Raj Deo Sharma v. State of Bihar - IPC 498A

PETITIONER:RAJ DEO SHARMAVs.RESPONDENT:THE STATE OF BIHARDATE OF JUDGMENT: 08/10/1998BENCH:CJI, K.T.ACT:HEADNOTE:JUDGMENT:J U D G M E N TLeave granted.On November 2, 1982, a case was registered againstthe petitioner regarding an offence under Section 5(2) readwith Section 5(1) (e) of the prevention of Corruption Act(Act 11 of 1947). A charge sheet was submitted on 30.8.1985by the C.B.I. in which the alleged disproportionate assetsof the petitioner as on 5.11.1982 amounted to Rs.9.10.932.41 along with a list of 40 witnesses and 20documents. The Special Judge, C.B.I., South Bihar, Patnatook cognisance of the offences on 14.11.1986 and issuedsummons fixing 2.12.1986 as the date for appearance. On24.4.1987, the petitioner appeared before court, applied forand obtained bail. The charges were framed by the SpecialJudge on 4.3.1993. Three withnesses were examined by theprosecution till 1.6.1995.2.The petitioner filed a writ petition in the highCourt of Patna on 5.12.1995 praying inter alia for quashingthe entire prosecution including the F.I.R. on the groundthat more than 13 years had elapsed since the institution ofthe F.I.R. and thus the right of the petitioner to speedytrial was violated.The petition registered as Cr. W.J.C.No. 809/95 was dismissed by the High Court on 7.12.1995 onthe ground that the delay was due to the fact that there wasonly one Special Court of the C.B.I. functioning and alarge number of cases were pending before it. It is thesaid order which is challenged in this petition.2.The petitioner filed a writ petition in the HighCourt of Patna on 5.12.1995 praying inter alia for quashingthe entire prosecution including the F.I.R on the groundthat more than 13 years had elapsed since the institution ofthe F.I.R and thus the right of the petitioner to speedytrial was violated. The petition registered as Cr. W.J.C.No. 809/95 was dismissed by the High Court on 7.12.1995 onthe ground that the delay was due to the ract that there wasonly one Special Court of the C.B.I. functioning and alarge number of cases were pending before it.said order which is challenged in this petition.It is the3.After service of notice and appearance of therespondent, the Superintendent of Police, C.B.I., Patna wasarrayed as second respondent. By order dated 9.12.1996. areport was called for from the Special Judge as to the1

condition of the present case as well as other casessimilarly blocked up. The report of the Special Judge dated25.12.1996 has disclosed a shocking state of affairs. Asregards the present case, the relevant part of the reportreads as follows:-"According to chargesheet there are as many asforty witnesses out of whom, the prosecution hasexamined till today only three witnesses. Thelast witness was examined on 3.9.93. Thereafter36 adjournments were given to the prosecution forexamination of remaining witnesses. However, theProsecution has failed to examine any of theremaining witnesses. The next date fixed in thecase for production of witness by the prosecutionis 6.1.97. it would not be out of place thatmyself joined as Special Judge only on 21.9.96.thereafter I also directed the C.B.I. to producewitnesses."4.The report contains details of other pending cases.There are as many as 52 cases ranging from 1975 to 1996pending at the stage of evidence relating to C.B.I., SouthBihar and 44 cases ranging from 1972 to 1992 relating toC.B.I. , North Bihar. By order dated 6.1.1997. Wedirected the Superintendent of Police to file a counteraffidavit explanatory to the remarks made by the SpecialJudge in his report with regard to the pendency of matters.The counter affidavit filed by the Superintendent of Policein February, 1997 has attempted to throw the blame on theaccused. In para 9 thereof, it is stated as follows:-"However, on perusal of the order sheetit would appear that all the times despite thepolice papers being made available and inspectionbeing completed, the accused with a view to delayframing of the charge, filed petition afterpetition for supply of police papers. Suchpetitions on behalf of the accused were nothingbut a dilatory device to delay framing of thecharge. Ultimately, charge was framed on 4.3.93;it is also true that only 3 PWs have beenexamined till date, for the only reason thatthere has been only one court of Special Judge atPatna hearing Special Cases of C.B.I. since19.4.94 till date. It is also submitted that ona number of occasions the accused remainedabsent. No bailable warrant or nonbailablewarrants could be obtained against the witnesses,as the trial court always remained busy in othercases. It is pertinent to mention that theSpecial Judge for C.B.I., is also Special judgefor Vigilances Cases. The Special Court forC.B.I. also hears Sessions Trials and CivilAppeals and as such the Court is hardly left withtime to hear exclusively the cases of AntiCorruption matters. Over and above, C.B.I. had256 cases pending before the special judge inJune. 