Criminal Application No.804 of 2001

20th September, 2001

Petitioner Counsel: Mr. RAGHAVENDRA JOSHI
Respondent Counsel: Mr. EZAZ KHAN

Cases Cited:
Abdul Rehman Antulay Vs. R. S. Nayak, (1992) 1 SCC 225 [Para 4,9]
Kartar Singh Vs. State of Punjab, (1993) 3 SCC 569 [Para 4]
Santosh De Vs. Archana Guha, (1994) Cri.L.J. 1975 [Para 4,14]
Raj Deo Sharma Vs. State of Bihar (I), 1999 ALL MR (Cri) 1554 (S.C.)=(1998) Cri.L.J. 4596 [Para 4,9,12]
R. Mahadevan Iyer Vs. State of Maharashtra, 1992 Cri.L.J. 1388 [Para 4,13]
Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, AIR 1997 SC 3400 [Para 4,15]
K. K. Bharadwaj Vs. Union of India, , 2001 Cri.L.J. 570 [Para 4]
Hussainara Khatoon Vs. Home Secretary, State of Bihar, Govt. of Bihar, Patna, (1979) 3 SCR 169 [Para 6]
Hussainara Khatoon (IV) Vs. Home Secretary, State of Bihar, Patna, (1980) 1 SCC 98 [Para 7]
Kadra Pahadiya Vs. State of Bihar, (1983) 2 SCC 104 [Para 8]
Barker 1972(33) Law ED 2d 101 [Para 9]
U.S. Vs. Ewell, 1966(15) Law Ed 2d 627 [Para 6]
Common Cause" v. Union of India, 1997 ALL MR (Cri) 3 (S.C.)=1996 AIR SCW 2279 [Para 11]
"Common Cause" a Registered Society v. Union of India, 1997 ALL MR (Cri) 1 (S.C.)=1997 AIR SCW 290 [Para 11]
Raj Deo Sharma v. State of Bihar, 1999 ALL MR (Cri) 1865 (S.C.)=(II) (1999 Cri.L.J. 4541 [Para 12]

JUDGMENT

JUDGMENT :- Heard learned Advocates for the parties. Admit. With the consent of learned Advocates for the parties, the matter was finally heard.

2. In this application the applicant seeks quashing of proceedings in Special Case No.21 of 1990 pending on the file of the 1st Additional Sessions Judge/Special Judge, Nagpur and also for awarding compensation of Rs.50,000/-. The applicant is facing trial for offences under Sections 406, 420, 467, 468, 471, 120B of the Indian Penal Code and Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947. The First Information Report in this case was registered on 31.12.1983 and the Special Case No.46 of 1985 in connection with the same was filed before the Special Judge at Greater Bombay and subsequently, on account of transfer of this case to the Special Judge, Nagpur, the case was re-numbered as Special Case No.21 of 1990. The applicant was working with the Oriental India Insurance Company. The allegations against the applicant are that the cheques were issued by the Insurance Company of which the applicant was Divisional Officer in respect of refunds of excess premium given by parties. The refund orders were issued by the applicant and co-accused Gulabchand in the names of the proper parties who were entitled to receive the said refunds and the cheques were sent to the Bank through Peon and third co-accused encashed the same by forging signatures of the said parties and the money of the said cheques was shared by all the accused. The cheques dated 15.3.1978 involved are for amount of Rs.9720/-, R.4529/- and Rs.4643.31.

3. The applicant had filed Criminal Application 585 of 1992 under Section 482 Cr.P.C. for quashing the said criminal proceedings and this Court vide order dated 23.2.1992 did not accede to the prayer of the applicant, but directed that the trial of Special Case No.21 of 1990 be expedited and conducted preferably from day-to-day and the same be contemplated on or before 31.12.1992. Subsequently, the applicant had filed Criminal Revision No.67 of 1993 against order dated 20th March, 1993 whereby the prayer of the applicant to discharge him was turned down. The said revision was withdrawn on 29th June, 1993 and this Court once again directed that hearing of Special Case No.21 of 1990 pending before the Special Judge, Nagpur be expedited and disposed of as early as possible. The case of the applicant is that inspite of the aforesaid directions, not even the charge has been framed till to date. It is further stated that the applicant has already retired; he is now aged about 68 years; he has suffered paralytic attack and he cannot move without support of somebody else and that too with great difficulty. The applicant is also stated to have suffered similar attack in March 2001. The medical record has been annexed in this respect. In this respect, reply of the respondent is that the contents of paragraphs 4 and 5 of the application are matter of record and deserve no reply.

