1993 ALLMR ONLINE 614
BOMBAY HIGH COURT
M.F. SALDHANHA, J.
Shyam Narayan Singh Vs. State of Maharashtra and another
Criminal Writ Petition No. 938 of 1992
25th June, 1993
Respondent Counsel: S. G. Page, Public Prosecutor with D. T. Palekar, A.P.P., M. K. Patwardhan, .
Constitution of India,Art. 21 Constitution of India,Art. 21
1990 Cri LJ 1652 (Bom) : 1990 (1) Bom CR 39 [Para 15]
1989 Mah LJ 844 (Bom) [Para 14]
1985 Cri LJ 1782 : AIR 1986 Patna 38 (FB) [Para 14]
1985 Cri LJ 584 (Pat) [Para 14]
AIR 1982 SC 1167 [Para 16]
1981 Cri LJ 159 : AIR 1981 SC 641 [Para 15]
1979 Cri LJ 1036 : AIR 1979 SC 1360 [Para 16]
1954 Cri LJ 1019 : AIR 1954 SC 397 [Para 12]
JUDGMENT :-Is it conscionable for the State to commence criminal proceedings against a subordinate employee of the Telephone Department in the year 1978, carry on investigations for three years and thereafter suspend him in a state of limbo with no end in sight to the proceedings even in mid 1993, after the lapse of 15 years ? Round one of the litigation is yet to commence, leave alone conclude, and the inevitable appeal which is bound to follow, since the State invariably challenges even orders of acquittal would take the proceedings well into the next century. Is this situation in consonance with the Constitutional guarantee enshrined in Article 21 can it be allowed to pass or is the petitioner before me justified in his plea that this Court must quash the proceeding and sent him at liberty ? That his rights have been curtailed and that his liberty has also been infringed upon through a procedure prescribed by law cannot be denied, but to my mind when that very law prescribes that the process must be completed within fair period of time, any breach of that requirement will have to be to the advantage of the petitioner. First the facts.
2. The petitioner joined the Telephone Department in Bombay in the year 1967 and was promoted to the post of Assistant Engineer in the year 1979. In the year 1978, when he was working at Assistant in the Borivli Telephone Exchange, he was required to verify original records and documents annexed to an application for a subscriber Dr. Miss Shah, for a new telephone connection. It is pertinent to point out that the functions ascribed to the petitioner were that he was required to verify the correctness of the copies of documents submitted to the Department from the original records. It was not his duty to do any field investigations and to go out and physically check up whether the contents of the documents in question are, in fact, correct. Briefly stated, original accused No. 2 Radhakrishnan Bhatia in collusion with original accused No. 3 Ajaykumar Vakharia are alleged to have submitted certain documents in support of the application for the telephone connection in the name of Miss Shah, which indicated that the doctor in question had taken on rent one room in the flat of accused No. 2 and that she had paid certain amounts against the same. These documents portrayed the picture to the Department that Mr. Shah was, in fact, residing in that flat and that since she was a doctor, and was eligible for a telephone which, in turn, came to be sanctioned. All the payments in respect of the telephone connection were made including the rental etc. The Department, however, received a complaint to the effect that Dr. (Miss) Shah was, in fact, dead at the relevant time and that her signatures had been forged on the original documents.
3. The matter was reported to the Central Bureau of Investigations, who commenced an investigation and found on that this position was true, that the signatures of Dr. (Miss) Shah on the original application had been forged, that the so-called rent receipts had been fabricated by accused Nos. 2 and 3 and
in these circumstances the present petitioner, who had verified the copies of the documents submitted to the Department from the originals was also made party to the investigation. He was placed under suspension and on the Central Bureau of Investigations filing a chrgesheet for offence of criminal conspiracy, forgery and user of the forged documents, the present petitioner along with the two other accused were put up for trial before the learned Sessions Judge, Greater Bombay, in Criminal Case No. 30 of 1981.
4. All the three accused have been on bail. The number of Special Judges available for three proceedings is extremely limited and at the best of times, there is invariably only one Judge, the other Special Judges having to take up Narcotice and TADA cases and the remaining Sessions Judges being assigned the criminal work, such an murder cases, etc. The C.B.I. prosecutions invariably involve very large and complicated records which carry before the trial Court for weeks and months and the disposal rate is necessarily very low. In addition to that, the priority is sometimes accorded to those of the cases where one or more of the accused are in custody. These, briefly, are some of the grounds on which it is pointed out to me, that the case remained pending from 1981 up to March 1992 without the charge having been even framed. For 15 years the present petitioner has been under suspension, apart from the trauma of the pending proceedings. He has been receiving only a subsistance allowance and to compound matters, the end of the litigation is nowhere in sight.