1995, besides cases of VigilanceDepartment, Government of Bihar and other regularcases such as Cr. Appeals, Session trialsentrusted to him by the District and SessionJudge, Patna."5.A rejoinder has been filed by the petitionerrefuting the allegations in the counter-affidavit andreiterating that the delay in this case is entirely due tothe fault of the prosecution which has prejudiced hisfundamental right to speedy trial. It is stated therein thatthe prosecution failed to produce the documents on 48occasions and failed to produce witnesses on 46 occasions.2

6.The question before us is whether on the facts andcircumstances of the case, the prosecution against thepetitioner is to be quashed on the ground of delay in theconduct of trial. The petitioner has neverincarceration. As stated earlier, his applicationsufferedfor bailwas ordered on thepresented the same.day he appeared before the Court and7.The entitlement of the accused to speedy trial hasbeen repeatedly emphasised by this Court. Through it is notenumerated as a fundamental right in the Constitution, thisCourt has recognized the same to be implicit in the spectrumof Article 21. In Hussainara Khatoon Versus Home Secretary,State of Bihar (1980) 1 S.C.C. 81, the Court while dealingwith the cases of undertrials who had suffered longincarceration held that a procedure which keeps such largenumber of people behind bars without trial so long cannotpossibly be regarded as reasonable, just or fair so as to bein conformity with the requirement of Article 21. The Courtlaid stress upon the need for enactment of a law to ensurereasonable, just and fair procedure which has creativeconnotation after Manoka Gandhi's case [(1978) 1 S.C.C.248)]in the matter of criminal trials.8.In Hussainara Khatoon and others (IV) versus HomeSecretary. State of Bihar, Patna (1980) 1 S.C.C 98 thisCourt held that financial constraints and priorities inexpenditure would not enable the Government to avoid itsduty to ensure speedy trial to the accused.9.In State of Maharashtra versus Champalal PunjajiShan (1981) 3 S.C.C. 610 the Court took cognizance of thefact that the prosecution would in some cases deliberatelyadopt delaying tactics to keep the accused persons in jailas long as possible and to harass them particularly when theevidence is of a weak character and the conviction is not aprobable result. The Court also pointed out that theaccused person may be seriously jeopardised in the conductof his defence with the passage of time as witnesses for thedefence may become unavailable and their memories may fail.However, the Court pointed out that a delayed trial is notnecessarily an unfair trial and the delay may be occasionedby the tactics or the conduct of the accused himself.10.In Madhu Mehta versus Union of India (1989) 4 S.C.C.62 this Court commuted the death sentence to lifeimprisonment whiletaken into accountholding that inordinate delay should befor purpose of deciding whether theexecution of the sentence should be carried out or should bealtered into imprisonment for life. The Court also observedthat no fixed period of delay would be considered to bedecisive.11.In Abdul Rehman Antulay andNayak and another (1992) 1 S.C.C.others225versus R.S.the ConstitutionBench of this Court dealt with this aspect of the matter andlaid down certain guidelines.the judgment are as follows:-The relevant passages inAnother question seriously canvassedbefore us related to the consequence flowing froman infringement of right to speedy trial.Counsel for accused argued on the basis of theobservations in Sheela Barse and Strunk that theonly consequence is quashing ofconviction, as the case may be.charges and/orNormally, it maybe so. But we do not think that is the onlyorder open to court. In a given case, the factsincluding the nature of offence - may be suchthat quashing of charges may not be in theinterest of justice. After all, every offencemore so economic offences, those relating topublic officials and food adulteration - is an3

