Vakil Prasad Singh Vs.
State of Bihar [2009] INSC 156 (23 January 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 138 OF 2009
(Arising out of S.L.P. (Criminal) No. 6887 of 2007) VAKIL PRASAD SINGH --
APPELLANT (S) VERSUS
D.K. JAIN, J.:
1.
Leave
granted.
2.
Challenge
in this appeal is to the order dated 9th July, 2007 passed by the High Court of
Judicature at Patna in Criminal Miscellaneous No.17513 of 1998. By the impugned
order, the High Court has dismissed the petition preferred by the appellant
under Section 482 of the Code of Criminal Procedure, 1973 (for short `the
Cr.P.C.'), seeking quashing of proceedings pending against him in Special Case
No. 29 of 1987 before the Special Judge, Muzaffarpur for allegedly committing
offences under Sections 161 (before its 1 omission by Act 30/2001), 109 and
120B of the Indian Penal Code, 1860 (for short `the I.P.C.') and Section 5(2)
of the Prevention of Corruption Act, 1947 (for short `the Act').
3.
The
case has a chequered history and, therefore, in order to appreciate the rival
stands of the parties, it would be necessary to notice the background facts in
a little greater detail.
The genesis of the
case dates back to 8th April, 1981 when a search operation was conducted by the
office of the Superintendent of Police, Crime Investigation Department,
(Vigilance), Muzaffarpur, on the basis of a complaint lodged by a civil
contractor against the appellant, an Assistant Engineer in the Bihar State
Electricity Board (Civil) Muzaffarpur, for allegedly demanding a sum of
Rs.1000/- as illegal gratification for release of payment for the civil work
executed by him. In the trap laid to catch the culprit, the chemically treated
currency notes are stated to have been recovered from appellant's pocket. As a
follow up action, after investigation by an Inspector of Police, a chargesheet
for the afore-mentioned offences was filed against the appellant on 28th
February, 1982. The Magistrate took cognizance on 9th December, 1982. Nothing
substantial happened till 6th July, 1987 except for dismissal of an application,
dated 30th June, 1983 filed by the prosecution for reinvestigation of the case,
when the case was transferred from Muzaffarpur to Patna.
4.
On
7th December, 1990, the appellant filed a petition under Section 482 Cr.P.C.
before the Patna High Court against the order passed by the Special Judge,
Muzaffarpur taking cognizance of the said offences, on the ground that the
Inspector of Police, who had conducted the investigations, on the basis whereof
the chargesheet was filed, had no jurisdiction to do so.
Accepting the plea of
the appellant, the High Court, vide order dated 7th December, 1990 quashed the
order of Magistrate taking cognizance, with a direction to the prosecution to
complete the investigation within a period of three months from receipt of the
order, by an officer of the rank of a Deputy Superintendent of Police or any
other officer duly authorised in this behalf.
No further progress
was made in the case and the matter rested there till the year 1998, when the
appellant filed yet another petition under Section 482 Cr.P.C., giving rise to
the present appeal, seeking quashing of the entire criminal proceedings pending
against him mainly on the ground that re- investigation in the matter had not
been initiated even after a lapse of seven and a half years of the order passed
by the High Court on 7th December, 1990 and in the process the appellant had
suffered undue harassment for over eighteen years. On 20th November, 1998, the
petition was admitted to final hearing.
5.
Ultimately,
when the matter was called out for final hearing after almost nine years, on
11th May, 2007, counsel for the vigilance department sought time to 3 seek
instructions in regard to the stage of investigations. In furtherance thereof,
an affidavit was filed on behalf of the prosecution, inter alia, stating that
the Superintendent of Police, Muzaffarpur vide his letter dated 22nd February,
2007 had directed the Deputy Superintendent of Police to complete the
investigations. In pursuance of the said direction, the Deputy Superintendent
started investigations on 28th February, 2007 and ultimately filed a fresh
chargesheet on 1st May, 2007.
6.
