Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
CASE NO.:
Appeal (crl.) 774 of 2002
PETITIONER:
Moti Lal Saraf
RESPONDENT:
State of Jammu & Kashmir & Another
DATE OF JUDGMENT: 29/09/2006
BENCH:
S.B. SINHA & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
Dalveer Bhandari, J.
Speedy trial as read into Article 21 as an essential
part of the fundamental right to life and liberty
guaranteed and preserved under our Constitution is the
main issue which has arisen for adjudication in this
appeal.
Brief facts necessary to dispose of this appeal are as
follows.
The appellant was working as a Manager in the
State Bank of India, Sumbal, Kashmir in the year 1980.
An FIR No. 34 of 1980 under Section 5(2) of the Jammu
& Kashmir Prevention of Corruption Act (for short, ’the J
& K PC Act’) was registered against the appellant,
pursuant to which the appellant was arrested on the
allegation that he had received a sum of Rs.700/- as
illegal gratification, though the amount as alleged was
not recovered from him, but from one Gulam Quadir.
On 30.4.1981 a challan under Section 173 Cr.P.C.
came to be filed against the appellant before the court of
Special Judge, Anti Corruption, Srinagar, Kashmir under
Section 5(2) of the J & K PC Act. The appellant
challenged the legality of the proceedings of the Court
before the High Court of Jammu & Kashmir in Criminal
Petition No. 41 of 1982 on the ground that he was not a
public servant within the meaning of Section 21 of the
Ranbir Penal Code (for short, ’RPC’), as such, he could
not be tried under the provisions of the J & K PC Act.
The appellant also urged that the Court had no
jurisdiction to try the case because no valid sanction had
been obtained for prosecution of the appellant from the
competent authority.
The Court, after hearing the parties, held that the
appellant was a public servant within the meaning of
Section 21 RPC being an employee of the State Bank of
India, which was engaged in trading business besides
being owned by the Central Government.
The High Court came to a definite finding that
under the service rules of the State Bank of India, the
supervisory staff was not the General Manager
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
(Operations). The appellant at the time of the
commission of the alleged offence was a Branch Manager
and he could be removed from the service by the
appointing authority or by an authority which was
superior to the appointing authority. That being so, the
sanction given by the General Manager (Operations) for
prosecution of the appellant on 26.5.1981 was given by
an incompetent person who had no jurisdiction or
competence to remove the appellant from the service.
The sanctioning authority was not even the appellant’s
appointing authority. However, under Section 6 of the J
& K PC Act which provides for initiation of prosecution,
there must be a sanction issued by a person who was
empowered to remove such an official from service.
The High Court clearly held that it was well settled
that no prosecution could be brought before a Court
without there being a proper sanction. Existence of a
valid sanction was a condition precedent for prosecution
under Section 5(2) of the J & K PC Act. In the absence of
sanction, the trial Judge had no jurisdiction to take
cognizance of the case. The Court, while allowing the
petition filed by the appellant, quashed the proceedings
pending against the appellant in the trial court under
Section 5(2) of the J & K PC Act and under Section 161
RPC.
The appellant, however, was dismissed from service
in the departmental proceedings initiated against him,
and later, in appeal, the dismissal was converted into
removal from the service.
It may be pertinent to mention that the
respondents again filed a challan against the appellant
before the Court of a Special Judge, Anti Corruption,
Srinagar on 25.7.1986, on the same set of facts that the
appellant was no more in service and the sanction for
prosecution was not required now.
The chronic militancy in Srinagar led to mass
migration of the minority community. The appellant
being a member of the minority community migrated to
Jammu on 23.9.1998. The appellant filed a petition
before the High Court of Jammu & Kashmir at Jammu
seeking transfer of the case from the Court of the Special
Judge, Anti Corruption, Srinagar to the Court of the
Special Judge, Anti Corruption, Jammu. The High Court
vide its order dated 23.9.1998 transferred the case.
The appellant filed an application before the trial
court for quashing of the trial on the plea that the
appellant could not be prosecuted without sanction.
