Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO. 50 OF 2012
Niranjan Hemchandra Sashittal
and another ...
Petitioners
Versus
State of Maharashtra ...Respondent
J U D G M E N T
Dipak Misra, J.
The gravamen of grievance of the petitioners in this
petition preferred under Article 32 of the Constitution of
India pertains to procrastination in trial, gradual corrosion
of their social reputation, deprivation of respectable
livelihood because of order of suspension passed against
the petitioner No. 1 during which he was getting a meagre
subsistence allowance and has reached the age of
superannuation without being considered for promotion,Page 2
extreme suffering of emotional and mental stress and
strain, and denial of speedy trial that has impaired their
Fundamental Right enshrined under Article 21 of the
Constitution. The asseverations pertaining to long delay
in trial have been made on the constitutional backdrop
leading to the prayer for quashment of the proceedings of
Special Case No. 4 of 1993 pending in the court of learned
Special Judge, Greater Bombay.
2. Before we proceed to state the factual score, it is
necessary to mention that this is not the first time
that the petitioners have approached this Court.
They, along with others, had assailed the order of the
High Court of Bombay declining to quash the criminal
proceedings against the petitioners and others on the
ground of delay in investigation and filing of charge
sheet in three special leave petitions which were
converted to three criminal appeals, namely, Criminal
Appeal Nos. 176 of 2001, 177 of 2001 and 178 of
2001. This Court adverted to the facts and
expressed the view that there was no justification to
quash the criminal prosecution on the ground of
2Page 3
delay highlighted by the appellants in all the appeals.
However, this Court took note of the allegations
against two senescent ladies who were
octogenarians relating to their abetment in the
commission of the crime and opined that the
materials were insufficient to prove that the old
ladies intentionally abetted the public servant in
acquiring assets which were disproportionate to his
known sources of income and further it would be
unfair and unreasonable to compel them, who by
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 and, accordingly, on those two grounds,
allowed the appeals preferred by them and quashed
the criminal prosecution as far as they were
concerned. The other appeals, preferred by the
public servant and his wife, stood dismissed.
3. Be it noted, in the said judgment, while quashing the
proceedings against the two ladies, this Court
referred to the decision in Rajdeo Sharma v. State
3Page 4
of Bihar1
and observed that the trial was 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 Sharma’s case.
4. The facts as uncurtained are that the Anti Corruption
Bureau (ACB), after conducting a preliminary enquiry,
filed an FIR on 26.6.1986 against the petitioner No. 1
who was a Deputy Commissioner in the Department
of Prohibition and Excise, Maharashtra Government,
for offence punishable under Section 5(2) of the
Prevention of Corruption Act, 1947. The lodgement
of the FIR led to conducting of raids at various places
and, eventually, it was found that the petitioner, a
public servant, had acquired assets worth Rs.33.44
lakhs which were in excess of his known sources of
income. After the investigation, the Government of
Maharashtra was moved for grant of sanction which
was accorded on 22.1.1993 and thereupon, the
charge-sheet was lodged against the petitioners
along with two old ladies on 4.3.1993 before the
1
(1998) 7 SCC 507
4Page 5
Special Court. The offence alleged against the
petitioner, the public servant, was under Section
13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, 1988. Allegations against the ladies
were abetment for the main offences. As there was
delay in conducting the investigation and filing of
charge-sheet and disposal of certain interlocutory
applications, the High Court of Bombay was moved
on 15.4.1997 for quashing of the criminal
proceedings. As has been stated earlier, the High
Court declined to interfere and, hence, all the
accused persons approached this Court in appeal,
wherein the criminal case in respect of the old ladies
was delinked and quashed.
5. It is asserted in this petition that after this Court
disposed of the earlier criminal appeals, charges
were framed only on 15.12.2007 nearly after expiry
of seven years. It is put forth that during the
pendency of the trial, the wife of the petitioner No. 1
has breathed her last on 23.5.2008. It is averred that
nearly after four years of framing of charges, on
5Page 6
1.2.2011, Shri Vasant S. Shete, the Investigating
Officer, was partly examined by the prosecution and,
thereafter, the matter was adjourned on many an
occasion. Despite the last opportunity being granted
by the learned Special Judge, the Investigating
Officer was not produced for examination. As
pleaded, the Investigating Officer appeared before
the Special Judge on 20.7.2011 and sought further
time instead of getting himself examined.