offence against society. It is really thesociety - the State - that prosecutes theoffender. We may in this connection recall theobservations of this court in Champalal PunjajiShah. In cases, where quashing ofcharges/convictions may not be in the interest ofjustice, it shall be open to the court to passsuch appropriate orders as may be deemed just inthe circumstances of the case. Such orders may,for example, take the shape of order forexpedition of trial and its conclusion within aparticular prescribed period, reduction ofsentence when the matter comes up afterconclusion of trial and conviction, and so on.In view of the above discussion, thefollowing propositions emerge, meant to serve asguidelines. We must forewarn that thesepropositions are not exhaustive. It is difficultto foresee all situations. Nor is it possible tolay down any hard and fast rules. Thesepropositions are :-1) Fair, just and reasonable procedureimplicit in Article 21 of the Constitutioncreates a right in the accused to be triedspeedily. Right to speedy trial is the right ofthe accused. The fact that a speedy trial is alsoin public interest or that it serves the socialinterest also does not make it any the less theright of the accused. It is in the interest ofall concerned that the quilt or innocence of theaccused is determined as quickly as possible inthe circumstances.2) Right to speedy trial flowing fromArticle 21 encompasses all the stages, namely thestage of investigation, inquiry, trial, appeal,revision and re-trial. That is how, this Courthas understood this right and there is no reasonto take a restricted view.3) The concerns underlying the right tospeedy trial from the point of view of theaccused are :-(a) the period of remand andpre-conviction detention should beas short as possible. In otherwords, the accused should not besubjected to unnecessary or undulylong incarceration prior to hisconviction;(b) the worry, anxiety, expense anddisturbance to his vocation andpeace, resulting from an undulyprolonged investigation, inquiry ortrial should be minimal; and(c) undue delay may well result inimpairment of the ability of theaccused to defend himself, whetheron account of death, disappearanceor non-availability of witnesses orotherwise.4) At the same time, one cannot ignorethe fact that it is usualy the accused who isinterested in delaying the proceedings. As isoften pointed out, "delay is a known defencetactic". Since the burden of proving the quiltof the accused lies upon the prosecution, delayordinarily prejudices the prosecution.4

Non-availability of witnesses, disappearance ofevidence by lapse of time really work against theinterest of the prosecution. Of course, theremay be cases where the prosecution, for whateverreason, also delays the proceedings. Therefore,in every case, where the right to speedy trial isalleged to have been infringed, the firstquestion to be put andresponsible for the delay?answered is - who isProceedings taken byeither party in good Maith to vindicate theirrights and interest, as perceived by them, cannotbe treated as delaying tactics nor can the timetaken in pursuing such proceedings be countedtowards delay. It goes without saying thatfrivolous proceedings or proceedings taken merelyfor delaying the day of rockoning cannot betreated as proceedings taken in good faith. Themore fact that an application/petition isadmitted and an order of stay granted by asuperior court is by itself no proof that theproceeding is not frivolous. Very often thesestays are obtained on ex-parte representation.5) While determining whether undue delayhas occurred (resulting in violation of Right toSpeedy Trial) one must have regard to all theattendant circumstances, including nature ofoffence, number of accused and witnesses, theworkload of the court concerned, prevailing localconditions and so on - what is called, thesystemic delays. It is true that it is theobligation of the State to ensure a speedy trialand State includes judiciary as well, but arealistic and practical approach should beadopted in such matters instead of a pedanticone.6) Each and every delay does notnecessarily prejudice the accused. Some delaysmay indeed work to his advantage. As has beenobserved by Powell, J. in Barker "it cannot besaid how long a delay is too long in a systemwhere justice is supposed to be swift butdeliberate". The same idea has been stated bywhitel, J.words:in U.S. V. Ewell in the following... the Sixth Amendment right to a speedytrial is necessarily relative, is consistent withdelays, and has orderly expedition, rather thanmore speed, as its essential ingredients; andwhether delay in completing a prosecution amountsto an unconstitutional deprivation of rightsdepends upon all the circumstances'.However, inordinately long delay may betaken as presumptive proof of prejudice. In thiscontext, the fact of incarceration of accusedwill also be ashould not berelevant fact. The prosecutionallowed to become a persecution.But when does the prosecution become persecution,again depends upon the facts of a given case.7) We cannot recognize or give effect to,what is called the 'demand' rule. An accusedcannot try himself; he is tried by the court atthe behest of the prosecution.accused's plea of denial of speedyHence, antrial cannotbe defeated by saying that the afccused did at notime demand a speedy trial. If in a given case,he did make such a demand and yet he was nottried speedily, it would be a plus point in his5

