Rajpal vs State

J. C. Mishra, J.—This is second bail application. The first bail application was dismissed on merits. The learned counsel contended that the prosecution case is unnatural as according to the prosecution the applicant made no attempt to commit murder of the person who had committed murder of his father. He also contended that the prosecution could not explain as to how the spade was brought on the spot. In my opinion, these arguments cannot be considered in second bail application as they are beyond its scope.

The learned counsel contended that the incident is of 921998 and despite the fact that more than two years have elapsed nor a single eyewitness has yet been examined. He has produced photostate copy of the order sheet from 1451998 till 27111999. A perusal of the order sheet indicates that for reason or the other the evidence could not be recorded. The delay appears to have been caused by what can be called system delays. Only incomplete statement was recorded at the fag end of831999.

The question whether delay in trial constitute a ground for granting bail arose for consideration in Criminal Misc. II bail application No. 11186 of 1999, Munna Singh v. State. The discussion and inference drawn are reproduced below:

The learned counsel for the applicant referred to two Full Bench decisions of Patna High Court. It was held in The State v. Maksudan Singh and others, AIR 1986 Patna 38, that the constitutional right of the accused to a speedy public trial in all criminal prosecutions now flowing from Article 21 of the Constitution is identical in content with the express constitutional guarantee inserted by the Sixth Amendment to the American Constitution. The various judgments of Supreme Court have declared in uncompromisingly categorical terms that the right to speedy and public trial is a constitutional guarantee under Article 21.

The majority view of the Full Bench is that, once the constitutional guarantee of speedy trial and the right to a fair, just and reasonable procedure under Article 21 has been violated, then the accused is entitled to an unconditional release and the charges leveled against him would fall to the ground. It cannot be said that the violation of right of speedy and public trial pertains to the realm of sentence alone.

In a later Full Bench decision in Madheshwardhari Singh and another v. State of Bihar, AIR 1986 Patna 324, scope of Article 21 was widened and it was held that the fundamental right to a speedy public trial extends to all criminal prosecutions for all offences generically, irrespective of their nature. The right to speedypublic trial is applicable not to the actual proceedings in the Court but includes within its sweep the proceeding police investigation in a criminal prosecution as well. Speedy investigation and trial of criminal prosecution is manifested both by letter and spirit of Code giving effect to fundamental right of speedy public trial therefore would not in any way conflict with provisions of Code.

It was further held that laying down of an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. A callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones plainly violate the constitutional guarantee of a speedy public trial under Article 21. Unless the fundamental right to speedy trial is to be whittled down into a mere pious wish, its enforceability in Court must at lease be indicated by an outer limit to which an investigation and the trial in a criminal prosecution may ordinarily extend. Holding otherwise would merely paying lip service to a precious right whilst denuding it of the benefits of its actual enforceability.

The Supreme Court in Kartar Singh v. State of Punjab, JT 1994(2) SC 423, after considering the earlier pronouncements of the Supreme Court and the Supreme Court of U.S.A. held that of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the Court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors: (1) Length of delay, (2) the justification for the delay, (3) the accused assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay. However, the fact of delay is dependent on the circumstances of each case because reasons for delay will very, such as delay in investigation on account of the widespread ramification of crimes and its designed network either nationally or internationally, the deliberate absence of witness or witnesses crowded dockets on the file of the Court etc."

In Raj Deo Sharma v. The State of Bihar, 1999 (1) JIC131 (SC), three Judges Bench of the Supreme Court approved the legal position adumbrated in A.R. Antulay''s case, 1992 JIC 218 (SC), that the right to speedy trial flows from Article 21 and it encompasses the stages right from the date of registration of the FIR and onwards remains unaltered. It was observed that 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 workload 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 includes judiciary as well, but a realistic and practical approach should be adopted in such matter instead of a pedantic one.

The Constitutional Bench of seven Judges in Abdul Rehman Antulay etc. etc. v. R.S. Nayak and another etc. etc., AIR 1992 SC 1701, held that the provisions of the Code of Criminal Procedure provide for an early investigation and for a speedy and fair trial. If only the provisions of the Code are followed in their letter and spirit, there would be little room for any grievance. The fact however, remains unpleasant as it is that in any cases, these provisions are honored more in breach. Be that as it may, it is sufficient to say that the constitution guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of the Code. It was, however, observed that it is not possible in the very nature of things and present day circumstances to draw a time limit beyond which a criminal proceeding will not be allowed to go. Wherever a complaint of infringement of right to speedy trial is made the Court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period, in many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases. delays may occur for which neither the prosecution nor the accused can be Warned but the system itself. Such delays too cannot be treated as unjustifiable broadly speaking. Every case must be left to be decided on its own facts having regard to the principles enunciated herein before. For all the above reasons, it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. It cannot also be said that without such an outer limit, the right becomes illusory.