Thereafter, the matter was adjourned on 25.8.2011,
21.9.2011 and 18.10.2011 and the examination of
the Investigating Officer could not take place. On
15.11.2011, the Investigating Officer submitted a
letter to the Assistant Commissioner of Police, ACB,
stating that he had already taken voluntary
retirement and due to bad health was unable to
attend the court and follow up the case. He made a
request to the ACP to appoint some other officer for
prosecuting the case. Thereafter, the Investigating
Officer absented himself before the learned trial
judge to give his evidence. It is contended that
6Page 7
because of the said situation, the examination-inchief of PW-1 has not yet been completed and the
other witnesses have not been produced for
examination by the prosecution. It is urged that
despite prayer made by the petitioner that the
prosecution case ought to be closed because of its
inability to produce the witnesses, the learned
Special Judge has not closed the evidence. It is
urged that more than ten years have elapsed since
the earlier judgment of this Court was rendered and,
therefore, the whole proceeding deserved to be
quashed. Emphasis has been laid on the loss of
reputation, mental suffering, stress and anxiety and
the gross violation of the concept of speedy trial as
enshrined under Article 21 of the Constitution.
6. The stand of the State of Maharashtra, respondent
No. 1, is that after delivery of the judgment in the
earlier appeals, the accused on 29.3.2001 moved
numerous miscellaneous applications seeking various
reliefs and made a prayer that framing of charges
should be deferred till all the miscellaneous
7Page 8
applications were decided. He moved the High Court
in its revisional jurisdiction and writ jurisdiction and
though the High Court did not grant stay, yet the
case was adjourned at the instance of the accused.
On number of occasions, the accused himself moved
applications for adjournment and some times sought
adjournment to go out of the country to Bangkok,
Thailand and Singapore.
7. Even after the trial commenced, the accused did not
cooperate and remained non-responsive. A chart has
been filed showing the manner in which
adjournments were taken by the accused at the
stage of framing of charge on the ground that the
matter was pending before the High Court. A
reference has been made to the order dated
30.1.2003 directing all the accused to remain present
on the next date of hearing, i.e., 07.2.2003, for
framing of charge. Reference has been made to the
orders passed wherefrom it is clear that the accused
persons had sought adjournment on the ground that
writ petitions were pending before the High Court. It
8Page 9
is also put forth that certain applications were filed
by the accused persons seeking longer date by giving
personal reasons and sometimes on the ground of
non-availability of the counsel. It is the case of the
prosecution that because of adjournments, the
charges could not be framed within a reasonable
time but ultimately, on 15.12.2007, the charges were
framed. The factual narration would further reveal
that certain miscellaneous applications were filed
and they were ultimately dismissed on 20.2.2008.
On 04.4.2009, an order was passed requiring the
counsel for the accused to submit admission and
denial of the documents as per the description
mentioned in the application under Section 294 of
the Code of Criminal Procedure. Some time was
consumed to carry out the said exercise. The matter
was also adjourned as PW.1 had undergone an
operation. On 26.8.2012, the trial Court recorded
that the witness, Shetye, was unable to attend the
Court and on the next date, i.e., 13.7.2012, the
Prosecution Witness No. 1 stated that he was
9Page 10
suffering from mental imbalance and was not in a
position to depose and in view of the said situation,
the Court directed the prosecution to lead evidence
of other witnesses on the next date. Relying on the
documents annexed to the counter affidavit, it is
contended that on most of the dates, the accused
has taken adjournment on some pretext or the other.
