Full Judgment Text
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CASE NO.:
Appeal (crl.) 1167 of 2003
PETITIONER:
State of Rajasthan
RESPONDENT:
Ikbal Hussen
DATE OF JUDGMENT: 08/09/2004
BENCH:
ARIJIT PASAYAT & PRAKASH PRABHAKAR NAOLEKAR
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT,J.
State of Rajasthan questions legality of the judgment rendered by
a learned Single Judge of the Rajasthan High Court at Jodhpur holding
that the trial against the respondent for alleged commission of
offences punishable under Sections 279, 337, 338 and 304(A) of the
Indian Penal Code, 1860 (in short the ’IPC’), could not be continued
indefinitely. The learned Additional Chief Judicial Magistrate,
Gulabpura, Bhilwara, Rajasthan directed acquittal of the respondent who
was facing trial for alleged commission of aforesaid offences. The
alleged incident took place on 28th March, 1995. The trial court closed
the evidence in the light of the decision of this Court in Raj Deo
Sharma vs. State of Bihar (1998 (7) SCC 507).
The High Court as noted above, observed that the trial cannot
proceed indefinitely and the trial had not come to an end for a period
of six years, and, therefore, learned Additional Chief Judicial
Magistrate was justified in closing the evidence and directing
acquittal.
The correctness of the decisions in two Raj Deo Sharma’s cases
i.e. Raj Deo Sharma vs. State of Bihar (1998 (7) SCC 507) and (1999 (7)
SCC 604) and that of "Common Cause" a Registered Society vs. Union of
India and Ors. (1996 (6) SCC 775) and (1996 (4) SCC 33) was considered
by seven-judge Bench in P. Ramachandra Rao vs. State of Karnataka
(2002(4) SCC 578). In the said case after considering the various
decisions it was held as follows :
"For all the foregoing reasons, we are of the
opinion that in Common Cause case (I) - (1996 (4) SCC
33 : 1996 SC (Cri) 589) [as modified in Common Cause
(II) \026 (1996 (6) SCC 775 : 1997 SCC (Cri) 42) and Raj
Deo Sharma (I)- (1998 (7) SCC 507 : 1998 SCC (Cri)
1692 and (II)- (1999 (7) SCC 604 : 1999 SCC (Cri)
1324) the Court could not have prescribed periods of
limitation beyond which the trial of a criminal case
or a criminal proceeding cannot continue and must
mandatorily be closed followed by an order acquitting
or discharging the accused. In conclusion we hold:
(1) The dictum in A.R. Antulay case (1992
(1) SCC 225 : 1992 SCC (Cri) 93) is correct
and still holds the field.
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(2) The propositions emerging from Article
21 of the Constitution and expounding the
right to speedy trial laid down as guidelines
in A.R. Antulay case (supra) adequately take
care of right to speedy trial. We uphold and
reaffirm the said propositions.
(3) The guidelines laid down in A.R. Antulay
case are not exhaustive but only illustrative.
They are not intended to operate as hard and
fast rules or to be applied like a straitjacket
formula. Their applicability would depend on
the fact situation of each case. It is
difficult to foresee all situations and no
generalization can be made.
(4) It is neither advisable, nor feasible,
nor judicially permissible to draw or
prescribe an outer limit for conclusion of all
criminal proceedings. The time-limits or bars
of limitation prescribed in the several
directions made in Common Cause (I), Raj Deo
Sharma case (I) and (II) could not have been
so prescribed or drawn and are not good law.
The criminal courts are not obliged to
terminate trial or criminal proceedings merely
on account of lapse of time, as prescribed by
the directions made in Common Cause case (I),
Raj Deo Sharma case (I) and (II). At the most
the periods of time prescribed in those
decisions can be taken by the courts seized of
the trial or proceedings to act as reminders
when they may be persuaded to apply their
judicial mind to the facts and circumstances
of the case before them and determine by
taking into consideration the several relevant
factors as pointed out in A.R. Antulay case
and decide whether the trial or proceedings
have become so inordinately delayed as to be
called oppressive and unwarranted. Such time-
limits cannot and will not by themselves be
treated by any court as a bar to further
continuance of the trial or proceedings and as
mandatorily obliging the court to terminate
the same and acquit or discharge the accused.
(5) The criminal courts should exercise their
available powers, such as those under Sections
309, 311 and 258 of the Code of Criminal
Procedure to effectuate the right to speedy
trial. A watchful and diligent trial Judge can
prove to be a better protector of such right
than any guidelines. In appropriate case,
jurisdiction of the High Court under Section 482
Cr.P.C. and Articles 226 and 227 of the
Constitution can be invoked seeking appropriate
relief or suitable directions.
This is an appropriate occasion to remind the
Union of India and the State Governments of
their constitutional obligation to strengthen
the judiciary \026 quantitatively and qualitatively
\026 by providing requite funds, manpower and
infrastructure. We hope and trust that the
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Government shall act."
