Tarsham Chand vs State of Haryana

V.S. Aggarwal, J.

This is petition filed by Tarsham Chand invoking Section 482 of the Code of Criminal Procedure seeking quashing of complaint filed under Section 7 read with Section 16(1) of the Prevention of Food Adulteration Act, 1954.

It has been alleged that a complaint has been filed against the petitioner which is pending in the Court of Chief Judicial Magistrate, Ambala, with respect to being in possession of adulterated Ajwain in his shop. The sample was taken on 29.7.1986 and it was reported that it contained extraneous matters. It did not comply with the prescribed standard. The complaint was filed in court on 12.9.1986.

Petitioner claims that after he had put in appearance and some evidence was recorded, the case was adjourned to 25.9.1987. On the said date, the Court directed that case be tried as a warrant case. It was followed by some more adjournments. On 29.7.1988 the then Presiding Officer again directed that it be converted into a summary case. The evidence was recorded. The prosecution closed its evidence. The statement of the accused even was recorded and it was slated for defence evidence. One defence witness was examined by the petitioner. On 7.11.1994 the then Presiding Officer again directed the case to be tried as a warrant case.

By virtue of the present petition, it is contended firstly that there has been inordinate delay and no speedy trial and secondly that the Presiding Officer could not keep changing the case from warrant case to summary case and again from summary case to warrant case from time to time.

The petition as such has been contested. The respondents assert that case was adjourned from May, 1989 to September, 1992 because of the strike by the lawyers. The petitioner himself took different adjournments in 1994 for producing the defence evidence. Thus, it was claimed that there was hardly any ground to quash the proceedings on the ground that there has been no speedy trial.

With respect to the first question that there is no speedy trial, there is no overemphasizing the fact that under Article 21 of the Constitution of India, a right is created in favour of the accused to be tried speedily. The delay as such must be avoided. The Supreme Court considered this fact in the well known decision of Abdul Rehman Antulay etc. v. R.S. Nayak and another etc., AIR 1992 SC 1701. Without being exhaustive certain guidelines were provided and some of the guidelines were :

"Of course, there may be cases where the prosecution, for whatever reason, also delay the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay ? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays are obtained on ex parte representation.

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 on what is called, the systematic 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 matters instead of a pedantic one.

Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. In Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White, J. in U.S. v. Ewell, 1966(15) Law Ed 2d 627, in the following words :

"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."

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 becomes persecution, again depends upon the facts of a given case.

We cannot recognize or give effect to, what is called the ''demand'' rule. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accused''s plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be plus in his favour, but the mere nonasking for a speedy trial cannot be put against the accused. Even in U.S.A., the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.

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.

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."

The Supreme Court subsequently, also took note of the fact that it is not practicable to fix time limit for trial of offences. It is the duty of the court to weigh all the circumstances before pronouncing on the said fact. In this background one can see the facts of the present case. At the first blush it appears that there has been inordinate delay because the case is pending for the last about 9 years. However, the conduct of the accused cannot be ignored. Through his agent when the members of the Bar were on strike for 3 years, the petitioner caused the delay. He cannot put the blame on the prosecution. The reply of the State further indicates that no less than five adjournments were taken for producing the defence evidence. Some delay is inherent in all trials. To state, therefore, that such a complaint should be quashed on this ground, will not be correct. The contention must fail.

With respect to the second plea Section 16A of the Prevention of Food Adulteration Act, 1954 reads as under :

"16A. Power of court to try cases summarily. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under subsection (1) of Section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial :

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year :

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code."

Perusal of it indicates that the offences have to be tried in a summary way but the second proviso permits the Magistrate to record reasons and thereafter may direct that keeping in view the nature of the case, sentence exceeding one year may have to be passed, he may record it to be undesirable to try the case summarily. The unfortunate aspect of the present case is that on different occasions the case was being converted from the summary trial to a warrant case and again from the warrant case to a summary trial and back. This was most unfortunate way of functioning. However, as far present, since the Presiding Officer has already decided that it should be tried as a warrant case and discretion has been so exercised as permitted by law, it will not be appropriate to interfere. However, it is directed that the trial court in any case will expedite the trial and complete it within 3 months of the receipt of the order. A compliance report in this regard should be sent to the Registrar of this Court.

Subject to aforesaid, the petition fails and is dismissed.