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Wednesday, July 15, 2015

mere delay in completion of proceedings may not be by itself a ground to quash proceedings where offences are serious, but the Court having regard to the conduct of the parties, nature of offence and the extent of delay in the facts and circumstances of a given case, quash the proceedings in exercise of jurisdiction under Section 482 Cr.P.C. in the interest of justice and to prevent abuse of process of the Court. 18. In the present case, conduct of the complainant can certainly be taken into account. Admittedly, the complainant stood convicted in a cross case. At least for ten years after commencement of the trial, the complainant did not even bother to seek simultaneous trial of the cross case, the step which was taken for the first time in the year 2005 which could certainly have been taken in the year 1995 itself when the trial against respondent No.2 commenced. Having regard to the nature of allegations and entirety of circumstances, it will be unfair and unjust to permit respondent No.2 to proceed with a complaint filed 16 years after the incident against the appellants 19. We accordingly, allow this appeal set aside the impugned order and quash the proceedings in Criminal Complaint Case No.1066 of 2008 pending in the Court of Judicial Magistrate-II, Hardoi.

REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.854 OF 2011


SIRAJUL & ORS.                                        …APPELLANTS

                                   VERSUS

THE STATE OF U.P. & ANR.                          …RESPONDENTS


                               J U D G M E N T


ADARSH KUMAR GOEL, J.


1.    The appellants have called in question the order dated 6th July,  2009
of the High Court of Judicature, Allahabad, Bench  at  Lucknow  in  Criminal
Miscellaneous Case No.2428 of 2009.  Thereby, the  High  Court  declined  to
interfere with the order of summoning and to quash the complaint  dated  3rd
May, 2008 registered as  Criminal  Complaint  Case  No.1066  of  2008  under
Section 307 of  the  Indian  Penal  Code,  P.S.  Atrauli,  District  Hardoi,
pending in the Court of Judicial Magistrate-II, Hardoi.   According  to  the
appellants, the complaint and the proceedings were gross  abuse  of  process
of the Court having been filed after gross  delay  of  16  years  after  the
incident.
2.    The incident in question  took  place  on  11th  February,  1992.   In
respect of the said incident, there were two cross cases  being  Crime  Case
No.37/92 under Section 307 IPC registered against the appellants, and  Crime
Case No.37A/92 under Section 307 IPC  registered  at  the  instance  of  the
appellants at Police Station Atrauli, District  Hardoi.   The  investigating
Agency charge sheeted respondent No.2, which  gave  rise  to  Session  Trial
Case No.760 of 1995. After trial, respondent  No.2  and  three  others  were
convicted under  Section  307/34  IPC  and  sentenced  to  undergo  rigorous
imprisonment for seven years and to pay  a  fine  of  Rs.5,000/-  each  vide
judgment dated 23rd September, 2009 by Additional  Sessions  Judge/F.T.C.-I,
Hardoi.  However, an  appeal  against  the  said  judgment  is  said  to  be
pending.  Respondent No.2,  in  his  statement  under  Section  313  Cr.P.C.
stated that he had also lodged a cross case.  He also led  defence  evidence
in support of the cross version.  Having regard to the  nature  of  injuries
received on the side of the appellants and other evidence,  version  of  the
appellants was accepted and respondent No.2 and two others  were  convicted.