8. In the body of the counter affidavit, various dates
have been referred to and, computing the same, it
has been stated that delay attributable to the
accused is 15.5 years and the delay in bringing the
matter in queue in the trial Court is one year. The
rest of the delay is caused as the prosecution has
taken time on certain occasions and on some dates,
the learned trial Judge was on leave. In this
backdrop, it has been contended that it is not a fit
case, where this Court should quash the proceedings
in exercise of powers under Article 32 of the
Constitution of India.
9. An affidavit-in-rejoinder has been filed stating, inter
alia, that applications were filed for release which
10Page 11
were within the legal rights and hence, the delay
cannot be attributed to the accused persons. It is
urged that though number of orders have been
passed, yet not a single witness has been examined.
The allegation that the accused had gone on vacation
has been seriously disputed. Emphasis has been laid
on the order dated 18.3.2005 passed by the High
Court clarifying the position that it had not granted
stay and the pendency of the matter should not be a
ground to adjourn the case. It is contended that the
Investigating Officer is neither serious nor interested
to see the progress of the trial but is desirous of
delaying as he is aware that the case of the
prosecution is totally devoid of merit. It is further
stated that there has been gross and unexplained
delay at each stage of the proceedings and hence,
the same deserves to be quashed.
10. We have heard Dr. Rajeev Dhavan, learned senior
counsel for the petitioner, and Mr. Sanjay V. Kharde,
learned counsel for the respondent-State.
11Page 12
11. To appreciate the centripodal issue whether in such a
case this Court, in exercise of powers under Article
32 of the Constitution, should quash the criminal trial
on the ground of delay, it is requisite to state that in
the present petition, we are only concerned with the
time spent after 02.3.2001, i.e., the date of
pronouncement of the judgment in the earlier
criminal appeals, and further the factual matrix as
already exposited shows how the delay has occurred.
The factum of delay and its resultant effect are to be
tested on the basis of the exposition of law by this
Court.
12. In Abdul Rehman Antulay and others v. R.S.
Nayak and another2
, a proponement was advanced
that unless a time limit is fixed for the conclusion of
the criminal proceedings, the right to speedy trial
would be illusory. The Constitution Bench, after
referring to the factual matrix and various
submissions, opined that there is a constitutional
guarantee of speedy trial emanating from Article 21
2
(1992) 1 SCC 225
12Page 13
which is also reflected in the Code of Criminal
Procedure. Thereafter, the Court proceeded to state
as follows:-
“83. But then speedy trial or other
expressions conveying the said concept –
are necessarily relative in nature. One may
ask – speedy means, how speedy? How
long a delay is too long? We do not think it
is possible to lay down any time schedules
for conclusion of criminal proceedings. The
nature of offence, the number of accused,
the number of witnesses, the workload in
the particular court, means of
communication and several other
circumstances have to be kept in mind.”
After so stating, the Court gave certain examples
relating to a murder trial where less number of witnesses
are examined and certain trials which involve large
number of witnesses. It also referred to certain offences
which, by their very nature, e.g., conspiracy cases, cases
of misappropriation, embezzlement, fraud, forgery,
sedition, acquisition of disproportionate assets by public
servants, cases of corruption against high public officials,
take longer time for investigation and trial. The Court also
took note of the workload in each court, district, regional
and State-wise and the strikes by the members of the Bar
13Page 14
which interfere with the work schedules. The Bench
further proceeded to observe that in the very nature of
things, it is difficult to draw a time limit beyond which a
criminal proceeding will not be allowed to go, and if it is a
minor offence, not an economic offence and the delay is
too long, not caused by the accused, different
considerations may arise but each case must be left to be
decided on its own facts and the right to speedy trial does
not become illusory when a time limit is not fixed.
13. In the said case, in paragraph 86, the Court culled
out 11 propositions which are meant to sub-serve as
guidelines. The Constitution Bench observed that
the said propositions are not exhaustive as it is
difficult to foresee all situations and further, it is not
possible to lay down any hard and fast rules. The
propositions which are relevant for the present
purpose are reproduced below:-
“(5) 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 workload of the
court concerned, prevailing local conditions
14Page 15
and so on – what is called, the systemic
delays. It is true that it is the obligation of
the State to ensure a speedy trial and State
includes judiciary as well, but a realistic and
practical approach should be adopted in
such matters instead of a pedantic one.
xxx xxx xxx
(8) Ultimately, the Court has to balance
and weigh the several relevant factors -
‘balancing test’ or ‘balancing process’ – and
determine in each case whether the right to
speedy trial has been denied in a given
case.