The learned Special Judge, Anti Corruption, Jammu
after hearing the parties vide order dated 12.3.1999
accepted the application filed by the appellant and
discharged him from the offences under Section 5(2) of
the J & K PC Act read with Section 161 RPC. The trial
court observed in its order that the Vigilance
Organization, Kashmir, despite having knowledge that
earlier accorded sanction had been quashed, again
produced the instant charge-sheet for his trial in the year
1986 on the plea that the accused had been removed
from the service, as such, no sanction as contemplated
under Section 6 of the J & K PC Act was required.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
The Special Judge after hearing the parties observed
that it was not disputed that earlier sanction accorded to
prosecute the accused was quashed by the High Court
having not been accorded by a competent authority.
Even now, no fresh sanction had been obtained to
prosecute the appellant from the competent authority.
When the instant charge-sheet was presented, no
sanction was in existence. The learned trial Judge
interpreted Section 6 of the J & K PC Act and stated that,
according to the said Section, sanction was sine qua non
for taking cognizance of the offence. We deem it
appropriate to reproduce Section 6 of the Act. It reads as
follows:
"6. Previous sanction necessary for
prosecution \026 (1) No Court shall take
cognizance of an offence punishable under
section 161 or section 165 of the Ranbir Penal
Code, or under sub-section (2) of section 5 of
this Act, alleged to have been committed by a
public servant, except with the previous
sanction ___
(a) in the case of a person who is not
removable from his office save by or
with the sanction of the
Government,
(b) in the case of any other person, of
the authority competent to remove
him from his office.
(2) Where for any reason whatsoever
any doubt arises whether the previous
sanction as required under sub-section (1)
should be given by the Government or any
other authority, such sanction shall be given
by the Government or authority which would
have been competent to remove the public
servant from his office at the time when the
offence was alleged to have been committed."
The Court clearly observed that it was immaterial
whether at the time of the presentation of the charge-
sheet the accused was in service or not, but the fact was
that he had committed criminal mis-conduct while
discharging his official functions and the cognizance
taken against the appellant without sanction was bad in
the eyes of law. The accord of sanction was a sine qua
non for taking cognizance of the offence against the
accused.
It was submitted by the appellant that the order
dated 12.3.1999 passed by the Special Judge, Anti
Corruption, Jammu was not challenged and, therefore, it
became final and binding between the parties.
It was further submitted that it was astonishing
that without challenging the validity of the order passed
by the Special Judge, Jammu a challan was filed against
the appellant on the same set of facts before the Special
Judge, Anti Corruption, Jammu on 12.8.2000, by the
respondent. By virtue of order dated 12.8.2000 the
appellant again came under judicial restraint and was
asked to produce sureties for his presence in the Court.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
The appellant filed a petition before the High Court
for quashing the proceedings pending before the Special
Judge, Anti Corruption, Jammu, being Case No. 34 of
1980. The High Court vide impugned judgment
dismissed the petition without appreciating the
contentions raised by the appellant in proper perspective.
The appellant has now challenged the impugned order of
the High Court dated 5.9.2001. The appellant submitted
that the orders of discharge by the High Court in the first
instance and subsequently by the Special Judge, Anti
Corruption, Jammu had become final and binding
because the respondents did not challenge the said
orders. It is also alleged that the respondents could not
be permitted to prosecute the appellant on the same
cause of action and on the same facts and circumstances
for the third time. According to the appellant, this was
a clear case of gross abuse of the process of law. He
further submitted that how the respondents could be
permitted to file a fresh challan for the third time on the
same cause of action and on the same facts and
circumstances? According to the appellant, the
impugned order suffers from serious infirmities. He
submitted that the High Court ought to have appreciated
that by dismissing the appellant’s petition the High Court
had in fact reviewed its own order. There was no
provision in the Criminal Law which enabled the Court to
review its own order.