favour, but the mere non-asking for a speedytrial cannot be put against the accused. Even inUSA, the relevance of demand rule has beensubstantially watered down insucceeding cases.Barker and other8)andUltimately, the court has to balanceweigh the several relevant factors -balancingdeterminetest orin each'balancing process' - andcase whether the right tospeedy trial has been denied in a given cases.9) Ordinarily speaking, where the courtcomes to the conclusion that right to speedytrial of an accused has been infringed thecharges or the conviction, as the case may be,shall be quashed. But this is not the onlycourse open. The nature of the offence and othercircumstances in a given case may be such thatquashing of proceedings may not be in theinterest of justice. In such a case, it is opento the court to make such other appropriate order- including an order to conclude the trial withina fixed time where the trial is not concluded orreducing the sentence where the trial hasconcluded - as may be deemed just and equitablein the circumstances of the case.10) It is neither advisable norpracticable to fix any timelimit for trial ofoffences. Any such rule is bound to be qualifiedone. Such rule cannot also be evolved merely toshift the burden of proving justification on tothe shoulders of the prosecution. In every caseof complaint of denial of right to speedy trial,it is primarily for the prosecution to justifyand explain the delay. At the same time, it isthe duty of the court to weigh all thecircumstances of a given case before pronouncingupon the complaint. The Supreme Court of USA toohas repeatedly refused to fix any such outertimelimit in spite of the Sixth Amendment. Nordo we think that not fixing any such outer limitineffectuates the guarantee of right to speedytrial.11)rightAn objectionto speedybasedtrialonanddenial offor relief on thataccount, should first be addressed to the HighCourt. Even if the High Court entertains such aplea, ordinarily it should not stay theproceedings, except in a case of grave andexceptional nature. Such proceedings in HighCourt must, however, be disposed of on a prioritybasis.12.InS.C.C.Kartar Singh versus State of Punjab (1994) 3569 another Constitution Bench to which one of us(M.M.Punchhi, j. as he then was) party observed thus:"The concept of speedy trial is read intoArticle 21 as an essential part of fundamentalright to life and liberty guaranteed andpreserved under out Constitution. The right tospeedy trial beginsimposed by arrest andwith the actual restraintconsequent incarcerationand continues at all stages, namely, the stage ofinvestigation, enquiry, trial, appealrevision so that any possible prejudice thatandmayresult from impermissible and avoidable delayfrom the time of the commissiontill it consummates into aof thefinality,offencecan beaverted. In this context, it may be noted that6

the constitutional guarantee of speedy trial isproperly reflected in Section 309 of the Code ofcriminal Procedure .................Of course, no length of time is per setoo long to pass scrutiny under this principlenor the accused is called upon the show theactual prejudice by delay of disposal of cases.On the other hand, the Court has to adopt abalancing approach by taking note of the possibleprejudices and disadvantages to be suffered bythe accused by avoidable delay and to determinewhether the accused in a criminal proceeding hasbeen deprived of his right of having speedy trialwith unreasonable delay which could be identifiedby the factors - (1) length of delay, (2) thejustification for the delay, (3) the accused'sassertion of his right to speedy trial, and (4)prejudice caused to the accused by such delay.However, the fact of delay is dependent on thecircumstances of each case because reasons fordelay will very, such as delay in investigationon account of the widespread ramification ofcrimes and its designed network either nationallyor internationally, the deliberate absence ofwitness or witnesses, crowded dockets on the