(9) Ordinarily speaking, where the court
comes to the 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. The nature of
the offence and other circumstances in a
given case may be such that quashing of
proceedings may not be in the interest of
justice. In such a case, it is open to the
court to make such other appropriate order
– including an order to conclude the trial
within a fixed time where the trial is not
concluded or reducing the sentence where
the trial has concluded – as may be deemed
just and equitable in the circumstances of
the case.
It has been laid down therein that it is neither
advisable nor practicable to fix any time-limit for trial of
offences inasmuch as any such rule is bound to be
qualified one.
15Page 16
14. In Kartar Singh v. State of Punjab3
, another
Constitution Bench, while accepting the principle that
denial of the right to speedy trial to the accused may
eventually result in a decision to dismiss the
indictment or a reversal of conviction, further went
on to state as follows:-
“92. Of course, no length of time is per se
too long to pass scrutiny under this
principle nor the accused is called upon to
show the actual prejudice by delay of
disposal of cases. On the other hand, the
court has to adopt a balancing approach
by taking note of the possible prejudices
and disadvantages to be suffered by the
accused by avoidable delay and to
determine whether the accused in a
criminal proceeding has been deprived of
his right of having speedy trial with
unreasonable delay which could be
identified by the factors — (1) length of
delay, (2) the justification for the delay, (3)
the accused's assertion of his right to
speedy trial, and (4) prejudice caused to
the accused by such delay.”
15. However, thereafter, certain pronouncements,
namely, “Common Cause”, A Registered Society
through its director v. Union of India and
others4
, “Common Cause”, A Registered
3
(1994) 3 SCC 569
4
(1996) 4 SCC 33
16Page 17
Society through its director v. Union of India
and others5
, Raj Deo Sharma (supra) and Raj
Deo Sharma (II) v. State of Bihar6
, came to the
field relating to prescription of outer limit for the
conclusion of the criminal trial and the consequences
of such delay, being either discharge or acquittal of
the accused. The controversy required to be
addressed and, accordingly, the matter was referred
to a Seven-Judge Bench in P. Ramchandra Rao v.
State of Karnataka7
and the larger Bench by the
majority opinion, analyzing the dictum of A.R.
Antulay’s case and Kartar Singh’s case and other
legal principles relating to the power of the
Legislature, the power of the Court and spectrums of
jurisdiction, recorded certain conclusions. The
conclusion Nos. 3 and 4, which are pertinent for the
present case, are as under:-
“(3) The 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 like a straitjacket formula. Their
5
(1996) 6 SCC 775
6
(1999) 7 SCC 604
7
(2002) 4 SCC 578
17Page 18
applicability would depend on the fact
situation of each case. It is difficult to
foresee all situations and no generalization
can be made.
(4) It is neither advisable, nor feasible, nor
judicially permissible to 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 Common
Cause (I), Raj Deo Sharma (I) and Raj
Deo Sharma (II) could not have been so
prescribed or drawn and are not good
law. The criminal courts are not obliged
to terminate trial or criminal
proceedings merely on account of lapse
of time, as prescribed by the directions
made in Common Cause Case (I), Raj
Deo Sharma Case (I) and (II). At the
most the periods of time prescribed in
those decisions can be taken by the
courts seized of the trial or proceedings
to act as reminders when they may be
persuaded to apply their judicial mind to
the facts and circumstances of the case
before them and determine by taking
into consideration the several relevant
factors as pointed out in A.R. Antulay
case 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 by
themselves be treated by any Court as a
bar to further continuance of the trial or
proceedings and as mandatorily obliging
the court of terminate the same and
acquit or discharge the accused.”
