1 wp.2129.08.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2129 OF 2008
Reshma Singh D/o.Late Achal
Bahadur Singh, Age 35 years,
permanently residing at Flat No.7,
Lilly Apartment, B-Wing,
St.John Baptist Road,
Bandra (West), Mumbai 400 050. ...Petitioner Versus
1.State of Maharashtra,
through the Public Prosecutor,
High Court (A.S.),
Mumbai.
2.The Senior Inspector of Police,
Anti Corruption Bureau,
having his office at
Madhuban Industrial Estate,
Mumbai 400 013. ...Respondents ......
Mr.Subhash Jha with Ms.Janki Doshi i/b M/s.Law Global for Petitioner. Mr.A.S.Gadkari, A.P.P. for State.
......
CORAM:- A.M.KHANWILKAR AND
P.D.KODE, JJ.
JUDGMENT RESERVED ON :- OCTOBER 26, 2010.
JUDGMENT PRONOUNCED ON :- DECEMBER 21, 2010.
2 wp.2129.08.sxw
JUDGMENT : (Per A.M. Khanwilkar, J.):
1. By this Petition under Article 226 of the Constitution of India, it is prayed that the Special Case No. 39/1999 pending in the Court of Special Judge for Greater Mumbai at Mumbai be quashed and set aside qua the Petitioner before this Court on the ground that continuation of the said proceedings against the Petitioner is violative of Article 21 of the Constitution of India.
2. The relevant facts which gave rise to the filing of the present Petition are as follows:-
a) The Petitioner alongwith her mother Smt. Mani Kaul and step brother Vikram Kaul and one Manjit Singh Kaur who was employed as Inspector of the State Excise Filing Squad are facing prosecution for offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 109 of Indian Penal Code instituted in the Court of Sessions for Greater Mumbai at Mumbai being Special Case No. 39/1999.
b) The prosecution case against the said Manjit Singh Khera (accused 3 wp.2129.08.sxw
no. 1) is that the during the period from 1st January, 1980 to 13th October, 1992 he had ill-gotten wealth and properties which were disproportionate to his known source of income. Thus a discreet enquiry was undertaken by the Anti Corruption Bureau, Mumbai bearing VER No. 77/1987 against the said Manjit Singh Khera. That was commenced on 20th May, 1987. The said discreet enquiry was converted into an open enquiry with effect from 8th December, 1987. It was numbered as VER No. 31/1987. On the basis of the information gathered during the said enquiry raid was conducted. c) Thereafter, FIR came to be registered on 13th October, 1992 being C.R. No. 29/1992. The investigation was then handed over and after completion of investigation the chargesheet came to be filed in the concerned Court on 23rd September, 1999, after complying with the formalities of grant of sanction to prosecute the original accused no. 1 Mr. Manjit Singh Khera.
d) The Court after taking cognizance against the accused eventually framed charges on 3rd December, 2007. Whereas, the examination-in-chief of PW-1, ACP - Vilas Tupe commenced only on 12th November, 2009. 4 wp.2129.08.sxw e) After the charges were framed, the Petitioner rushed to this Court by way of present Writ Petition on 3rd October, 2008 praying for quashing of the criminal case pending against her on the ground that continuation thereof would infringe her fundamental right guaranteed under Article 21 of the Constitution of India.
3. The Respondents have resisted this Petition by filing two affidavits of Vijay D. Meru - Senior Inspector of Police dated 5th August, 2010 and 7th October, 2010 respectively. By these affidavits the allegation in the Petition to the effect that there has been unwarranted and oppressive delay in the matter of investigation or before the trial Court has been refuted. Insofar as delay in the progress of trial, it is specifically stated that it is attributable to the accused persons themselves as on most of the occasions, the matter was required to be adjourned at their instance.
4. The principal controversy that needs to be examined by us is whether in the fact situation of the present case there has been delay of such nature and magnitude, both at the stage of investigation and at the trial which would warrant quashing of the proceedings on the ground that it has violated fundamental right of the Petitioner guaranteed by Article 21 of the 5 wp.2129.08.sxw
Constitution of India.
5. Insofar as the grievance regarding unwarranted delay in the trial, it will have to be considered in two parts namely between the stage of filing of chargesheet and framing of charges and secondly post framing of charges till the institution of this Writ Petition. Insofar as no progress made before the trial Court after institution of the Writ Petition in October 2008 much less after recording of examination-in-chief of PW-1 on 12th November, 2009 is concerned, that is not a matter of serious debate since it is noticed that the accused including the Petitioner has taken adjournment from time to time on the ground of pendency of the Writ Petition before this Court.
6. Before we proceed to analyse the factual matrix of the case, it may be apposite and useful to refer to the legal position expounded by the Constitution Bench consisting of seven Judges of the Apex Court in the case of P. Ramachandra Rao v/s. State of Karnataka reported in 2002 4 SCC 578. This is an authoritative pronouncement on the mandate of Article 21 of the Constitution of India which guarantees right to speedy trial. The opening part of the Judgment makes it amply clear that speedy trial would encompass within its sweep all its stages including 6 wp.2129.08.sxw investigation, enquiry, trial, appeal, revision and re-trial. It is observed that 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 accusation. This decision has restated the legal position expounded in the case of Abdul Rehman Antulay v/s. R.S. Naik (1992) I SCC 225. In Paragraph 9, the Guidelines 8 11 of Antulay's case have been re-produced, which read thus:-
"(8) Ultimately, the court has to balance and weigh the several relevant factors 'balancing test' or 'balancing process' and determine in each case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. 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 a 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 7 wp.2129.08.sxw 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) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such
proceedings in High Court must, however, be disposed of on a priority basis."
These guidelines are still relevant. In Paragraph 20 of this decision the Court had occasion to observe thus:-
"20. Several cases coming to our notice while
hearing appeals, petitions and miscellaneous petitions (such as for bail and quashing of proceedings) reveal, apart from inadequate judge strength, other factors contributing to the delay at the trial. Generally speaking, these are : (I) absence of, or delay in appointment of, Public Prosecutors proportionate with the number of courts / cases; (ii) absence of or belated service of summons and warrants on the accused / witnesses; (iii) non-production of undertrial prisoners in the court; (iv) presiding Judges proceeding on leave, though the cases are fixed for trial (v) strikes by members of the Bar; and (vi) counsel engaged by the accused suddenly declining to appear or seeking an adjournment for personal reasons or personal inconvenience...."
