1999 Supreme(SC) 1102

1999(8) Supreme 237
Supreme Court of India
(From Patna High Court)
K.T. Thomas, M. Srinivasan &M.B. Shah, JJ.
Raj Deo Sharma -Petitioner/Appellant
versus
The State of Bihar -Respondent
Criminal Miscellaneous Petition No. 2326 of 1999
In
Criminal Appeal No. 1045 of 1998
Decided on 22-9-1999
Counsel for the Parties :
For the Petitioner/Appellant : Gopal Subramaniam, Sr. Advocate, (Atul Sreedharan Advocate, for M/s. K.L. Mehta & Co., Advocates.
For the Respondent : Kumar Rajesh Singh, Advocate for B.B. Singh.
For Central Bureau of Investigation Government of India : Altaf Ahmad, Additional Solicitor General, P. Parmeswaran, A.D.N. Rao, Ashok Bhan, Advocates.

Very Important points
1. The trial Court cannot flout the mandate contained in Section 309(1) of Cr.P.C. to continue examination of witnesses from day-to-day until the witnesses in attendance have been completed. No Court has permission to adjourn examination of witnesses who are in attendance beyond the next working day.
2. The Supreme Court directed the High Courts to take note of the conduct of any particular trial Judge who violates the legislative mandate contained in Section 309(1) of Cr.P.C. and to adopt such administrative action against the delinquent judicial officer as the law permits.

Headnote:Code of Criminal Procedure, 1973-Sections 309 and 311 r/w Article 21 of the Constitution of India-Criminal trial-Time limit for complet­ing trial-Directions of Supreme Court in Raj Deo Sharma v. State of Bihar, 1998(7) Supreme 556 : 1998(4) Crimes 53 : 1998(7) SCC 507 fix­ing time limit of two years in respect of offence punishable with imprisonment not exceeding seven years and three years in respect of offences punishable for period exceeding 7 years for closing evidence-Petition by CBI for directions/modification/clarification of direc­tions-Prayer to hold in abeyance the operation of judgment/order in Raj Deo Sharma’s case- Rejected - Clarification issued-Delay caused due to absence of presiding officer can be excluded from time limit fixed in Raj Deo Sharma case- Delay in appointing successor P.P. cannot be excluded -If tenure of P.P. expires he shall continue to hold office and function as P.P. until his successor takes charge from him-If office of P.P. falls vacant on account of any other reason period of three months can be excluded-Discounting of time on vague premises that prosecutor would be disabled from completing evidence due to systemic causes not permissible-Court cannot adjourn examination of witnesses who are in attendance beyond next working day-Trial Court cannot flout mandate contained in Section 309(1)-High Courts are directed to take note of trial Judge who violates legislative mandate and to adopt administra­tive action against delinquent judicial officers.

       Held : Per Thomas, J.-

       We have not fixed an out time limit for conclusion of all criminal proceedings in a case. Nor did we go counter to the decisions of the Constitution Benches of this Court in A.R. Antulay v. R.S. Nayak (1992(1) SCC 225), and Kartar Singh v. State of Punjab (1994(3) SCC 569). In paragraphs 12 to 14 of our judg­ment we have considered the ratio in the afore-cited decisions and by keeping track with the observations therein we made the endeavour to achieve to the possible extent the noble ideal of “speedy trial” which has been held repeatedly by this Court to be an incidence of Article 21 of the Constitution. The whole idea was to speed up the trial in criminal cases to prevent the prosecution from becoming a persecution of the person arrayed in a criminal trial. No trial can be allowed to prolong indef­initely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d’etre in prescribing the time frame within which prosecution evidence must be closed. It may be remembered that even the different periods suggested by this Court for closing prosecution evidence in different categories of cases are not unexceptional as could be noted from the two exceptions provided therein. (Paras 3, 4 and 5)

       We are inclined to state by way of clarification that the discre­tion of the Courts in granting further time (exercis­able “for very exceptional reasons to be recorded and in the interest of justice” as for Direction No. (iii) above in Raj Deo Sharma s case can be imported in res­pect of Direction No. (i) as well. (Para 6)