5. The petitioner as also his co-accused filed applications for discharge, in December 1991 before the learned Special Judge and placed reliance on a series of decisions in support of the prayer that the criminal proceedings which were 13 years old at that time should be quashed. The learned Special Judge after hearing the parties passed an order dated 17-3-1992 rejecting the application for discharge in which he expressed the view that the only ground on which the learned Special Judge could discharge an accused person is where no prima facie case is made out; that the material before the Court spelt out a case of criminal conspiracy, forgery and user of forged documents and that, consequently, the application for discharge could not be granted. As regards the main issue, the learned Special Judge has observed that the power to quash a prosecution is a jurisdiction that is circumscribed to the superior Courts in exercise of inherent powers or writ jurisdiction, that such powers were not vested in the Court of Session and that, consequently, it was not open to him to decide the issue regarding Article 21 of the Constitution of India. It is after the passing of this order that the present criminal writ petition was filed before the High Court.
6. Shri Kini, learned counsel appearing on behalf of the petitioner, first dealt with the matter on merits. He pointed out to me from the material on record that he has nothing to say with regard to the main charge against accused Nos. 2 and 3 because the complaint of the Telephone Department was that it was they who desired to obtain the telephone connection in the name of Dr. (Miss) Shah who was admittedly dead at the relevant time and that the investigation alleges that the documents in question had been fabricated by them. He states that it is legally impermissible to conclude from the material on record that the present accused who was an employee of the Department was acting in collusion with those persons. He points out to me that the accused was a very junior employee, virtually on par with a clerk, and that his function had been restricted to a verification of the copies of the documents. He was not the authority empowered to either sanction the phone connection or to decide as to whether it should be recommended and in these circumstances that the entire charge against him is misconceived. If the originals were forged, there was no conceivable ground on which he could have suspected their genuineness and if he certified that the copies tally with the originals, it is certainly not a criminal offence. He also drew my attention to the fact that
there is no suggestion that he received any consideration or that the investigation revealed any disproportionate assets and in these circumstances, his being retained under suspension for this long period of time which has virtually finished him and his family is tragic and at least at this stage the Court should clear him. Shri Kini was rather eloquent and at the same time emphatic in illustrating the utter ruinous effect that the pendency of such a prosecution has had on his client for the last 1 1/2 decades and make an impassioned plea to this Court that he be relieved of it. That the petitioner has been hanging under a virtual "sword of democles" cannot be disputed.
7. Shri Patwardhan on behalf of Respondent No. 2 disputed the correctness of Shri Kini's submissions. He contended that it is a matter of evidence and that the Department was in a position to establish that the petitioner was acting in collusion with the other culprits.
8. To my mind, a perusal of the material on record will indicate that the learned Special Judge has failed to apply his mind to one singular aspect of the case. It is not the generality of the charge, namely, the question as to whether a fraud had been played on the Department through the assistance of documents which are admittedly fabricated that is the issue as far as this petitioner is concerned, but the most important aspect as to whether there is anything to show that he was aware of this or that he was concerned in any such activities. An examination of the material will indicate that precisely this crucial nexus is missing and in these circumstances the framing of the charge against the present petitioner is a worthless exercise as there is virtually no case against him. The end result of the whole operation would, therefore, be a virtual zero in so far as the trial would have to end in an acquittal where he is concerned. It is well settled law that where there is no case against an accused person that he must be discharged and to this extent the learned Special Judge was clearly in error in having refused to discharge this petitioner. Neither from his individual acts nor from the allegations in support of the charge that he was a part of the conspiracy can any culpability be established against this petitioner and he would, therefore, have to be discharged.
