Kuldeep Raj vs State of Jammu & Kashmir and Another

K.K. Gupta, J.—Petitioner has filed this petition u/s 2 561-A, Cr. P.C. for quashing First Information Report No. 163 of 1986, Police

Station City, Jammu, u/s 2s 420, 467 and 468-R.P.C. In this petition he has taken the plea that the above said First Information Report was

registered on the basis of an inquiry conducted by Divisional Commissioner, Jammu without naming any accused therein on July 16, 1986 and

Superintendent of Police Crime Branch, Jammu, respondent No. 2, started summoning and harassing him in his office through his subordinates

continuously for a long period. He moved an application for grant of anticipatory bail in the Court of Sessions Judge, Jammu which was allowed on

December 17, 1987. In that application respondent No. 2 clearly indicated that no case was made out against him. On May 21, 1988 respondent

No. 2 again started harassing and maltreating him for which he again moved an application and in pursuance of an order passed by the Second

Addl. Sessions Judge, Jammu he remained present before the investigating officer for twenty three days. Respondent No. 2 did not complete

investigation during a period of two years and his unnecessary harassment deteriorated his health and caused mental agony.

Respondents in their objections have averred that the First Information Report discloses an offence and in presence of such facts apparent on

face of record this Court could not be called upon to interfere at this stage of investigation. It has, however, been admitted in the objections that the

petitioner remained present before the investigating officer for 23 days and according to them a competent investigating officer is investigating into

the matter and is diligent in completing investigation.

I have heard the learned Counsel for the petitioner and the learned Addl. Advocate General. I have also perused the police diaries. Senior

Superintendent of Police Crime and Railway, Jammu addressed a letter to S.H.O. Police Station City Jammu on July 16, 1986 on the basis of

which abovesaid F.I.R. No. 163 of 1986 was registered. This letter reads as under : --

It has been reliably learned on the basis of an inquiry conducted by the Divisional Commissioner, Jammu that the gun licence in respect of M/s

Vishwa Karma Gun Works, Jammu has been tampered with and forged at various places in order to cause benefit to the said firm. It is also

learned that this forgery and cheating has been successful only due to the connivance of some concerned departmental officials Since these acts

tantamount to offences u/s 2s 420, 467, 468-RPC you are directed to register a case and forward the FIR to this wing for further investigations.

Petitioner moved an application before the learned Sessions Judge, Jammu in September, 1987 for grant of anticipatory bail and such bail was

granted to him on December 17, 1987. It appears that afterwards petitioner was summoned again and again and on his another application filed

before the learned Second Addl. Sessions Judge, Jammu investigating agency was allowed to interrogate him on certain dates and consequently

petitioner appeared and remained present before the investigating officer for 23 days.

Mr. R.S. Thakur, learned Counsel appearing for the petitioner, has laid stress on the right of the petitioner to have speedy and expeditious trial

which, according to him, is a fundamental right under Article 21 of the Constitution of India and delay, either in investigation or in actual

proceedings in the court, is against the interest of justice and amounts to abuse of the process of law. He has further argued that the First

Information Report neither discloses commission of any offence against the petitioner nor is there any material on record to inspire any such

inference or conclusion. His further plea is that in spite of lapse of more than 2 1/2 years investigating agency has not come forward with any

substantial proof against the petitioner and further allowing said agency to continue with investigations would mean lot of harassment and mental

agony to the petitioner which is not supported by any law. Learned Addl. Advocate General, on the other hand, has contended that the First

Information Report discloses specific offence and even though the petitioner has not been named therein a thorough probe is required to ascertain

facts. ""According to him investigating agency requires some time to complete investigation, one way or the other.

Though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 of the

Constitution. A Full Bench of Patna High Court in Madheshwardhari Singh and Another Vs. State of Bihar, in this respect has held as under (para

9):

In all criminal prosecutions, the right to a speedy public trial is now an inalienable fundamental right of the citizen under Article 21 of our

Constitution. This cannot be allowed to be whittled down on any finical ground of i the hoary origin of this right in the constitutional history of Great

Britain and America nor considerations of affluence of developed countries are even remotely relevant or germain in this context....

