Moti Lal Saraf Vs. State of Jammu & Kashmir &
Another  Insc 629 (29
Sinha & Dalveer Bhandari Dalveer Bhandari, J.
trial as read into Article 21 as an essential part of the fundamental right to
life and liberty guaranteed and preserved under our Constitution is the main
issue which has arisen for adjudication in this appeal.
facts necessary to dispose of this appeal are as follows.
appellant was working as a Manager in the State Bank of India, Sumbal, Kashmir in the year 1980.
No. 34 of 1980 under Section 5(2) of the Jammu & Kashmir Prevention of
Corruption Act (for short, 'the J & K PC Act') was registered against the
appellant, pursuant to which the appellant was arrested on the allegation that
he had received a sum of Rs.700/- as illegal gratification, though the amount
as alleged was not recovered from him, but from one Gulam Quadir.
30.4.1981 a challan under Section 173 Cr.P.C. came to be filed against the
appellant before the court of Special Judge, Anti Corruption, Srinagar, Kashmir under Section 5(2) of the J & K PC Act. The appellant
challenged the legality of the proceedings of the Court before the High Court
of Jammu & Kashmir in Criminal Petition No. 41 of 1982 on the ground that
he was not a public servant within the meaning of Section 21 of the Ranbir
Penal Code (for short, 'RPC'), as such, he could not be tried under the
provisions of the J & K PC Act.
appellant also urged that the Court had no jurisdiction to try the case because
no valid sanction had been obtained for prosecution of the appellant from the
Court, after hearing the parties, held that the appellant was a public servant
within the meaning of Section 21 RPC being an employee of the State Bank of India, which was engaged in trading
business besides being owned by the Central Government.
High Court came to a definite finding that under the service rules of the State
Bank of India, the supervisory staff was not the
General Manager (Operations). The appellant at the time of the commission of
the alleged offence was a Branch Manager and he could be removed from the
service by the appointing authority or by an authority which was superior to
the appointing authority. That being so, the sanction given by the General
Manager (Operations) for prosecution of the appellant on 26.5.1981 was given by
an incompetent person who had no jurisdiction or competence to remove the
appellant from the service.
sanctioning authority was not even the appellant's appointing authority.
However, under Section 6 of the J & K PC Act which provides for initiation
of prosecution, there must be a sanction issued by a person who was empowered
to remove such an official from service.
High Court clearly held that it was well settled that no prosecution could be
brought before a Court without there being a proper sanction. Existence of a
valid sanction was a condition precedent for prosecution under Section 5(2) of
the J & K PC Act. In the absence of sanction, the trial Judge had no
jurisdiction to take cognizance of the case. The Court, while allowing the
petition filed by the appellant, quashed the proceedings pending against the
appellant in the trial court under Section 5(2) of the J & K PC Act and
under Section 161 RPC.
appellant, however, was dismissed from service in the departmental proceedings
initiated against him, and later, in appeal, the dismissal was converted into
removal from the service.
be pertinent to mention that the respondents again filed a challan against the
appellant before the Court of a Special Judge, Anti Corruption, Srinagar on 25.7.1986, on the same set of
facts that the appellant was no more in service and the sanction for
prosecution was not required now.
chronic militancy in Srinagar led to mass migration of the
minority community. The appellant being a member of the minority community
migrated to Jammu on 23.9.1998. The appellant filed a
petition before the High Court of Jammu & Kashmir at Jammu seeking transfer of the case from
the Court of the Special Judge, Anti Corruption, Srinagar to the Court of the Special Judge, Anti Corruption, Jammu. The High Court vide its order
dated 23.9.1998 transferred the case.
appellant filed an application before the trial court for quashing of the trial
on the plea that the appellant could not be prosecuted without sanction.
learned Special Judge, Anti Corruption, Jammu after hearing the parties vide
order dated 12.3.1999 accepted the application filed by the appellant and
discharged him from the offences under Section 5(2) of the J & K PC Act
read with Section 161 RPC. The trial court observed in its order that the
Vigilance Organization, Kashmir, despite having knowledge that earlier accorded
sanction had been quashed, again produced the instant charge-sheet for his
trial in the year 1986 on the plea that the accused had been removed from the
service, as such, no sanction as contemplated under Section 6 of the J & K
PC Act was required.
