State Through
CBI Vs. Dr. Narayan Waman Nerukar & Anr [2002] Insc 307 (26 July 2002)
Arijit
Pasayat, J.
Leave
granted.
Challenge
in this appeal is to the judgment of a Division Bench of the Delhi High Court
whereby the proceedings against the respondent no.1 were quashed, primarily on
ground that there was unnecessary delay in conclusion of the trial by court.
Reliance was placed on a decision of this Court in "Common Cause" A
registered Society through its Director vs. Union of India and Ors. (1996) 4
SCC 33) as modified in "Common Cause" A registered Society through
its Director vs. Union of India and Ors. [(1996) 6 SCC 775] to hold so. A brief
reference to the factual aspects would suffice.
According
to the prosecution, respondent no.1 committed offences under Sections 3 and 5
of the Official Secrets Act 1923 (in short 'Secrets Act') and Section 120-B of
the Indian Penal Code, 1860 (in short 'IPC') read with the aforesaid
provisions. The Chief Metropolitan Magistrate by his order dated 16.8.1999 took
cognizance and issued processes against the accused persons including the
respondent no.1 herein. Respondent no.1 approached the High Court under Section
482 of the Code of Criminal Procedure, 1973 (in short 'Cr.PC') for passing an
order against the cognizance taken by the Chief Metropolitan Magistrate. The
High Court quashed the proceedings, inter alia, on the ground that there has
been unnecessary delay in the proceedings. Stand of the prosecution before the
High Court was that the case is of very serious nature and the respondent no.1,
who at the relevant time, was Adviser in the Department of Electronics,
Government of India parted with a copy of a sensitive secret document namely
"User Evaluation Trial Report on RATAC-S Battle Field Surveillance Radar
(BFSR) Phase-I", which was being evaluated by the Army Authorities with
reference to certain specific parameter required by the Army Authorities and
the same was dispatched to an expert in Paris, France through courier service,
who brought it to the notice of the police. As such the case involved offences
which relate to security of the State. A large number of documents were to be
exhibited. There was no unusual delay.
But
the High Court did not accept the same. Placing reliance on a decision of this
Court in Abdul Rehman Antulay and Ors. vs. R.S. Nayak and Anr. (1992) 1 SCC
225, it was held that the right of speedy trial has been infringed. It was
noted that merely because about 100 witnesses spread all over the India were to be examined, that cannot be
a relevant ground justifying the delay. Maximum punishment for the alleged
offence is 3 years and the respondent no.1 has suffered custody of about 2
years in addition to agony of facing prosecution for about 12 years.
Mr. Harish
N. Salve, learned Solicitor General submitted that the approach of the High
Court is clearly erroneous. It cannot be said to be a rule of universal
application that whenever there is delay, whatever be the justification for the
same, the proceedings are to be quashed. Additionally there was no material
before the High Court to come to the conclusion that the maximum sentence is 3
years and not 15 years. It was not the case of the respondent no.1 before the
High Court that his case would fall under sub- section (3) of Section 5 of the
Secrets Act. In any event that was a matter for trial to be determined on
consideration of the materials which are to be placed.
Per
contra Mr. K. Ramamoorthy, learned senior counsel for the respondent submitted
that the right to speedy trial is inbuilt in Article 21 of the Constitution of
India, 1950 (in short 'the Constitution') and, therefore, the High Court had
committed no error in directing the proceedings to the quashed. According to
him, it was specifically pleaded before the High Court as to how the alleged
offence was covered by sub-section (3) of Section 5 of Secrets Act.