[Emphasis added]
18Page 19
16. At this juncture, we may notice few decisions to show
how the principles laid down in Abdul Rehman
Antulay (supra) and P. Ramachandra Rao (supra)
have been applied by this Court either for the
purpose of quashing of the prosecution or refusal to
accede to the prayer in that regard. In Vakil Prasad
Singh v. State of Bihar8
, the two-Judge Bench took
note of factual scenario that the investigation was
conducted by an officer who had no jurisdiction to do
so; that the accused-appellant therein could not be
accused of causing delay in the trial because he had
successfully exercised his right to challenge an illegal
investigation; that despite direction by the High
Court to complete the investigation within a period of
three months on 7.9.1990, nothing had happened till
27.2.2007 and the charge-sheet could only be filed
on 1.5.2007 and, accordingly, opined that it was not
a case where there was any exceptional
circumstance which could be possibly taken into
consideration for condoning the inordinate delay of
more than two decades in investigation and,
8
(2009) 3 SCC 355
19Page 20
accordingly, quashed the proceedings before the trial
court.
17. In Sudarshanacharya v. Purushottamacharya
and another9
, a criminal prosecution was launched
for commission of an offence for misappropriation
and criminal breach of trust. On an application being
filed for quashing of the proceedings, the High Court
declined to quash the proceedings taking note of the
fact that the accused had also played a role in the
procrastination of the proceeding and directed that
the case be heard on day-to-day basis. The matter
travelled to this Court and a contention was
advanced that it would be unfair to submit the
accused-appellant to the agony of a trial after a lapse
of long time. The Division Bench referred to the
principles laid down in P. Ramachandra Rao
(supra) and, further taking note of the conduct of the
accused, declined to quash the proceedings.
18. At this stage, we think it apposite to advert to
another aspect which is some times highlighted. It is
9
(2012) 9 SCC 241
20Page 21
quite common that a contention is canvassed in
certain cases that unless there is a speedy trial, the
concept of fair trial is totally crucified. Recently, in
Mohd. Hussain alias Julfikar Ali v. State
(Government of NCT of Delhi)10, a three-Judge
Bench, after referring to the pronouncements in P.
Ramchandra Rao’s case, Zahira Habibulla H.
Shekh and another v. State of Gujarat and
others11
, Satyajit Banerjee and others v. State
of West Bengal and others12, pointed out the
subtle distinction between the two in the following
manner:-
“40 “Speedy trial” and “fair trial” to a
person accused of a crime are integral part
of Article 21. There is, however, qualitative
difference between the right to speedy trial
and the accused’s right of fair trial. Unlike
the accused’s right of fair trial, deprivation
of the right to speedy trial does not per se
prejudice the accused in defending himself.
The right to speedy trial is in its very nature
relative. It depends upon diverse
circumstances. Each case of delay in
conclusion of a criminal trial has to be seen
in the facts and circumstances of such case.
Mere lapse of several years since the
commencement of prosecution by itself
10 (2012) 9 SCC 408
11 (2004) 4 SCC 158
12 (2005) 1 SCC 115
21Page 22
may not justify the discontinuance of
prosecution or dismissal of indictment. The
factors concerning the accused’s right to
speedy trial have to be weighed vis-à-vis
the impact of the crime on society and the
confidence of the people in judicial system.
Speedy trial secures rights to an accused
but it does not preclude the rights of public
justice. The nature and gravity of crime,
persons involved, social impact and societal
needs must be weighed along with the right
of the accused to speedy trial and if the
balance tilts in favour of the former the long
delay in conclusion of criminal trial should
not operate against the continuation of
prosecution and if the right of the accused
in the facts and circumstances of the case
and exigencies of situation tilts the balance
in his favour, the prosecution may be
brought to an end.”
