Nawal Kishore Sinhe vs State of Bihar and Others

Om Prakash, J.—This application under Articles 226 and 227 of the Constitution of India has been filed by the petitioner one of the accused in Kadamkuan P. S. Case No. 45, dated 11-8 1976, registered Under Sections 420, 409, 120B and 467, I.P.C. praying for restraining the State of Bihar from proceeding with the said case against him.

A F.I.R. was lodged by Joint Registrar, Co-operative Societies cum Liquidator, Patna Urban Co-operative Bank Limited, with Kadamkuan P.S. on 11-8-76 against one Kamla Saran Singh, a loanee of the Bank, alleging that Kamla Saran Singh as proprietor of Chanakya Bricks Manufacturing Company applied for a loan of Rs, 50, 000 required as working capital. Verification of the soundness of the applicant and the guarantors was submitted by Rama Shankar Prasad, cashier, and. counter-signed by M. A. Haidari, Manager of the Bank though the names of the guarantors were not disclosed in the loan application. The loan was sanctioned without ascertaining the existence of the said bick manufacturing company, solvency thereof, correctness of the purpose and fitness of sureties with a view to cheat the Bank and misappropriate its money. The loan was withdrawn on 19-1-1974 to be repaid before 30-10-74 with interest @ 12% per annum. But no repayment was ever made F.I.R. was lodged alleging that it was a conspiracy between Kamla Saran Singh and Bank employees to cheat the Bank and misappropriate its money.

The lower court record shows that the petitioner was the Chairman of the Patna Urban Co-operative Bank. The above Kadamkuan P. S. case is an offshoot of a big scandal in which huge amount of money of Patna Urban Co-operative Bank Limited is alleged to have been swindled by the employees and persons in authority of the Bank in conspiracy with different persons which led to the liquidation of the said Bank. The petitioner was taken into custody in connection with Kadamkuan P.S. Case No. 97 (5) 77. He was remanded in Kadamkuan P. S. care 45, dated 11-8-76.

In course of investigation it transpired that there was no Chanakya stick Manufacturing Company and no Kamla Saran Singh was proprietor of any such company. In course of investigation of cases arising out of the said scandal, M.A. Haidari, the Manager of the Urban Co-operative Bank, Patna, stated before a Judicial Magistrate, 1st class, Patna, that the petitioner was a conspirator in the conspiracy to swindle Bank''s money. He advanced insecured loans against the Banking Regulation Act to 87 persons including his nephews, other relations and firms in which he bad partnership interest, directly or indirectly. Many of such loanees had no business at all. One of the petitioner''s man, Krishna Gopal Singh secured a loan mortgaging the historical Gandhi Maidan and Plat Form No. 1 of Patna Railway Junction, which are obviously public properties.

The order sheet of the court below dated 30-1086 shows that charge-sheet against the petitioner has already been submitted and cognizance of offences u/s 120B, 420, 408, 467, 468 and 477(a), I.P.C. has been taken. The case is pending before Sub-Divisional Judicial Magistrate, Patna, for disposal.

Learned Counsel for the petitioner has argued that the case instituted on 11-8-76 has not yet been concluded which infringes petitioner''s fundamental right of speedy public trial guaranteed under Article 21 of the Constitution of India. He has not caused any delay in disposal of the case and he is not at fault for non-commencement or delay in his trial. Due to callous attitude of the prosecution, the case has not yet been concluded.

The facts and circumstances of each case and the nature of the offences involved are very much relevant to determine as to whether there has been unreasonable and undue delay and fundamental right of speedy trial guaranteed under Article 21 of the Constitution of India has been infringed or not. In the instant case, the name of the petitioner does not find place in the F.I.R. But in course of investigation of different cases registered with regard to swindling of the money of Patna Urban Co-operative Bank Limited, it has transpired that the petitioner, the Chairman of the said Bank, has conspired with officers of the Bank and Ors. to swindle Bank''s money. Naturally, it takes time to investigate such complicated cases of conspiracy by the authorities of the Bank to swindle a a ay Bank''s money. It is not a case of murder wherein police oan promptly visit the place of occurrence, hold inspection and inquest, record the statements of witnesses available there or nearby places and complete the investigation soon filing charge-sheet in the court and the court, on its part, fraue charge, examine the charge-3heet witnesses hear the parties and deliver the judgment. In a case of conspiracy to swindle Bank''s money by (he Chairman, Manager, Secretary and Cashier, besides others, investigation is not that easy. In such a case the investigating agency has to take steps to obtain approach to many documents in possession of different persons or institutions, to carefully examine them and to record statements of concerned persons whose number is usually large, at different places. It all takes its own time.

In the special facts and circumstances of this case, the petitioner does not appear to have been denied a speedy public trial. That apart, in such a case, if proceedings are quashed on account of delay, it would cause miscarriage of justice. It would advance the cause of injustice.

In the case of Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., while dealing with a case wherein proceedings were sought to be quashed on account of long delay in conclusion of the trial, the Supreme Court has held that while determining whether undue delay has occurred resulting in violation of Right to Speedy Trial) one must have regaid to all the attendant circumstances including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so onwhat is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includts judiciary as Well, but a realistic and practical approach should be adopted i.i such matters instead of a pedantic one.

The Supreme Court relied upon the following observations of White J., in U.S.V Ewell (15 lawyears Rdn. 2nd 627) ;

the sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients ; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.

The Apex Court further held that ultimately, the court has to balance and weigh the several relevant factors ''balancing test'' or ''balancing process''and determine in each whether the right to speedy trial has been denied in given case:

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 is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U.S.A., too has repeatedly refused to fix any such outer time limit inspite of the Sixth Amendment. Nor do the court think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.

An objection based on denial of Right to speedy trial and for relief on that, account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case if grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.

In view of the facts and circumstances of the case and nature of offences involved, I am of the opinion that it cannot reasonably be held that petitioner''s fundamental right of speedy public trial guaranteed under Article 21 of the Constitution of India has been violated or infringed and as such the proceedings against him pending before the court below cannot legally be quashed But it is necessary in the interest of justice that the proceedings are concluded as speedily as possible in accordance with Law. I, therefore, direct the concerned court to hear the case of the petitioner, speedily in accordance with law, without granting routine or easy adjournment and giving preference to the hearings of this case, preferably on day to basis as far as practicable, over other comparatively new cases in which accused are on bail. The court below would take all measures in accordance with law to ensure the attendance of witnesses and documents instead of giving routine type a adjournment for their production.

In the result, the writ application is dismissed with above direction to be complied with strictly.

N. Pandey, J.

I agree.