9. Apart from the merits of the matter, Shri Kini has also agitated the issue regarding Article 21 of the Constitution. The law is now well crystallised and has virtually been set at rest through a series of judgments dealing with the right of an accused person to a speedy trial and different High Courts and the Supreme Court have in various situations laid down as to when and in what circumstances a criminal proceeding can be prematurely terminated through an order of quashing if the trial is unduly delayed. It is necessary to briefly deal with this aspect of the case because it has been argued in all seriousness by both the sides. Shri Patwardhan on behalf of the respondents contended that the petitioner would only be justified in making such a prayer provided he demonstrated that it was the prosecution and the prosecuting authorities which mere responsible for the delay and further that the trial ought to have been concluded, but for the fault of the prosecuting authorities. He stated that the prosecution has not asked for adjournments. It is not as though the Court was willing to take up the matter and could not do so because either the Prosecutor was not ready or the witnesses were not available or, lastly, that the record was not before the Courts. He stated that the heavy backlog of pending cases and non-availability of Courts was the only ground Shri Patwardhan submitted that in the absence of any fault on the part of the prosecuting authorities, there was no warrant or justification for the prosecution to be quashed. He went to the extent of submitting that the prosecuting authorities were themselves willing to go on with the matter, but that the Court had never taken up the same in spite of repeated requests and in these circumstances, the prosecuting authorities should not suffer and the accused should not be benefited by getting out of a heavy trial.
the Central Bureau of Investigation, which is the investigating and prosecuting authority of the State. What he overlooks is the fact that this authority is only one of the several arms of the State, another one being the judiciary which adjudicates the case after the investigation is complete. The different arms of the Government must, of necessity, work in co-ordination and it is of equal importance that the Government itself must ensure that where one organ of the Government, namely, the Police arrest, detain and prosecute a certain number of citizens, that the Courts which are thereafter to deal with those cases are sufficiently and adequately staffed and equipped in order to hear and complete them within a reasonable period because this is what the Constitution insists upon. It is tragic, to say the least, that in spite of demands from citizens, lawyers, Bar Councils, journalists and the like that this crucial aspect of the matter has been given a back seat and that the Government has not so far seen to it that there are enough Courts and Judges to keep pace with the number of cases filed. This lack of co-ordination between the two organs of the Government has resulted in human misery of stupendous and staggering dimensions with accused persons who are presumed to be innocent until proved otherwise in our criminal justice system having to wait for years together, often times in custody, before they are put on trial. It has been pointed out recently that in the city of Bombay, in narcotics cases and even in murder trials, the accused are retained in custody very often for over five years before the trial commences and there is nobody to compensate them if they are acquitted after this long period of incarceration.
11. As I shall demonstrate, this delay alone contributes to serious injustice of a different type as is evident for the following instances. When there is an abnormally long delay of this type, the first casualty is the prosecution itself because the witnesses themselves are often not traceable or are dead by the time the trial commences. Even in cases where they are traceable, because of the time-lag and the inevitable problems of human memory, the quality of the evidence, undoubtedly, suffers. Next comes the problem of tracing the records and documents which have invariably vanished or got destroyed and even, if they are available, there is heavy deterioration in their quality. A classic instance arose in an appeal heard by me recently where the C.B.I. authorities had done a perfect job in using three tape recorders in a corruption case where the entire proceedings had been recorded and the tapes were sealed immediately thereafter, but in the long time that it took for the trial to commence, the tapes themselves had deteriorated and had become inaudible to a large extent and, therefore, could not be used by the prosecution. The virtual back bone of a criminal prosecution is the Investigating Officer. It has been found that where an abnormal time-lag takes place between the investigation and the trial, the officer having been transferred or promoted several times in between or, as invariably happens, having retired, the level of enthusiasm displayed by him when the prosecution actually starts is abnormally low principally because he is handicapped by the fact that he has to unearth material that was gather many years ago. Worse still are the numerous instances where the Investigating Officer has retired and gone away and is not traceable or has died. A weak attempt is made by some other officer who can be hardly interested in doing a good job of somebody else's case which is like an exercise of trying to flog a dead horse. The chief casualty in all delays is the interest of justice.
12. The constitutional mandate in respect of a speedy trial envisages two principles, the first being that there is value attached to the life and property of the citizen which cannot be curtailed, even if there is legal justification, without trial for an abnormally long period of time. The more important principle embodied is that justice should be done in the sense that if an offence has been committed which requires punishment that the corrective procedure should not be frustrated as otherwise it would lead to an inevitable breakdown of law
and order. The Supreme Court in the case of Sheriff v. State of Madras, AIR 1954 SC 397 : (1954 Cri LJ 1019), had observed that it is essential that the guilty be punished when facts are fresh in the public mind. At the same time, when a citizen is put on trial, the Constitution guarantees him a fair opportunity of defending himself. If a man is put on trial on a charge that is ten or twenty years old, he is gravely handicapped in his defence while meeting that charge and at the same time would probably not be able to lay hands on witnesses or material that may be required but which is no longer available.
