Binod Bihari Mukherjee vs The State of Bihar and Others

S.S. Sandhawalia C.J.

In this set of three criminal writ jurisdiction cases, invoking the constitutional right of speedy public trial, the facts read like a chronicle of old history, rather than those of a current prosecution. It is unnecessary to delve into them too deeply, because gross and fatal delay herein is writ large on the face of the impugned proceedings, which, to put it lightly, have virtually celebrated their silver jubilee. The basic matrix may be noticed from Subodh Chandra Deogharia v. The State of Bihar and another (Criminal Writ Jurisdiction Case No. 140 of 1986). It would appear that the genesis of the alleged crime is laid between the year 1962 to the end of the year 1965. The petitioner then was a Divisional Accountant under the Electrical Executive Engineer in the then Department of Electricity of the State Government and it is his claim that the duties were merely confined to accounting and he was posted only for a brief period of nine months from January, 1965 to September, 1965 on the relevant post. The larger allegation made on behalf of the petitioner is that in the year 1967 after a humiliating defeat of the Congress Party a united front Government consisting of a condomerate of different political parties was formed in the State of Bihar. However, on coming to power, this Government had to immediately face an unprecedented famine during the year 1967 and one of the contributing causes was allegedly the non-availability of electricity for irrigation purposes. Inevitably the work of the State Electricity Department as also the State Electricity Board came under a seathing criticism of the people. The Minister in charge of the Electricity Department thereupon decided to resort to launching of criminal prosecution against the officer and the employees of the Electricity Department and the Board primarily to project a clean image for the new government in contrast with the earlier Congress Government in Order to decree the alleged corrupt practices of the previous governments. Consequently he directed the institution of criminal cases indiscriminately on flimsy grounds and without verifying the finding out the guilt of different Officers and entrusted the investigation of the same to the Central Bureau of Investigation.

In the course of the said investigation the Superintendent of Police, C.B.I., on the 1st of January, 1969, recorded that information had been received that during the long period running from 1962 to 1965 some officers of the Electricity Department and the Board in criminal conspiracy with many others had, by corrupt and illegal means or otherwise, abused their position as public servants and had obtained pecuniary advantage by making non-planned and irregular purchases of materials and showing excessive payments therefor. On that basis a first information report dated the 4th of January, 1969 was registered u/s 120-B of the Indian Penal Code, read with Section 5(2) of the Prevention of Corruption Act. A true copy of the said first information report is Annexure ''I'' to the writ petition. Thereafter a long period of investigation, extending beyond 3 years, followed and it was not till the 25th April, 1972, that the chargesheet was submitted in the court. Therein the names of nearly over 100 persons were cited as witnesses and an equally large number of documents, etc., were sought to be relied upon. Thereafter the matter dragged on in court with numerable adjournments sought for by the prosecution and a failure on their part to deliver the requisite documents to the petitioner and other accused persons. It was not till the 10th of April, 1974, that cognizance of the offence was taken against the petitioner and 18 other accused persons.

It is common ground that the petitioner at no stage even remotely obstructed or failed to co-operate in the proceedings of the trial. On behalf of the respondents, however, it was sought to be pointed out that another co-accused, B.B. Sharan, moved the High Court with regard to the alleged fatal infirmity of the consent of the State Government having not been taken for the prosecution, by Criminal Miscellaneous Case No. 1023 of 1974, which was allowed by the High Court on the 9th October, 1976, with a direction to the court below to investigate and determine the issue of consent. It would seem that the prosecution thereafter again moved at a snail''s pace and it was not till nearly 3 years thereafter that on the 16th or September, 1979, the issue of consent only could be disposed of. Till the 18th of September, 1979, it is the petitioner''s case that herein again the entire blame for the delay rested on the shoulders of the prosecution by virtue of their tardiness to produce the necessary evidence therefor.