       The judgment has clearly provided that if the inability for completing prosecution evidence was attributable to the conduct of the accused, the Court is not obliged to close the prosecution evidence at all. If the trial gets postponed on account of pendency of any appeal or revision filed against any interim order even though there was no order of stay it is open to the trial court to reckon that period also within the ambit of clause (iv) extracted. Therefore there is no scope for any apprehension that an accused might take advantage of the said excluding provision “by filing appeal or revision against interim orders and it would indirectly delay the trial without obtain­ing any stay orders from superior Courts.” (Paras 7 & 8)

       The power of the Court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case it is the duty of the Court to summon and examine or recall and re-examine any such person. (Para 9)

       The plea that due to systemic causes the prosecutor would be disabled from completing evidence in a trial and hence that time must also be per­mitted to be discounted cannot be accepted. The prosecutor cannot be permitted to take advantage on any such vague premises. However, we have noticed that absence of presiding officer in a trial Court either on account of the physical disability or due to the delay in taking over the charge of the Court) is a valid cause which disables the prosecution from adduc­ing evidence. So we are of the view that such time can also be exclud­ed by the Court from the period which we have prescribed in the judg­ment for completing prosecution evidence. (Para 10)

       Learned Solicitor General pointed out as causing delay is, when a public prosecutor demits office due to any eventuality there would arise some interval for his successor to take charge. He pleaded that the said interregnum should also be excluded from the aforesaid periods. It is the look out of the State to see that there is no unnecessary delay in appointing a public prosecutor to the existing vacancy. The State cannot take advantage of its own inaction. Nonetheless, to avoid any possible dislocation of the trial on account of any such eventuality we make it clear that if the tenure of office of a particular person as public prosecutor expires he shall continue to hold office and function as public prose­cutor until his successor takes charge from him. If the office of a public prosecutor falls vacant on account of any other reason, a period of 3 months shall be excluded from the periods fixed under direction No. (i) and (iii) for enabling the State Government to appoint a public prosecutor to that office. (Para 11)

       Section 309(1) of the Code enjoins on every trial Court to contin­ue examination of witnesses from day-to-day until the witnesses in attendance have been completed. We cannot permit the trial Court to flout the said mandate of the Parliament unless the Court has very cogent and strong reasons. No Court has permission to adjourn examination of witnesses who are in attendance beyond the next working day. (Paras 12 & 13)

       We request every High Court to remind the trial judges through a circular of the need to comply with Section 309 of the Code in letter and spirit. We also request the High Court concerned to take note of the conduct of any particular trial judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as the law permits. (Para 14)

       Learned Additional Solicitor General submitted that unless directions No. (i) and (iii) are made prospective from the date of judgment in Rajdeo Sharma prosecution in many pending cases would be jeopardised. He pointed out that on the date of the said judgment the period concerned stood expired in many cases. We have bestowed our consideration on the said submission and we find force in it. Possibility of miscarriage of justice resulting therefrom must be averted. We are, therefore, inclined to include a rider that an addi­tional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of judgment in the main appeal, and the Court concerned would be free to grant such extension if the Court considers it necessary in the interest of administration of criminal justice. As we suspended the operation of the judgment from 14-5-1999 till today the said time of suspension will stand excluded from the aforementioned additional period of one year. (Para 15)

       Per M. Srinivasan, J.-(Concurring with Thomas, J.)

       In Raj Deo Sharma’s case the court has not fixed any time limit for the conclusion of trial. As such, the Court has only laid down guidelines for closing the prosecution in certain circumstances. There is a difference be­tween fixing a time limit for the disposal of a trial and fixing time limit for the prosecution to complete its evidence. A perusal of the guidelines contained in the main judgment would themselves show that there is no hard and fast rule applicable to every case, irrespective of facts and circumstances thereof. If the delay is not due to any fault of the prosecution, it is open to the prosecution to place the relevant facts before the Court and seek further time for producing its evidence. It is clear from the last part of clause 3 in paragraph 16 of the judgment. Even though, there is no express exception similar to that in clause 1 in paragraph 16, the same position will obtain. The judgment in the appeal cannot be understood as punishing the prosecu­tion and preventing the same from adducing evidence even when it is not responsible for the delay. (Para 20)