13. To my mind, the defence put forward by Shri Patwardhan who represents the prosecuting authority that they are not at fault in so far as they were always willing to proceed with the trial but that the non-availability of the forum, namely, the Court is something for which the prosecution should not be made to suffer is totally misconceived. It is not the C.B.I. or the Police who are the prosecuting authority in the real sense of the term, for they are only the agents of the State. The setting up of a sufficient number of Courts is entirely the responsibility of the State and if it has failed miserably to live up to its responsibility on this count, there can be no cause for complaint because the fault lies squarely at the doors of the Government. The present case happens to be one where, to my mind, no useful purpose will be served by keeping the prosecution pending against the present petitioner and, therefore, quashing of the prosecution would not be unfortunate but, on the contrary, is necessary to meet the ends of justice. The same cannot, however, be said with regard to several other instances where the offences are serious, where the accused, in fact, ought to be put on trial and punished and where they virtually get away by default only because abnormal delay has occurred due to the fact that there are too few Courts, too many cases pending and too long a waiting period. This last aspect of the matter is one of seriousness because it is not in the public interest that grave offences should go unpunished and it is hoped that the Government at least at this stage will take immediate corrective action by forthwith taking steps to ensure that the number of Courts and Judges along with the requisite infrastructure is increased sufficiently to deal with the volume of cases that are put up for hearing.
"In the case of Narayan Sambhaji Shinde v. State of Maharashtra, 1989 Mh LJ 844, a learned single Judge of this Court (Deshmukh, J.) quashed a prosecution pending before Magistrate for 15 years where only the charge had been framed during this long period of time. In a Full Bench decision of the Patna High Court in the case of the State v. Maksudan Singh, AIR 1986 Pat 38 : (1985 Cri LJ 1782), the Court after a careful consideration of the entire law on the subject quashed a criminal proceeding that had been pending for over ten years due to the fault of the prosecution in that case. An argument was advanced in that case that the right to a speedy trial which is now deemed to be implicit in Article 21 of the Constitution by virtue of various precedents, though an enforceable right in India must be treated to be lesser in content and effect from what it would be in America where it was a part of the Constitution in express terms. Relying on the language of the Sixth Amendment to the American Constitution, which was conspicuous by its absence in Article 21, it was argued that such a right in India rests on a pedestal much lower than that under the American Constitution. This argument did not find favour with the learned Judges, but I need to record that it is necessary to draw any such distinctions because the wording of the 6th Amendment to the American Constitution, in fact, forms the basis of the principles laid down by the Apex Court of this country while enforcing Article of the Constitution. There can be no question of lesser or greater application of a right or a principle which is either enforceable or not and where it has been held time and again that such a right is implicit, that it flows from Article 21 and that it
can be insisted upon, there is no longer any scope for debate. After the decision of the Supreme Court in Ramdaras Ahir's case 1985 Cri LJ 584, it is unnecessary to launch upon a fresh desertation upon the enlarged and expanded concept of Article 21 of the Constitution."
15. Shri Kini also relied on the decision of the Supreme Court in the case of State of Bihar of Uma Shankar Kotriwal, AIR 1981 SC 641 : (1981 Cri LJ 159), wherein the Supreme Court had quashed a prosecution under the Essential Commodities Act that had been pending for 20 years. The interesting point that arose in that case was that the accused themselves had moved the superior Court and for a variety of reasons were partially responsible for the delay for sometime, but the Supreme Court still held that apart from this minor aspect that the prosecuting authorities themselves were in the greater part responsible for the non-completion of the trial and still quashed the proceeding. In a recent decision of this Court in the case of Narain Singh Yadav v. Deputy Chief Controller of Imports and Exports, 1990 (1) Bom CR 39 : (1990 Cri LJ 1652), Suresh, J. (as he then was) held that a prosecution that had been pending for more than 15 years and where there was no prospect of the trial concluding for an equal number of years that the sword cannot be kept hanging for ever and that the prosecution was liable to be quashed.