It is common ground that thereafter the present petitioners, as earlier, continued to totally co-operate with and participate in the proceeding. However, it would seem that material defects with regard to the requisite sanction for the prosecution of the government officials then came to light and one of the cc accused, B.B. Saran, was compelled afresh (move the High Court in Criminal Miscellaneous No. 4408 of 1979 with regard thereto. This was again allowed by Nazir Ahmad, J., on the 13th of May, 1983 in regard to the threshold issue of a valid sanction for prosecution. Thereafter proceedings in the trial court went on at their tardy pace on the preliminary issue of proof of sanction for well-high three years and the decision of the trial court was rendered on the issue of sanction on the 17th of April, 1986. A number of adjournments followed thereafter without, perhaps, a single witness being examined on the merits of this case. The petitioner''s cup of patience being full to the brim, they moved the present petitions on the 14th of July and 17th of July, 1986 seeking quashing of the proceeding on the somewhat patent ground that despite the passage of more than twenty-four years from the alleged inception of the crime as yet not a single witness on the merits of the charge against them has been put into the witness box. 5. With the aforesaid resume of undisputed facts one may now go to the law applicable thereto, Within this jurisdiction it is now well settled by what the Full Bench termed as the trilogy of cases beginning with the Division Bench case in the State of Bihar v. Ram-tiaras Ahir (1985 Criminal Law Journal/584 : 1984 BBCJ 749) and the State Vs. Maksudan Singh and 16 Ors., Raghubansh Singh, Bishwanand Singh and Mohan Pd. Singh, and the recent Full Bench, which directly covets the ease in Madheshwardhari Singh and Another Vs. State of Bihar, It is unnecessary to scan afresh the whole field covered by these case, and it would suffice to notice the final summing up of the undermentioned propositions in Madheshwardhari Singh v. The State of Bihar (supra):

(i) That both on principle and precedent the fundamental right to a speedy public trial extends to all criminal prosecutions for all offences generically, irrespective of their nature. It is not confined or constricted to either serious or capital offences only.

(ii) That the right to a speedy public trial is applicable not only to actual proceedings in court but includes within its sweep the preceding police investigation in a criminal prosecution as well.

(iii) That a speedy investigation and trial are equally mandated both by the letter and a spirit of the Code of Criminal Procedure, 1975.

(iv) That the rations in Ramdaras Ahir''s and Maksudan Singh''s cases are mutatis mutandis applicable equally to all offences and irrespective of the fact whether the proceedings are a trial or an appeal against acquital.

Now, in the light of the above, the specific ratio which is directly attracted to the present case may be noticed with a little more elaboration in the following observations and conclusion of the Full Bench aforesaids -

Ere I come to a close, I cannot help expressing some surprise at the somewhat vehement stand taken on behalf of the respondent State against the very right of a speedy public trial. It has been repeatedly asserted, and in our view rightly, that a prompt trial is in the interest of the prosecution itself. Inordinate delays only tend to fade memories and bring in a host of factors which militate against the successful culmination of a criminal prosecution. One would, therefore, have imagined that the respondent State would, in its own interest, be solicitous of speed in criminal prosecution launched by it. Equally it seems to me that a prompt trial is in the interest of the accused and a fair defence as well. Though not unoften an attempt is even made on behalf of the accused persons to gain time and protract the proceedings, it is axiomatic that an accused may also be hampered in his defence by too long a passage of time. Equally a speedy trial avoids the stigma of a long pending accusation and the obloquy of a criminal charge against the citizen if he happens to be innocent However, as has been authoritatively stated, even leaving out the interest of the prosecution or the defence, there is a societal interest in ensuring a speedy public trial, indeed, public weal cannot be allowed to be whittled down for considerations of any private advantage."

To conclude on this aspect, the answer to question No. 6 is rendered in the affirmative and it is held that an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. It is further held that a callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Article 21."