The observations in Paragraph 21 of this decision are also useful to 8 wp.2129.08.sxw answer the controversy on hand. The same read thus:- "21. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every enquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Explanation 2 to Section 309 confers power on the court to impose costs to be paid by the prosecution or the accused, in appropriate cases, and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the courts. Section 258, in Chapter XX Cr. P.C, on trial of summons cases, empowers the Magistrate trying summon cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused having effect of discharge. This provision is almost never used by the courts. In appropriate case, inherent power of the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reasons amounting to oppression or harassment in 9 wp.2129.08.sxw any trial, inquiry or proceedings. In appropriate cases, th High Courts have exercised their jurisdiction under Section 482 CrPC for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A. R. Antulay case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied)
7. From these observations it is amply clear that the trial Court itself has wide powers and if the same are judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, enquiry or proceedings. Secondly, the Court opined that even if the High Court can exercise jurisdiction under Section 482 of Criminal Procedure Code for quashing of First Information Report and investigation and terminating criminal proceedings, if it were to be a case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right guaranteed by Article 21 of the 10 wp.2129.08.sxw Constitution. Then, it will have to be shown that there has been undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted. Besides, quashing of criminal action is not the only order that ought to be passed. In a given case, the Court can pass appropriate orders so as to direct the trial Court to judiciously and consciously exercise powers bestowed in it by virtue of Section 309, 311 and 258. This view is reinforced by the exposition in Paragraph 28 of the same decision. After referring to the bars of limitation enacted in Common Cause (I) and common cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II), the Court went on to observe thus:-
".....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 trail has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and
unwarranted, as suggested in A. R. Antulay. In Kartar Singh case the Constitution Bench while recognizing the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state:
"92. Of course, no length of time is per se too long to 11 wp.2129.08.sxw pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors (1) length of delay, (2) the justification of the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay." (SCC pp.639-40, para 92)." (emphasis supplied)
8. Thus, the test to be applied to examine the controversy on hand is whether the investigation or trial as the case may be, remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted. The Court has to adopt the balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceedings has been deprived of his right of having speedy trial with unreasonable delay.
In Paragraph 29 of the same decision the Court has recorded its conclusion in the following words:-
"29. For all the foregoing reasons, we are of the opinion that in Common Cause case (1) [as modified in Common Cause (II)[ and Raj Deo Sharma beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an 12 wp.2129.08.sxw order acquitting or discharging the accused. In conclusion we hold:
(1) The dictum in A. R. Antulay case is correct
and still holds the field.]
(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 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 nor 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 (I) and Raj Deo Sharma (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 13 wp.2129.08.sxw cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatory 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 cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking
appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments to their constitutional obligation to strengthen the judiciary quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied)
9. Keeping the above guidelines in mind we shall now first advert to the grievance of the Petitioner that there has been undue and unwarranted delay at the stage of investigation itself which has infringed her right guaranteed under Article 21 of the Constitution of India. In this context, it is alleged that discreet enquiry was commenced on 20th May, 1987 against the accused no.1 Manjeet Singh khera. The said discreet enquiry was converted into open enquiry on 8th December, 1987 in relation to the ill gotten wealth and properties which were disproportionate to the known source of income of 14 wp.2129.08.sxw the accused no. 1. The period covered under investigation was from 1st January, 1980 to 13th October, 1992 in relation to properties worth around Rs. 43.54 lacs. On completion of the said enquiry FIR came to be registered on 13th October, 1992 and the investigation was completed and culminated with filing of final report or chargesheet before the concerned Court on 23rd September, 1999. The question is whether any explanation has been offered by the Respondents with regard to such long time spent from the stage of initiation of discreet enquiry on 20th May, 1987 till registration of FIR on 13th October, 1992. This aspect has been explained in Paraghraph 2 of the second affidavit. It is stated as under:- "2. I say that as per the record maintained by the Anti Corruption Bureau, the discreet enquiry with respect to the disproportionate asset and the properties gathered by the original Accused No. 1 Mr. Manjit Singh Khera started on 20.05.1987 bearing VE.R.No. 77 of 1987. I say that the said enquiry was conducted by ACP Shri. Shukla, then attached to the Anti Corruption Bureau. I say that on 08.12.1987 the said discreet enquiry was subsequently converted into open enquiry and the same was numbered as V.E.R. No. 31 of 1987. I say that ACP Shri. Tupe conducted the said open enquiry from
08.12.1987 to 09.10.1992 for the period from 01.01.1980 to 13.10.1992. I say that during the course of the said open enquiry, it was revealed that the said accused No. 1 Mr. Manjit Singh Khera, a public servant has purchased properties either in the names of his close relatives or in the name of co-accused in the present C. R. No. 29 of 1992. I say that after completion of the said open 15 wp.2129.08.sxw enquiry, ACP Shri. Tupe lodged FIR bearing C. R. No. 29 of 1992 on 09.10.1992 and it has been stated in the said First Information Report that at the initial stage of FIR the original Accused No. 1 Mr. Manjit Singh Khera was having disproportionate assets to the tune of Rs. 7,91,04.64 than his known sources of income."
10. We have no hesitation in taking the view that the time spent between 20th May, 1987 till 8th December, 1987 in the discreet enquiry conducted by the Anti Corruption Burueu, Mumbai, cannot be termed as unreasonable or unwarranted. Obviously, on the basis of the material gathered during such discreet enquiry, the authority thought it appropriate to convert the enquiry into open enquiry. Going by the dates mentioned by the Petitioner it may appear that the concerned officials took almost five years to complete the enquiry before registration of FIR on 13th October, 1992. No doubt the open enquiry commenced on 8th December, 1987 with registration of VER No. 31/1987. The ACP Tupe conducted the said open enquiry from 8th December, 1987 till 9th October, 1992. However, it cannot be overlooked that the open enquiry was in relation to disproportionate assets of accused no.1 which revealed that accused no. 1 purchased properties either in the names of his close relatives or in the names of co-accused. Having regard to the nature of enquiry, and due diligence, as the enquiry was required to be made with regard to circular transactions between the accused persons to 16 wp.2129.08.sxw
ascertain the extent of disproportionate assets belonging to the accused no.1, it was bound to take some time. On such enquiry, the conclusion arrived at by the officer was that the accused no. 1 possessed disproportionate assets to the tune of Rs. 7,91,04.64 than his known source of income. Only thereafter raid was conducted and FIR was registered on 13th October, 1992.
