1991 Supreme(Bom) 554

IN THE HIGH COURT OF BOMBAY
M.F. Saldanha, J.
R. Mahadevan Iyer.... Petitioner.
Versus
State of Maharashtra another.... Respondents.
Criminal Application No. 2652 of 1991, decided on 27-11-1991.
Advocates appeared :
Vijay Pradhan and I.S. Thakur, for the petitioner.
R.F. Lambay, A.P.P., for the respondent.

Headnote:Constitution of India 1950 - Article 21 - Criminal Procedure Code, 1973 - Section 482 - Right of speedy trial - State prosecutions cannot be permitted to continue if they have been going on for an abnormally long period of time - If High Court is satisfied that no useful result would be achieved by allowing the continuance thereof this Court would be justified in exercising its inherent powers to quash the proceedings.

       Held, that the State, which is the prosecuting authority and which is the authority exercising full control over all the aforesaid authorities and, departments, is obliged, as of necessity, to create the necessary infrastructure for the purpose of implementing Constitutional Guarantees, and if there is failure on its part in this regard, the Constitutional safeguards shall prevail. Articles 20 and 21 of the Constitution prescribe that a citizen shall not be deprived of his liberty except through the procedure prescribed by law and, furthermore, that a person accused of a criminal offence shall be guaranteed a speedy trial. Logically, therefore, if a speedy trial cannot be ensured, the citizens liberty cannot be curtailed and he will, therefore, have to be set free. Where an accused who is facing a trial is in custody or whether he is on bail are matters of little consequence in this regard because the liberty of the citizen is still curtailed completely or partially and this can only be done within the framework of law. It is in this background that the grievance projected by the present petitioner against whom proceedings are pending since the year 1976 and which have far from concluded in 1991 will have to be examined. (Para 3)

       Further held: It is unnecessary to go into the question as to why the criminal proceedings before the trial court have not been disposed of even though more than 12 years have elapsed since the chargesheet has been filed. Some vague references were made by the learned A.P.P. to the affect that in the course of the last 6 months the accused had asked for time. On a perusal of the record, I find that a bunch of documents had been handed over to the accused at a belated stage and time was asked for on the ground that these documents required to be scrutinized and studied. Such an application was perfectly legitimate, but this is not the ground on which the proceedings have not been concluded for the last 12 years. Whether it was a question of the Court not having time or whether it was a user of the prosecution not having been vigilant about proceeding with the matter are also non-issues because the day we are faced with the situation whereby over the lapse of 12 years the original investigating officer having died, five of the witnesse having died and a majority of others having ceased to be in service, the greater number of others being not traceable/available, the question arises as to whether judicial act should be expended to an empty exercise of further prosecuting these cases. (Para 6)

       Consequently held: A more serious angle which needs to be borne in mind in such situations is that a criminal prosecution, particularly one of the present type, is a very serious matter because lapses on the part of the defence would inevitably result in penal consequences to the accused which could entail a heavy jail sentence and fine. Under these circumstances, the law presupposes that the accused shall also be afforded a fair opportunity to defend himself. In criminal trials, there are several situations whereby a heavy burden is cast on the accused sometimes the onus shifts to the accused in criminal proceedings. Under these circumstances, it is just and necessary that the accused be placed in a position whereby he can fairly conduct his defence. If the incidents in question are extremely old in point of time, the accused himself would be heavily prejudiced in his defence. There are also situations wherein the accused is required to produce evidence to contradict or to extract the prosecution witnesse and there are also instances when an accused may be required to summon defence witnesses, all of which would become almost impossible in instances where the delay has been abnormal. If these factors, which cannot be lost sight of, are taken cognizance of, the question that arises is as to whether even if the prosecution is in a position to fairly conduct its case, whether it would be fair to subject the accused to the rigours of that prosecution at a belated point of time. To my mind, if the accused is required to defend under these several handicaps, it cannot be argued by any stretch of imagination that he has been afforded a fair opportunity of defending himself. (Para 8)