Nand Kishor Sharma and Eleven Ors. vs The State of Bihar and Others

S.K. Chattopadhyaya, J.—Whether an unexplained delay in according sanction for prosecution by the appropriate authority infringes the right of an accused to speedy trial is the question to be decided in this case.

The Petitioner, twelve in number, who are police personnels, have moved this Court under Article 226 of the Constitution with a grievance that though a criminal case was registered against them on 13.3.1989 and the investigation was completed as far back as in 1995, no sanction has been accorded by the State for filing the final form, as a result the Petitioners are deprived of their right to speedy trial.

The Petitioners were deputed at village Khajuri police post under Konch police, district Gaya, in January, 1989, in law and order duty for keeping in the said village. A house was attacked by Maobadi Communist Centre (commonly known as "M.C.C.") extremist group on 12.3.1989 at 10.30 P.M. The informant, Sub-Inspector of B.M.P. Ill, Govindpur, Dhanbad who was incharge of Khapuri police station, made statement (BEYAN) stating, inter alia, that when 15-20 M.C.C. extremists reached at the police post in order to take away rifles after attack, in self defence, the constables opened fire. The extremists fled away and thereafter the informant noticed that one of the colleagues, Yognedra Choubey lying dead having received injury on chest. The rifle was lying besides the dead body but the chain of the deceased was intact in his waist. The informant found one round firing by the rifle of the deceased and one empty cartridge was seen there and on that side Madan Upadhayay had also taken position after alarm. It is alleged that Madan Upadhayay opened fire four times and Sitaram Dubey for two times. One extremist also received the fire injury made by the police picket and the dead body of the extremist Suryadeo Ravidas was found near the dead body of Yogendra Choubey. Information was given to the police station for taking appropriate action against the extremists. Further allegation is that villagers after the occurrence reached there making Hulla. On the basis of the said report the police drew up a formal first information report and registered Konch P.S. Case No. 26/89 dated 13.3.89 for the offence under Sections 148, 149, 302 and 307 of the Indian Penal Code read with Section 27 of the Arms Act against 15-20 unknown extremists. A copy of the F.I.R, is Annexure-1.

Information was also given to the higher authority of the police department with respect to incident of 13.3.89 with respect to killing of Yogendra Choubey by the extremists in the said attack. However, one Jamuni Devi, wife of the deceased Suryadeo Ravidas, one of the extremists, made a report before the officer-in-charge of the Konch police station on 13.3.89 at 8 A.M. alleging, inter alia, that two rounds of firing were heard by her. Her husband left the place on hearing the sound of firing but as soon as he came out from the house, 2-3 constables cought-hold of him saying that he was a bad element for keeping gun and cartridge. When her husband denied the allegation, the constable did not pay any heed, rather he was taken away by them. In the said night she did not lodge any information but in the next morning she narrated the fact to one Ram Naresh Ram, a teacher of the school. This Ram Naresh Ram consoled her by saying that the police had taken him for some enquiry. However, subsequently the informant came to know that her husband was done to death by rifle, though she could not know the name of the assailants among the constables. Oh the basis of this FIR police registered Konch P.S. Case No. 28 of 1989 dated T3.3.89. FIR of this police case is Annexure-2. To that effect the informant Jamuni Devi also filed a complaint case bearing No. 259 of 1989 before the Chief Judicial Magistrate, Gaya. The complaint petition is Annexure-3.

The police investigated the allegation made by Jamuni Devi and filed Chargesheet against the Petitioners under Sections 342, 302, 109, 201 and 34 of the Indian Penal Code read with Section 27 of the Arms Act. Admittedly, chargesheet was submitted on 31.5.95 but the Magistrate could not take cognizance in absence of sanction. As there was inordinate delay in giving sanction order, the Petitioners moved this Court earlier in Cr. C.W.J.C. No. 370 of 1998 for completion of the investigation of Konch P.S. Case No. 26 of 1989. The said writ application was disposed of on 17.8.98 by a learned Judge of this Court with a direction to the Respondents to take appropriate steps for obtaining sanction as expeditiously as possible and preferably within a period of four months from the date of receipt of a copy of this order. This order of the High Court is Annexure-7.

Mr. Mahto submits that from the facts and circumstances of the case it is amply clear that though the police has completed the investigation and chargesheet has not been filed due to lack of sanction, the matter has been considered by the State Government and it is not in favour of according sanction in the case. According to the counsel for this long delay in granting sanction for prosecution of the Petitioners it can be very well presumed that the State Government has considered both the P.S. cases one filed against the extremists and the other against the Petitioners and had come to the conclusion that no sanction is required to be given for prosecution of the Petitioners. Mr. Mahto further urged that whatever may be the reason for not according sanction for such a long period, the right of the Petitioner for speedy trial has been infringed.

In the counter affidavit the Deputy Superintendent of Police, Gaya, has admitted that though the investigation of the case is almost complete but the final form, could not be submitted due to lack of Government sanction against the Petitioners. According to him on 6.6.95 by memo No. 699/95 the Government sanction was sought for and to this effect the said letter was sent to the Deputy Secretary, Home (Police Department) through proper channel. Again pursuant to the judgment of this Court on 4.2.99 and 15.2.99 Government sanction was asked for but the same is still awaited. He has stated that the Investigation agency was not biased against the Petitioners and supervising authority was also not at fault.

From the aforesaid facts, it appears that in 1995 chargesheet was made ready and request was made for obtaining sanction of the Government but till today no sanction has been given by the State Government for proceeding further against the Petitioners.

It is now well settled that fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right of the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that speedy trial is also in public interest or that it serves the societal interest also, does not make it anytheless'' the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. In Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., while laying down the said principles their Lordships have further observed that right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, enquiry, trial, appeal, revisions and the trial. That is how this Court has understood this right and there is no reason to take a restricted view. Similarly, in the case of Santosh De Vs. Archna Guha and others, following the principles of Antulay''s case their Lordships were of the opinion that unexplained delay of 8 years in commencing the trial by itself infringes the right of the accused to speedy trial. This Court also in the case of R.K. Mandal v. State of Bihar 1997 (1) BLJ 283 : 1997 (1) PLJR 354 following the principles laid down by the Apex Court quashed the criminal proceeding registered under the Prevention of Corruption Act on the ground of its pendency for more than seven years. The latent view of this Court is to be found in the case of Baidnath Prasad @ Baidyanath Sah and Another Vs. State of Bihar, , where this Court has quashed the proceeding on the ground that after institution of a criminal case charges were not framed even after passage of seven years and there was nothing on the record to show that the said delay was caused due to laches on the part of the accused persons.

In the instant case also there is nothing on the record to show that the Petitioners are responsible for delay -in completion of the investigation. On the other hand, it is an admitted fact that though the investigation was completed and since May, 1995 the Investigating agency was requesting the appropriate authority for grant of sanction, no sanction was accorded. This fact also finds support from the counter affidavit of the Deputy Superintendent of Police, Gaya.

In the above background, in my view, there is complete infringement in the right of the Petitioners for speedy trial. Considering the facts, I am of the opinion that the prosecution against the Petitioners is liable to be quahsed.

Accordingly, this application is allowed and the prosecution in Konch P.S. Case No. 26 of 1989 dated 13.3.1989 is quahsed.