Mohd.Amin Andarbi vs State of J & K

Deprivation of life or liberty otherwise, than in accordance with some procedure of law which is ""reasonable, fair and just"" is forbidden by

Article 21 of the Constitution of India. Obviously the procedure prescribed by law for depriving a person of his liberty cannot be reasonable, fair

and just unless that procedure ensures the speedy trial for the determination of the guilt of that person.

The Apex Court held in Hussain Ara's case (AIR 1979 SC 1360):

No procedure which does not ensure a reasonable quick trial can be regarded 'reasonable, fair or just', and it would fall foul of Article 21 of the

Constitution of India. There can therefore be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an essential

part of the fundamental right of life and liberty enshrined in Article 21"".

It needs hardly to be emphasized that delay in trial by itself constitutes denial of justice. While the speedy trial is an implied component of fair

trial the converse is not necessarily true. The delay in trial is not necessarily an unfair trial. The delay may be occasioned by the tactic or the

conduct of the accused himself. While considering the fact of delayed trial the factothers to be kept in mind are:

whether the accused is responsible for the delay.

whether he is prejudiced by such delay in any manner.

Ofcourse in some cases the delay may itself amount to prejudice. The nature of the offence with which the accused is charged is ofcourse a

relevant consideration to determine the fall out of the delayed trial (AIR 1992 SC 1701), but the right to speedy trial applies not only to major

crimes but to minor offence (s) as well. It takes in its fold not only the proceedings in the court but also the proceedings of police investigation.

The provisions of Section 344 of the Code of Criminal Procedure not only embody the spirit of speedy trial but mandates further that where

examination of the witnesses lias once begun the same shall be continued from day to day until all the witnesses in attendance have been examined.

Obligation is cast by this section on the court to record reasons, if adjournment, beyond the following day, becomes necessary. This provision of

Criminal Procedure is a reflection of the guarantee of Article 21 of the Constitution of India. Inordinately prolonged delay, which does not arise

from the obstructive tactics of the accused or is otherwise not occasioned by any extraordinary or exceptional reasons, violates the constitutional

guarantee of speedy trial.. Pendency of the case for a long time is otherwise also an abuse of the process of the court.

From Hussain Afa's case (supra) to Raj Deo Sharma's case (AIR 1998 SC 3281) the Apex Court repeatedly emphasized the requirement of

speedy trial and certain propositions came to be laid down to serve as the guide lines. The consequences following from an infringement of right of

speedy trial is the quashing of the charges and/or conviction as the case may be. True that is not the only option open to the court. In a given case,

the facts may be such that quashing of the charges may not be in the interests of justice as every offence is an offence against the society. The court

has under the guide lines prescribed, the power to pass such appropriate orders as may be deemed just.

Now to the facts of the present case. The police stationed at Kangan, Tehsil Ganderbal filed as far back as on 3rd of March 1976, the report of

investigation in respect of FIR No. 42 of 1973 police station Kangan. The report alleged that the accused, Mohammad Amin Andrabi and

Mohammad Ashraf Jan, had committed the offences punishable under sections 409,420,467 and 471 RPC in that they, under the forged

signatures of the Tehsildar Ganderbal and the District Commissioner Srinagar, withdrew under forged bills an amount of Rs. 80, 600/ form the

State treasury at Kangan. This was allegedly done on 23rd of February 1973, 19th April 1973 and 1st. June 1973.

The accused having entered into the plea of not guilty lead to the passing of the order on 5th of December 1978, whereby the schedule for

examination of prosecution witnesses was, at the initial stage, set out. It appears from the minutes of the trial that the examination of the prosecution

witnesses commenced form 5th of February 1980 and the last witness was examined on 8th of July 1988. The prosecution lapsed thereafter into

total inaction as no witness came to be produced for examination till the petition No. 1 of 1997, under section 561A Cr.P.C., was filed for

quashment of the proceedings. This court vide the order dated: 17101997 disposed of that petition on 17101977 with the specific direction that

the prosecution shall adduce the remaining evidence in the matter within four months from the date the file is received by the trial court. The file was

received by the trial court on 12th December 1997 and upto 6th of June 1998, not a single witness was produced by the prosecution. It appears

that on the oral request of the public prosecutor, the trial court issued the direction on 661998 for securing the attendance of the remaining

witnesses through bailable warrants of arrest.

Total number of witnesses listed in support of the charges is twenty seven. Twelve witnesses only have been examined till date. No witness has

been examined for the prosecution despite the direction of this court to complete their examination within four months from December 1997.

It be noticed that during the pendency of the trial one of the accused in the case breathed his last. The petitioner has been regularly appearing in

the trial court, without unexcusable fail, for the last nearly twenty one years. Minutes of the file reveal that more than two hundred opportunities

have came to be afforded for examination of the prosecution witnesses. It is now for the last more than nine years that not a single witness has been

examined. It is under these premises that inherent powers of the court have been invoked to quash the charges and the proceedings so as to give

stop to the infringement of the right to speedy trial which is implicit in Article 21 of the Constitution.

It is contended for the State that the accusedpetitioner at no stage made any request to the trial judge to close the prosecution evidence

notwithstanding the directions issued on the first motion, invoking the jurisdiction under section 561A Cr.PC. Assuming that the accused did not

invite the trial judge's attention to the need to close the prosecution evidence, yet this motion on the part of the accused cannot be said to debar

him to invoke the powers to stop the abuse of the process of the Court. The trial court ought to have under the aforementioned instruction closed

the prosecution evidence and proceed to dispose off the matter.

The trial court has not at all either followed the law or the directions of this court in that it has adopted, on mere asking, the course to summon

the remaining witnesses for the prosecution. The procedure laid down for the trial before the court of Sessions requires under section 271 Cr.P.C

that on the application of the prosecution the Sessions Judge may issue the processes for compelling the attendance of any witness. Put in other

words the course to the assistance to secure the attendance of prosecution witnesses can be made available only and only when the written

application to that effect is filed by the prosecution. Oral submissions cannot, under the law, be the substitute for the requirement to compel the

attendance of a prosecution witness.

Here in this case, having observed in breach the mandate of the law calling for expeditious trial and by not following the directions of this court

issued on 17101977, in the first petition under section 561A Cr.PC, the trial judge (Mr. N.A.Kakru 2nd Additional Sessions Judge, Srinagar)

directed on mere asking of the Additional Public Prosecutor issuance of bailable warrants of arrest for the presence of the remaining witness in the

case unmindful of the fact that it had remained on the dockets for more than twenty years. The clearly is the gross abuse of the process of the

court.

The facts and circumstances of the case undoubtedly indicate that the right to speedy trial that is implicit in Article 21 of the Constitution, has

been infringed throughout. This infringement requires, to be given a goodbye , under the exercise of inherent powers, invoked through the motion at

hand.

It is in the facts and circumstances of the case briefly referred to hereabove, that the prosecution evidence in the case is required to be closed.

This course is adopted as the charges are about major offence whereby the public exchequer is alleged to have been robed, of Rs. 80,000/,

through the fabrication of forged and fake bills and signatures. Furthermore this course is warranted as some evidence has been recorded at the

trial, which needs to be considered to deliver the verdict.

This application is allowed. The prosecution evidence is closed in the case. The record will go back to the trial court with the direction that it

shall now proceed to conclude the trial on day to day basis within the period of two months from the date the file is received by it. It is emphasized

that in no case, whatsoever, shall the conclusion of the trial be prolonged beyond the period of two months. Records be remitted forthwith. The

accused to appear in the trial court on 04051999.