The appellant further submitted that repeated
filing of challans by the respondents without any
sanction had caused immense mental, physical and
emotional stress and harassment for more than 26 years.
The appellant also sought relief on the ground that it was
the right of every citizen to seek speedy trial.
Continuation of further proceedings against the appellant
is contrary to the basic spirit of Article 21 of the
Constitution, and consequently, the impugned judgment
is liable to be set aside.
In the special leave petition preferred by the
appellant, this Court issued a show-cause-notice.
Pursuant to that show-cause-notice, a counter affidavit
was filed on behalf of the respondents by the Director
General/Commissioner of Vigilance Organization of
Jammu & Kashmir. It may be pertinent to mention that
the basic facts incorporated in the special leave petition
regarding the three challans produced by the
respondents have not been denied. Admittedly, in the
last more than 26 years, not even a single witness has
been examined by the prosecution. The appellant, of
course, had taken the legal remedy available to him to
protect his interests against illegal proceedings initiated
against him by the respondents, but that by itself could
not be a ground to harass and humiliate the appellant for
more than a quarter century.
It was submitted that the appellant could not have
been prosecuted without a valid sanction. The
respondents were not justified in filing the fresh challan
without getting the earlier order of the High Court and
the order of the Special Judge, Anti Corruption, Jammu
quashed. It was urged that the proceedings initiated
against the appellant were totally without jurisdiction
and consequently were liable to be set aside.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
The appellant, in the instant case, has been facing
the criminal prosecution for almost more than two and a
half decades. The speedy trial is an integral part of
Article 21 of the Constitution. In the instant case, in the
last twenty six years, not even a single prosecution
witness had been examined. It was urged that for more
than one reasons, the prosecution, in the instant case,
cannot be permitted to continue. The proceedings taken
by the respondents against the appellant were clearly an
abuse of process of law.
This Court had repeatedly emphasized that the
speedy trial is implicit in the spectrum of Article 21 of the
Constitution.
Reference was made to a Constitution Bench
Judgment of this Court in the case of Abdul Rehman
Antulay v. R. S. Nayak (1992) 1 SCC 225. In this case,
the Court held that the right to a speedy trial was a part
of fair, just and reasonable procedure implicit in Article
21 of the Constitution. This Court, in this case, observed
that each case had to be decided on its own facts. In this
case, this Court further observed that it was not
advisable and feasible to fix an outer time limit for
conclusion of the criminal proceedings.
It was submitted in the said case that the framers of
Indian Constitution were aware of the 6th Amendment in
the Constitution of the USA providing in express terms
the right of an ’accused’ to be tried speedily. Yet, similar
provision was not incorporated in the Indian
Constitution. It was submitted in that case that it is
neither permissible nor possible nor desirable to lay
down an outer limit of time. The US Supreme Court also
had refused to do so.
We deem it appropriate to reproduce the relevant
observations made by this Court in the case of
Hussainara Khatoon (I) v. Home Secretary, State of
Bihar (1980) 1 SCC 81 as under:
"We think that even under our
Constitution, though speedy trial is not
specifically enumerated as a fundamental
right, it is implicit in the broad sweep and
content of Article 21 as interpreted by this
Court in Maneka Gandhi v. Union of India
[(1978) 1 SCC 248]. We have held in that case
that Article 21 confers a fundamental right on
every person not to be deprived of his life or
liberty except in accordance with the
requirement of that Article that some
semblance of a procedure should be prescribed
by law, but that the procedure should be
"reasonable, fair and just". If a person is
deprived of his liberty under a procedure
which is not "reasonable, fair or just", such
deprivation would be violative of his
fundamental right under Article 21 and he
would be entitled to enforce such fundamental
right and secure his release. Now obviously
procedure prescribed by law for depriving a
person of his liberty cannot be ’reasonable, fair
or just’ unless that procedure ensures a
speedy trial for determination of the guilt of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
such person. 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. There can,
therefore, be no doubt that speedy trial, and by
speedy trial we mean reasonably expeditious
trial, is an integral and essential part of the
fundamental right to life and liberty enshrined
in Article 21."
