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Common Cause Vs. Union of India & Ors [1996] INSC 1527 (28 November 1996)

B.P. Jeevan Reddy, S.B. Majmudar

ACT:

HEAD NOTE:

W I T H [Letter Petn. dated 15.10.1996 of Mr. Sheo Raj Purohit, Advocate for clarification and I.A. Nos. 3-6/98 in W.P. (C) No. 1128/86] O R D E R We have heard learned counsel appearing for the concerned parties in the present proceedings. Having given our anxious consideration to their contentions, we deem it fit to clarify/modify our judgment dated 1St May 1996 in Writ Petition (C) No. 1128 of 1986 as under :

The time limit mentioned regarding the pendency of criminal cases in paragraphs from 2(a) to 2(f) of our judgment shall not apply to cases wherein such pendency of the criminal proceedings is wholly or partly attributable to the directory tactics adopted by the concerned accused or on account of any other action of the accused which results in prolonging the trial. In other words it should be shown that the criminal proceedings have remained pending for requisite period mentioned in the aforesaid clauses of paragraph 2 despite full cooperation by the concerned accused to get these proceedings disposed of and the delay in the disposal of these cases is not at all attributable to the concerned accused, nor such delay is caused on account of such accused getting stay of criminal proceedings from higher courts.

Accused concerned are not entitled to earn any discharge or acquittal as per paragraphs 2(a) to 2(f) of our judgment if it is demonstrated that the accused concerned seek to take advantage of their own wrong or any other action of their own resulting in protraction of trials against them.

II. The phrase 'pendency of trials' as employed in paragraphs from 1(a) to 1(c) and the phrase 'non- commencement of trial' as employed in paragraphs from 2(b) to 2(f) shall be construed as under :

(i) In cases of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned cases.

(ii) In cases of trials of warrant cases by magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by magistrates when cases are instituted otherwise than on police report such trials shall be framed against the concerned accused under Section 246 of the Code of Criminal, Procedure 1973.

(iii) In paragraph 4 of our judgment in the list of offence to which directions contained in paragraphs 1 and 2 shall not apply, the following additions shall be made :

(n) matrimonial offence under Indian Penal Code including Section 498-A or under any other law for the time being in force :

(o) offence under the Negotiable Instrument Act including offence under Section 138 thereof ;

(p) offence relating to criminal misappropriation of property of the complainant as well as offence relating to criminal breach of trust under Indian Penal Code or under any other law for the time being in force;

(q) offence under Section 304-A of the Indian Penal Code or any offence pertaining to rash and negligent acts which are made punishable under any other law for the time being in force ;

(r) offence affecting the public health, safety, convenience, decency and morals as listed in Chapter IV of the Indian Penal Code or such offence under any other law for the time being in force.

It is further directed that in criminal cases pertaining to offence mentioned under the above additional categories (n) to (r) wherein accused are already discharged or acquitted pursuant to our judgment dated 1st May are liable to be proceeded against for such offence pursuant to the present order and are not entitled to be discharged or acquitted as aforesaid, the concerned criminal court shall suo motu or on application by the concerned aggrieved parties shall issue within three months of the receipt of this clarificatory order at their end, summons or warrants, as the case may be, to such discharged or acquitted accused and shall restore the criminal cases against them for being proceeded further in accordance with law.

It is however made clear that in trials regarding other offence which are covered by the time limit specified in our earlier order dated 1st May 1996 wherein the concerned accused are already acquitted or discharged pursuant to the said order, such acquitted or discharged accused shall not be liable to be recalled for facing such trials pursuant to the present clarificatory order which qua such offence will be treated to be purely prospective and no such cases which are already closed shall be reopened pursuant to the present order.

IV. Copies of this clarficatory order shall be communicated by the Office of this Court to all the High Courts, Chief Secretaries of all the States and the concerned administrative Heads of all the Union Territories.

Registrars of the High Courts shall be requested by the Office to communicate copies of this clarificatory order to all the criminal courts under the control and superintendence of the respective High Courts with direction to send Compliance Reports to the High Courts concerned within three months from the date of receipt of communication of this clarificatory order at their end. I.A. Nos 306 of 1996 shall stand disposed of in the light of this clarificatory order.

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