s case and Raghubir Singh’s case, the Apex Court declined to accept the extreme submission of quashing of proceedings and evolved certain guidelines for the release of the accused, who had suffered half the maximum punishment provided for the offence.

28. Thus, taking into account the ratio of the decisions mentioned above, it is not possible for us to accept the contention of the petitioner that his case is governed by direction (i) in para 16 of Raj Deo Sharma’s case. We have already emphasised that the said directions are in addition to and without prejudice to the directions issued earlier. The law laid down by the Constitution Bench in Antulay’s case has not, in our view, been disturbed by the decision in Raj Deo Sharma’s case. We are, therefore, of the view that there is nothing in the decision in Raj Deo Sharma’s case which waters down proposition Nos. 5, 9 and 10 (quoted in para 10 above ) laid down in Antulay’s case and reiterated in Common Cause No. I and Common Cause No. II.

29. Since Mr. Bagaria contended that a later decision of the Apex Court must be followed in preference to an earlier decision, though the earlier decision may be of a Constitution Bench, we will briefly deal with this submission.

30. In N. Meera Rani v. Govt. of Tamil Nadu and another, , the Apex Court was considering the legal position with regard to passing of an order of preventive detention of a person who was already in custody at the time of passing the order of detention. The question was if the person was already in custody, could it be said that there was a likelihood of his indulging in acts which were so prejudicial as to justify his preventive detention. The Apex Court considered the question in the light of an earlier decision of the Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan, reported at . The Court in Rameshwar Shaw’s case had made it clear that there was no impediment in the Detaining Authority passing an order of detention, even if person was already in custody. All that was necessary was that the Detaining Authority must be aware of his custody and the likelihood of his being released on bail, and this awareness must be reflected in the order of detention. If the Detaining Authority showed its awareness to the fact of subsisting custody of the proposed detenu and the likelihood of his being released on bail and, after taking into account that fact, still reached the subjective satisfaction that it was reasonably satisfied on cogent material that it was necessary to detain him on account of the likelihood of his release, no objection could be taken to an order of detention of a person, who is already in custody. While dealing with this question, the Apex Court had made it clear in para 13, at page 2034, that in the light of the law laid down by the Constitution Bench in Rameshwar Shaw’s case, it was obvious that none of the subsequent decisions could have intended taking a view contrary to the view taken in Rameshwar Shaw’s case. Para 13 reads as under:-

“13. We may refer to the decisions on the basis of which this point is

to be decided. The starting point is the decision of the Constitution Bench in Rameshwar Shaw v. District Magistrate, Burdwan,

. All subsequent decisions which are cited have to be read in the light of this Constitution Bench decision since they are decisions by Benches comprised of lesser number of Judges. It is obvious that none of these subsequent decisions could have intended taking a view

contrary to that of the Constitution Bench in Rameshwar Shaw’s

case (supra)”.

31. After observing as above, the Apex Court in N. Meera Rani’s case, reiterated the proposition laid down by the Constitution Bench and observed, thus, in para 21, at page 2038:-

“21. A review of the above decisions reaffirms the position which was

settled by the decision of a Constitution Bench in Rameshwar

Shaw’s case (supra). The conclusion about validity of the detention order in each case was reached on the facts of the particular

case and the observations made in each of them have to be read

in the context in which they were made. None of the observations made in any subsequent case can be construed at variance

with the principle indicated in Rameshwar Shaw’s case (supra)

for the obvious reason that all subsequent decisions were by

Benches comprised of lesser number of Judges. We have dealt

with this matter at some length because an attempt has been

made for some time to construe some of the recent decisions as

modifying the principle enunciated by the Constitution Bench in

Rameshwar Shaw’s case (supra)”

32. We have already indicated above that there is no conflict between the propositions laid down by the Constitution Bench in Antulay’s case as also the directions issued in the two Common Cause cases on the one hand and the directions issued in Raj Deo Sharma’s case. The Apex Court has made it clear that the directions issued in Raj Deo Sharma’s case were in addition to and intended to supplement the directions issued in the said earlier decisions. Assuming that there were any conflict of view expressed by a Constitution Bench and by a later smaller Bench, in our view, it is not open for us to skirt the view expressed by the Constitution Bench. The proper course for us is to try to find out and follow the opinion expressed by the Constitution Bench in preference to that expressed by a smaller Bench. This proposition of law is firmly laid down in the Union of India v. K.S. Subramanian, . The relevant observations are to be found in para 12, at page 2437, which reads as under:-