In a number of cases, this Court on consideration of
peculiar facts and circumstance of individual cases had
quashed the proceedings.
In Rakesh Saxena v. State through C.B.I. (1986)
Supp. SCC 505, this Court quashed the proceedings on
the ground that any further continuance of the
prosecution after lapse of more than six years in the case
of the appellant who was merely a trader at the lowest
rung of the hierarchy in the Foreign Exchange Division of
the Bank is uncalled for, particularly, in view of the
complicated nature of the offence charged.
This Court, in the case of Srinivas Gopal v. Union
Territory of Arunachal Pradesh (1988) 4 SCC 36
quashed the proceedings on the ground of delay in
investigation and commencement of trial. The
investigation commenced in November 1976 and the case
was registered on completion of the investigation in
September 1977. Cognizance was taken by the Court in
March 1986.
In T. J. Stephen v. Parle Bottling Co. (P) Ltd.
(1988) Supp. SCC 458, this Court quashed the charges
against the accused under Section 5 of the Import and
Exports (Control) Act, 1947. The Court held that it would
not be in the interests of justice to allow a prosecution to
start and trial to be proceeded with after a lapse of
twenty six years even though one of the accused was
himself responsible for most of the delays caused by his
mala fide tactics.
In Machander v. State of Hyderabad (1955) 2
SCR 524, this Court observed that while it was
incumbent on the Court to see that no guilty person
escapes, it is still more its duty to see that justice is not
delayed and accused persons are not indefinitely
harassed. The Court observed that the scales must be
held even between the prosecution and the accused. In
the facts of that case, the Court refused to order trial on
account of the time already spent and other relevant
circumstances of that case.
In the case of A. R. Antulay (supra), this Court
gave propositions meant to serve as guidelines. This
Court held that these propositions are not exhaustive. It
is difficult to foresee all situations. Nor is it possible to
lay down any hard and fast rules. This Court further
observed as under:
"(1) Fair, just and reasonable procedure
implicit in Article 21 of the Constitution
creates a right in the accused to be tried
speedily. Right to speedy trial is the right of
the accused. The fact that a speedy trial is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
also in public interest or that it serves the
social interest also, does not make it any the
less the right of the accused. It is in the
interest of all concerned that the guilt or
innocence of the accused is determined as
quickly as possible in the circumstances.
(2) Right to speedy trial flowing from
Article 21 encompasses all the stages, namely
the stage of investigation, inquiry, trial, appeal,
revision and re-trial. That is how, this Court
has understood this right and there is no
reason to take a restricted view.
(3) The concerns underlying the right to
speedy trial from the point of view of the
accused are:
(a) the period of remand and pre-
conviction detention should be as
short as possible. In other words, the
accused should not be subjected to
unnecessary or unduly long
incarceration prior to his conviction;
(b) the worry, anxiety, expense and
disturbance to his vocation and
peace, resulting from an unduly
prolonged investigation, inquiry or
trial should be minimal; and
(c) undue delay may well result in
impairment of the ability of the
accused to defend himself, whether
on account of death, disappearance
or non-availability of witnesses or
otherwise.
xxx xxxx xxxx
xxx xxxx xxxx"
This Court also observed that while determining
whether undue delay has in fact occurred, 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 so on \026 what is called, the systematic
delays. The sum and substance is that it is neither
advisable nor practicable to fix any time limit for trial of
offence. Each case has to be decided on its own facts
and circumstances.
This Court, as per the majority in a seven-Judge
Bench, in the case of P. Ramachandra Rao v. State of
Karnataka (2002) 4 SCC 578 came to the conclusion
and declared that this Court can interpret the law and in
the process remove any lacuna, fill the gaps in the
Legislation and even lay down a law with reference to the
dispute before it. But it, cannot declare a new law of
general application in the manner the Legislature does.