Special Judge after hearing the parties observed that it was not disputed that
earlier sanction accorded to prosecute the accused was quashed by the High
Court having not been accorded by a competent authority.
now, no fresh sanction had been obtained to prosecute the appellant from the
the instant charge-sheet was presented, no sanction was in existence. The
learned trial Judge interpreted Section 6 of the J & K PC Act and stated
that, according to the said Section, sanction was sine qua non for taking
cognizance of the offence. We deem it appropriate to reproduce Section 6 of the
Act. It reads as follows:
sanction necessary for prosecution
No Court shall take cognizance of an offence
punishable under section 161 or section 165 of the Ranbir Penal Code, or under
sub-section (2) of section 5 of this Act, alleged to have been committed by a
public servant, except with the previous sanction ___
in the case of a
person who is not removable from his office save by or with the sanction of the
in the case of
any other person, of the authority competent to remove him from his office.
Where for any
reason whatsoever any doubt arises whether the previous sanction as required
under sub-section (1) should be given by the Government or any other authority,
such sanction shall be given by the Government or authority which would have
been competent to remove the public servant from his office at the time when
the offence was alleged to have been committed."
Court clearly observed that it was immaterial whether at the time of the
presentation of the charge- sheet the accused was in service or not, but the
fact was that he had committed criminal mis-conduct while discharging his
official functions and the cognizance taken against the appellant without sanction
was bad in the eyes of law. The accord of sanction was a sine qua non for
taking cognizance of the offence against the accused.
submitted by the appellant that the order dated 12.3.1999 passed by the Special
Judge, Anti Corruption, Jammu was not challenged and, therefore,
it became final and binding between the parties.
further submitted that it was astonishing that without challenging the validity
of the order passed by the Special Judge, Jammu a challan was filed against the appellant on the same set of facts
before the Special Judge, Anti Corruption, Jammu on 12.8.2000, by the respondent. By virtue of order dated 12.8.2000 the
appellant again came under judicial restraint and was asked to produce sureties
for his presence in the Court.
appellant filed a petition before the High Court for quashing the proceedings
pending before the Special Judge, Anti Corruption, Jammu, being Case No. 34 of 1980. The
High Court vide impugned judgment dismissed the petition without appreciating the
contentions raised by the appellant in proper perspective.
appellant has now challenged the impugned order of the High Court dated
5.9.2001. The appellant submitted that the orders of discharge by the High
Court in the first instance and subsequently by the Special Judge, Anti
Corruption, Jammu had become final and binding
because the respondents did not challenge the said orders. It is also alleged
that the respondents could not be permitted to prosecute the appellant on the
same cause of action and on the same facts and circumstances for the third
time. According to the appellant, this was a clear case of gross abuse of the
process of law. He further submitted that how the respondents could be
permitted to file a fresh challan for the third time on the same cause of
action and on the same facts and circumstances? According to the appellant, the
impugned order suffers from serious infirmities. He submitted that the High
Court ought to have appreciated that by dismissing the appellant's petition the
High Court had in fact reviewed its own order. There was no provision in the
Criminal Law which enabled the Court to review its own order.
appellant further submitted that repeated filing of challans by the respondents
without any sanction had caused immense mental, physical and emotional stress
and harassment for more than 26 years.
appellant also sought relief on the ground that it was the right of every
citizen to seek speedy trial.
of further proceedings against the appellant is contrary to the basic spirit of
Article 21 of the Constitution, and consequently, the impugned judgment is
liable to be set aside.
special leave petition preferred by the appellant, this Court issued a
to that show-cause-notice, a counter affidavit was filed on behalf of the
respondents by the Director General/Commissioner of Vigilance Organization of
Jammu & Kashmir. It may be pertinent to mention that the basic facts
incorporated in the special leave petition regarding the three challans
produced by the respondents have not been denied. Admittedly, in the last more
than 26 years, not even a single witness has been examined by the prosecution.
The appellant, of course, had taken the legal remedy available to him to protect
his interests against illegal proceedings initiated against him by the
respondents, but that by itself could not be a ground to harass and humiliate
the appellant for more than a quarter century.
submitted that the appellant could not have been prosecuted without a valid
sanction. The respondents were not justified in filing the fresh challan
without getting the earlier order of the High Court and the order of the
Special Judge, Anti Corruption, Jammu quashed. It was urged that the proceedings initiated against the
appellant were totally without jurisdiction and consequently were liable to be
appellant, in the instant case, has been facing the criminal prosecution for
almost more than two and a half decades. The speedy trial is an integral part
of Article 21 of the Constitution. In the instant case, in the last twenty six
years, not even a single prosecution witness had been examined. It was urged
that for more than one reasons, the prosecution, in the instant case, cannot be
permitted to continue. The proceedings taken by the respondents against the
appellant were clearly an abuse of process of law.