“12. We do not think that the difficulty before the High Court could be resolved by it by following what is considered to be the view of a Division Bench of this Court in two cases and by merely quoting the views expressed by larger Benches of this Court and then observing that these were insufficient for deciding the point before the High Court. It is true that, in each of the cases cited before the High Court, observations of this Court occur in a context different from that of the case before us. But, we do not think that the High Court acted correctly in skirting the views expressed by larger Benches of this Court in the manner in which it had done this, the proper course for a High Court in such a case is to try to find out and follow the opinions expressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court. That is the practice followed by this Court itself. The practice has not crystalized into a Rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger Benches of this Court were not applicable to the facts of the instant case, it should have said so giving reasons supporting its point of view.”

33. Similar view was expressed in The State of U.P. v. Ram Chandra Trivedi, , where the Apex Court disapproved the High Court skitting the view expressed by a larger Bench of the Apex Court. In para 22 of the decision at para 2437, the following observations were made:-

“22. Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their ratio decidendi and it is no longer open to any one to urge with any show of force that the constitutional position emerging from the decisions of this Court in regard to cases of the present nature is not clear. It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court, it cannot disregard or skirt the views expressed by the larger Benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramanian, Civil Appeal No. 212 of 1975, decided on July 30, 1976 to which one of us was a party, is to try to find out and follow the opinion expressed by larger Benches of this Court in preference to those expressed by smaller Benches of the Court which practice hardened as it has into a rule of law is followed by this Court itself.”

34. The two decisions mentioned above viz. (i) Subramanian’s case and (ii) Ram Chandra Trivedi’s case make it clear that it is the law laid down by the Constitution Bench, which would be binding on us, particularly when the subsequent decision of a smaller Bench specifically makes it clear that the directions issued by it were in addition to and without prejudice to the law laid down in the earlier decisions.

35. We must now make a brief reference to the two decisions of learned Single Judges of this Court, to which our attention was invited by Mr. Bagaria. In Criminal Writ Petition No. 1328 of 1998, decided on 6th November 1998-(1998(6) L.J. 354 (N.O.C.)) Rebello, J., referred to the directions issued by

the Apex Court in Raj Deo Sharma’s case and observed that the trial Court was bound to consider the said directions. The matter related to a case of 1978, which was transferred to the Special Court in 1992 and the Additional Sessions Judge had expressed his inability to take up the matter earlier because of pendency of old matters. In para 3 of the judgment, the learned Judge made it clear that failure on the part of the judicial system to dispose of the cases by itself was not ground for the accused to contend that he should be discharged, particularly when the offences were punishable under the Prevention of Corruption Act. He, therefore, rejected the application for discharge. In Para 4, the prayer for quashing of the charge was also repeated and all that was done was to direct the trial Court to consider the law laid down in Raj Deo Sharma’s case.

36. Similarly, in Anant Rajendralal Thakore and another v. State of Maharashtra, 1999(1) L.J. 127, decided by T.K.C. Das, J., the matter arose out of an application for quashing the four criminal cases pending in the Court of the Metropolitan Magistrate since 1978 under the Drugs & Cosmetics Act, 1940. The Magistrate had allowed the prosecution to examine further witnesses. This Court dismissed the application against the said order holding that there was nothing illegal in allowing the prosecution to examine the witnesses already listed before the Court. While coming to this conclusion, the learned Judge made a reference to the long pendency of the matter and the accused was given an opportunity to apply to the trial Court in view of the decision of the Apex Court in Raj Deo Sharma’s case. In the event of such an application being made, the Magistrate was to consider the same in accordance with law. We must hasten to add that the offence punishable under the Drugs and Cosmetics Act, 1940 though not specifically mentioned direction 4 issued in Common Cause-I, may fall under Clause (r) in para III of Common Cause -II viz. offences affecting public health, safety, convenience, decency and morale, as listed in Chapter XIV of the I.P.C. or such offence under any other law for the time being in force. However, it is not necessary for us to decide that question while considering the effect of the direction issued by the learned Single Judge Das, J., in Anant Thakore’s case. Suffice it to say, as rightly contended by Dr. Chandrachud, that there is nothing in the decision of the two learned Single Judges which supports the petitioner’s contention that despite the petitioner having been charged with offences punishable under the Prevention of Corruption Act, and despite the law laid down by the Constitution Bench of Apex Court in Antulay’s case and the directions issued in the two Common Cause cases, the prosecution case against the petitioner must be closed merely on the expiry on the period of two years from the date of recording the plea of the accused and the Court must proceed to the next step provided by law for the trial of the case.