It was held that the dictum of the Constitution Bench in
A.R.Antulay’s case (supra) continues to hold the field and bars of
limitation introduced in Common Cause (I) and Common Cause (II) and Raj
Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained as these
decisions were rendered by two or three Hon’ble judges and run counter
to the view expressed by the Constitution Bench in A.R. Antulay’s case
(supra). It was held as follows.
"The Constitution makers were aware of the Sixth
Amendment provisions in the Constitution of the USA
providing in express terms the right of an ’accused’ to be
tried speedily. Yet this was not incorporated in the Indian
Constitution. So long as A.K. Gopalan v. State of Madras
(1950 SCR 88) held the field in India, only such speedy
trial was available as the provisions of the Code of
Criminal Procedure made possible. No proceeding could ever
be quashed on the ground of delay. On a proper grievance
being made, or suo moto, court could always ensure speedy
trial by suitable directions to the trial court including
orders of transfer to a court where expeditious disposal
could be ensured.
With the decision of this Court in Maneka Gandhi v.
Union of India (1978 (1) SCC 248) Article 21 received a new
content. Procedure relating to punishment of crime must be
fair, just and reasonable. Hussainara Khatoon (I) v. Home
Secretary, State of Bihar (1980 (1) SCC 81) and later
decisions have spelt out a so-called ’Right to Speedy Trial’
from Article 21. It is both a convenient and self-
explanatory description. But it does not follow that every
incident attaching to the Sixth Amendment right ipso facto
is to be read into Indian Law. In the USA, the right is
express and unqualified. In India it is only a component of
justice and fairness. Indian courts have to reconcile
justice and fairness to the accused with many other
interests which are compelling and paramount.
Article 21 cannot be so construed as to make mockery
of directive principles and another even more fundamental
right i.e., the right of equality in Article 14.
The concept of delay must be totally different
depending on the class and character of the accused and the
nature of his offence, the difficulties of a private
prosecutor and the leanings of the government.
The court must respect legislative policy unless the
policy is unconstitutional.
Statutes of limitation, limited though they are on
the criminal side, do not apply to :
(a) serious offences punishable with more than 3
years imprisonment;
(b) all economic offences.
Corruption by high public servants is not protected
for both these reasons.
Right to speedy trial is not a right not to be tried.
Secondly it only creates an obligation on the prosecutor to
be ready to proceed to trial within a reasonable time;
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That is to say without any delay attributable to his
deviousness or culpable negligence.
The actual length of time taken by a trial is wholly
irrelevant. In each individual case the court has to
perform a balancing act. It has to weigh a variety of
factors, some telling in favour of the accused, some in
favour of the prosecutor and others wholly neutral. Every
decision has to be ad-hoc. It is neither permissible nor
possible nor desirable to lay down an outer limit of time.
The U.S. Supreme Court has refused to do so. Similar view
is taken by our court. There is no precedent warranting
such judicial legislation.
The following kinds of delay are to be totally
ignored in giving effect to the plea of denial of speedy
trial:
(A) Delay wholly due to congestion of the Court
calendar, unavailability of judges, or other
circumstances beyond the control of the prosecutor.
(B) Delay caused by the accused himself not merely by
seeking adjournments but also by legal devices which
the prosecutor has to counter.
(C) Delay caused by orders, whether induced by the
accused or not of the court, necessitating appeals or
revision or other appropriate actions or proceedings.
(D) Delay caused by legitimate actions of the
prosecutor e.g., getting a key witness who is kept out
of the way or otherwise avoids process or appearance
or tracing a key document or securing evidence from
abroad.
Delay is usually welcomed by the accused. He
postpones the delay of reckoning thereby. It may impair the
prosecution’s ability to prove the case against him. In the
meantime, he remains free to indulge in crimes. An accused
cannot raise this plea if he has never taken steps to demand a
speedy trial. A plea that proceedings against him be quashed
because delay has taken place is not sustainable if the record
shows that he acquiesced in the delay and never asked for an
expeditious disposal. In India the demand rule must be
rigorously enforced. No one can be permitted to complain that
speedy trial was denied when he never demanded it.
The core of ’Speedy Trial’ is protection against
incarceration. An accused who has never been incarcerated
can hardly complain. At any rate, he must show some other
very strong prejudice. The right does not protect an
accused from all prejudicial effects caused by delay. Its
core concern is impairment of liberty.
Possibility of prejudice is not enough. Actual
prejudice has to be proved.
The plea is inexorably and inextricably mixed up with
the merits of the case. No finding of prejudice is possible
without full knowledge of facts. The plea must first be
evaluated by the trial court."
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In the aforesaid background the decision of the High Court
affirming the acquittal of respondent cannot be maintained. We set
aside the judgments of the trial court and the High Court. The trial
before the trial court shall be revived. Since the trial is pending for
a considerable period of time, it would be appropriate for the
concerned court to take up the matter on day to day basis, keeping in
view the mandate of Section 309 of the Code of Criminal Procedure, 1973
(in short the "Cr.P.C.").
Appeal is accordingly allowed.