Court had repeatedly emphasized that the speedy trial is implicit in the
spectrum of Article 21 of the Constitution.
was made to a Constitution Bench Judgment of this Court in the case of Abdul Rehman
Antulay v. R. S. Nayak (1992) 1 SCC 225. In this case, the Court held that the
right to a speedy trial was a part of fair, just and reasonable procedure
implicit in Article 21 of the Constitution. This Court, in this case, observed
that each case had to be decided on its own facts. In this case, this Court
further observed that it was not advisable and feasible to fix an outer time
limit for conclusion of the criminal proceedings.
submitted in the said case that the framers of Indian Constitution were aware
of the 6th Amendment in the Constitution of the USA providing in express terms
the right of an 'accused' to be tried speedily. Yet, similar provision was not
incorporated in the Indian Constitution. It was submitted in that case that it
is neither permissible nor possible nor desirable to lay down an outer limit of
time. The US Supreme Court also had refused to do so.
deem it appropriate to reproduce the relevant observations made by this Court
in the case of Hussainara Khatoon (I) v. Home Secretary, State of Bihar (1980)
1 SCC 81 as under:
think that even under our Constitution, though speedy trial is not specifically
enumerated as a fundamental right, it is implicit in the broad sweep and
content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of
India [(1978) 1 SCC 248]. We have held in that case that Article 21 confers a
fundamental right on every person not to be deprived of his life or liberty
except in accordance with the requirement of that Article that some semblance
of a procedure should be prescribed by law, but that the procedure should be
"reasonable, fair and just". If a person is deprived of his liberty
under a procedure which is not "reasonable, fair or just", such
deprivation would be violative of his fundamental right under Article 21 and he
would be entitled to enforce such fundamental right and secure his release. Now
obviously procedure prescribed by law for depriving a person of his liberty
cannot be 'reasonable, fair or just' unless that procedure ensures a speedy
trial for determination of the guilt of such person. No procedure which does
not ensure a reasonably quick trial can be regarded as "reasonable, fair or
just" and it would fall foul of Article 21. There can, therefore, be no
doubt that speedy trial, and by speedy trial we mean reasonably expeditious
trial, is an integral and essential part of the fundamental right to life and
liberty enshrined in Article 21." In a number of cases, this Court on
consideration of peculiar facts and circumstance of individual cases had
quashed the proceedings.
Saxena v. State through C.B.I. (1986) Supp. SCC 505, this Court quashed the
proceedings on the ground that any further continuance of the prosecution after
lapse of more than six years in the case of the appellant who was merely a
trader at the lowest rung of the hierarchy in the Foreign Exchange Division of
the Bank is uncalled for, particularly, in view of the complicated nature of
the offence charged.
Court, in the case of Srinivas Gopal v. Union Territory of Arunachal Pradesh
(1988) 4 SCC 36 quashed the proceedings on the ground of delay in investigation
and commencement of trial. The investigation commenced in November 1976 and the
case was registered on completion of the investigation in September 1977.
Cognizance was taken by the Court in March 1986.
J. Stephen v. Parle Bottling Co. (P) Ltd. (1988) Supp. SCC 458, this Court
quashed the charges against the accused under Section 5 of the Import and
Exports (Control) Act, 1947. The Court held that it would not be in the
interests of justice to allow a prosecution to start and trial to be proceeded
with after a lapse of twenty six years even though one of the accused was
himself responsible for most of the delays caused by his mala fide tactics.
v. State of Hyderabad (1955) 2 SCR 524, this Court observed that while it was
incumbent on the Court to see that no guilty person escapes, it is still more
its duty to see that justice is not delayed and accused persons are not
indefinitely harassed. The Court observed that the scales must be held even
between the prosecution and the accused. In the facts of that case, the Court
refused to order trial on account of the time already spent and other relevant
circumstances of that case.
case of A. R. Antulay (supra), this Court gave propositions meant to serve as
guidelines. This Court held that these propositions are not exhaustive. It is
difficult to foresee all situations. Nor is it possible to lay down any hard
and fast rules. This Court further observed as under:
and reasonable procedure implicit in Article 21 of the Constitution creates a
right in the accused to be tried speedily. Right to speedy trial is the right
of the accused. The fact that a speedy trial is also in public interest or that
it serves the social interest also, does not make it any the less the right of
the accused. It is in the interest of all concerned that the guilt or innocence
of the accused is determined as quickly as possible in the circumstances.