Their lordships have further observed as under (para 21):

Indeed the significance of the fundamental right to speedy trial might well come more meaning fully to the fore in relatively minor cases. There can

be no rationale or public interest in prolongation of investigation or the trial in the relatively insignificant crimes. In fact the prolongation of such trials

leads to greater hardship and the accused may sometime be made to suffer more than what the law provides by way of sentence in the shape of

either light imprisonment or fines. This aspect has rightly been highlighted in the Hussainara Khatoon and Others Vs. Home Secretary, State of

Bihar, Patna, and Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, . Instances are not lacking within our State where,

for relatively minor offences, accused persons have been kept on the leash and directed to appear before the police or the court for decades or

more. Whilst in capital crimes there may be some justification, because of the heinousness of the offence to carry the trial to its logical conclusion,

in minor offences injustice is more patent when harassment and hardship is inflicted for waiting for trial for periods longer than what the law

envisages as the maximum punishment.

In the said judgment their Lordships have further held (paras 25 & 21)-.-

Coming now to question No. 2, the core issue is as to what does a speedy public trial in a criminal prosecution truly cannot? Does it include within

it the preceding police investigations in the case also or is it confined only to the period of time when the portals of the court are entered in a regular

trial? On principle I am clearly of the opinion that in the majestic sweep of the fundamental right of speedy public trial in the context of a criminal

prosecution, initiated at the State's instance, it necessarily connotes all the period from the date of the levelling of the criminal charge to the date of

the rendering of the judgment in the Court. Unless it is so held, the cherished fundamental right herein would be whittled down to a teasing mirage,

where the investigation of the offences itself may protract on for years (as is well manifested in the present case) and, thus rendering the very

concept and purpose of a speedy trial purely illusory. Therefore, a speedy trial in a criminal prosecution herein includes within it both the police

investigation of the crime and the later adjudication in court based thereon....

To conclude on this aspect the answer to question No. 2 is rendered in the affirmative and it is held that the right to speedy public trial is applicable

not only to the actual proceedings in Court but includes within its sweep the preceding police investigation in a criminal prosecution as well.

Their Lordships of the Supreme Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, have held 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 and by

speedy trial it would mean reasonably expeditious trial which is an intergral and essential part of the fundamental right to life and liberty.

It thus comes out that expeditious trial is a fundamental right guaranteed under Article 21 of the Constitution and this right is exercisable not only

against actual proceedings in Court but also against police investigations. Now the question arises whether or not said right of the petitioner under

Article 21 of the Constitution has been infringed in the present case and if so, what is the effect thereof. It is also to be seen whether delay involved

in investigation is due to the investigating agency or the petitioner in any manner concerned with it._ Facts of the case reveal that investigation

commenced with the registration of FIR No. 163 of 1986 on July 16, 1986. It is now more that two years and eight months when investigation is

still proceeding. Admittedly it has not so far made any headway due to which challan could not be produced in the Court. No circumstance has

been shown or brought on record indicating any exceptional circumstance by reason of which delay has been caused. Normal period of time within

which investigation should be completed and challan put up is one given in Section 167 Cr. P.C. and any time beyond that would be unreasonable

unless same is justified by exceptional circumstances. The observations of the Full Bench of Patna High Court in Madheshwardhari Singh and

Another Vs. State of Bihar, , which are as follows, are instructive in this behalf (paras 31 & 32):

Even as regards the completion of the investigation the insertion of Sub-section (2) of Section 167 is a clear pointer to the legislative mandate in

this context. It plainly envisages that investigation in cases, other than those punishable within 10 years or less, must be completed within 60 days

and in more serious ""crimes at best within 90 days. This mandate is on the pain of the sanction that unless this is done, there would be virtually an

automatic grant of bail to the accused persons. It is true that the Code does not in terms say that inordinate delay in investigation beyond this

period would vitiate the investigation, but it does bespeak of the legislatures, concern about the speedy conclusion of the investigation. That this

was the ram pant evil, which the legislature wanted to remove by bringing in the amendment in the provisions of Section 167(2) in 1973, is well

highlighted by the Law Commission's Forty-first Report and the notes on the clauses of the Bill by the select committee. It is unnecessarily to

burden this judgment with the relevant extracts therefrom, but mere reference thereto would leave no manner of doubt about the legislature's

concern and mandate for an expeditious completion of investigation. At the behest it is visualised in days and months and never at all in terms of

years....