       When the prosecu­tion delays the pro­duction of its witnesses, the failing human memory of such witnesses could be certainly advantageous to the accused and even in such cases, there will be a failure of the system. The problem is one of basic human rights of persons languishing in prison for years together which in several cases exceed the maximum period of punishment prescribed for the offences alleged to have been committed by them even before the trial is concluded. Even if the accused are not in prison, they would be suffering from immense mental agony as if a dagger is hanging over their heads. Can they be compensated if they are found to be innocent at the end of the trial?. As pointed out in Antulay’s case, the Court has to balance and weigh the several relevant factors and determine in each case whether the right to speedy trial has been denied in the given case. It is only to enable the Subordinate Courts to apply the right balancing test or balancing process, the guidelines have been given in the judgment in the main appeal. (Paras 21 & 22)

       The operation of a judgment rendered by the Court cannot be held in abeyance indefinitely when there is no appeal or review against the same.

       Per Shah, J.-(Dissenting)

       The directions issued in Raj Deo Sharma’s case 1998(7) Supreme 556, virtually prescribes time limit to close the prosecution evidence in cases where the of­fence is punishable with imprisonment for a period not exceeding seven years or for a period exceeding seven years. In view of these direc­tions the accused may get acquittal on the ground of delay without considering the fact that in number of cases delay might be because of large number of cases pending before the Court and insufficient strength of judges to cope up with the workload. Delay only due to congestion of Court calendar, unavailability of Judges and on occasions non-availability of counsel for either party or any other circum­stances beyond the control of prosecution cannot be a ground for closure of prosecution evidence. (Para 30)

       Because of the directions in the said judgment after a lapse of a particular time, under trial prisoners are not kept in jail, still the question remains of their trial. If their trial is delayed for various reasons, would it be just, fair and reasonable to direct the trial Courts to stop further proceedings in the case and dispose of the same without recording further evidence? In some of the cases, allegations against the accused would be of serious nature, such as, corruption which has affected the entire moral fiber of the society, large scale frauds and misappropriations by persons in power or authority and offences against human body including rape. In all such cases, accused including dreaded accused would get undeserving benefit by prescribing the time limit as directed in paragraph 17 in Raj Deo Sharma’s case. In my humble view, this may result in doing injustice to the society, to the victims or the heirs of the victim who is murdered - for such delay in trial they are not responsible. All the beneficiaries of the large scale frauds, all the employees who have misappro­priated large sum of money from the public exchequer or private employer or accused who are tried for corruption cases would get undeserving benefit at the system of implementation of law. (Para 32)

       Before appropriate steps are taken for remedying the known causes of delay - without considering the pendency of the matters in all Courts and without finding whether prosecution agency was at fault for delay or delay was caused for any other reasons, it would not be just or fair, equitable or reasonable to prescribe time limit and give benefit to the accused persons, against whom serious charges are levelled, solely on the ground of delay in trial. If this is continued and permitted, it would affect the smooth functioning of the Society in accordance with law and finally the Constitution. If the victims are left without any remedy, they would resort to taking revenge by unlawful means resulting in further increase in the crimes and crimi­nals. People at large in the Society would also feel unsafe and inse­cure and their confidence in judicial system would be shaken. Law would loose its deterrent effect on the criminals. (Para 37)

       Until there is radical simplification and streamlining of Criminal Procedure Code as well as the method of investigation of crimes, it would not be just and reasonable to close the prosecution evidence solely on the ground of delay in trial. (Para 38)

       Delayed trial may not always be unfair to the accused. On occa­sions, accused take advantage of such delays and it would depend upon the facts and circumstances in each case. The larger bench of this Court has specifically held in Antulay’s case “it is neither advisable nor feasible to draw or to prescribe any outer limit for conclusion of all criminal proceedings.” In cases where delay for trial rests not on the prosecution agency then it would not be fair to close the prosecu­tion evidence after prescribed period. In any case, before directing to close the prosecution evidence, the nature of offence is required to be taken into consideration. Prescribing time limit would be against the decisions rendered by the Constitution Bench of this Court in A.R. Antulay and Kartar Singh cases (supra) as well as other decisions stated above. It would be prescribing time limit which is not provided by Criminal Procedure Code or by any other statutory provision. And finally , it would have an adverse effect in implement­ation of criminal law. (Paras 40 & 42)