Full Judgment Text
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CASE NO.:
Appeal (crl.) 858 of 2002
PETITIONER:
STATE THROUGH CBI
Vs.
RESPONDENT:
DR. NARAYAN WAMAN NERUKAR AND ANR.
DATE OF JUDGMENT: 26/07/2002
BENCH:
ARIJIT PASAYAT, J.
JUDGMENT:
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment of a Division Bench of the
Delhi High Court whereby the proceedings against the respondent no.1 were
quashed, primarily on ground that there was unnecessary delay in conclusion
of the trial by court. Reliance was placed on a decision of this Court in
"Common Cause" A registered Society through its Director vs. Union of
India and Ors. (1996) 4 SCC 33) as modified in "Common Cause" A
registered Society through its Director vs. Union of India and Ors. [(1996) 6
SCC 775] to hold so. A brief reference to the factual aspects would suffice.
According to the prosecution, respondent no.1 committed offences
under Sections 3 and 5 of the Official Secrets Act 1923 (in short ’Secrets
Act’) and Section 120-B of the Indian Penal Code, 1860 (in short ’IPC’)
read with the aforesaid provisions. The Chief Metropolitan Magistrate by
his order dated 16.8.1999 took cognizance and issued processes against the
accused persons including the respondent no.1 herein. Respondent no.1
approached the High Court under Section 482 of the Code of Criminal
Procedure, 1973 (in short ’Cr.PC’) for passing an order against the
cognizance taken by the Chief Metropolitan Magistrate. The High Court
quashed the proceedings, inter alia, on the ground that there has been
unnecessary delay in the proceedings. Stand of the prosecution before the
High Court was that the case is of very serious nature and the respondent
no.1, who at the relevant time, was Adviser in the Department of
Electronics, Government of India parted with a copy of a sensitive secret
document namely "User Evaluation Trial Report on RATAC-S Battle Field
Surveillance Radar (BFSR) Phase-I", which was being evaluated by the
Army Authorities with reference to certain specific parameter required by
the Army Authorities and the same was dispatched to an expert in Paris,
France through courier service, who brought it to the notice of the police. As
such the case involved offences which relate to security of the State. A large
number of documents were to be exhibited. There was no unusual delay.
But the High Court did not accept the same. Placing reliance on a decision
of this Court in Abdul Rehman Antulay and Ors. vs. R.S. Nayak and Anr.
(1992) 1 SCC 225, it was held that the right of speedy trial has been
infringed. It was noted that merely because about 100 witnesses spread all
over the India were to be examined, that cannot be a relevant ground
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justifying the delay. Maximum punishment for the alleged offence is 3 years
and the respondent no.1 has suffered custody of about 2 years in addition to
agony of facing prosecution for about 12 years.
Mr. Harish N. Salve, learned Solicitor General submitted that the
approach of the High Court is clearly erroneous. It cannot be said to be a
rule of universal application that whenever there is delay, whatever be the
justification for the same, the proceedings are to be quashed. Additionally
there was no material before the High Court to come to the conclusion that
the maximum sentence is 3 years and not 15 years. It was not the case of the
respondent no.1 before the High Court that his case would fall under sub-
section (3) of Section 5 of the Secrets Act. In any event that was a matter for
trial to be determined on consideration of the materials which are to be
placed.
Per contra Mr. K. Ramamoorthy, learned senior counsel for the
respondent submitted that the right to speedy trial is inbuilt in Article 21 of
the Constitution of India, 1950 (in short ’the Constitution’) and, therefore,
the High Court had committed no error in directing the proceedings to the
quashed. According to him, it was specifically pleaded before the High
Court as to how the alleged offence was covered by sub-section (3) of
Section 5 of Secrets Act.
Recently a 7-Judges Bench of this Court in P. Ramachandra Rao vs.