As
noted earlier, the High Court has dismissed the petition. Acknowledging that
there has been substantial delay in conclusion of proceedings against the
appellant and some prejudice may have been caused to the appellant in his
professional career on account of continuance of criminal case against him as
he was deprived of the promotion in the meantime, the learned Judge finally
concluded that this reason by itself was not sufficient to quash the entire
criminal proceedings against him, particularly keeping in view the seriousness
of the allegations. The learned Judge, however, directed the trial court to
conduct the trial in the matter on a day to day basis and complete the same
within a period of four months. The Court also directed that if the sanction of
the State Government had not yet been obtained, the question of grant of
sanction shall be considered by the State Government within a period of six
weeks from the date of the order. Being aggrieved by the said decision, the
appellant has preferred the present appeal.
7.
Learned
counsel appearing on behalf of the appellant vehemently submitted that though a
period of about twenty eight years, since the registration of the case against
the appellant, has elapsed, the trial according to law is yet to commence and
thus, the appellant has been deprived of his constitutional right to speedy
investigation and trial flowing from Article 21 of the Constitution. It was
pleaded that having regard to the prevailing circumstances and the fact that it
is still not clear whether the requisite sanction to prosecute the appellant
has been granted or not, this is eminently a fit case where the chargesheet
against the appellant ought to be quashed.
8.
Per
contra, learned counsel for the State contended that in view of the seriousness
of the offences alleged against the appellant, the High Court was fully
justified in dismissing the petition by applying the correct principles to be
kept in view while exercising its inherent powers under Section 482 Cr.P.C. The
learned counsel also submitted that the delay in trial was also, to some
extent, attributable to the appellant because it was he who had belatedly
questioned the jurisdiction of the investigating officer. Learned counsel also
urged that the prosecution could not be held responsible for delay in trial on
account of transfer of the case from Muzaffarpur to Patna and again from Patna
to Muzaffarpur.
9.
Before
adverting to the core issue, viz. whether under the given circumstances the
appellant was entitled to approach the High Court for 5 getting the entire
criminal proceedings against him quashed, it would be appropriate to notice the
circumstances and the parameters enunciated and reiterated by this Court in a
series of decisions under which the High Court can exercise its inherent powers
under Sections 482 Cr.P.C. to prevent abuse of process of any Court or
otherwise to secure the ends of justice. The power possessed by the High Court
under the said provision is undoubtedly very wide but it has to be exercised in
appropriate cases, ex debito justitiae to do real and substantial justice for
the administration of which alone the courts exist.
The inherent powers
do not confer an arbitrary jurisdiction on the High Court to act according to
whim or caprice. It is trite to state that the said powers have to be exercised
sparingly and with circumspection only where the court is convinced, on the
basis of material on record, that allowing the proceedings to continue would be
an abuse of the process of the court or that the ends of justice require that
the proceedings ought to be quashed.
10.
In
Bhajan Lal's case (supra), while formulating as many as seven categories of
cases by way of illustration, wherein the extra-ordinary power under the
afore-stated provisions could be exercised by the High Court to prevent abuse
of process of the court, it was clarified that it was not possible to lay 1
(1977) 4 SCC 451 2 (1992) 4 SCC 305 3 1992 Supp (1) SCC 335 6 down precise and
inflexible guidelines or any rigid formula or to give an exhaustive list of the
circumstances in which such power could be exercised.
This view has been
reiterated in a catena of subsequent decisions.
11.
We
are of the opinion that having regard to the factual scenario, noted above, and
for the reasons stated hereafter, it is a fit case where the High Court should
have exercised its powers under Section 482 Cr.P.C.
12.
Time
and again this Court has emphasized the need for speedy investigations and
trial as both are mandated by the letter and spirit of the provisions of the
Cr.P.C. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the
constitutional protection enshrined in Article 21 of the Constitution. Inspired
by the broad sweep and content of Article 21 as interpreted by a seven-Judge
Article 21 confers a fundamental right on every person not to be deprived of
his life or liberty except according to procedure established by law; that such
procedure is not some semblance of a procedure but the procedure should be
'reasonable, fair and just'; and therefrom flows, without doubt, the right to
speedy trial. It was also observed that 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. The Court clarified that speedy trial means 4
(1978) 1 SCC 248 5 (1980) 1 SCC 81 7 reasonably expeditious trial which is an
integral and essential part of the fundamental right to life and liberty
enshrined in Article 21.
