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High Court Of Calcutta
P. N. Sinha
ABANI MOHAN BISWAS - Appellant
Versus
STATE - Respondent
C. R. R. 1850 Of 1993
Decided On : 07/28/2004
SPEEDY TRIAL - QUASHING OF CRIMINAL PROCEEDINGS - DELAY - NEGLIGENCE OF ACCUSED PERSONS - ARTICLE 21 OF THE CONSTITUTION OF INDIA - INTERPRETATION AND APPLICATION - SECTION 401 AND SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE - SCOPE AND APPLICABILITY - SECTION 317 OF THE CODE OF CRIMINAL PROCEDURE - APPLICATION AND EFFECT - WITNESSES - ATTENDANCE AND EXAMINATION - JUDICIAL MAGISTRATE - DUTIES AND POWERS - CHIEF JUDICIAL MAGISTRATE - POWERS AND JURISDICTION - TRANSFER OF CASES - AUTHORITY AND PROCEDURE - DELAYED TRIAL - FACTORS TO BE CONSIDERED - LIMITATION PERIOD - ABSENCE - GENERALIZATION - CASE-SPECIFIC APPROACH - DELAY CAUSED BY ACCUSED - RELEVANCE AND EFFECT - SECTION 317 OF THE CODE OF CRIMINAL PROCEDURE - APPLICATION AND EFFECT - WITNESSES - ATTENDANCE AND EXAMINATION - JUDICIAL MAGISTRATE - DUTIES AND POWERS - CHIEF JUDICIAL MAGISTRATE - POWERS AND JURISDICTION - TRANSFER OF CASES - AUTHORITY AND PROCEDURE
Fact of the Case:
The petitioners sought to quash a criminal proceeding that had been pending for 27 years, arguing that the delay violated their fundamental right to a speedy trial under Article 21 of the Constitution of India. The prosecution had already examined 11 witnesses, and only three remained to be examined. The petitioners contended that the delay was due to the negligence of the accused persons, who had been irregular in attending court.
Finding of the Court:
The court found that the delay in the trial was not due to the fault of the prosecution but rather due to the negligence of the accused persons, who had been irregular in attending court. The court noted that the accused persons had seldom all attended court on dates of evidence and that the learned Magistrate had even examined witnesses on different dates applying provisions of section 317 of the code in absence of the accused persons.
Issues: 1. Whether the delay in the trial violated the petitioners' fundamental right to a speedy trial under Article 21 of the Constitution of India? 2. Whether the delay was due to the fault of the prosecution or the negligence of the accused persons? 3. Whether the criminal proceeding should be quashed in light of the delay and the principles of speedy trial?
Ratio Decidendi: 1. The court held that the delay in the trial did not violate the petitioners' fundamental right to a speedy trial under Article 21 of the Constitution of India, as the delay was not due to the fault of the prosecution but rather due to the negligence of the accused persons. 2. The court noted that the Supreme Court had held that there cannot be any prescribed period of limitation for the disposal of a criminal case and that each case must be judged in its own background and special features. 3. The court also noted that the Supreme Court had held that while considering the question of delay, the court has a duty to see whether the prolongation was on account of any delaying tactics adopted by the accused and other relevant aspects which contributed to the delay.
Final Decision: The court refused to quash the criminal proceeding but directed the learned Judicial Magistrate concerned to take effective steps and measures to secure the attendance of the remaining witnesses as early as possible and to dispose of the case within 4 months from the date of communication of the order.
( 1 ) THIS revisional application under section 401 read with section 482 of the code of Criminal Procedure (hereinafter called the Code) has been preferred by the petitioners praying for quashing the criminal proceeding being G. R. Case No. 1246/76 arising out of Karimpur P. S. Case No. 9 dated 4. 7. 1976 under sections 147/447/379/324 of the Indian Penal Code (hereinafter called the IPC) now pending in the Court of the learned Judicial Magistrate, 1st Court at krishnagar in Nadia.
( 2 ) LEARNED Advocate for the petitioners contended that the G. R. Case No. 1246 of 1976 arose out of Karimpur P. S. Case No. 9 dated 4. 7. 1976 under sections 147/447/379/324 of the IPC and after completing investigation the police submitted chargesheet in the said case on 10. 2. 1977. Copies of relevant papers were served to the accused persons on 23. 3. 1977. For the last 27 years the trial has not been completed. It amounts to violation of Article 21 of the Constitution as the said Article guarantees fundamental right of speedy trial. In the meantime some of the accused persons have expired and some have become old and it causes inconvenience to them to attend Krishnagar Court from long distance of karimpur for so many years. Continuance of the proceeding after so many years is an abuse of the process of the Court and accordingly in view of the guarantee of fundamental right of speedy trial as enshrined under Article 21 of the Constitution, the present proceeding should be quashed. In support of his contention he cited the decisions in Rajendra Kumar vs. State of M. P. , reported in 1989 Cr. LJ 554, Mihir Kumar Ghosh vs. State of West Bengal, reported in 1990 Cr. LJ 26 and Ranjit Kumar Pal vs. State, reported in 1990 Cr. LJ 643.
( 3 ) LEARNED Advocate appearing for the State contended that already 11 witnesses have been examined by the prosecution. Only three witnesses are left to be examined and the learned Magistrate tried his best to secure attendance of witnesses and warrant was also issued against doctor witness. Ordersheet reveals that accused persons were irregular in attending Court and the delay, if any, was not for the fault of prosecution but for the fault of accused persons. There cannot be any direction for quashing of the criminal proceeding. The Court may direct the learned Magistrate to expedite the trial within a very short time.
( 4 ) AFTER perusing the revisional application and annexures and considering the submissions made by the learned Advocates for the parties I find from the materials on record that the G. R. Case No. 1246 of 1976 now pending in the court of the learned Judicial Magistrate, 1st Court, Krishnagar, Nadia arose out of Karimpur P. S. Case No. 9 dated 4. 7. 1976 under sections 147/ 447/ 379/ 324 of the IPC. Certified copy of the ordersheet annexed with the revisional application reveals that after completing investigation the police submitted chargesheet which was received in Court on 10. 2. 1977. The ordersheet further reveals that copies of relevant papers were served to the accused persons on 23. 3. 77 and the case was transferred to Sri A. K. Banerjee, learned Judicial magistrate for disposal. Scrutiny of the ordersheet makes it clear that the accused persons were very irregular in attending Court and negligence of the accused persons to attend Court is apparent on the face of the ordersheet. I find that on several dates all the 12 accused persons remained absent and, on some dates 2/3 accused persons remained present and others remained absent and, on some dates 6/7 accused persons remained present and others remained absent. It is also clear from the ordersheet that out of 14 witnesses already 11 witnesses have been examined by the prosecution. As doctor Swadesh Saha did not appear learned Magistrate has issued bailable warrant against the said witness. On 26. 7. 93 for the first time learned Advocate for the accused persons prayed for closing the prosecution case which was rejected
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