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1998(7) Supreme 556
Supreme Court of India
(From Patna High Court)
M.M. Punchhi CJI, K.T. Thomas & M. Srinivasan, JJ.
Raj Deo Sharma -Appellant
versus
The State of Bihar -Respondent
Criminal Appeal No. 1045 of 1998
(Arising out of SLP (Criminal) No. 1177 of 1996)
Decided on 8-10-1998
Counsel for the Parties :
For the Appellant : Gopal Subramaniam, Sr. Advocate, Atul Sreedharan, K.C. Sudershan, Advocates for M/s. K.L. Mehta & Co. Advocates.
For the Respondent : B.B. Singh, Advocate.
For the CBI : A.S. Nambiar, Sr. Advocate (Y.P. Mahajan) Advocate for P. Parmeswaran, Advocate.
Held : The entitlement of the accused to speedy trial has been repeatedly emphasised by this Court. Though it is not enumerated as a fundamental right in the Constitution, this Court has recognized the same to be implicit in the spectrum of Article 21. The observations in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 have to be understood in the backdrop of the issues involved in that case. The constitutional validity of Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) was questioned and a five Judge bench was then considering various contentions including the possibility of persons accused of offences under TADA remaining in jail as under trial prisoners for long period on account of harsher and more stringent provisions relating to grant of bail. The observations made therein cannot, therefore, be read as in any way different from the observations made by the seven judge bench in A.R. Antulay 1992(1) SCC 225. Hence, the legal position adumbrated by this court in AR Antulay 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. (Paras 7 & 13)
But it has become necessary to consider the matter at some length and lay down the additional guidelines in view of the large pendency of the cases before the Special Court, Patna for more than two decades by now. There may be similar pendency in other States also. The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses inspite of repeated opportunities. Section 309(1) Cr.P.C. supports the above view as it enjoins expeditious holding of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day. (Paras 14 & 15)
After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulay’s case 1992(1) SCC 225 with the following directions:-
(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the court can proceed to the next step provided by law for the trial of the case.
(ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit.
(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time limit.
(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by clauses (i) to (iii).
(v) Where the trial has been stayed by orders of court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in “Common Cause” v. Union of India (1996(4) SCC 33) as modified by the same bench through the order reported in “Common Cause” a registered Society v. Union of India (1996(6) SCC 775).
(Para 16)
(ii) Prevention of Corruption Act, 1947-Section 5(2)-Delay in trial-Petition to quash proceedings and FIR-Direction given by Supreme Court to have expeditious trial-Guidelines issued regarding closure of evidence and continuation of further proceedings-Directions issued to Bihar Government to set up more Special Courts to try offences under Prevention of Corruption cases. (Paras 7, 13, 14, 15, 16 and 18)
Judgment
Leave granted.
On November 2, 1982, a case was registered against the petitioner regarding an offence under Section 5(2) read with Section 5(1) (e) of the Prevention of Corruption Act (Act 11 of 1947). A charge sheet was submitted on 30.8.1985 by the C.B.I. in which the alleged disproportionate assets of the petitioner as on 5.11.1982 amounted to Rs. 9,10,932.41 along with a list of 40 witnesses and 20 documents. The Special Judge, C.B.I., South Bihar, Patna took cognizance of the offences on 14.11.1986 and issued summons fixing 2.12.1986 as the date for appearance. On 24.4.1987, the petitioner appeared before court, applied for and obtained bail. The charges were framed by the Special Judge on 4.3.1993. Three witnesses were examined by the prosecution till 1.6.1995.
2. The Petitioner filed a writ petition in the High Court of Patna on 5.12.1995 praying inter alia for quashing the entire prosecution including the FIR on the ground that more than 13 years had elapsed since the institution of the FIR and thus the right of the petitioner to speedy trial was violated. The petition registered as Cr.W.J.C. No. 809/95 was dismissed by the High Court on 7.12.1995 on the ground that the delay was due to the fact that there was only one Special Court of the CBI functioning and a large number of cases were pending before it. It is the said order which is challenged in this petition.
3. After service of notice and appearance of the respondent, the Superintendent of Police, CBI, Patna was arrayed as second respondent. By order dated 9.12.1996, a report was called for from the Special Judge as to the condition of the present case as well as other cases similarly blocked up. The report of the Special Judge dated 25.12.1996 has disclosed a shocking state of affairs. As regards the present case, the relevant part of the report reads as follows:-
“According to chargesheet there are as many as forty witnesses out of whom, the prosecution has examined till today only three witnesses. The last witness was examined on 3.9.93. Thereafter 36 adjournments were given to the prosecution for examination of remaining witnesses. However, the Prosecution has failed to examine any of the remaining witnesses. The next date fixed in the case for production of witness by the prosecution is 6.1.97, it would not be out of place that myself joined by Special Judge only on 21.9.96, thereafter I also directed the CBI to produce witnesses.”
4. The report contains details of other pending cases. There are as many as 52 cases ranging from 1975 to 1996 pending at the stage of evidence relating to CBI, South Bihar and 44 cases ranging from 1972 to 1992 relating to CBI, North Bihar. By order dated 6.1.1997, we directed the Superintendent of Police to file a counter affidavit explanatory to the remarks made by the Special Judge in his report with regard to the pendency of matters. The counter affidavit filed by the Superintendent of Police in February, 1997 has attempted to throw the blame on the accused. In para 9 thereof, it is stated as follows:-
“However, on perusal of the order sheet it would appear that all the times despite the police papers being made available and inspection being completed, the accused with a view to delay framing of the charge, filed petition after petition for supply of police papers. Such petitions on behalf of the accused were nothing but a dilatory device to delay framing of the charge. Ultimately, charge was framed on 4.3.93; it is also true that only 3 PWs have been examined till date, for the only reason that there has been only one court of Special Judge at Patna hearing Special Cases of CBI since 19.4.94 till date. It is also submitted that on a number of occasions the accused remained absent. No bailable warrant or non-bailable warrants could be obtained against the witnesses, as the trial court always remained busy in other cases. It is pertinent to mention that the Special Judge for CBI, is also Special Judge for Vigilances Cases
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