The Supreme Court in Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360 : (1979 Cri LJ 1036), while dealing with a series of petitions which essentially concerned pre-trial release had occasion to deal with the provisions of Article 21 of the Constitution and after repeatedly emphasising the essence of the principles embodied in Art. 21 of the Constitution, namely, the avoidance of injustice by virtue of delay in disposal of cases held that the accused before the Court were entitled to be released. In the case of Kadra Pahadiya v. State of Bihar, AIR 1982 SC 1167, the Supreme Court observed : "A speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution..........."
17. Apart from some of the aforesaid decisions, which have been referred to by Shri Kini, it needs to be emphasised that the State which is the prosecuting authority and which has demonstrably failed to provide the requisite machinery for the disposal of the criminal cases instituted by it cannot be permitted to keep those cases pending by trampling on the rights of a citizen on the ground that the Criminal Courts are unable to dispose of the case within a prescribed time. The fault, if any, lies not with the Courts but with the Government and it is unfortunate, to say the least, that nothing has been done to remedy this state of affairs.
18. The present petitioner is entitled to succeed on both counts. In the first instance, there is no case made out against him that would warrant even the framing of a charge and, secondly, on the basis of the time-factor the present prosecution is liable to be quashed. The petition accordingly succeeds. The criminal prosecution, namely, Special Case No. 30 of 1981 pending against the present petitioner is quashed so far as he is concerned. His bail bond to stand cancelled. It is also directed that any consequential action that has resulted from the present prosecution is also quashed and set aside.
19. Special Note : As I have already indicated, the Courts have, in the past, made similar observations as those in this judgment, but with precious little response from the Government. It is, therefore, in the public interest as also equally in the interests of justice that this lethargy be shaken off, because it would be both dangerous and unhealthy to allow prosecutions to lapse because of overloading of the Courts. Such overloading is equally unfair to the existing judicial officers who are being severally fettered by the sheer work-load. Many of the Judges have pointed out that literally half of
In these circumstances, it is directed that the Registrar of this Court shall forthwith send a copy of this judgment to the Secretary to Government, Law and Judiciary Department of India. The concerned Secretaries shall confirm in wring to the Registrar that the judgment has been perused by them and that it has been shown to the concerned Ministers. The respective Departments shall, within 30 days, submit a report to this Court indicating as to what are the arrears of pending cases under the different heads of Courts, what are the number of Judges that would be required to dispose of those cases and within how much time the Government will set up the concerned Courts. Shri Patwardhan on behalf of the respondents advanced the age-old plea that the Government is short of funds. That position is unacceptable as the funds will have to be found. Shri Kini pointed out that the Government needs to crucial wasteful expenditure on its part in which case ample money will be available - that is a budgetary exercise which the Government shall undertake, but I do not for a minute accept such excuses when it comes to the needs of the judiciary. To my mind, the obligation is basic, it is a constitutional must which the Government simply has to implement.
Shri Patwardhan, learned counsel appearing on behalf of the Department, submits that the order passed in this case is one of far-reaching consequences and he, consequently, prays for stay of operation of the order for a period of 12 (twelve) weeks to enable the Department to obtain a certified copy and to thereafter consider the same in the light of the legal advice tendered to the Department for purpose of deciding on a further appeal to the higher Court. Normally, such an application being perfectly reasonable, I would have granted the same. In the present case, the application is rejected for the following reasons.
In the first instance, the ground on which the present prosecution has been quashed is essentially that even after a delay of 15 years the trial has not yet commenced and, therefore, there is an infringement of the principles guaranteed by Article 21 of the Constitution. I need to record that while considering the plea under Article 21 of the Constitution, I have relied on decisions not only of this Court but several of the consistent views of the Supreme Court. The law is well-crystallized and in these circumstances, to my mind, there can be no question of subjecting the petitioner any further handicaps by granting stay. In addition to this, I have already had the occasion to assess the case on merits and have recorded the conclusion as far as this accused was concerned that the framing of the charge itself was unjustified. This is an additional ground on which, to my mind, stay of the order cannot be granted. The application for stay is accordingly rejected.
Shri Patwardhan thereafter submitted that the point involved in this case is of considerable importance and that, consequently, the respondents be granted leave to appeal to the Supreme Court. The issue involved, namely, the rights that flow to the accused by virtue of Article 21 of the Constitution has been the subject-matter of several judicial decisions and the law is well-crystallized. In these circumstances, to my mind, this is not a fit case in which leaves to appeal under Art. 134 of the Constitution can be granted. The application for leave to appeal to the Supreme Court is accordingly rejected.