37. In view of the above, we may sum-up our conclusions as under:-

1. The law laid down by the Constitution Bench of the Apex Court in Antulay’s case, makes a clear distinction between cases involving public servants, who are charged with offences punishable under the Prevention of Corruption Act, and ordinary cases involving minor offences. This is clear from propositions No. 5, 9 and 10 in para 86 of the decision in Antulay’s

case reproduced in para 10 above. This is further illustrated by the approach of the Apex Court in Champalal Shah’s case, and in Capt. Satish Sharma’s case, in .

2. Similarly, the decision of the Constitution Bench in K. Veeraswami case, , makes a distinction between cases where the State or the Society prosecutes a public servant, who is charged with the offence of having acquired disproportionate assets and ordinary cases.

3. The directions issued in the two Common Cause cases specifically exclude the offences falling under the Prevention of Corruption Act and other economic offences, to which the benefit contemplated by directions 1 and 2 in para 4 of Common Cause-I has not been extended. In other words, in cases covered by direction 4 of Common Clause-I, the benefit contemplated by directions 1 and 2 of para 4 is not to be extended.

4. A different approach in treating economic offences and certain other categories of offences affecting the society in general as against an individual is further writ large in extending the list of those offences, to which directions 1 and 2 in Common Cause-I are not to be applied. This is clear from para III of Common Cause-II where additional categories have been added from (n) to (r) to the list enumerated in direction 4 in para 4 of Common Cause-I.

5. The directions issued by the Apex Court in para 16 of Raj Deo Sharma’s case, 1998(6) L.J. (S.C.) 41 specifically make it clear that they were to supplement the propositions laid down by the Constitution Bench in Antulay’s case and they will be in addition to and without prejudice to the directions issued by the Apex Court in the two Common Cause cases. The directions issued in Raj Deo Sharma’s case, therefore, in our view, cannot be read to militate against the law laid down by the Apex Court in Antulay’s case or the directions issued in the two Common Cause Cases.

6. There is no inconsistency, much less a conflict, between the propositions laid down in Antulay’s cause case and the directions issued in the two Common Cause Cases on the one hand and the directions issued in Raj Deo Sharma’s case.

7. Even assuming that there were any inconsistency, having regard to the law laid down by the Apex Court in N. Meera Rani’s case, it is necessary for us to ascertain the ratio of the decision of the Constitution Bench and then, apply the law laid down in subsequent decisions of smaller Benches, subject to the proposition laid down by the Constitution Bench. This is clear from observations of the Apex Court in paras 13 and 21 in N. Meera Rani’s case reproduced in paras 30 and 31 above.

8. Even in respect of subsequent decisions of smaller Benches taking a view different from the view expressed by the Constitution Bench earlier, it is not open for us to skirt the view expressed and the proposition laid down by the Apex Court in its Constitution Bench decision and prefer the observations in a subsequent decision of a smaller Bench. This is clear from the law laid down in

Subramanian’s case, and in Ramchandra Trivedi’s case, as summed up in paras 32 and 33 above.

38. In view of the above legal position, it is clear to us that short of closing the prosecution evidence and/or quashing the prosecution case, what is contemplated by the Apex Court in Antulay’s case as was done in that case, is to give a direction for a speedy disposal of the trial on a day to day basis. Since we have reached the conclusion that the petitioner is not entitled to the benefit of direction (i) contained in para 16 of the decision in Raj Deo Sharma’s case, we are of the view that it is necessary in the interests of justice to direct the Special Court to take up the petitioner’s case on a priority basis and dispose it of as expeditiously as possible. In the circumstances, the petitioner is free to apply to the learned Special Judge for a fixed date hearing.

39. In the circumstances mentioned above, there is no error of law in the impugned order. The same calls for no interference in a petition under Article 226. Petition is accordingly dismissed. Rule is discharged.

40. At this stage, Mr. Bagaria prays for leave to appeal to the Apex Court on the ground that this is a fit case for appeal to the Apex Court within the meaning of Article 134(1)(c) of the Constitution. Dr. Chandrachud opposes the plea and, in our opinion, rightly. Since we have followed the law laid down by the Apex Court, we do not think this is a fit case for appeal under Article 134(1)(c). Hence, prayer rejected.

41. Petition dismissed.

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