3.    What is significant and undisputed is the fact that though  respondent
No.2 had registered Crime Case No.37/92 on 11th February, 1992  against  the
appellants and no action was taken thereon, he
kept quiet till 11th August, 2005.   Meanwhile, respondent  No.2  and  other
co-accused were charge sheeted on  21st  January,  1993  and  session  trial
commenced against them in the year 1995. It was only
on  11th  August,  2005  that  respondent  No.2  filed  an  application  for
summoning progress report of Crime Case No.37/1992, so that the  cross  case
against the appellants could also be tried  along  with  the  trial  against
respondent No.2.
4.     Case  of  respondent  No.2  is  that  no  order  was  passed  on  the
application but it was only on  1st  February,  2008  that  respondent  No.2
filed another application.  There is nothing to show if any other  step  was
taken by respondent No.2 except on 11th August, 2005
and 1st February, 2008.
5.    Application filed on 1st February, 2008 was disposed of
on 20th February, 2008 in  view  of  the  report  of  the  police  that  the
appellants were exonerated during investigation and  the  report  was  filed
before the Court.  On 3rd May, 2008,  respondent  No.2  filed  the  impugned
complaint alleging that the appellants had committed offence  under  Section
307 IPC on 11th February, 1992.  The said complaint led to summoning of  the
appellants vide order dated
3rd June, 2009 which was impugned before the High  Court.   The  High  Court
dismissed the petition filed by the appellants for quashing  on  the  ground
that allegation in the complaint and preliminary  evidence  led  in  support
thereof made out a case for summoning and thus  no  case  for  quashing  was
made out.
6.    We have heard learned counsel for the parties and perused the record.
7.    While issuing notice on 23rd  November,  2009  further  proceeding  in
Criminal Case No.1066 of 2008 pending in the Court of  Judicial  Magistrate-
II, Hardoi was stayed and the said order has been operative till date.
8.    Main contention raised  on  behalf  of  the  appellants  is  that  the
impugned complaint has been filed 16 years after the  incident  and  for  13
and a half years after the incident,  respondent  No2  did  not  persue  the
matter.  It is thus submitted that since the complainant kept quiet  for  13
years after the incident and the complaint has been filed  after  16  years,
respondent No.2 having been convicted in the cross case, the prosecution  of
the appellants at this stage will be unfair and futile.
9.    On the other hand, respondent No.2-complainant submitted that  bar  of
limitation does not  apply  beyond  the  statutory  bar  under  Section  468
Cr.P.C.  A crime never dies.  A criminal offence  is  a  wrong  against  the
society  even  though  committed  against  an  individual   and   thus   the
prosecution cannot be thrown out merely on the ground of delay.  In  support
of this submission, reliance has been placed in  Japani  Sahoo  vs.  Chandra
Sekhar Mohanty[1].
10.   In response to this stand of the complainant, learned counsel for  the
accused submitted that even if it is assumed that the appellants had  caused
the injury in question, the nature of injury, in the  circumstances  can  at
best fall under Section 324 IPC in which case bar under Section 468  Cr.P.C.
is applicable.  In any case, even cases not  covered  by  statutory  bar  of
limitation could be held to be  liable  to  be  quashed  on  the  ground  of
violation of right of speedy trial under Article21 of the Constitution.
11.   We have  given  due  consideration  to  the  rival  submissions.   The
question whether the proceedings in criminal cases not  covered  by  Section
468 Cr.P.C. could be quashed on the ground of delay has been  gone  into  in
several decisions.  While it is true that cases covered by statutory bar  of
limitation may be liable to be quashed without any further  enquiry,   cases
not covered by the statutory bar can be quashed on the ground  of  delay  in
filing of a criminal complaint  in appropriate cases.  In  such  cases,  the
question for consideration is whether there is violation of right of  speedy
trial which has been held to be part  of  Article  21  of  the  Constitution
having regard to the nature of offence, extent of delay, person  responsible
for delay and other attending circumstances.  In this  regard,  observations
in judgments of this Court may be referred to.
12.   In Japani Sahoo (supra), it was observed :
“16. At the same time, however, ground reality also cannot be ignored.  Mere
delay may not bar the right of the “Crown” in prosecuting  “criminals”.  But
it also cannot be overlooked that no person can  be  kept  under  continuous
apprehension that he can  be  prosecuted  at  “any  time”  for  “any  crime”
irrespective of the nature or seriousness of the offence. “People will  have
no peace of mind if  there  is  no  period  of  limitation  even  for  petty
offences.”

13.   In Vakil Prasad Singh vs. State of Bihar[2], it was observed :
“18.  Time  and  again  this  Court  has  emphasised  the  need  for  speedy
investigations and trial as both are mandated by the letter  and  spirit  of
the provisions of CrPC [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 Bench of this Court in Maneka Gandhi  v.  Union
of India [(1978) 1 SCC 248] and in Hussainara Khatoon (1) v. State of  Bihar
[(1980) 1 SCC 81]  this  Court  had  observed  that  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: [Hussainara Khatoon (1) case, SCC  p.  89,
para 5].

“5. … 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  reasonably  expeditious  trial
which is an integral and essential part of the  fundamental  right  to  life
and liberty enshrined in Article 21.

19. The exposition  of  Article  21  in  Hussainara  Khatoon  (1)  case  was
exhaustively considered afresh by the Constitution  Bench  in  Abdul  Rehman
Antulay v. R.S.  Nayak  [(1992)  1  SCC  225].  Referring  to  a  number  of
decisions of this 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.

xxxxxx

22. Speaking for the majority in P. Ramachandra Rao [(2002) 4 SCC 578,  R.C.
Lahoti, J. (as His Lordship then was) while affirming  that  the  dictum  in
A.R. Antulay case 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 take care of the right to speedy trial, it was held that:
(P. Ramachandra case, SCC p. 603, para 29)

“(3) … guidelines laid down in A.R. Antulay  case  are  not  exhaustive  but
only illustrative. They are not intended to operate as  hard-and-fast  rules
or to be applied [as] a  straitjacket  formula.  Their  applicability  would
depend on the fact situation of each case [as] [i]t is difficult to  foresee
all situations and no generalisation can be made.”

23. It has also been held that: (P. Ramachandra case, SCC p. 603, para 29)

“(4) It is neither advisable, nor feasible, nor  judicially  permissible  to
draw  or  prescribe  an  outer  limit  for  conclusion   of   all   criminal
proceedings.”