It was further observed that ultimately the Court has to balance and weigh the several relevant factors "balancing test" or "balancing process"and determine in each case whether the right to speedy trial has been denied in a given case.

It was further observed that where the Court comes to the conclusion that right of speedy trial of accused has been infringed the charges or the conviction as the case may be shall be quashed. But this is not only the course open to the nature of the offence and other circumstance in a given case may be as the that quashing of proceeding may be in the interest of justice. In such case it is open to the Court to make such other proper order including an order to complete fair trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be just and equitable in the circumstances of the case.

InDr. VmodNarainv. State of U.P, 1995 JIC 433 (A1I)(FB); 1995 (32) ACC 375 (Full Bench) decided by five Judges it was held in para 76 of the judgment that. "However, as directed in Dr. Hidayat Hussain Khan''s case (supra), fixed time schedule for considering bail application cannot be directed by this Court and maintaining judicial discipline and comity this Court is bound under Article 141 of the Constitution to respect and obey the pronouncement of the apex Court as the law declared by the apex Court is also the law of the land and it operates as judgment in rent, Consequently the ratio laid down by the apex Court in Abdul Rehman Antulay etc. etc. v. R.S. Nayak and another etc. etc., (vide para 51 of the judgment) that "time schedule for concluding criminal a proceedings cannot be fixed is binding on us."

There is no dispute that concept of speedy trial is read into Article 21 as an essential part of fundamental right to life and liberty guaranteed and preserved under our Constitution. In a later decision a Full Bench of the Supreme Court in Raj Deo Sharmav. The State of Bihar, 1999(1) JIC 131 (SC), after considering earlier decisions in Hussainara Khatoonv. Home Secretary, State of Bihar, 1980(1) SCC 81; Menka Gandhi''s case, (1978) 1SCC248; State of Maharashtra v. Champa Lal Punjaji Shah, (1981) 3 SCC 6W;Madhit Mehta v. Union of India, JT1989 (3) SCC 465. Seven Judges Bench decision in Abdul Rehman Antulay v. R.S. Novak and another, JT 1991 (6) SC 431, held that the observations made in Kartar Singh v. State of Punjab, JT 1999 (2) SC 423 cannot be read as in any way different from the observations made by the seven Judge Bench in A.R. Antulay''s case. Hence the legal position as adumbrated by Supreme Court in A.R. Antulay''s case that the right to speedy trial flows from Article 21 and it encompasses the stage right from the date of registration of the first information report and onwards remains unaltered.

In view of the above discussion I am of the view that the right to speedy trial is the right of the accused, enshrined in Article 21 of the Constitution. The undue delay in trial may well result in impairment of the ability of the accused to defend himself. Whether on account of death disappearance or non availability of witness or otherwise and therefore, the worry anxiety, expense and disturbance to his vocation and peace resulting from a unduly prolonged investigation, inquiry or trial should be minimal. However, 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. However, inordinately long delay may be taken as presumptive proof of prejudice. The prosecution could not be allowed to become a persecution. But when does the prosecution become persecution again depend upon the facts of given case. Ultimately the Court has to balance and weigh the several relevant factors "balaneing test or "balancing process" and determine in each case whether the right to speedy trial has been denied in a given case.

It is settled view that it is neither advisable nor practicable to fix any time limit for trial of offence.

In back drop of the above legal position it is necessary to consider the nature of the accusation. From the first information report, it appears that the murder was not premeditated. The applicant had used spade which cannot be termed as traditional weapon. One of the incised wound found on the back of scapula was muscle deep. The other injury it appears proved fatal. In view of the facts and circumstances of the case I think it a fit case for directing the sessions trial to decided within a period of four months from the date of receipt of copy of (he order on the next date fixed in the trial. The Sessions Judge will proceed with the case possibly on day today basis and decided this trial on priority. In the case the prosecution evidence is not concluded within the time allowed, the accused shall be entitled to bail proved that he is not instrumental in delaying the disposal.

It is directed that if after expiry of the aforesaid period of four months from the date of production of the order on the date fixed the prosecution evidence is not concluded, the Sessions Judge concerned shall enlarge the applicant on bail on such terms he thinks fit Application disposed of.