In this case, the Court relied upon Antulay’s case
(supra) and refrained from fixing any time limit not
because the Court had no power to do so, but because it
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
was "neither advisable nor practicable" to do so. The
Court observed that since the law laid down by the
Constitution Bench still holds the field, any declaration
made in derogation thereof fixing time limit by a smaller
Bench is overruled by virtue of the doctrine of binding
precedents. The Court also laid down that the question
of delay had to be decided by the Court having regard to
the totality of circumstances of an individual case. The
Court observed that it must be left to the judicious
discretion of the court seized of an individual case to find
out from the totality of circumstances of a given case if
the quantum of time consumed up to a given point of
time amounted to violation of Article 21, and if so, then
to terminate the particular proceedings, and if not, then
to proceed ahead. The test is whether the proceedings
or trial has remained pending for such a length of time
that the inordinate delay can legitimately be called
oppressive and unwarranted.
It would be pertinent to mention that the Sixth
Amendment to the U.S. Constitution states that "In all
criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed. "These guarantees are the most basic rights
preserved by the Constitution; fundamental liberties
embodied in the Bill of Rights. The due process clause of
the Fourteenth Amendment made them applicable to all
States."
The Constitutional guarantee is for the protection of
both the accused and the society. Even in the United
States where there has been a constitutional amendment
recognizing speedy trial as an extremely valuable right of
the accused even then the Court held that no time limit
could be fixed for concluding the criminal trial. It has
been held that it depends on the facts and circumstances
of each case.
In a celebrated American case, Beavers v. Haubert
(1905) 198 US 77, 49 L Ed 950, 25 S Ct 573, it was
recognized that the right to a speedy trial is necessarily
relative, and that it is consistent with delays and depends
upon circumstances.
In another case of U.S. Supreme Court, Pollard v.
United States 1957) 352 US 354, 1 L Ed 2d 393, 77 S Ct
481, it was recognized that whether delay in completing a
prosecution amounts to an unconstitutional deprivation
of rights depends upon the circumstances, and that the
delays must not be purposeful or oppressive.
It was recognized that "the constitutional guarantee
of a speedy trial is an important safeguard (1) to prevent
undue and oppressive incarceration prior to trial, (2) to
minimize anxiety and concern accompanying public
accusation, and (3) to limit the possibilities that long
delays will impair the ability of an accused to defend
himself. Adhering to the views expressed in earlier
decisions, the Court reiterated that the right to a speedy
trial is necessarily relative; that it is consistent with
delays; that whether delay in completing a prosecution
amounts to an unconstitutional deprivation of rights
depends upon the circumstances and that the delay
must not be purposeful or oppressive."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
In Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d
607, 89 S Ct 575, it was recognized that the Sixth
Amendment guarantee of the right to a speedy trial is
essential to protect at least three basic demands of
criminal justice: (1) to prevent undue and oppressive
incarceration prior to trial, (2) to minimize anxiety and
concern accompanying public accusation, and (3) to limit
the possibilities that long delay will impair the ability of
an accused to defend himself.
In England, from the time of the Magna Carta, an
accused, in theory at least, enjoyed the right to a speedy
trial, which was secured by the commission of goal
delivery, under which the jails were cleared at least twice
each year.
In Commonwealth v. Hanley [337 Mass 384, 149
NE2d 608, 66 ALR2d 222, cert den 358 US 850, 3 L ed
2d 85, 79 S Ct 79], the guarantee of speedy trial has been
held to serve a threefold purpose: it protects the
accused, if held in jail to await trial against prolonged
imprisonment; it relieves him of the anxiety and public
suspicion attendant upon an untried accusation of crime;
and, like statutes of limitation, it prevents him from
being exposed to the hazards of a trial after the lapse of
so great a time that the means of proving his innocence
may have been lost.
In the case of State v. Carrillo [41 Ariz 170, 16 P2d
965], it has been held that an accused who has been
denied speedy trial, or who has not been brought to trial
within the time required by an implementing statute, can
generally move to dismiss the prosecution on that
ground.