13.
The
exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively
considered afresh by the Constitution Bench in Abdul Rehman Court and the
American precedents on the Sixth Amendment of their Constitution, making the
right to a speedy and public trial a constitutional guarantee, the Court
formulated as many as eleven propositions with a note of caution that these
were not exhaustive and were meant only to serve as guidelines. For the sake of
brevity, we do not propose to reproduce all the said propositions and it would
suffice to note the gist thereof. These are: (i) fair, just and reasonable
procedure implicit in Article 21 of the Constitution creates a right in the
accused to be tried speedily; (ii) right to speedy trial flowing from Article
21 encompasses all the stages, namely the stage of investigation, inquiry,
trial, appeal, revision and retrial; (iii) in every case where the speedy trial
is alleged to have been infringed, the first question to be put and answered is
-- who is responsible for the delay?; (iv) while determining whether undue
delay has occurred (resulting in violation of right to speedy trial) one must
have regard to all the attendant circumstances, including nature of offence,
number of accused and witnesses, the work-load of the court concerned,
prevailing local conditions and so on--what is called, 6 (1992) 1 SCC 225 the
systemic delays; (v) each and every delay does not necessarily prejudice the accused.
Some delays may indeed work to his advantage. However, inordinately long delay
may be taken as presumptive proof of prejudice. In this context, the fact of
incarceration of accused will also be a relevant fact.
The prosecution
should not be allowed to become a persecution. But when does the prosecution
become persecution, again depends upon the facts of a given case; (vi)
ultimately, the court has to balance and weigh several relevant
factors--'balancing test' or 'balancing process'--and determine in each case
whether the right to speedy trial has been denied; (vii) Ordinarily speaking,
where the court comes to a conclusion that right to speedy trial of an accused
has been infringed the charges or the conviction, as the case may be, shall be
quashed. But this is not the only course open and having regard to the nature
of offence and other circumstances when the court feels that quashing of
proceedings cannot be in the interest of justice, it is open to the court to
make appropriate orders, including fixing the period for completion of trial;
(viii) it is neither
advisable nor feasible to prescribe any outer time-limit for conclusion of all
criminal proceedings. In every case of complaint of denial of right to speedy
trial, it is primarily for the prosecution to justify and explain the delay. At
the same time, it is the duty of the court to weigh all the circumstances of a
given case before pronouncing upon the complaint; (ix) an objection based on
denial of right to speedy trial and for relief on that account, should first be
addressed to the High Court. Even if the High Court 9 entertains such a plea,
ordinarily it should not stay the proceedings, except in a case of grave and
exceptional nature. Such proceedings in the High Court must, however, be
disposed of on a priority basis.
14.
Notwithstanding
elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay
(supra), and rejection of the fervent plea of proponents of right to speedy
trial for laying down time-limits as bar beyond which a criminal trial shall
not proceed, pronouncements of this Court in "Common whether an outer time
limit for conclusion of criminal proceedings could be prescribed whereafter the
trial court would be obliged to terminate the proceedings and necessarily
acquit or discharge the accused. The confusion on the issue was set at rest by
a seven-Judge Bench of this court in P. J. (as his Lordship then was) while
affirming that the dictum in A.R. Antulay's case (supra) as correct and the one
which still holds the field and the propositions emerging from Article 21 of
the Constitution and expounding the right to speedy trial laid down as
guidelines in the said case adequately 7 (1996) 4 SCC 33 8 (1996) 6 SCC 775 9
(1998) 7 SCC 507 10 (1999) 7 SCC 604 11 (2002) 4 SCC 578 10 take care of right
to speedy trial, it was held that guidelines laid down in the A.R. Antulay's
case (supra) are not exhaustive but only illustrative. They are not intended to
operate as hard and fast rules or to be applied as a strait-jacket formula.
