Nishit vs State of Rajasthan

M.N. Bhandari, J.—By this petition, a prayer is made for quashing of proceedings arising out of FIR bearing No. 93/2008. It was registered in the year 2008.

Learned counsel submits that period of more than 7 years has already passed after registration of FIR. The charge sheet has already been filed but there is no progress in the case. The delay has not been caused by the petitioner. In view of above, proceedings in Criminal Case No. 127/2011 be quashed.

Coming to the facts of the case, it is submitted that allegation against the petitioner is to furnish address of a house to get Passport where he never resided. The FIR is full of contradiction as reference of the address given therein does not exist in the Passport, thus on the face of it, it shows that without ascertaining correct position, the FIR was lodged, that too, at the instance of the Police. The Police had no access to know about the address given in the Passport, thus FIR suffers from malafide also. The petitioner had resided at the place which was mentioned in the Passport. He was having Ration Card on the same address which was issued in the year 2004, whereas Passport was issued in the year 2007. Before issuance of Passport, physical verification is made by the Police and thereafter it is issued. In view of above, FIR suffers from malafide, thus deserves to be quashed.

Learned Public Prosecutor opposed the petition.

I have gone through the FIR and the case diary. The FIR was registered in the month of February, 2008. The charge sheet has been filed but the case has not progressed at all, thus argument of delay is taken in reference to the judgment of Apex Court in the case of Pankaj Kumar Vs. State of Maharashtra and Others, AIR 2008 SC 3077 : (2008) CLT 1111 : (2008) CriLJ 3944 : (2009) 122 FLR 790 : (2008) 8 JT 109 : (2008) 9 SCALE 760 : (2008) AIRSCW 5165 . The relevant paras 3, 4, 7, 8, 14, 15 and 17 of the said judgment are quoted hereunder for ready reference:

"3. A few material facts, necessary for disposal of this appeal can be stated thus:

On 12th May, 1998, a First Information Report was lodged against one Sayyad Mohammad Sayyad Ibrahim and eight other persons, inter alia alleging that during the period from 1st October, 1980 to 22nd February, 1982, while working as District Dairy Development Officer, Government Milk Scheme, Bhanara, Sayyad Mohammad Sayyad Ibrahim had conspired with the appellant and his father and had committed mis-appropriation of huge amounts in the purchase of spare parts etc., for the plant. The case was referred to the Anti Corruption Bureau for investigation.

Investigations dragged on for over three years and ultimately on 22nd February, 1991, a chargesheet was filed in the court of Special Judge, Latur against twelve persons for offences punishable under Sections 120B, 409, 420, 465, 468, 471, 477(A) 101 and 34 of the Indian Penal Code, 1860 (for short ''IPC'') and Sections 5(1)(c)(d) along with Section 5(c) of the Prevention of Corruption Act, 1947. In addition thereto, Sections 13(1)(c)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 have also been invoked against accused Nos. 1 to 9. The first nine accused were the employees of the Government Milk Plant and the remaining three being the appellant and his father and respectively.

Rejecting the main plea of the appellant that being born on 18th September, 1963, the appellant was a minor at the time of transactions in question in the year 1981 and, therefore, he could not be proceeded against and that even otherwise the chargesheet did not disclose any offence against the appellant and his mother, by the impugned order, the High Court dismissed the petition. The High Court has come to the conclusion that the appellant has failed to produce any document showing his date of birth and that the chargesheet prima facie discloses commission of offences by the appellant. Aggrieved by the said decision, the appellant has preferred this appeal.

Learned counsel appearing on behalf of the appellant submitted that there was sufficient material on record to show that when the alleged acts of malfeasance took place, the appellant was a minor and had nothing to do with the affairs of the concerns, which had made supplies to the milk plant. He was neither the proprietor nor a partner in the said concerns/firms which were managed by his father, accused No. 10. In support of the proposition that the reckoning date for determining the age of an accused, who claims to be a child, is the date of occurrence and not the date when the offender is produced before the court, reliance was placed on the decision of the Constitution Bench in Pratap Singh v. State of Jharkhand and Anr. Referring us to certain portions of the chargesheet, learned counsel contended that except for the bald averment that Pratap Singh Vs. State of Jharkhand and Another, AIR 2005 SC 2731 : (2005) CriLJ 3091 : (2005) 2 JT 271 : (2005) 3 SCC 551 : (2005) 1 SCR 1019 : (2005) 1 UJ 587 : (2005) AIRSCW 3088 : (2005) 1 Supreme 775 the appellant had prepared bogus bills and had received the payment, no other incriminating material has been brought on record, to show that the appellant was looking after the affairs of the concerns/firms owned or managed by his father and mother, namely accused No. 10 and 12 (since deceased) and, therefore, the conclusion of the High Court that a prima facie case had been made out against the appellant is without any basis. Lastly, it was pleaded that the appellant has been deprived of his constitutional right to have a speedy investigation and trial, inasmuch as the FIR was registered on 12th May, 1987 for the offences allegedly committed some time in the year 1981; chargesheet was filed on 22nd February, 1991 but till date not a single witness has been examined by the prosecution. In support, reliance was placed on a decision of this Court in Santosh De v. Archna Guha and Ors., wherein a delay of eight years in commencing the trial was held to be violative of the right of the accused to a speedy trial and the Santosh De Vs. Archna Guha and others, AIR 1994 SC 1229 : (1994) CriLJ 1975 : (1994) 3 SCC 735 Supp High Court''s decision quashing the criminal proceedings on that ground was affirmed.