Nonetheless,

“(5) [t]he criminal courts should exercise their available powers,  such  as
those under Sections 309, 311 and  258  CrPC  to  effectuate  the  right  to
speedy trial. … In appropriate cases, jurisdiction of the High  Court  under
Section 482 CrPC and Articles  226  and  227  of  the  Constitution  can  be
invoked seeking appropriate relief or suitable directions”**.
                                             (emphasis added)

The outer  limits  or  power  of  limitation  expounded  in  the  aforenoted
judgments were held to be not in consonance with the legislative intent.

24. It is, therefore, well settled that the right to  speedy  trial  in  all
criminal persecutions (sic  prosecutions)  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  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.”

14.   In Ranjan Dwivedi vs. CBI[3],  declining  to  quash  proceedings  even
after 37 years of delay in completion of trial, it was observed :
“23. The length of the delay is  not  sufficient  in  itself  to  warrant  a
finding that the accused was deprived  of  the  right  to  a  speedy  trial.
Rather, it is only one of the factors to be considered, and must be  weighed
against  other  factors.  Moreover,  among  factors  to  be  considered   in
determining whether the right to speedy trial of the  accused  is  violated,
the length of delay is least conclusive. While there is authority that  even
very lengthy delays do not give rise to a per se conclusion of violation  of
constitutional rights, there is also authority that long enough delay  could
constitute per se violation of the right to speedy trial. In our  considered
view, the delay tolerated varies with the [pic]complexity of the  case,  the
manner of proof as well as the gravity of the alleged  crime.  This,  again,
depends on case-to-case basis.  There  cannot  be  universal  rule  in  this
regard. It is a balancing  process  while  determining  as  to  whether  the
accused’s right to speedy trial has been violated  or  not.  The  length  of
delay in and itself, is not a weighty factor.”

15.   In  Sajjan  Kumar  vs.  CBI[4],  even  after  23  years  of  delay  in
completion of trial, proceedings were not quashed and it was observed:
“39. In the case on hand, though delay may be  a  relevant  ground,  in  the
light of the materials which are available before  the  Court  through  CBI,
without testing the same at the trial, the  proceedings  cannot  be  quashed
merely on the ground of delay. As stated earlier, those  materials  have  to
be tested in the context of prejudice to the accused only at the trial.”

16.   In NOIDA Entrepreneurs Assn. vs. NOIDA[5], even delay of 17-18 years
was held not to be adequate to stop criminal proceedings having regard to
the gravity of offence, it was observed :
“21. Thus, it is evident  that  question  of  delay  in  launching  criminal
prosecution may  be  a  circumstance  to  be  taken  into  consideration  in
arriving at a  final  decision,  but  it  cannot  itself  be  a  ground  for
dismissing the [pic]complaint. More so, the issue of limitation  has  to  be
examined in the light of the gravity of the charge.

xxxx

42. In view of the above, we  are  of  the  considered  opinion  that  these
allegations being of a very serious nature and as alleged, Respondent 4  had
passed orders in colourable exercise of power favouring himself and  certain
contractors, require investigation. Thus, in view of the  above,  we  direct
CBI to have preliminary enquiry  and  in  case  the  allegations  are  found
having  some  substance  warranting   further   proceeding   with   criminal
prosecution, may proceed in accordance with law.  It  may  be  pertinent  to
mention that any observation made  herein  against  Respondent  4  would  be
treated necessary to decide the present controversy. CBI  shall  investigate
the matter  without  being  influenced  by  any  observation  made  in  this
judgment.”

17.   It is thus clear from  the  above  observations  that  mere  delay  in
completion  of  proceedings  may  not  be  by  itself  a  ground  to   quash
proceedings where offences are serious, but the Court having regard  to  the
conduct of the parties, nature of offence and the extent  of  delay  in  the
facts and circumstances of a given case, quash the proceedings  in  exercise
of jurisdiction under Section 482 Cr.P.C. in the interest of justice and  to
prevent abuse of process of the Court.
18.   In the present case, conduct  of  the  complainant  can  certainly  be
taken into account.  Admittedly, the complainant stood convicted in a  cross
case.  At  least  for  ten  years  after  commencement  of  the  trial,  the
complainant did not even bother to seek  simultaneous  trial  of  the  cross
case, the step which was taken for the first time in the  year  2005   which
could certainly have been taken in the year  1995  itself   when  the  trial
against  respondent  No.2  commenced.  Having  regard  to  the   nature   of
allegations and entirety of circumstances, it will be unfair and  unjust  to
permit respondent No.2 to proceed with a complaint filed 16 years after  the
incident against the appellants
19.   We accordingly, allow this appeal set aside  the  impugned  order  and
quash the proceedings in Criminal Complaint Case No.1066 of 2008 pending  in
the Court of Judicial Magistrate-II, Hardoi.


                                                        …………..…………………………….J.
                              [ J. CHELAMESWAR ]

                                                     .…...….………………………………..J.
                                         [ ADARSH KUMAR GOEL ]
NEW DELHI
JULY 6, 2015



-----------------------
[1]    (2007) 7 SCC 394
[2]    (2009) 3 SCC 355
[3]    (2012) 8 SCC 495
[4]    (2010) 9 SCC 368
[5]    (2011) 6 SCC 508

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