11. Considering the nature of enquiry undertaken and the material required to be gathered regarding the circular transactions during such enquiry, it is not possible to countenance the grievance of the Petitioner that the delay in the enquiry was of such nature that it was oppressive and unwarranted, that too qua the Petitioner who is one of the co-accused. It is also not possible for us to take the view that there was inordinate, unwarranted and oppressive delay during the enquiry as such. Accordingly, this challenge of the Petitioner cannot be sustained.
12. The next question is whether the time spent between registration of FIR on 13th October, 1992 till filing of charge sheet on 23rd September, 1999 can be said to be of such nature that it has infringed the fundamental right guaranteed under Article 21 of the Constitution of India of the Petitioner 17 wp.2129.08.sxw before us. Insofar as this delay is concerned, it will be useful to refer to the averments in the first affidavit in Paragraph 4 and 7, it is stated as under: "4. I say that initially the investigation of the aforesaid crime was being carried out by Shri. Pravin More, Police Inspector, Anti Corruption Bureau from 13.10.1992 to June 1994 and thereafter it was transferred to Shri. D. Y. Dal, Police Inspector, Anti Corruption Bureau. I say that the investigation with respect to the aforesaid crime was transferred to me on 12.01.1995 and after completion of the investigation, I submitted the final report with respect to the Competent Authority for according sanction in the matter in the Month of March, 1998. I say that on 16.07.1998 I was transferred from Anti Corruption Bureau and chargesheet in the aforesaid matter was filed by Shri. J. N. Ghadge, Assistant Commissioner of Police, Anti Corruption Bureau,
Maharashtra State on 23.09.1999, after getting the sanction from the competent authority with respect to the Orig. Accused No. 1 Shri Manjitsingh Khera."
"7. I say that the Petitioner has filed the present petition for quashing of the Special Case No. 39 of 1999 on the ground that the same is pending for more than 10 years. I say that as per the record it appears that the Petitioner or the other co-accused on various occasions has sought adjournments for one or the other pretext and therefore, the trial of the aforesaid Special Case has been delayed. I further say that the charge in the aforesaid Special Case No. 39 of 1999 has been framed on
03.12.2007. I further say that even after framing of the charge the petitioner and/or the other co-accused kept on seeking adjournments from the Hon'ble Special Court and the matter was protracted for no fault on the part of the prosecution. It further appears from the record that the Petitioner has filed the present petition in October 2008 and thereafter on the ground on pendency of the present petition, the Petitioner and/or the other co- 18 wp.2129.08.sxw accused sought adjournment in the matter. I say that as per the record the recording of the evidence of the complainant Shri. Vilas Tupe is in progress and the Hon'ble Special Court has fixed the matter for recording the further evidence of the complainant Shri. Vilas Tupe on 13.08.2010."
13. In the second reply affidavit, the Respondents have elaborated in the following manner:
"3. I say that after lodging of FIR on 09.10.1992 by ACP Shri. Tupe, the complainant, the case was transferred to PI Shri. More for investigation in the matter. I say that as per the record, it appears that PI Shri More conducted investigation of the said case till June, 1994. I say that in June, 1994 investigation of the said C. R. No. 29 of 1992 was transferred to PI Shri. D. Y. Dal and he conducted the investigation upto 12.01.1995.
4. I say that the investigation pertaining to C. R. No. 29 of 1992 was transferred to me on 12.01.1995 and I completed the investigation on 29.09.1997 and submitted my final report to the Additional Commissioner of Police, Anti Corruption Bureau, Mumbai for further action in the matter. I say that during the course of investigation on various dates, I established the link of disproportionate assets of original Accused No. 1 such as flat Nos. 1 and 2 situated at Shalimar Garden,
Aurangabad, the flat situated at Bandra, Mumbai, entries in the Bank accounts with respect to Fixed Deposits in the names of other co-accused involved in the present case, which was revealed during the course of open enquiry conducted by ACP Shri Tupe and other related and further aspects of the investigation. I say that as stated hereinabove after completion of investigation I submitted my final report to the Additional
Commissioner of Police, Anti Corruption Bureau on 29.09.1997.
19 wp.2129.08.sxw
5. I say that the Additional Deputy Commissioner of Police, Anti Corruption Bureau, Mumbai by his letter dated 02.03.1998 informed me to submit the papers with respect to the C. R. No. 29 of 1992 to the Competent Authority to get sanction from the said Competent Authority in the matter. I say that I was transferred on 17.07.1998 from Anti Corruption Bureau to the Mumbai Police and further investigation was thereafter handed over to ACP Shri Ghadge. I say that it further appears from the record that the Competent Authority granted sanction to prosecute the original Accused No. 1 Mr. Manjit Singh Khera on 12.02.1999 and the chargesheet in the present matter came to be filed on 23.09.1999 before the Hon'ble Special Court, Greater Mumbai. I say that the said chargesheet has culminated into the Special Case No. 39 of 1999."