Their applicability would depend on the fact-situation of each case as it is
difficult to foresee all situations and no generalization can be made. It has
also been held that it is neither advisable, nor feasible, nor judicially
permissible to draw or prescribe an outer limit for conclusion of all criminal
proceedings. Nonetheless, the criminal courts should exercise their available
powers such as those under Sections 309, 311 and 258 of Cr.P.C. to effectuate
the right to speedy trial. In appropriate cases, jurisdiction of the High Court
under Section 482 Cr.P.C. and Articles 226 and 227 of the Constitution can be
invoked seeking appropriate relief or suitable directions.
The outer limits or
power of limitation expounded in the aforenoted judgments were held to be not
in consonance with the legislative intent.
15.
It
is, therefore, well settled that the right to speedy trial in all criminal
persecutions is an inalienable right under Article 21 of the Constitution. This
right is applicable not only to the actual proceedings in court but also
includes within its sweep the preceding police investigations as well. The
right to speedy trial extends equally to all criminal prosecutions and is not
confined to any particular category of cases. In every case, where the right to
speedy trial is alleged to have been infringed, the court has to perform the
11 balancing act upon taking into consideration all the attendant
circumstances, enumerated above, and determine in each case whether the right
to speedy trial has been denied in a given case. Where the court comes to the
conclusion that the right to speedy trial of an accused has been infringed, the
charges or the conviction, as the case may be, may be quashed unless the court
feels that having regard to the nature of offence and other relevant circumstances,
quashing of proceedings may not be in the interest of justice.
In such a situation,
it is open to the court to make an appropriate order as it may deem just and
equitable including fixation of time frame for conclusion of trial.
16.
Tested
on the touchstone of the broad principles enumerated above, we are convinced
that in the present case appellant's constitutional right recognised under
Article 21 of the Constitution stands violated. It is manifest from the facts
narrated above that in the first instance investigations were conducted by an
officer, who had no jurisdiction to do so and the appellant cannot be accused
of delaying the trial merely because he successfully exercised his right to
challenge an illegal investigation. Be that as it may, admittedly the High
Court vide its order dated 7th September, 1990 had directed the prosecution to
complete the investigation within a period of three months from the date of the
said order but nothing happened till 27th February, 2007 when, after receipt of
notice in the second petition preferred by the appellant complaining about
delay in investigation, the Superintendent of Police, Muzaffarpur directed the
Deputy Superintendent of Police to complete the investigation. It was only
thereafter that a fresh chargesheet is stated to have been filed on 1st May,
2007. It is also pertinent to note that even till date, learned counsel for the
State is not sure whether a sanction for prosecuting the appellant is required
and if so, whether it has been granted or not. We have no hesitation in holding
that at least for the period from 7th December, 1990 till 28th February, 2007
there is no explanation whatsoever for the delay in investigation. Even the
direction issued by the High Court seems to have had no effect on the
prosecution and they slept over the matter for almost seventeen years. Nothing
could be pointed out by the State, far from being established to show that the
delay in investigation or trial was in any way attributable to the appellant.
The prosecution has failed to show any exceptional circumstance which could
possibly be taken into consideration for condoning a callous and inordinate
delay of more than two decades in investigations and the trial. The said delay
cannot, in any way, be said to be arising from any default on the part of the
appellant. Thus, on facts in hand, in our opinion, the stated delay clearly
violates the constitutional guarantee of a speedy investigation and trial under
Article 21 of the Constitution. We feel that under these circumstances, further
continuance of criminal proceedings, pending against the appellant in the court
of Special Judge, Muzaffarpur, is unwarranted and despite the fact that
allegations against him are quite serious, they deserve to be quashed.
17.
Consequently,
the appeal is allowed and the proceedings pending against the appellant in
Special Case No. 29 of 1987 are hereby quashed.
.................................................J.
(D.K. JAIN)
................................................J.
(R.M. LODHA)
NEW
DELHI;
JANUARY
23, 2009.
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