Seeta Hemchandra
Shashittal & Anr Vs. State of Maharashtra & Ors [2001] Insc 79 (13 February 2001)
R.P.Sethi,
K.T.Thomas Thomas, J.
Appeal (crl.) 177 of 2001 Special Leave Petition (crl.) 447
of 2001 Special Leave Petition (crl.) 2311 of 2000
L.T.J
J U D
G M E N T
Leave
granted. Two lady octogenarians feel that there is not much time ahead of them
to complete a trial which is yet to begin, and counting the number of years
which the investigation consumed for finalising the charge-sheet, the trial
would not be anything less than a long drawn out one. The two ladies approached
the High Court of Bombay, along with their kinsfolk, who too are arrayed in the
same case, one of them as the kingpin, to get the criminal case axed down at
the threshold of the trial stage, mainly on the ground of long delay in
completing the investigation. But the High Court, instead of snipping down the
case charge- sheeted, dismissed the writ petition solely on the ground that in
a similar case the High Court refused to countenance similar contention.
The
facts, barely necessary for disposal of these appeals, can be stated thus:
Appellant Niranjan Hemchandra Shashittal is a Government servant who attained
the rank of Deputy Commissioner in the Department of Prohibition and Excise of
the Maharashtra Government (he will hereinafter be referred to as the
appellant-public servant). Appellant Seeta Hemchandra Shashittal who is now
aged 83, and Shanta Subarao Shirali, who is now aged 81, are the mother and
mother-in-law of the appellant-public servant, respectively.
His
wife Anuradha is also an appellant as she too was arrayed as accused.
On the
basis of some information received by the Anti Corruption Bureau (ACB for
short) a preliminary enquiry was conducted and on 26.6.1986 an FIR was lodged
against the appellant-public servant for the offence under Section 5(2) of the
Prevention of Corruption Act, 1947. This was immediately followed by raids
conducted at the places which the ACB officials believed to be the buildings of
the appellant-public servant situated at Mumbai and Nasik. The raids and certain other
enquiries conducted by them revealed that appellant-public servant had acquired
assets worth Rs.33.44 lacs, in the year 1986, which were far in excess of his
known sources of income. The investigation was completed by the Assistant
Commissioner of Police attached to the ACB and he submitted the final report to
his superior who was the Director of ACB, in July 1990. After the draft final
report was approved the ACB approached the Government of Maharashtra on
6.4.1991 for obtaining sanction to prosecute the appellant-public servant. The
Government accorded sanction on 22.1.1993 and thereupon the charge sheet was
laid against all the appellants on 4.3.1993 before the Special Court dealing with offences under the
Prevention of Corruption Act. The offence alleged against the appellant-public
servant was under Section 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, 1988.
The
offence alleged against the lady appellants was abetment of the main offence
pitted against the appellant-public servant.
All
the appellants appeared before the Special Judge on 14.1.1994 when process was
issued to them. The next posting in the said court happened to be only after
the lapse of one year. On the said day appellants moved some interlocutory
applications. After posting the case on different future dates for disposal of
such interlocutory applications, the case moved at a slow pace and reached the
stage of hearing preliminary arguments for considering whether charge should be
framed or not. It was in the aforesaid context that the appellants filed the
writ petition before the High Court of Bombay on 15.4.1997 for quashing the
criminal proceedings.
The
main ground urged in the writ petition is that there was gross delay of 11
years for filing the charge- sheet and that such delay violates Article 21 of
the Constitution. According to the appellants, such delay had caused unbearable
mental trauma, fear psychosis and tension to them as well as to the other
members of the family, besides tremendous humiliation and defamation heaped on
them. They also said that 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.
A
Division Bench of the High Court dismissed the writ petition merely because two
other writ petitions filed by some others, in some other cases were dismissed.
The entire judgment of the Division Bench in the present writ petition is in a
cryptic form and the same is extracted below: In view of the common order
passed in Criminal Writ Petition No.1642 of 1999 and Criminal Writ Petition
No.1742 of 1999, this petition stands disposed of accordingly.
As a
copy of the said common order was produced by the appellants we could peruse the
same, but the fact situations in those other cases were
vastly different from the present case, except the common factor that offences
alleged were under the provisions of the Prevention of Corruption Act.
Of
course, learned counsel for the appellants made a plea before us to remand the
writ petition to the High Court for fresh disposal. But we refrain from
adopting that shortcut, lest, that would further protract the already delayed
case.
Dr.
Rajeev Dhawan, who argued for the old lady appellants, divided the post FIR
period of the present case into three different stages. First is the period
from 1986 to 1990 which is claimed to be the period taken for investigation.