14. It is thus noticed that after registration of FIR, investigation was handed over to PI Shri More. He conducted investigation till June 1994. The investigation was then transferred to PI Shri D.Y. Dal who conducted the same until 12th January, 1995. The investigation was then transferred to P.I. Shri V.D. Meru on 12th January, 1995 who in turn completed the same on 29th September, 1997. This investigation resulted in establishing the link of disproportionate assets of original accused no. 1 and the entries in the Bank Account with respect to the fixed deposits in the names of other accused involved in the case. The time spent for investigating matter of such nature, from 13th October, 1992 till 29th September, 1997, cannot be said to be oppressive or unwarranted qua the Petitioner. So long as the 20 wp.2129.08.sxw
financial transactions effected by the accused no.1 were not fully scrutinized and which enquiry or investigation would be dependent on the information to be furnished by the bankers and others associated in such transaction, no fault can be found with the Investigating Officer. All that the Investigating Officer is expected to do is to complete the investigation without unreasonable or unnecessary delay. There is no averment in the Petition that the Investigating Officer was biased or intentionally delayed the investigation and did not submit the final report even though the investigation was complete much earlier. It is noticed that as soon as the investigation was completed by the Investigating Officer, he submitted his final report to the Additional Commissioner of Police, Anti Corruption Bureau on 29th September, 1997. The said authority after examining the papers on 2nd March, 1998, informed the Investigating Officer to submit papers in respect of the case to the Competent Authority for sanction. Accordingly, the proposal was submitted to the Competent Authority for sanction soon thereafter. The Investigating Officer, however, was transferred on 17th July, 1998 and the investigation was handed over to ACP Shri Ghadge. Thereafter, the Competent Authority accorded sanction to prosecute the original accused no.1 Mr. Manjeet Singh Khera on 12th February, 1999. After the sanction was accorded, obviously, after 21 wp.2129.08.sxw
processing the papers, the Investigating Officer presented the chargesheet before the Special Court at Mumbai on 23rd September, 1999. The case was registered as Special Case No. 39/1999. The time spent for processing the final report submitted by the Investigating Officer on 29th September, 1997 initially to the Additional Commissioner of Police Anti Corruption Bureau and thereafter to the Competent Authority who in turn accorded sanction eventually on 12th February, 1999, the period so spent cannot be said to be unreasonable, unnecessary or unwarranted muchless being oppressive to the Petitioner. Similar grievance made has been negatived by the Apex Court on the reasoning that considering the voluminous documents involved in such cases, the approving authority or the competent authority granting sanction, cannot be expected to rush through the process. (See Seeta Hemchandra Shashittal vs. State of Maharashtra (2001) 4 SCC 525 paras 19 and 20). Suffice it to observe that the time spent between September 1997 till September 1999 also cannot be considered as undue or inordinate delay and more so being oppressive and unwarranted.
15. The next grievance is about inordinate delay in framing of the charge. In that, although the chargesheet was filed on 23rd September, 1999, the charge has been framed only on 3rd December, 2007. It means 22 wp.2129.08.sxw
that almost eight years period was spent in framing of the charge.
16. This challenge has been refuted by the Respondents in the two affidavits. Besides those affidavits, we may usefully place reliance on the Roznama of the trial Court which being record of the Court, the fact mentioned therein will have to be taken as it is and would be binding on the parties. The Roznama commences from 23rd September, 1999 when the charge sheet was presented and marked as Exhibit 1. The Court issued bailable warrants against the accused persons. We may give the gist of contents of the Roznama against the respective dates when the matter appeared before the Court on 28th October, 1999 until 3rd December, 2007 when the charges were eventually framed.
Date Gist of Particulars 28/10/1999 All four accused remained present. Formality regarding surety bond was required to be completed.
23/12/1999 M.A. No. 960/1999 was moved. P.P. took time to file say on the Application.
13/1/2000 M.A. No. 960/1999 rejected.
23 wp.2129.08.sxw
7/2/2000 All four accused present. Adjourned to 2nd May, 2000. 2/5/2000 A/1 and A/3 present. A/2 and A/4 exempted. Police papers handed over to all the accused. Acknowledgment given by A/1 on behalf of A/2 and A/4. Adjourned to 11th August, 2000 for attendance.
11/8/2000 All accused absent. Adjourned to 2nd December, 2000 for attendance.
2/12/2000 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 27th March, 2001 for attendance.
27/3/2001 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 18th July, 2001 for attendance.
18/7/2001 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 24th October, 2001.
24/10/2001 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 13th February, 2002 for attendance.
13/2/2002 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 10th July, 2002 for attendance.
10/7/2002 A/1 and A/3 present. A/2 and A/4 exempted. Adjourned to 12th November, 2002 for attendance.
24 wp.2129.08.sxw 16/7/2002 M.A. No. 64/02 filed by accused for return of National Saving Certificate and for early hearing of the matter. Accused absent. Application was also on board on 15th July, 2002 when no one appeared. Court fixed the matter for framing of charge alongwith the said Application on 3rd August, 2002. 03/08/2002 Applicant-Accused present. M.A. No. 64/02 disposed of. Special case adjourned to 12th November, 2002.
12/11/2002 Accused 1, 2 and 3 absent. A/4 present. Later on A/1 appeared. Adjourned to 24th January, 2003 for attendance. 24/1/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 16th April, 2003 for attendance.
16/4/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 19th July, 2003 for attendance.
19/7/2003 A/1, A/3 present. A/2 and A/4 exempted. Adjourned to 9th October, 2003 for attendance.
9/10/2003 Court is vacant. A/1 and 3 present. A/2 and A/4 exempted. Adjourned to 2nd January, 2004 for attendance.
25 wp.2129.08.sxw
2/1/2004 A/1 and A/3 present. A/2 and A/4 absent. Adjourned to 3rd May, 2004 with order of bailable warrant against accused 2 and 4. Later on Advocates for A/2 and A/4 appeared and applied for exemption. Order issuing bailable warrant recalled.
30/4/2004 Since 3rd May, 2004 declared public holiday. Board for 3rd May, 2004 discharged. Adjourned to 29th July, 2004. 29/7/2004 Court on leave. Board discharged. Adjourned to 7th October, 2004. It is noted that A/1 and A/4 absent. A/2 and A/3 present.
7/10/2004 A/2 and A/4 present. A/1 absent. Bailable warrant issued against A/1. Later on A/1 appeared. Order issuing bailable warrant recalled.
10/1/2005 A/1, A/2 and A/3 present. A/4 absent. Bailable warrant issued against A/4. Adjourned to 11th March, 2005. 12/1/2005 Cancellation of order of bailable warrant. M.A. No. 6/2005 filed by A/4 was allowed.
11/3/2005 A/1 present. A/2 to A/4 absent. Their Advocate also absent. Conditional bailable warrants issued if the said accused failed to appear in later session. Adjourned to 13th June, 2005. 26 wp.2129.08.sxw 13/6/2005 A/1 to A/3 present. A/4 absent. Exemption Application on his behalf filed. The same is allowed. A/4 exempted. Adjourned to 26th July, 2005 for framing of charge. 26/7/2005 A/1 to A/3 present. A/4 absent. Advocate for defence requested for keeping back. Later on Advocate for A/4 filed Application for exemption. That was granted. Adjourned to 30th September, 2005 for framing charge.
30/9/2005 All accused present. Kept back at the request of defence. Later on defence Advocate made Application for longer date for the grounds mentioned in the Application. Adjourned to 3rd December, 2005.
3/12/2005 All accused present. IO absent. Adjourned to 27th January, 2006 to keep IO present alongwith detail charge. 27/1/2006 Investigating Officer present. All accused present. At the request of IO adjourned to 5th April, 2006 for framing of charge.