[Emphasis added]
19. It is to be kept in mind that on one hand, the right of
the accused is to have a speedy trial and on the
other, the quashment of the indictment or the
acquittal or refusal for sending the matter for re-trial
has to be weighed, regard being had to the impact of
the crime on the society and the confidence of the
people in the judicial system. There cannot be a
mechanical approach. From the principles laid down
in many an authority of this Court, it is clear as
crystal that no time limit can be stipulated for
22Page 23
disposal of the criminal trial. The delay caused has
to be weighed on the factual score, regard being had
to the nature of the offence and the concept of social
justice and the cry of the collective. In the case at
hand, the appellant has been charge-sheeted under
the Prevention of Corruption Act, 1988 for
disproportionate assets. The said Act has a purpose
to serve. The Parliament intended to eradicate
corruption and provide deterrent punishment when
criminal culpability is proven. The intendment of the
legislature has an immense social relevance. In the
present day scenario, corruption has been treated to
have the potentiality of corroding the marrows of the
economy. There are cases where the amount is
small and in certain cases, it is extremely high. The
gravity of the offence in such a case, in our
considered opinion, is not to be adjudged on the
bedrock of the quantum of bribe. An attitude to
abuse the official position to extend favour in lieu of
benefit is a crime against the collective and an
anathema to the basic tenet of democracy, for it
23Page 24
erodes the faith of the people in the system. It
creates an incurable concavity in the Rule of Law. Be
it noted, system of good governance is founded on
collective faith in the institutions. If corrosions are
allowed to continue by giving allowance to quash the
proceedings in corruption cases solely because of
delay without scrutinizing other relevant factors, a
time may come when the unscrupulous people would
foster and garner the tendency to pave the path of
anarchism.
20. It can be stated without any fear of contradiction that
corruption is not to be judged by degree, for
corruption mothers disorder, destroys societal will to
progress, accelerates undeserved ambitions, kills the
conscience, jettisons the glory of the institutions,
paralyses the economic health of a country, corrodes
the sense of civility and mars the marrows of
governance. It is worth noting that immoral
acquisition of wealth destroys the energy of the
people believing in honesty, and history records with
agony how they have suffered. The only redeeming
24Page 25
fact is that collective sensibility respects such
suffering as it is in consonance with the
constitutional morality. Therefore, the relief for
quashing of a trial under the 1988 Act has to be
considered in the above backdrop.
21. It is perceivable that delay has occurred due to
dilatory tactics adopted by the accused, laxity on the
part of the prosecution and faults on the part of the
system, i.e., to keep the court vacant. It is also
interesting to note that though there was no order
directing stay of the proceedings before the trial
court, yet at the instance of the accused,
adjournments were sought. After the High Court
clarified the position, the accused, by exhibition of
inherent proclivity, sought adjournment and filed
miscellaneous applications for prolonging the trial,
possibly harbouring the notion that asking for
adjournment is a right of the accused and filing
applications is his unexceptional legal right. When
we say so, we may not be understood to have said
that the accused is debarred in law to file
25Page 26
applications, but when delay is caused on the said
score, he cannot advance a plea that the delay in
trial has caused colossal hardship and agony
warranting quashment of the entire criminal
proceeding. In the present case, as has been stated
earlier, the accused, as alleged, had acquired assets
worth Rs. 33.44 lacs. The value of the said amount
at the time of launching of the prosecution has to be
kept in mind. It can be stated with absolute
assurance that the tendency to abuse the official
position has spread like an epidemic and has shown
its propensity making the collective to believe that
unless bribe is given, the work may not be done. To
put it differently, giving bribe, whether in cash or in
kind, may become the “mantra” of the people. We
may hasten to add, some citizens do protest but the
said protest may not inspire others to follow the path
of sacredness of boldness and sacrosanctity of
courage. Many may try to deviate. This deviation is
against the social and national interest. Thus, we are
disposed to think that the balance to continue the
26Page 27
proceeding against the accused-appellants tilts in
favour of the prosecution and, hence, we are not
inclined to exercise the jurisdiction under Article 32
of the Constitution to quash the proceedings.
However, the learned Special Judge is directed to
dispose of the trial by the end of December, 2013
positively.
22. The writ petition is accordingly disposed of.
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
March 15, 2013
27