Right to speedy
trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, trial, appeal, revision and re-trial. That is how, this
Court has understood this right and there is no reason to take a restricted
underlying the right to speedy trial from the point of view of the accused are:
the period of
remand and pre- conviction detention should be as short as possible. In other
words, the accused should not be subjected to unnecessary or unduly long
incarceration prior to his conviction;
anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, inquiry or trial should be minimal; and
undue delay may
well result in impairment of the ability of the accused to defend himself,
whether on account of death, disappearance or non-availability of witnesses or
xxxx xxx xxxx xxxx" This Court also observed that while determining
whether undue delay has in fact occurred, one must have regard to all the
attendant circumstances, including nature of offence, number of accused and
witnesses, the workload of the court concerned, prevailing local conditions and
so on what is called, the systematic delays. The sum and substance is that it
is neither advisable nor practicable to fix any time limit for trial of
offence. Each case has to be decided on its own facts and circumstances.
Court, as per the majority in a seven-Judge Bench, in the case of P. Ramachandra
Rao v. State of Karnataka (2002) 4 SCC 578 came to the conclusion and declared
that this Court can interpret the law and in the process remove any lacuna,
fill the gaps in the Legislation and even lay down a law with reference to the
dispute before it. But it, cannot declare a new law of general application in
the manner the Legislature does.
this case, the Court relied upon Antulay's case (supra) and refrained from
fixing any time limit not because the Court had no power to do so, but because
it was "neither advisable nor practicable" to do so. The Court
observed that since the law laid down by the Constitution Bench still holds the
field, any declaration made in derogation thereof fixing time limit by a
smaller Bench is overruled by virtue of the doctrine of binding precedents. The
Court also laid down that the question of delay had to be decided by the Court
having regard to the totality of circumstances of an individual case. The Court
observed that 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 trial has remained pending for such a length of time that the
inordinate delay can legitimately be called oppressive and unwarranted.
would be pertinent to mention that the Sixth Amendment to the U.S. Constitution
states that "In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed. "These guarantees are the
most basic rights preserved by the Constitution; fundamental liberties embodied
in the Bill of Rights. The due process clause of the Fourteenth Amendment made
them applicable to all States." The Constitutional guarantee is for the
protection of both the accused and the society. Even in the United States where there has been a
constitutional amendment recognizing speedy trial as an extremely valuable
right of the accused even then the Court held that no time limit could be fixed
for concluding the criminal trial. It has been held that it depends on the
facts and circumstances of each case.
celebrated American case, Beavers v. Haubert (1905) 198 US 77, 49 L Ed 950, 25
S Ct 573, it was recognized that the right to a speedy trial is necessarily
relative, and that it is consistent with delays and depends upon circumstances.
another case of U.S. Supreme Court, Pollard v. United States 1957) 352 US 354,
1 L Ed 2d 393, 77 S Ct 481, it was recognized that whether delay in completing
a prosecution amounts to an unconstitutional deprivation of rights depends upon
the circumstances, and that the delays must not be purposeful or oppressive.
recognized that "the constitutional guarantee of a speedy trial is an
to prevent undue
and oppressive incarceration prior to trial,
anxiety and concern accompanying public accusation, and
to limit the
possibilities that long delays will impair the ability of an accused to defend
to the views expressed in earlier decisions, the Court reiterated that the
right to a speedy trial is necessarily relative; that it is consistent with
delays; that whether delay in completing a prosecution amounts to an
unconstitutional deprivation of rights depends upon the circumstances and that
the delay must not be purposeful or oppressive."
Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575, it was
recognized that the Sixth Amendment guarantee of the right to a speedy trial is
essential to protect at least three basic demands of criminal justice:
to prevent undue
and oppressive incarceration prior to trial,
anxiety and concern accompanying public accusation, and
to limit the
possibilities that long delay will impair the ability of an accused to defend
In England, from the time of the Magna Carta,
an accused, in theory at least, enjoyed the right to a speedy trial, which was
secured by the commission of goal delivery, under which the jails were cleared
at least twice each year.