5/4/2006 All accused present. Investigating Officer present. At the request of prosecution for framing of charge and considering the pending old assets cases of the earlier year, adjourned to 17th June, 2006.
27 wp.2129.08.sxw
17/6/2006 All four accused present. IO absent. Defence Advocate absent. Later on defence advocate appearing as regular PP attended the case and IO absent. Adjourned to 29th July, 2006 for framing of charge.
29/7/2006 All accused present. Defence advocate absent. IO absent. Since it is assets case and considering the pending old assets cases, FSI cases prior to year 1997 adjourned to 7th October, 2006.
7/10/2006 All accused present. Defence Advocate absent. Investigating Officer absent. It been assets case, considering the old assets cases, forgery cases and FSI cases prior to 1997, adjourned to 20th December, 2006.
20/12/2006 IO present. All accused present. As Court was busy in dictating Judgment in another case and considering the pending FSI and old assets cases of the year 1989, 1990 and 1992, adjourned to 17th March, 2007.
17/3/2007 A/1 to A/3 present. A/4 absent. Adjourned to 12th April, 2007 for charge.
12/4/2007 All accused present. Advocate for accused absent. Application for adjournment filed by accused Exhibit 8. Court records that the cases being old cases, last chance granted. Adjourned to 29th May, 2007 at the request of accused.
28 wp.2129.08.sxw 29/5/2007 All accused present. IO absent. At the request of prosecution, adjourned to 25th June, 2007.
25/6/2007 All accused absent. Finally adjourned to 2nd July, 2007. Later on all accused present. Advocate for accused absent. Time given to prosecution to reply to M.A. No. 333/2007. Adjourned to 2nd July, 2007.
2/7/2007 Accused No. 4 absent. Exemption granted. Time given to State to file reply to the Applications. Adjourned to 16th July, 2007.
16/7/2007 All accused present. IO present. At the request of Advocate for accused adjourned to 30th July, 2007 for hearing on M.A. 30/7/2007 All accused present. IO present. Adjourned to 10th August, 2007.
10/8/2007 All accused present. Advocate for accused absent. IO absent. APP directed to file draft charge. Accused directed to keep their Advocate present on the next date. Adjourned to 27th August, 2007.
27/8/2007 All accused present. IO absent. Head Constable Ghag attached to ACB present. APP directed to file draft charge before 28th September, 2007.
29 wp.2129.08.sxw 28/9/2007 All accused present. IO absent. HC Ghag attached to ACB present. Advocate informed Court that Application for discharge filed by accused no.2 is pending before the Court. Hearing on the said Application kept on 4th October, 2007. No further adjournment.
4/10/2007 All accused present. IO present. As advocate for accused not present, kept back. Later on Application for discharge partly heard. Kept on 15th October, 2007 for further hearing. 15/10/2007 All accused present. IO absent till 1.20 p.m. At the request of APP hearing on discharge application adjourned to 23/10/2007.
23/10/2007 Accused 2-4 present. IO present. Hearing on discharge Application proceeded. Adjourned to 31st October, 2007 for hearing on citation.
31/10/2007 All accused present. Discharge Application is dismissed. Case adjourned for framing charge to 12th November, 2007. 12/11/2007 All accused present. Time to file draft charges extended till 3rd December, 2007.
3/12/2007 All accused present. Charge framed against all accused. Adjourned to 13th December, 2007. (emphasis supplied)
17. Considering the movement of the case before the trial Court as is 30 wp.2129.08.sxw
reflected from the Roznama, it is unfathomable that the prosecution can be said to be responsible for the delay in framing of charge. The time taken for framing of charge after filing of chargesheet on 23rd September, 1999 till the charge was framed on 3rd December, 2007, the matter was adjourned mostly because of the absence of one or the other accused. Besides, it was adjourned also because the Court felt that there were other older cases than the present case to be dealt with by that Court. Out of several adjournments, the number of adjournments caused on account of non- appearance of Investigating Officer or at the instance of prosecution are quite insignificant. Even if the prosecution is to be blamed for taking those adjournments, it is not possible to take the view that the delay caused on account of such adjournments was such that it can be legitimately called as oppressive and unwarranted qua the accused or the Petitioner before us. It is certainly not unreasonable delay and there is good justification for the time spent till the charges were framed by the Court.
18. To get over this position, it was argued that insofar as the present Petitioner is concerned, she cannot be penalised for the adjournments caused on account of non-appearance of co-accused. The present Petitioner is accused no. 4. The gist of roznama as is elaborately referred 31 wp.2129.08.sxw
to, it is not as if the Petitioner was present on all the occasions. The Petitioner being accused no. 4, did not remain present on several occasions. Indeed, she was exempted by the Court on Application made in that behalf. The prosecution cannot be blamed for the adjournments caused on account of the absence of the Petitioner as well. Suffice it to observe that on analysing the contents of the Roznama between 23rd September, 1999 until 3rd December, 2007 it is not possible for us to take the view that in the present case the length of time is such that it is inordinate delay and can be legitimately called as oppressive and unwarranted qua the accused muchless the Petitioner before us. In any case, mere delay, by itself, cannot be the basis to quash the proceedings. The Court can exercise judicious discretion and pass such other appropriate order including to direct the trial Court to exercise powers conferred on it by virtue of provisions amongst others Sections 309, 311 and 258 of the Code. It is certainly not a matter for quashing of prosecution as such.
19. The next grievance of the Petitioner is that although charge has been framed as back as on 3rd December, 2007, the trial did not make any semblance of progress. As noticed earlier, this Writ Petition has been filed on 3rd October 2008. In other words, the grievance of the Petitioner 32 wp.2129.08.sxw regarding no progress made in the trial will have to be considered for the period between 3rd December, 2007 and 3rd October, 2008. Once again, we will have to revert back to the Roznama. The same spells out the manner in which the trial progressed from 3rd December, 2007. As aforesaid, the charge was framed on 3rd December, 2007 and the case was adjourned to 13th December, 2007. We would now refer to the events which unfolded after 13th December, 2007 as can be culled out from the Roznama. Date Gist of Particulars 13/12/2007 A/1, 3 and 4 present. A/2 absent. Advocate for all accused absent. IO present. Medical Certificate of A/2 submitted by A/3. A/2 exempted from personal appearance for a day. A/2 directed to remain present on the next date. Case adjourned to 10th January, 2008.