Time and again this Court has emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the Cr.P.C.. (In particular, Sections 197, 173, 309, 437(6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi v. Union of India and Anr., in Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, this Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be ''reasonable, fair and just''; and therefrom flows, without doubt, the right to Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 : (1978) 1 SCC 248 : (1978) 2 SCR 621 speedy trial. It was also observed 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. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.

The exposition of Article 21 in Hussainara Khatoon''s case (supra) was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: (i) Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., AIR 1992 SC 1701 : (1992) CriLJ 2717 : (1991) 6 JT 431 : (1991) 2 SCALE 1273 : (1992) 1 SCC 225 : (1991) 3 SCR 325 Supp fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is --who is responsible for the delay?; (iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard 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 on-- what is called, the systemic delays; (v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case; (vi) ultimately, the court has to balance and weigh several relevant factors--''balancing test'' or ''balancing process''--and determine in each case whether the right to speedy trial has been denied; (vii) 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 and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;

(viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. 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; (ix) 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 of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.

It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial."

In the similar manner, Apex Court in the case of Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, AIR 1996 SC 1619 : (1996) CriLJ 2380 : (1996) 2 CTC 356 : (1996) 2 DMC 49 : (1996) 4 JT 701 : (1996) 4 SCALE 127 : (1996) 4 SCC 33 : (1996) 2 SCR 196 Supp : (1996) 2 UJ 263 held as under:

"(a) Where criminal proceedings are pending regarding traffic offences in any criminal court for more than two on account of non serving summons to the accused years/or for any other reason whatsoever, the court may discharge the accused and close the cases.

(b) Where the cases pending in criminal courts for more than two years under I.P.C. or any other law for the time being in force are compoundable with permission of the court and if in such cases trial have still not commenced, the criminal court shall, after hearing the public prosecutor and other parties represented before it or their advocates, discharge or acquit the accused, as the case may be, and close such cases.

(c) Where the cases pending in criminal courts under IPC or any other law for the time being in force pertain to offences which are non-cognizable and bailable and if such pendency is for more than two years and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.

(d) Where the cases pending in criminal courts under IPC or any other law for the time being in force are pending in connection with offences which are punishable with fine only and are not of recurring nature, and if such pendency is for more than one year and if in such cases trial have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.

(e) Where the cases pending in criminal courts under IPC or any other law for the time being in force are punishable with imprisonment up to one year, with or without fine, and if such pendency is for more than one year and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.

(f) Where the cases pending in criminal courts under IPC or any other law for the time being in force are punishable with imprisonment up to three years, with or without fine, and if such pendency is for more than two years and if in such cases trial have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases."

In the instant case, an FIR was registered in the year 2008 followed by charge sheet and thereupon order of cognizance on 20.03.2011 and subsequently charges were framed however trial has not started as yet. A period of more than 7 years is going to pass after registration of FIR. This is one part of the case. If allegation in the FIR is considered, it is regarding address to obtain the passport. The registration of FIR is by the Police Personnel, who was investigating other case against the accused and found that passport has been obtained by giving incorrect address. The FIR makes a reference of two different addresses, thus contradiction exist and shows absence of clarity of the facts. I am not going on the issue as to how one can get information about incorrect address on the passport while making investigation of other case having no concerned to the Passport. It is also a fact that Ration Card produced before the court during the course of argument shows same address, as exist on the passport. It seems that for the aforesaid reason alone, there exist delay in trial. Looking to overall facts of the case and peculiarity, FIR so as further proceedings in the matter are quashed.

The petition is allowed with the aforesaid.