State of Karnataka JT 2002 (4) SC 92 held as under:
"No person shall be deprived of his life or his personal
liberty except according to procedure established by law
declares Article 21 of the Constitution. ’Life and
liberty’, the words employed in shaping Article 21, by
the founding fathers of the Constitution, are not to be
read narrowly in the sense drearily dictated by
dictionaries; they are organic terms to be construed
meaningfully. Embarking upon the interpretation
thereof, feeling the heart-throb of the Preamble, deriving
strength from the Directive Principles of state policy and
alive to their constitutional obligation, the courts have
allowed Article 21 to stretch its arms as wide as it
legitimately can. The mental agony, expense and strain
which a person proceeded against in criminal law has to
undergo and which, coupled with delay, may result in
impairing the capability or ability of the accused to
defend himself have persuaded the constitutional courts
of the country in holding the right to speedy trial a
manifestation of fair, just and reasonable procedure
enshrined in Article 21. Speedy trial, again, would
encompass within its sweep all its stages including
investigation, inquiry, trial, appeal, revision and re-trial
in short, everything commencing with an accusation and
expiring with the final verdict the two being
respectively the terminus a quo and terminus ad quem
of the journey which an accused must necessarily
undertake once faced with an implication. The
constitutional philosophy propounded as right to speedy
trial has though grown in age by almost two and a half
decades, the goal sought to be achieved is yet a far off
peak. Myriad fact-situations bearing testimony to denial
of such fundamental right to the accused persons, on
account of failure on the part of prosecuting agencies and
executive to act, and their turning an almost blind eye at
securing expeditious and speedy trial so as to satisfy the
mandate of Article 21 of the Constitution have persuaded
this Court in devising solutions which go to the extent of
almost enacting, by judicial verdict bars of limitation
beyond which the trial shall not proceed and the arm of
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law shall lose its hold. In its zeal to protect the right to
speedy trial of an accused, can the court devise and
almost enact such bars of limitation though the
Legislature and the statutes have not chosen to do so is
a question of far-reaching implications which has led to
the constitution of this bench of seven-judge strength."
It was held that the decisions in the two "Common Cause" cases and
Raj Deo Sharma v. State of Bihar JT 1998 (7) SC 1 and Raj Deo Sharma
(II) v. State of Bihar JT 1999 (7) SC 317, were not correctly decided on
certain aspects. It is neither advisable nor feasible, nor judicially permissible
or draw or prescribe an outer limit for conclusion of all criminal
proceedings. The time-limits or bars of limitation prescribed in the several
directions made in the aforesaid four cases could not have been so
prescribed or drawn and, therefore, are not good law. Criminal courts are not
obliged to terminate trial of criminal proceedings merely on account of lapse
of time, as prescribed by the directions made in the aforesaid cases.
As was observed in P. Ramchandra Rao’s case (supra), at the most
periods of time prescribed in those decisions can be taken by the Courts in
seisin of the trial or proceedings to act as reminder when they may be
persuaded to apply to their judicial mind to the facts and circumstances of
the case before them and determine by taking into consideration several
relevant factors as pointed in A.R. Antulay’s case (supra) and decide
whether the trial or proceedings have become so inordinately delayed as to
be called oppressive and unwarranted. Such time limits cannot and will not
be treated by any court as a bar to further trial or proceedings and as
mandatorily obliging the court to terminate the same and acquit or discharge
the accused.
While considering the question of delay the court has a duty to see
whether the prolongation was on account of any delaying tactics adopted by
the accused and other relevant aspects which contributed to the delay.
Number of witnesses examined, volume of documents likely to be exhibited,
nature and complexity of the offence which is under investigation or
adjudication are some of the relevant factors. There can be no empirical
formula of universal application in such matters. Each case has to be judged
in its own background and special features if any. No generalization is
possible and should be done. It has also to be borne in mind that the criminal
courts exercise available powers such as those under Sections 309, 311 and
258 of the Cr.P.C. to effectuate right to speedy trial.
These aspects have not been considered by the High Court while
quashing the proceedings. On that score the judgment under challenge is
vitiated. Additionally while dealing with the question as to the proper
provision applicable to the case, the Court has come to a definite finding
about maximum sentence. Normally, these aspects are to be left to be
decided by the trial court. In the case at hand we find that the High Court
came to the conclusion about applicability of a particular provision. Mr.
Ramamoorthy has rightly submitted that the court can, in a given case,
where factual aspects and the law applicable are clear, come to the
conclusion about the provision applicable to the facts. But for coming to
such conclusion the factual position must be clear and no doubt should exist
about the applicability of a particular provision to the factual scenario. The
complex nature of the offence should be deterrent to the courts while going
into the question of applicability of a provision.
Be that as it may, in view of the conclusion that order of the High Court
is to be quashed, we do not think it necessary to bestow our attention to the
question as to which provision is applicable to the facts of the case.
Accordingly the judgment of the High Court is quashed and the matter
is remitted back to the High Court. The High Court shall hear the matter
afresh, permit the parties to place materials which according to it will be
relevant for the purpose of determination of the dispute before it, and take a
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fresh decision in accordance with law. As mentioned above, we are not
expressing any opinion on the merits of the case.
The appeal is allowed to the extent indicated above.
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