Second is from 1990 to 1993, which is said to be the period taken for obtaining
sanction of the Government for laying charge-sheet before the court. Third is
the period from 1994 till the date of filing of the writ petition in the High
Court in 1997, during which the progress in the trial court was slower than
creeping through the process and consequently no charge could be framed until
the appellants filed the writ petition before the High Court.
This
Court has emphasised, time and again, the need for speeding up the trial as
undue delay in culminating the criminal proceedings is antithesis to the
Constitutional protection enshrined in Article 21 of the Constitution.
Nonetheless
the court has to view it from pragmatic perspectives and the question of delay
cannot be considered entirely from an academic angle. In other words, the High
Court and this Court, when approached by accused to quash proceedings on the
ground of delay, must consider each case on its own facts. Unfortunately the
delay has so permeated in our legal system that at all levels tardiness has
become the leitmotif. Such a malady has been judicially reprobated and efforts
have been made to curtail the delay which has developed as a systemic canker.
For
the first time the Code of Criminal Procedure provided periods for completing
investigation in regard to offences punishable with sentences upto imprisonment
not exceeding three years. Provisions have been incorporated in Chapter 36 of
the Code imposing a legal bar on the court to take cognizance of such offences
after the lapse of the period of limitation fixed in respect of different
categories of offences the punishment of which does not exceed the aforesaid
limit. However, the offences relating to corruption were among those excluded
from the purview of such periods of limitation.
In Hussainara
Khatoon and ors. vs. Home Secretary, State of Bihar {1980 (1) SCC 81} the entire focus made by the three-Judge
Bench was on the trial stage. An advocate of this Court filed a habeas corpus
petition on the basis of newspaper reports that several under-trial prisoners,
including women and children, were languishing in Bihar jails for several years awaiting trial. Hence the
consideration in that case was confined to the delay involved in trials.
It was
in State of Andhra
Pradesh vs. PV Pavithran
[1990(2) SCC 340] that delay in completing investigation was recognised as a
ground for quashing criminal proceedings.
The
following observation was made by the learned Judges in the said decision:
There
is no denying the fact that a lethargic and lackadaisical manner of
investigation over a prolonged period makes an accused in a criminal
proceedings to live every moment under extreme emotional and mental stress and
strain and to remain always under a fear psychosis.
Therefore,
it is imperative that if investigation of a criminal proceedings staggers on
with tardy pace due to the indolence or inefficiency of the investigating
agency causing unreasonable and substantial delay resulting in grave prejudice
or disadvantage to the accused, the court as the protector of the right and
personal liberty of the citizen will step in and resort to the drastic remedy
of quashing further proceedings in such investigation.
Nonetheless,
learned Judges hastened to add that it is not possible to formulate inflexible
guidelines or rigid principles of uniform application for speedy investigation
or to stipulate any arbitrary period of limitation within which investigation
in a criminal case should be completed.
The
matter gained further attention when a Constitution Bench of this Court has
made a glimpse of the delay involved in criminal proceedings at all stages
(A.R. Antulay vs. R.S. Nayak - 1992 (1) SCC 225). Though the background for the
reference made in that case to the Constitution Bench pertained to the delay in
the trial stages, the Bench has made clear references to the delay in the
investigation stage also. In paragraph 81 the learned Judges have observed
thus:
Now,
can it be said that a law which does not provide for a reasonably prompt
investigation, trial and conclusion of a criminal case is fair, just and
reasonable? It is both in the interest of the accused as well as the society
that a criminal case is concluded soon. If the accused is guilty, he ought to
be declared so. Social interest lies in punishing the guilty and exoneration of
the innocent but this determination (of guilt or innocence) must be arrived at
with reasonable despatch reasonable in all the circumstances of the case. Since
it is the accused who is charged with the offence and is also the person whose
life and/or liberty is at peril, it is but fair to say that he has a right to
be tried speedily. Correspondingly, it is the obligation of the State to
respect and ensure this right. It needs no emphasis to say, the very fact of
being accused of a crime is cause for concern. It affects the reputation and
the standing of the person among his colleagues and in the society. It is a
cause for worry and expense. It is more so, if he is arrested. If it is a
serious offence, the man may stand to lose his life, liberty, career and all
that he cherishes.
While
laying down the propositions the Constitution Bench encompassed investigation
as part of the amplitude for registering speedy trial. At the same time the
bench struck a note of caution that a realistic and practical approach should
be made regard being had to all attending circumstances, including the nature
of the offences, the number of accused and witnesses etc. Each case, therefore,
must be considered on its own facts, without being pedantically persuaded
merely because delay had occasioned during investigation stage.