It appears to me that the view aforesaid now bears the stamp of approval by the Final Court itself. On behalf of the State it had been earlier argued in the aforesaid case that a time-frame or norm suggested by precedent was impermissible and in the absence of statutory provisions it could not possibly be so spelt out. The last nail in the coffin of such an argument appears to be now struck on its head squarely by Sheela Barse and others v. The Union of India and others (Judgment Today 1986 Supreme Court 136). Their Lordships in the said case, in the context of the trial of children for criminal offences laid down a time-frame, not in years only, but in months, and yet again not for trials alone, but even for investigations and for filing the complaints or chargesheets in Court, in the following terms :--

We would also direct that where a complaint is filed or first information report is loaged against a child below the age of 16 years for an offence punishable with imprisonment of not more than 7 years, the investigation shall be completed within a period of three months from the date of filling of the complaint or lodging of the first information report, and, if the investigation is not completed within this time, the case against the child must be treated as closed, if within three months, the chargesheet is filed against the child in case of an offence punishable with imprisonment of not more than 7 years, the case must be tried and disposed of within a further period of 6 months at The outside and this period should be inclusive of the time taken up in committal proceedings, if any We would direct every State Government to give effect to this principle or norm laid down by us in so far as any future cases are concerned, but so far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months from today if the investigation has not already resulted in filing of charge-sheet and if a chargesheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed."

It is manifest from the above that not only has a precise time frame been spelt out, but a mandatory direction to quash prosecutions violating the same has been laid. However, lest it be misunderstood that this was in any way confined to the case of children alone; it is well to quote the following observations from the said judgment, reiterating the earlier view with regard to the other criminal trials as well.

We have already held in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, that the right to speedy trial is a fundamental right implicit in Article 21 of the Constitution,. If an accused is not tried speedily and his case remains pending before the Magistrates or the Sessions court for an unreasonable length of time, it is clear that his fundamental right to speedy trial would be violated unless, of course, the trial is held up on account of some interior order passed by a superior court or the accused is responsible for the delay in the trial of the case. The consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right."

Now, once the legal position is settled as above, it is manifest that the cases of the petitioners come squarely within the ambit of the ratios thereof. As was noticed at the outset, the genesis of the crime lies squarely a quarter of a century ago, in the year 1962 onwards. Undisputedly, the first information report in the case was recorded in the dawn of 1969, on the 4th of January itself. Thereafter, the mortal threat of a prosecution has hung over the head of the petitioners like the proverbial sword of democles and the investigation and the trial has dragged on for very nearly 18 years. It is not in dispute that the present petitioners have throughout cooperated in the proceedings and at no stage have absconded or in any way obstructed either the investigation or the trial. In fact, over these years, two of the co-accused are admittedly dead as also the primal investigating officer in the case. The respondent state had attempted to harp on the fact that one of the co-accused, B.E. Saran, had on two occasions moved the superior Courts on the point of absence of the consent of the State. Government and of a valid sanction for the prosecution. However, it would appear that on both the occasions the superior Courts granted relief and it cannot even remotely be said that the proceedings were either frivolous or obstructive or delaying tactics. Seeking redressal from a superior court cannot by itself be tabooed invariably. However, even giving a reasonable margin for the time spent in the said proceedings, the investigation and trial have still dragged on for wellnigh 12 years, and the end of the petitioners travail is yet nowhere in sight, It was common ground that as yet not a single witness on merits has been examined, and, admittedly, there are a 100 or more cited in the chargesheet and added thereto as many or perhaps more documents are sought to be proved on the record. In Madheshwardhari Singh''s case it was held that an inordinately prolonged delay of 7 years or more in investigation and original trial for offences other than capital ones would violate the constitutional guarantee of speedy public trial under Article 21. Herein, instead of 7, already 17 years have elapsed and one can only guess how many more would pass before the alleged trial can be brought to a conclusion. It must be unreservedly held that the constitutional right to speedy public trial by fair, just and reasonable procedure, now recognised under Article 21 of the Constitution, stands patently violated herein. As has been authoritatively laid down in Maksudan Singh''s case (supra) the petitioners in such a situation would be entitled to an unconditional release and the charges levelled against them would necessarily fall to the ground. All these petitions are consequently allowed and the investigation and the trial against the petitioners are hereby quashed.

S.K. Jha, J.

I agree.