10/1/2008 A/1, 3, 4 present. A/2 absent. APP applied for further time to comply with earlier directions as Office was on sick leave. Time granted till 28th January, 2008. Case adjourned to 28th January 2008.
28/1/2008 All accused present. Kept back till 2.30 p.m. Again till 3.00 p.m. IO held up in Sewri Court. Time to comply earlier direction extended till 4th February, 2008.
4/2/2008 A/1 and 3 present. A/2 and 4 absent. Advocate for accused 33 wp.2129.08.sxw absent. IO present. APP filed list of witnesses. Witness summons issued. List of documents taken on record. Application filed by APP under Section 294 Cr.P.C. Defence Advocates called upon to admit or deny the documents before 25/2/2008. APP filed application along with the list of original. Case adjourned to 3rd March, 2008 on the application of accused as Advocate has gone abroad. 3/3/2008 All accused present. IO absent. Summons issued to IO. Returnable 10th March, 2008.
10/3/2008 A/1 and 3 present. A/2 and 4 absent. IO absent. APP applied for issuance of bailable warrant against IO. Adjourned 24th March, 2008.
24/3/2008 A/1, 2 and 4 present. A/3 absent. IO present. APP filed list of articles. Prosecution permitted to produce articles during the stage of recording of evidence. Accused told to engage Advocates and keep them present on the next date without fail. Adjourned to 7th April, 2008.
7/4/2008 All accused present. Case adjourned to 13th May, 2008. Last chance given to accused to keep their Advocate present. 29/4/2008 Writ from High Court in Criminal Application placed before the Judge noted and sent back to the Department. 13/5/2008 Court is on leave. All accused present. IO present. Case adjourned to 16th June, 2008.
16/6/2008 Court is vacant. All accused present. Case adjourned to 5th 34 wp.2129.08.sxw July 2008.
5/7/2008 All accused present. Advocate for accused absent. Witnesses absent. Adjourned to 1st August, 2008 for evidence. 1/8/2008 All accused present. Advocate for accused absent. At the request of A/1 to 4, adjourned to 6th October, 2008. (emphasis supplied)
20. Going by the contents of the Roznama for the relevant period between 3rd December, 2007 and 3rd October, 2008 when the present Writ Petition came to be filed, it is not possible to take the view that it is a case of inordinate delay at any stage, muchless which is oppressive and unwarranted qua the Petitioner. It is not in dispute that the recording of evidence has commenced with the examination-in-chief of PW 1 on 12th November, 2009. But because of the pendency of the present proceedings, it is the Petitioner who has been taking adjournments before the Trial Court, which fact, is conceded by the Petitioner in the rejoinder affidavit.
21. Suffice it to observe that neither the prosecution nor the Court can be said to be responsible for the situation after the framing of charge on 3 rd December, 2007 until the filing of the present Petition. 35 wp.2129.08.sxw
22. As is noticed earlier, before filing this Petition, the accused filed three Miscellaneous Applications for discharge which kept the Trial Court engaged. The recording of evidence obviously could not proceed on account of pendency of those Applications. In any case, it is not possible to countenance the grievance of the Petitioner that the time spent between 3rd December, 2007 till 3rd October, 2008 was so unreasonable or unnecessary that it had the effect of causing oppression to the Petitioner. There is good justification for the time spent between this period. Neither the prosecution nor the Court, can be blamed for this situation. Assuming that it was a case of resulting in oppression to the Petitioner, that by itself, cannot be the basis to straight away quash the proceedings. The Court has to exercise judicious discretion on case-to-case basis and after taking into account totality of circumstances, instead, can issue appropriate directions or make appropriate order requiring the Trial Court to ensure that the trial proceeds expeditiously.
23. Although, the Petitioner has not amended the present Writ Petition so as to assert that even during the pendency of the present Petition since 3rd October, 2008, the fundamental right of the Petitioner guaranteed under Article 21 of the Constitution has been infringed, however, feeble attempt 36 wp.2129.08.sxw
was made by the Counsel for the Petitioner to persuade us to take the view that even time spent in this Court in pursuing the present matter may be reckoned in deciding the controversy on hand. As is noticed earlier, the Petition has been filed on 3rd October, 2008. The same came up for admission on 18th November, 2008 and the Court after hearing the arguments, admitted the matter but declined to grant any interim relief. Against refusal to grant interim relief, the Petitioner carried the matter before the Apex Court by way of SLP (Cri.) 11/2009, which however, was disposed of on 6th April, 2009 with request to the High Court to dispose of the Writ Petition expeditiously. No doubt, soon thereafter, the Petitioner moved Criminal Application before this Court for early hearing of the Writ Petition which was disposed of on 15th April, 2009 with direction to place the Writ Petition for final hearing on 23rd April, 2009. Since the matter did not reach for hearing, it was once again circulated on 22nd June, 2009. Petitioner's request for taking up the Writ Petition for hearing was acceded to. The Petition was taken up for hearing on 24th June, 2009, but was required to be adjourned to 9th July, 2009 to enable the State to file reply affidavit. Thereafter, since the matter could not be taken up for hearing, the Petitioner did make attempt to circulate it from time to time. The matter was taken up for hearing on 21st January, 2010 but was adjourned to 27th 37 wp.2129.08.sxw
January, 2010 and compilation filed by the Petitioner was taken on record. When the matter thereafter reached for hearing on 30th March, 2010, none appeared for the Petitioner. Even though Rule was already granted, the Court directed it to be placed under caption admission on 13 th April, 2010. It appears that the Petitioner caused the matter to be circulated and on 8 th April, 2010, the Court ordered that the matter be placed for final hearing in the week commencing from 26th April, 2010. Thereafter, the matter was taken up for hearing on 19th July, 2010 when the Court thought it appropriate to call for the certified copy of the Roznama of the Trial Court for the relevant period. Accordingly, the hearing was deferred to 11th August, 2010 and thereafter, to 26th August, 2010.
24. On 26th August, 2010, when the matter appeared before our Bench for the first time, we were informed that the Advocate for the Petitioner is busy with some other case before the Apex Court and request for adjournment was made. Accordingly, the matter was adjourned to 9th September, 2010. However, on 2nd September, 2010, the matter was got produced before us with request to adjourn the matter beyond 9th September, 2010 on the ground that the Counsel for the Petitioner was in personal difficulty on 9th September, 2010. Accordingly, the hearing was deferred to 27th September, 38 wp.2129.08.sxw
2010, which was the available date. On 27th September, 2010, after hearing the Counsel for the parties, in deference to the observation made by the Court, the learned A.P.P. sought time to file further affidavit. That liberty was given by us. The matter then appeared on 8th October, 2010 and was ordered to be placed for hearing on 26th October, 2010 after the additional affidavit was filed in the Registry. Accordingly, the matter proceeded for hearing on 26th October, 2010 and was closed for orders. The Counsel appearing for the parties asked for time to file written submissions until 30th October, 2010 which request was accepted.