Though
learned Senior Counsel made reference to the decision of this Court in Rajdeo
Sharma vs. State of Bihar, [1998 (7) SCC 507, as well as in 1999 (7) SCC 604]
wherein the earlier directions were slightly modified, those directions need be
applied during the post charge period.
The
trial was explained in the said decision as covering the period commencing from
recording the plea of the accused.
With
the above legal position in mind we have to analysis this case to find out
whether the delay involved in the investigation have impaired the fundamental
rights of the appellants which is enshrined in Article 21 of the Constitution.
Viewing the investigation in this case from a realistic angle it has spread
over to a period of four years i.e. from June 1986 to July 1990. The Assistant
Commissioner of Police attached to the ACB who has sworn to an affidavit before
the High Court in answer to the averments contained in the Writ Petition, has
stated that the case involves voluminous records as well as a large number of
properties which are situated at various places and that hundreds of documents
regarding shares, debentures, fixed deposits and receipts pertaining to
hundreds of companies were also to be scrutinized. According to him such a
heavy work turned out to be a time consuming job. It is not disputed that the
documents sought to be produced by the prosecution run into fourteen large
volumes. Officials of the ACB had to take a lot of time to conduct the
investigation relating to every item of assets which was suspected to be
belonging to the appellant public servant.
If
this was a case which needed no sanction from the government for submitting the
charge-sheet before the court, the investigating agency could have filed the
charge-sheet at the end of four years from the lodgment of FIR. In this
context, it is apposite to refer to the legislative fixation of periods for
taking cognizance of different offences. An offence punishable with
imprisonment for a term not exceeding three years has to be taken cognizance of
by the court concerned within three years of the date of registration of the
FIR. Of course, this is subject to certain other exceptions. As pointed out
earlier, the legislature has not chosen to fix any period to take cognizance of
the offence if the punishment prescribed thereto exceeds imprisonment for three
years. The offence alleged against the appellant is punishable with
imprisonment up to seven years. These aspects were highlighted by us for the
purpose of satisfying ourselves that criminal proceedings pending against the
appellants cannot be quashed on the mere ground that the investigation consumed
a period of four years.
The
delay taken for obtaining sanction from the Government cannot be attributed to
the investigating officers. As pointed out earlier, sanction was applied for on
6.4.1991 and the Government accorded sanction on 21.2.1993. Though we are
unable to approve the said time of two years for the Government to decide the
question of giving sanction, considering the number of desks over which the
matter had to pass, and the voluminous records to be studied at all levels, we
hesitate to hold that the said interval was so unreasonably long as to affect
the fundamental right of the appellants. The charge-sheet was laid within a few
days of obtaining the sanction.
For the
aforesaid reasons we are not inclined to quash the criminal prosecution merely
on the ground of delay highlighted by the
appellants.
Nonetheless, we are told that the only offence alleged against the two senescent
lady appellants is that theyabetted the public
servant to commit the offence under Section 13(2) of the P.C. Act. For two
reasons we are disposed to quash the criminal proceedings as against those two
ladies. First is, the materials are too insufficient to prove that those two
old ladies intentionally abetted the public servant in acquiring assets which
are disproportionate to his known source of income. If that is the position,
why should those two old ladies be compelled to embark upon a trial which, in
all probabilities, cannot end in conviction against them, even assuming that
the octogenarian ladies would be able to survive till the end of the trial.
Second is, the trial is not likely to end within one or two years. Even if the
Special Court would strictly adhere to the directions issued by this Court in Rajdeo
Sharmas case (supra) we reasonably foresee that the prosecution would be able
to complete the evidence only within the farthest time permitted in Rajdeo
Sharma as we can have a glimpse of the volume of documents and of the evidence
to be adduced by the prosecution. We feel that it would be unfair and
unreasonable to compel the two ladies, who by the advancement of old age would
possibly have already crossed into geriatric stage, to stand the long trial
having no reasonable prospect of ultimate conviction against them. We are,
therefore, inclined to delink them from the array of accused and quash the
criminal prosecution so far as those two ladies are concerned. We do so.
Thus,
the appeals filed by the two lady appellants - Seeta Hemchandra Shashittal and Shanta
Subarao Shirali - would stand allowed but the appeals filed by the appellant-
public servant Niranjan Hemchandra Shashittal and his wife Anuradha Niranjan Shashittal,
would stand dismissed.
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