It is obvious, from the above that the emphasis on speed is the underlying promise with regard to the completion of the investigation. This is

directed to be done without unnecessary delay and no further time gap is allowed to the forwarding of the report to the Magistrate empowered to

take cognizance of the offence.

There has been a consistent view of the courts in India, that the First Information Report, and the investigation pursuant thereto, can be quashed.

After considering this question in much detail and analytical appreciation of the authoritative pronouncements of the Apex Court, the Full Bench of

Punjab and Haryana High Court observed in Vinod Kumar Sethi and Others Vs. State of Punjab and Another, as under (para 20):

To conclude, I see no blanket bar against the quashing of a First Information Report and the consequent investigation, (even before a charge sheet

is filed in the Court) provided that the requisite pre-conditions formulated above for the exercise of the power stand satisfied. Without being

exhaustive, those may be briefly summarised asunder:

i) when the First Information Report, even if accepted as true, discloses no reasonable suspicion of the commission of a cognizable offence;

ii) when the materials subsequently collected in the course of an investigation further discloses no such cognizable offence at all;

iii) when the continuation of such investigation would amount to an abuses of power by the police thus necessitating interference in the ends of

justice; and

iv) that even if the First Information Report or its subsequent investigation purports to raise a suspicion of a cognizable offence, the High Court can

still quash if it is convinced that the power of investigation has been exercised mala fide.

Their Lordships of the Supreme Court in case State of West Bengal and Others Vs. Swapan Kumar Guha and Others, have held that

investigation can be quashed if no cognizable offence is disclosed by the First Information Report. It has further been observed that if a court

interferes with proper investigation in a case where an offence has been disclosed the offence will go unpunished to the serious detriment of the

welfare of the society and it is on the basis of this principle court normally does not interfere with the investigation of a case, but it cannot be said

that an investigation must necessarily be permitted to continue and will not be prevented by the court at the stage of investigation.

In the present case investigation is continuing for the last two years and eight months and nothing substantial has been brought on record against

the petitioner. Petitioner was interrogated for 23 days in accordance with court order. This petition is pending in this Court since June 8, 1988 but

in spite of it no further progress was made in investigation. I have perused police diaries and I do not find any ground holding the petitioner to be

the cause for delay in investigation. To continue investigation for unlimited period in this case would certainly amount to abuse of power by the

police. Considering all the abovesaid feces and circumstances provisions of Article 21 of the Constitution are attracted in this case. Mr. Gupta,

learned Additional Advocate General wants some time to be granted to the investigating agency to complete investigation and produce the challan.

No doubt there is every ground in this case to quash the First information Report but in the interests of justice I allow two months time, from today,

to the investigating agency to complete investigation and produce the challan in court of law, failing which FIR No. 163 of 1986, abovesaid, in so

far it concerns the petitioner, shall stand quashed. With these observations the petition is disposed of.

Note : - Mr. R.S. Thakur has pointed out that there is every possibility of the petitioner being harrassed by the investigating agency as two months

time has been allowed to them and he makes a prayer for issuing a direction to the investigating agency not to summon the petitioner as he has

already been interrogated for a long period. I think this prayer is reasonable and it should be allowed. As already pointed out petitioner in

accordance with the order of learned Sessions Judge remained present before the investigating officer for 23 days and there is thus no necessity of

his again being called. Investigating officer shall therefore, not summon the petitioner, excepting for the purpose of producing challan, if any.