Recently
a 7-Judges Bench of this Court in P. Ramachandra Rao vs. State of Karnataka JT
2002 (4) SC 92 held as under:
"No
person shall be deprived of his life or his personal liberty except according
to procedure established by law declares Article 21 of the Constitution. 'Life
and liberty', the words employed in shaping Article 21, by the founding fathers
of the Constitution, are not to be read narrowly in the sense drearily dictated
by dictionaries; they are organic terms to be construed meaningfully. Embarking
upon the interpretation thereof, feeling the heart-throb of the Preamble,
deriving strength from the Directive Principles of state policy and alive to
their constitutional obligation, the courts have allowed Article 21 to stretch
its arms as wide as it legitimately can. The mental agony, expense and strain
which a person proceeded against in criminal law has to undergo and which,
coupled with delay, may result in impairing the capability or ability of the
accused to defend himself have persuaded the constitutional courts of the
country in holding the right to speedy trial a manifestation of fair, just and
reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass
within its sweep all its stages including investigation, inquiry, trial,
appeal, revision and re-trial in short, 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 implication. The constitutional
philosophy propounded as right to speedy trial has though grown in age by
almost two and a half decades, the goal sought to be achieved is yet a far off
peak. Myriad fact-situations bearing testimony to denial of such fundamental
right to the accused persons, on account of failure on the part of prosecuting
agencies and executive to act, and their turning an almost blind eye at
securing expeditious and speedy trial so as to satisfy the mandate of Article
21 of the Constitution have persuaded this Court in devising solutions which go
to the extent of almost enacting, by judicial verdict bars of limitation beyond
which the trial shall not proceed and the arm of law shall lose its hold. In
its zeal to protect the right to speedy trial of an accused, can the court
devise and almost enact such bars of limitation though the Legislature and the
statutes have not chosen to do so is a question of far-reaching implications
which has led to the constitution of this bench of seven-judge strength."
It was held that the decisions in the two "Common Cause" cases and Raj
Deo Sharma v. State of Bihar
JT 1998 (7) SC 1 and Raj
Deo Sharma (II) v. State of Bihar JT 1999
(7) SC 317, were not correctly decided on certain aspects. It is neither
advisable nor feasible, nor judicially permissible or 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 the aforesaid four
cases could not have been so prescribed or drawn and, therefore, are not good
law. Criminal courts are not obliged to terminate trial of criminal proceedings
merely on account of lapse of time, as prescribed by the directions made in the
aforesaid cases.
As was
observed in P. Ramchandra Rao's case (supra), at the most periods of time
prescribed in those decisions can be taken by the Courts in seisin of the trial
or proceedings to act as reminder when they may be persuaded to apply to their
judicial mind to the facts and circumstances of the case before them and
determine by taking into consideration several relevant factors as pointed in
A.R. Antulay's case (supra) and decide whether the trial or proceedings have
become so inordinately delayed as to be called oppressive and unwarranted. Such
time limits cannot and will not be treated by any court as a bar to further
trial or proceedings and as mandatorily obliging the court to terminate the
same and acquit or discharge the accused.
While
considering the question of delay the court has a duty to see whether the
prolongation was on account of any delaying tactics adopted by the accused and
other relevant aspects which contributed to the delay.
Number
of witnesses examined, volume of documents likely to be exhibited, nature and
complexity of the offence which is under investigation or adjudication are some
of the relevant factors. There can be no empirical formula of universal
application in such matters. Each case has to be judged in its own background
and special features if any. No generalization is possible and should be done.
It has also to be borne in mind that the criminal courts exercise available
powers such as those under Sections 309, 311 and 258 of the Cr.P.C. to
effectuate right to speedy trial.
These
aspects have not been considered by the High Court while quashing the
proceedings. On that score the judgment under challenge is vitiated.
Additionally while dealing with the question as to the proper provision
applicable to the case, the Court has come to a definite finding about maximum
sentence. Normally, these aspects are to be left to be decided by the trial
court. In the case at hand we find that the High Court came to the conclusion
about applicability of a particular provision. Mr. Ramamoorthy has rightly
submitted that the court can, in a given case, where factual aspects and the
law applicable are clear, come to the conclusion about the provision applicable
to the facts. But for coming to such conclusion the factual position must be
clear and no doubt should exist about the applicability of a particular
provision to the factual scenario. The complex nature of the offence should be
deterrent to the courts while going into the question of applicability of a
provision.
Be
that as it may, in view of the conclusion that order of the High Court is to be
quashed, we do not think it necessary to bestow our attention to the question
as to which provision is applicable to the facts of the case.
Accordingly
the judgment of the High Court is quashed and the matter is remitted back to
the High Court. The High Court shall hear the matter afresh, permit the parties
to place materials which according to it will be relevant for the purpose of
determination of the dispute before it, and take a fresh decision in accordance
with law. As mentioned above, we are not expressing any opinion on the merits
of the case.
The
appeal is allowed to the extent indicated above.
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