Rule 48(b) of the Federal Rules of Criminal
Prosecution authorizes dismissal if there is unnecessary
delay in presenting the charge to a grand jury or in filing
an information against an accused who has been held to
answer to the district court, or if there is unnecessary
delay in bringing an accused to trial. This rule has the
same effect in implementing the Sixth Amendment right
to speedy trial, as an act of Congress would have had.
A Constitution Bench of this Court has, in the case
of Kartar Singh v. State of Punjab (1994) 3 SCC 569,
mentioned that the right to a speedy trial is a derivation
from a provision of Magna Carta. This principle has also
been incorporated into the Virginia Declaration of Rights
of 1776 and from there into the Sixth Amendment of the
Constitution of United States of America which reads, "In
all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial...". It may be pointed
out, in this connection, that there is a Federal Act of
1974 called ’Speedy Trial Act’ establishing a set of time-
limits for carrying out the major events, e.g., information,
indictment, arraignment, in the prosecution of criminal
cases.
In this case, this Court further observed as under:
"The right to a speedy trial is not only an
important safeguard to prevent undue and
oppressive incarceration, to minimize anxiety
and concern accompanying the accusation and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
to limit the possibility of impairing the ability
of an accused to defend himself but also
there is a societal interest in providing a
speedy trial. This right has been actuated in
the recent past and the courts have laid down
a series of decisions opening up new vistas
of fundamental rights. In fact, lot of cases are
coming before the courts for quashing of
proceedings on the ground of inordinate and
undue delay stating that the invocation of this
right even need not await formal indictment or
charge."
The concept of speedy trial is read into Article 21 as
an essential part of the fundamental right to life and
liberty guaranteed and preserved under our Constitution.
The right to speedy trial begins with the actual restraint
imposed by arrest and consequent incarceration and
continues at all stages, namely, the stage of investigation,
inquiry, trial, appeal and revision so that any possible
prejudice that may result from impermissible and
avoidable delay from the time of the commission of the
offence till it consummates into a finality, can be averted.
This Court in Hussainara Khatoon (I) (supra)
further observed as under:
"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. There can, therefore, be no
doubt that speedy trial, and by speedy trial we
mean reasonably expeditious trial, is an
integral and essential part of the fundamental
right to life and liberty enshrined in Article 21.
The question which would, however, arise is as
to what would be the consequence if a person
accused of an offence is denied speedy trial
and is sought to be deprived of his liberty by
imprisonment as a result of a long delayed trial
in violation of his fundamental right under
Article 21. Would he be entitled to be released
unconditionally freed from the charge levelled
against him on the ground that trying him
after an unduly long period of time and
convicting him after such trial would
constitute violation of his fundamental right
under Article 21."
This Court in a number of cases has reiterated that
speedy trial is one of the facets of the fundamental right
to life and liberty enshrined in Article 21 and the law
must ensure ’reasonable, just and fair’ procedure which
has a creative connotation after the decision of this Court
in Maneka Gandhi’s case (supra).
When we examine the instant case in the light of the
aforementioned decisions of this Court and of the US
Supreme Court, it becomes abundantly clear that no
general guideline can be fixed by the court and that each
case has to be examined on its own facts and
circumstances.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
It is the bounden duty of the court and the
prosecution to prevent unreasonable delay.
The purpose of right to a speedy trial is intended to
avoid oppression and prevent delay by imposing on the
courts and on the prosecution an obligation to proceed
with reasonable dispatch.
In order to make the administration of criminal
justice effective, vibrant and meaningful, the Union of
India, the State Governments and all concerned
authorities must take necessary steps immediately so
that the important constitutional right of the accused of a
speedy trial does not remain only on papers or is a mere
formality.
In the instant case not a single witness has been
examined by the prosecution in the last twenty six years
without there being any lapse on behalf of the appellant.
Permitting the State to continue with the prosecution and
trial any further would be total abuse of the process of
law. Consequently, the criminal proceedings are
quashed. The appeal is accordingly allowed and disposed
of.