25. Even going by these dates, it is unfathomable that the prosecution or for that matter the Court can be blamed for the delay in the final disposal of the Writ Petition. As aforesaid, the Petitioner has not chosen to amend the Writ Petition to make out such ground. Even if we were to consider this grievance, we would straight away reject the argument of the Petitioner that the delay occurred on account of pendency of Writ Petition from 3rd October, 2008 has resulted in infringement of her fundamental right guaranteed under Article 21 of the Constitution. As noticed earlier, citing the pendency of Writ Petition in this Court, the Petitioner has been successful in taking adjournments before the Trial Court during all this 39 wp.2129.08.sxw
period. Suffice it to observe that the grievance of the Petitioner of any prejudice caused to the Petitioner during the pendency of the Writ Petition, to say the least, is after thought and untenable.
26. We shall now refer to the other decisions on which reliance was placed by the Petitioner to persuade us to quash the prosecution pending against the Petitioner. Reliance was placed on the decision in the case of Moti Lal Saraf vs. State of Jammu & Kashmir & Anr. reported in (2006) 10 SCC 560. Indeed, in this case, the Court proceeded to quash the criminal proceedings pending against the Petitioner therein. However, on fair reading of this Judgment, there is no manner of doubt that the said conclusion is based on the fact situation of that case. In that case, the Petitioner was prosecuted for offence in connection with challan filed under Section 173 of the Cr.P.C. on 30th April, 1981. The same was challenged by the Petitioner by way of Criminal Petition before the High Court on the ground that that Court had no jurisdiction to try the case for want of sanction. The High Court agreed with the said challenge of the Petitioner. Thereafter, the Respondents filed another challan against the Petitioner on the same set of facts in the Court of Special Judge, Anti-Corruption, Srinagar on 25th July, 1986. The Petitioner in the first place, got the said 40 wp.2129.08.sxw case transferred from Srinagar to Jammu. Thereafter, he filed application for quashing of trial on the ground that he was prosecuted without sanction. According to the Petitioner, the successive criminal case registered against the Petitioner was gross abuse of process of law. The High Court, however, rejected his Petition on this occasion. It was the grievance of the Petitioner that he was being persecuted by filing repeated challans by the Respondents without any sanction which had caused immense mental, physical and emotional stress and harassment for more than 26 years. The Apex Court accepting the challenge of the Petitioner, proceeded to quash the criminal prosecution against the said Petitioner. In other words, in the fact situation of the said case, the Apex Court entertained the said grievance of the Appellant before it and ordered quashing of criminal prosecution, since the same was abuse of the process of law. Indeed, the Apex Court has adverted to all the relevant decisions on the point including the decision of seven Judges' Bench in P.Ramchandra Rao (supra). In our opinion, this decision is of no avail to the Petitioner, unless the Petitioner is able to show that it was a case of inordinate delay at any stage and which can be legitimately called oppressive and unwarranted.
27. Reliance is also placed on another decision of the Apex Court in the 41 wp.2129.08.sxw
case of Pankaj Kumar vs. State of Maharashtra & Ors. reported in AIR 2008 SCC 3077. In this case, the Apex Court quashed the criminal proceedings pending against the said Petitioner on the ground of inordinate delay which had the effect of infringing the fundamental rights guaranteed to the Petitioner under Article 21 of the Constitution. Even this decision is on the fact situation of that case. The main grievance of the Appellant before the Supreme Court was that he was minor at the time of transaction in question in the year 1981 and he could not be proceeded against for the said offence. Further, the charge-sheet did not disclose any offence against him and his mother. The investigation dragged on for over three years before filing of the charge-sheet. The Apex Court analysed the facts of that case and found that it was common ground that the FIR was recorded on 12th May, 1998 for the offence allegedly committed in 1981 and after unwarranted prolonged investigation, charge-sheet was submitted in Court on 22nd February, 1991. Further, nothing happened till 1999 until filing of the Writ Petition seeking quashing of proceedings before the Trial Court. The Apex Court then went on to record the "concession of the Counsel for the State" who had fairly stated before the Court that he had no explanation to offer for the delay in investigation and the reason why the trial did not commence for eight long years. Thus, the said decision primarily rests on 42 wp.2129.08.sxw
the concession of the Counsel for the State. In addition, the Court has found that nothing could be pointed out to show that the delay was in any way attributable to the Appellant before it. Having said this, the Court then proceeded to observe that continuation of criminal action against the Appellant who was a young boy of 18 years in the year 1981 when the acts of commission and omission were allegedly committed by the concerns managed by his parents, who have already died, it would result in extreme mental stress and strain of prolonged investigation by the Anti Corruption Bureau and the sword of damocles hanging perilously over his head for over 15 years must have wrecked his entire career. In other words, the order passed by the Apex Court of quashing of criminal action in that case was essentially on the basis of the fact situation of that case.
28. Counsel for the Petitioner in his written submissions has then adverted to the decision in Seeta Hemchandra Shashittal (supra). We fail to understand as to how this decision will be of any avail to the Petitioner. Even in this case, the main ground urged in the Writ Petition was that there was gross delay of 11 years in filing the charge-sheet and that such delay violates Article 21 of the Constitution. That delay had caused unbearable mental trauma, fear psychosis and tension to the Appellants as well as to 43 wp.2129.08.sxw
other members of the family, besides tremendous humiliation and defamation heaped on them. Further, the abnormal delay had caused colossal financial losses to the Appellants and the impact of it had shattered the prospects of personal, professional and business development of the members of the family. In view of the finding recorded by us in the earlier part of this Judgment rejecting the Petitioner's contention that there has been inordinate delay in filing of the charge-sheet after registration of F.I.R., it would necessarily follow that the Petitioner is not entitled for the relief as claimed. Significantly, the dictum in Paragraph Nos.19 and 20 of this decision would go against the Petitioner. The Court has rejected the grievance of the Appellant in that case that there was unreasonable delay in grant of sanction, considering the fact that the sanction was applied for on 6th April, 1991 and the Government accorded sanction on 21st February, 1993. More or less, similar contention has been raised before us which we have already negatived for the same reason. The Apex Court observed that two years time taken for grant of sanction cannot be said to be unreasonable, considering the number of Desks over which the matter has to be passed and the voluminous record to be studied at all levels.