Commonwealth v. Hanley [337 Mass 384, 149 NE2d 608, 66 ALR2d 222, cert den 358
US 850, 3 L ed 2d 85, 79 S Ct 79], the guarantee of speedy trial has been held
to serve a threefold purpose: it protects the accused, if held in jail to await
trial against prolonged imprisonment; it relieves him of the anxiety and public
suspicion attendant upon an untried accusation of crime; and, like statutes of
limitation, it prevents him from being exposed to the hazards of a trial after
the lapse of so great a time that the means of proving his innocence may have
case of State v. Carrillo [41 Ariz 170, 16 P2d 965], it has been held that an
accused who has been denied speedy trial, or who has not been brought to trial
within the time required by an implementing statute, can generally move to
dismiss the prosecution on that ground.
48(b) of the Federal Rules of Criminal Prosecution authorizes dismissal if
there is unnecessary delay in presenting the charge to a grand jury or in
filing an information against an accused who has been held to answer to the
district court, or if there is unnecessary delay in bringing an accused to
trial. This rule has the same effect in implementing the Sixth Amendment right
to speedy trial, as an act of Congress would have had.
Constitution Bench of this Court has, in the case of Kartar Singh v. State of Punjab (1994) 3 SCC 569, mentioned that
the right to a speedy trial is a derivation from a provision of Magna Carta.
This principle has also been incorporated into the Virginia Declaration of
Rights of 1776 and from there into the Sixth Amendment of the Constitution of
United States of America which reads, "In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial...". It may be
pointed out, in this connection, that there is a Federal Act of 1974 called
'Speedy Trial Act' establishing a set of time- limits for carrying out the
major events, e.g., information, indictment, arraignment, in the prosecution of
this case, this Court further observed as under:
right to a speedy trial is not only an important safeguard to prevent undue and
oppressive incarceration, to minimize anxiety and concern accompanying the accusation
and to limit the possibility of impairing the ability of an accused to defend himself
but also there is a societal interest in providing a speedy trial. This right
has been actuated in the recent past and the courts have laid down a series of
decisions opening up new vistas of fundamental rights. In fact, lot of cases
are coming before the courts for quashing of proceedings on the ground of
inordinate and undue delay stating that the invocation of this right even need
not await formal indictment or charge." The concept of speedy trial is
read into Article 21 as an essential part of the fundamental right to life and
liberty guaranteed and preserved under our Constitution.
right to speedy trial begins with the actual restraint imposed by arrest and
consequent incarceration and continues at all stages, namely, the stage of
investigation, inquiry, trial, appeal and revision so that any possible
prejudice that may result from impermissible and avoidable delay from the time
of the commission of the offence till it consummates into a finality, can be
Court in Hussainara Khatoon (I) (supra) further observed as under:
procedure which does not ensure a reasonably quick trial can be regarded as
'reasonable, fair or just' and it would fall foul of Article 21. There can,
therefore, be no doubt that speedy trial, and by speedy trial we mean
reasonably expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article 21.
question which would, however, arise is as to what would be the consequence if
a person accused of an offence is denied speedy trial and is sought to be
deprived of his liberty by imprisonment as a result of a long delayed trial in
violation of his fundamental right under Article 21. Would he be entitled to be
released unconditionally freed from the charge levelled against him on the
ground that trying him after an unduly long period of time and convicting him
after such trial would constitute violation of his fundamental right under
Article 21." This Court in a number of cases has reiterated that speedy
trial is one of the facets of the fundamental right to life and liberty
enshrined in Article 21 and the law must ensure 'reasonable, just and fair'
procedure which has a creative connotation after the decision of this Court in Maneka
Gandhi's case (supra).
we examine the instant case in the light of the aforementioned decisions of
this Court and of the US Supreme Court, it becomes abundantly clear that no
general guideline can be fixed by the court and that each case has to be
examined on its own facts and circumstances.
the bounden duty of the court and the prosecution to prevent unreasonable
purpose of right to a speedy trial is intended to avoid oppression and prevent
delay by imposing on the courts and on the prosecution an obligation to proceed
with reasonable dispatch.
order to make the administration of criminal justice effective, vibrant and
meaningful, the Union of India, the State Governments and all concerned
authorities must take necessary steps immediately so that the important
constitutional right of the accused of a speedy trial does not remain only on
papers or is a mere formality.
instant case not a single witness has been examined by the prosecution in the
last twenty six years without there being any lapse on behalf of the appellant.
Permitting the State to continue with the prosecution and trial any further
would be total abuse of the process of law. Consequently, the criminal
proceedings are quashed. The appeal is accordingly allowed and disposed of.