1994 Supreme(Cal) 132

High Court Of Calcutta
Arun Kumar Dutta
MULCHAND AGARWALLA - Appellant
Versus
K.C.KANUNGO - Respondent
CRI. REV.  227  Of  1993
Decided On : 04/15/1994

The direction of a superior court to a subordinate court to dispose of a particular case within a specified period is mandatory when it contains language of compulsive force and confers a valuable right to an accused, the non-compliance of which is likely to affect the safeguard given to him, resulting in prejudice to him (accused).

Headnote:

CRIMINAL PROCEDURE - Direction issued by High Court to dispose of case within specified period - Mandatory or directory - Scope and effect - Delay in trial - Right to speedy trial - Infringement - Quashing of proceedings - Power of High Court under Section 482 Cr.P.C. - Guidelines issued by Supreme Court.

Fact of the Case:

The petitioner-accused, Mulchand Agarwalla, was prosecuted along with others for allegedly entering into a criminal conspiracy and cheating the Railway Department by dispatching eight wagons of steel plates and steel plate cuttings from Chittaranjan against bogus R.R. and Forwarding Notes between the period from 23.9.69 to 15.10.70 in the names of different firms, alleged to be bogus ones, and thereby committing offenses punishable under sections 120B/420/468/471 of the Indian Penal Code, read with section 5(2) of the Act II of 1947, for which he was facing trial before the Special Judge (Additional District Judge) at Asansol in Special Case No. 12 of 1978. In view of the delay in the trial of the relevant case, one of the accused, Sewn Singh, had previously filed a Revisional Application before the High Court for quashing of the relevant proceedings for alleged infringement of his right to speedy trial. A Learned Single Judge of the High Court, instead of quashing the relevant proceedings, had disposed of the said Revisional Application by judgment and order dated 20th December 1991 directing the case record to be sent down to the court below with the specific direction upon the Learned Special Judge to fix a firm date for framing of charge within one month from the date of receipt of the case record and dispose of the case within six months from the date of framing of charge in terms thereof. Despite the aforesaid specific direction issued by the High Court, the Learned Special Judge concerned failed to dispose of the case within the aforesaid period. The present accused-petitioner, Mulchand Agarwalla, has thus now come up before the High Court in Revision for quashing of the relevant proceedings on the ground of delay, and on the ground of the failure of the Learned Special Judge to dispose of the relevant case within the period specified by the High Court under the aforesaid order.

Finding of the Court:

1. The direction of a superior court to a subordinate court to dispose of a particular case within a specified period is mandatory when it contains language of compulsive force and confers a valuable right to an accused, the non-compliance of which is likely to affect the safeguard given to him, resulting in prejudice to him (accused). 2. Where, therefore, a High Court issues direction upon a subordinate court to complete the trial of a criminal case within a specified period, clearly indicating therein in unequivocal terms that if the trial is not completed within the said period the accused would stand acquitted/discharged, conferring a valuable right to the accused to be acquitted/discharged in case of non-compliance therewith, such direction must clearly be held to be mandatory. 3. Where the High Court simply issues a direction upon a subordinate court to dispose of a particular case within a specified period, without anything more-without any default clause therein, viz. that the accused shall stand discharged/acquitted on the failure of the Subordinate Court to dispose of the case within the said specified period, no valuable right is conferred upon the accused, who is not likely to suffer any prejudice should the Subordinate Court fail to comply with such direction. Such direction must be held to be directory as such, and not mandatory; though the failure/neglect of the subordinate court to comply with such direction must be held to be contrary to settled principles of judicial discipline and propriety, not affecting the validity of the acts done; making the subordinate court liable for appropriate action therefor. 4. The right to speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution of India. 5. Inordinate delay and laches in the prosecution without any progress of a criminal proceeding amounts to harassment of the accused warranting interference under inherent powers of the Court. 6. The provisions of Section 482 of the Code of Criminal Procedure empower the High Court to quash criminal proceedings if the right to speedy trial is violated.

Issues: 1. Whether the direction of a superior court to a subordinate court to dispose of a particular case within a specified period is mandatory or directory? 2. Whether the failure/neglect of the Learned Special Judge to comply with the specific direction of this Court, contained in the aforesaid order dated 20.12.91, for reasons not disclosed in the record, amounts to contempt of Court?

Ratio Decidendi: 1. The determination of whether a provision is mandatory or directory depends on the real intention and the broad purpose/object of such direction. When such direction contains language of compulsive force, the same ought to be construed as peremptory. When such direction confers valuable right to an accused, the non-compliance of which is likely to affect the safeguard given to him, resulting in prejudice to him (accused), the direction must be held to be imperative. 2. The right to speedy trial is an implicit fundamental right guaranteed under Article 21 of the Constitution of India. Inordinate delay and laches in the prosecution without any progress of a criminal proceeding amounts to harassment of the accused warranting interference under inherent powers of the Court. 3. The High Court has the power under Section 482 of the Code of Criminal Procedure to quash criminal proceedings if the right to speedy trial is violated.

Final Decision: 1. The Revisional Application is dismissed. 2. The Learned Special Judge shall seek to dispose of the relevant proceedings, as early as possible, preferably within a period of nine months from the date of communication of this order. 3. The Learned Special Judge and the Bench Clerk concerned, who had dealt with the relevant case (Special Case No. 12 of 1976) from 16.3.92 to 16.9.92, are directed to appear before the High Court on 13th May 1994 at 10.30 A.M., and show-cause in person as to why they shall not be dealt with for Contempt of Court and/or otherwise appropriately dealt with therefor.