29. Reliance is then placed on another decision of the Apex Court in the 44 wp.2129.08.sxw
case of Vakil Prasad Singh vs. State of Bihar reported in (2009) 3 SCC
355. In that case, the offence was allegedly committed on 8th April 1981 of demanding a sum of Rs.1,000/- (Rupees One Thousand) as illegal gratification for release of payment for the civil work executed by the Petitioner. The charge-sheet was filed on 28th February 1982. The Magistrate took cognizance on 9th December, 1982. Nothing substantial happened till 6th July, 1987. The Appellant filed Petition under Section 482 of Cr.P.C. on the ground that the "concerned Court had no jurisdiction to take cognizance." The High Court accepted that plea with a direction to prosecution to complete the investigation within a period of three months from receipt of the order by an Officer of a rank of Deputy Superintendent of Police or any other Officer duly authorised in this behalf. No further progress was made in the case until in year 1988. The Petitioner, therefore, filed yet "another Petition" under Section 482 of Cr.P.C. for quashing of the entire investigation. After dismissal of the said Writ Petition, the Appellant took the matter in appeal before the Supreme Court which was admitted for hearing on 20th November, 1998 and was called out for final hearing after almost nine years, on 11th May, 2007, when the Counsel for the Vigilance Department sought time to seek instructions regarding the status of the investigation. The Apex Court noted that the High Court had acknowledged 45 wp.2129.08.sxw
the fact that there has been substantial delay in conclusion of the proceedings against the Appellant and some prejudice has been caused to the Appellant in his professional career on account of continuance of the criminal case against him as he was deprived of the promotion in the meantime. Inspite of such finding, the High Court rejected the Petition. Correctness of that view was put in issue before the Apex Court. On the facts of that case, the Apex Court agreed with the challenge of the Appellant therein that there was inordinate delay which can be legitimately termed as oppressive and unwarranted and having infringed the fundamental right of the Appellant guaranteed under Article 21 of the Constitution. Suffice it to observe that even this decision is of no avail considering the fact situation of the present case. More so, in view of the conclusion reached by us mentioned hitherto that it is not a case of inordinate delay as such and that it cannot be termed as oppressive and unwarranted or having caused any prejudice to the Petitioner. Indeed, the Petitioner has asserted that on account of pendency of the proceedings, she has suffered immense mental agony and also affected her profession, but going by her own averment in the Writ Petition as well as the rejoinder affidavit, it seems that the Petitioner before us has all along engaged herself in gainful activities inspite of the pendency of the criminal proceedings 46 wp.2129.08.sxw
against her. The grievance of the Petitioner that the prosecution has made false and untenable allegation that she is the daughter of accused No.1, does not take the matter any further. That contention will have no relevance to answer the question as to whether the delay in proceeding with the criminal action pending against the Petitioner can be said to be inordinate delay and having the effect so as to term it as oppressive and unwarranted.
30. Reliance was then placed on the decision of the Apex Court in T.J.Stephen & Ors. vs. M/s.Parle Bottling Co. (P) Ltd. & Ors. reported in 1988 (Supp) SCC 458. Even this Judgment is on the facts of that case. We fail to understand how this Judgment will be of any avail to the Petitioner to answer the issue under consideration. In that case, the Court was considering the application made to the Trial Court to discharge the Managing Director, Respondent No.2 in exercise of inherent powers. In the first place, the Court accepted the challenge that the matter could not have proceeded against Respondent No.2. It also went on to observe that the Respondent No.2 has no equity in his favour and the delay after the complaint had been filed has been mostly on account of his mala fide move. The benefit given to the Respondent No.2 is not on the principle of Article 21 of the Constitution as such.
47 wp.2129.08.sxw
31. Insofar as the decisions in the case of Hussainara Khatoon & Ors. vs. Home Secretary, State of Bihar, Patna reported in AIR 1979 SC 1360 and of Abdul Rehman Antulay (supra), we need not burden this Judgment with the same as it has been analysed by the seven Judges' Bench of the Apex Court in the case of P.Ramchandra Rao (supra) to which we have already alluded to in detail. Besides, reliance placed on the decision in the case of Moreshwar D. Save & anr. v/s. State of Maharashtra (CDJ 2008 BHC 1309) and in the case of M. Balan v/s. T. N. Water Supply and Drainage Board and anr. (CDJ 2009 MHC 163) are of no avail. The view taken therein is on the basis of fact situation of those cases.
32. Reliance was then placed on the decision of the Apex Court in the case of Suganthi Suresh Kumar vs. Jagdeeshan reported in (2002) 2 SCC 420, in particular, Paragraph 9 thereof. The Apex Court has held that it is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. Further, the High Court cannot question the correctness of decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme 48 wp.2129.08.sxw
Court. We fail to understand how this decision is of any avail to the Petitioner. Insofar as the decisions on which the Petitioner has placed reliance, we have already considered those decisions and found that the same have no application to the fact situation of the present case. We are not even remotely suggesting that any of those decisions are incorrect or have overlooked any relevant point. Moreover, we have placed reliance on the decision of the Constitution Bench of the Apex Court in support, which reinforces the conclusion reached by us.
33. Considering the above, we have no hesitation in taking the view that the grievance made by the Petitioner about infringement of her fundamental right guaranteed under Article 21 of the Constitution of India is devoid of merits in the fact situation of the present case. Accordingly, that challenge should fail. Nevertheless, we think it apposite to direct the Trial Court to proceed with the trial and take it to its logical end expeditiously. As observed by the Apex Court in the case of P.Ramchandra Rao (supra), the Trial Court has ample power to control the situation by invoking the provisions such as Sections 309, 311, 258 of Cr.P.C., so that, the trial is concluded expeditiously. Having regard to the fact that it pertains to year 49 wp.2129.08.sxw
1999, the Trial Court shall proceed with the Special Case No.39 of 1999 as far as possible on day-to-day basis for early conclusion thereof.
34. The Writ Petition is accordingly disposed of on the above terms. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)
Posts
No comments:
Post a Comment