fileof the court etc."13.The above observations have to be understood in thebackdrop of the issues involved in that case. Theconstitutional validity of Terrorist and DeisruptiveActivities (Prevention ) Act, 1987 (TADA) was questioned anda five judge bench was then considering various contentionsincluding the possibility of persons accused of offencesunder TADA remaining in jail as under trial prisoners forlong period on account of harsher and more stringentprovisions relating to grant of bail. The observations madetherein cannot, therefore, be read as in any way differentfrom the observations made by the seven judge bench in ARAntulay (1992) (1) SCC 225). Hence, the legal positionadumbrated by this court in AR Antulay that the right tospeedy trial flows from Article 21 and it encompasses thestages right from the date of registration of the FIR andonwards remains unaltered.14.But it has become necessary to consider the matterat some length and lay down the additional guidelines inview of the large pendency of the cases before the SpecialCourt, Patna for more than two decades by now. There may besimilar pendency in other States also.15.The Code of Criminal Procedure is comprehensiveenough to enable the Magistrate to close the prosecution ifthe prosecution is unable to produce its witnesses inspiteof repeated opportunities. Section 309(1) Cr. P.C. supportsthe above view as it enjoins expeditious holding of theproceedings and continuous examination of witnesses from daytoday. The section also provides for recording reasons foradjourning the case beyond the following day.16.After deep consideration of the matter, we proceedto supplement the propositions laid down by the Constitutionbench in Antulay's case (supra) with the followingdirections:-(i) In cases where the trial is for an offencepunishable with imprisonment for a period not exceedingseven years, whether the accused is in jail or not, thecourt shall close the prosecution evidence on completion ofa period of two years from the date of recording the plea ofthe accused on the charges framed whether the prosecutionhas examined all the witnesses or not, within the saidperiod and the court can proceed to the next step provided7

y law for the trial of the case.(ii) In such cases as mentioned above, if theaccused has been in jail for a period of not less than onehalf of the maximum period of punishment prescribed for theoffence, the trial court shall release the accused on bailforthwith on such conditions as it deems fit.(iii) If the offence under trial is punishable withimprisonmentaccused isfor a period exceeding 7 years, whether thein jail or not, the court shall close theprosecution evidence on completion of three years from thedate of recording the plea of the accused on the chargeframed, whether the prosection has examined all thewitnesses or not within the said period and the court canproceed to the next step provided by law for the trial ofthe case, unless for very exceptional reasons to be recordedand in the interest of justice the court considers itnecessary to grant further time to the prosecution to adduceevidence beyond the aforesaid time limit.(iv) But if the inability for completing theprosecution within the aforesaid period is attributable tothe conduct of the accused in protracting the trial, nocourt is obliged to close the prosecution evidence withinthe aforesaid period in any of the cases covered by clauses(i) to (iii).(v) Where the trial has been stayed by orders ofcourt or by operation of law such time during which the staywas in force shall be excluded from the aforesaid period forclosing prosecution evidence. The above directions will bein addition to and without prejudice to the directionsissued by this Court in "Common Cause" Vs. Union of India(1996)(4) SCC 33) as modified by the same bench through theorder reported in "Common Cause" a registered Society Vs.Union of India (1996) (6) SCC 775).17.In the result, we set aside the impugned orderpassed by the High Court and direct the Special Judge,C.B.I. South Bihar, Patna to pass appropriate orders in thecase of the petitioner in pursuance of this judgment. Theappeal is allowed accordingly.18.We issue the following additional direction in sofar as the State of Bihar is concerned:-The State of Bihar shall constitute, within a periodof three months from today, at least five Special Courts, totry the cases involving offences under the Prevention ofCorruption Act 1988 or its corresponding previous Act withor without other offences allied to them............CJI.............J( K.T. Thoms ).............JNew DelhiOctober 8, 1998.8