4. In this background, learned Advocate for the applicant has urged before me that right to speedy trial has been denied to the applicant inspite of directions of this Court and that the applicant has been attending the Court at least from the year 1991 after the matter was transferred to the Special Judge, Nagpur. According to him and learned Special Counsel for respondent, the records relating to the period 1985 to 1990 when the matter was pending before the Special Judge, Greater Bombay, are not available. Learned Advocate for the applicant has placed before me Roznamas of Special Case No.21 of 1990 with effect from November 1990. He has also placed before me a chart in which it is reflected that copy of charge-sheet was not supplied by prosecution to the accused for seven years, that is to say, from 1985 to 30.9.1992; that for seven months the Court did not have powers to try anti-corruption cases, that is to say, for the period from 9.5.1995 to 9.10.1995 and 6.3.1997 to 17.5.1997; on twelve dates the Special Judge was either transferred, promoted or on leave or the Court was vacant and the said dates are 30.9.1992, 30.10.1992, 3.2.1993, 11.2.1993, 24.2.1993, 28.10.1993, 27.6.1994, 25.10.1996, 6.10.1997, 6.6.1999, 16.6.1999 and 24.9.1999. The exemption applications were filed by the applicant on five occasions on 5.3.1993, 17.6.1993, 24.9.1993, 3.12.1993 and 22.2.2001. The above chart also reflects that draft charge was not given by the prosecution, as directed, on 5.1.1994, 4.2.1994, 5.3.1994, 25.3.1994, 21.4.1994 and even thereafter. According to learned Advocate for the applicant, the matter was adjourned without recording any specific reasons on 42 occasions dates in respect of which are given in the said chart. In this set of facts and after relying upon Abdul Rehman Antulay and ors. Vs. R./S. Nayak and anr. (1992) 1 SCC 225; Kartar Singh Vs. State of Punjab (1993) 3 SCC 569; Santosh De Vs. Archana Guha and ors. (1994) Cri.L.J. 1975; Raj Deo Sharma v. State of Bihar (I) 1998 Cri.L.J. 4596 and it is urged that right to speedy trial has been denied to the applicant and the proceedings against the applicant be quashed. He also relied upon R. Mahadevan Iyer v. State of Maharashtra and anr. (1992 Cri.L.J. 1388); Mansukhlal Vithaldas Chauhan vs. State of Gujarat (AIR 1997 SC 3400) and K. K. Bharadwaj vs. Union of India and ors. (2001 Cri.L.J. 570) wherein the proceedings have been quashed on account of pendency for 13-14 years.

5. Learned Advocate for the respondent has urged before me that the trial in this case could not start on account of systematic delays; non-availability of the court and Judge to try the case; heavy dockets of the court and that the prosecution is in no way responsible for the delay in this case. He pointed out that the prosecution had even applied for early hearing in view of the directions given by this Court and had even requested the Court to frame charge, but the Court did not frame the charge. He pointed out that it is only since last two years that by virtue of notification the 1st Additional District Judge is notified as Special Court for trial of the anti-corruption cases. According to learned Advocate for the respondent, the conditions and circumstances in the case are required to be considered in order to determine whether the proceedings are required to be quashed. According to him, since the prosecution is not responsible nor has impeded speedy trial of the applicant, the order regarding quashing of proceedings is not called for. He, therefore, contends that the application in question be dismissed.

6. The Apex Court way back in the year 1979 in Hussainara Khatoon and ors. v. Home Secretary, State of Bihar , Govt. of Bihar, Patna (1979) 3 SCR 169 has laid down that speedy trial is of the essence of criminal justice and, therefore, delay in trial by itself constitutes denial of justice. Though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21. Speedy trial which means reasonably expeditious trial, is an integral part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution of India. It has been further pointed out in the said decision that any procedure prescribed by law for depriving a person of his liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. The Apex Court held that expeditious trial and freedom from detention are part of human rights and basic freedoms.

7. The Apex Court in Hussainara Khatoon (IV) and ors. vs. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98 has laid down -

"Speedy trial is an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Article 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and its priorities in expenditure, but, 'the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty', or administrative inability."

8. The Apex Court in Kadra Pahadiya and ors. v. State of Bihar (1983) 2 SCC 104 held that speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 and any accused who is denied this right of speedy trial is entitled to approach Supreme Court for the purpose of enforcing such right and the Court in discharge of its constitutional obligation has power to give necessary directions to the State Government and other appropriate authorities for securing this right to the accused.

9. The Constitution Bench of the Apex Court in Abdul Rehman Antulay and ors. vs. R. S. Nayak and anr. (supra), after reviewing the case law, has laid down the following propositions which are also referred to by the Apex Court in Rajdeo Sharma v. State of Bihar (supra) as under :-

"(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. This is how, this Court has understood this right and there is no reason to take a restricted view.

(3) The concerns underlying the right to speedy trial from the point of view of the accused are:

(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or long incarceration prior to his conviction;

(b) the worry, anxiety, expenses and disturbance to his vacation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.

(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactics". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delay the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceeding taken by either party in good faith, to vindicate their rights and interests, as prescribed by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceeding or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself is not frivolous. Very often these stays are obtained on ex-parte representation.

(5) While determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on - what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of pedantic one.

(6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powel, J. in Barker (1972 (33) Law Ed 2d 101) "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by Whitel, J. in U.S. v. Ewell (1966 (15) Law Ed 2d 627) in the following words :

"... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances".

However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.

(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did not make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand has been substantially watered down in Barker and other succeeding cases.

(8) Ultimately, the Court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in given case.

(9) Ordinarily speaking, where the Court comes to the conclusion that right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the Court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case.

(10) It is neither advisable nor practicable to fix any time - limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial,it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit inspite of the Sixth Amendment. Nor do we think that fixing any such outer limit ineffectuates the guarantee of right to speedy trial.

(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis."

The Apex Court has pointed out that the propositions are meant to serve as guidelines; that the same are not exhaustive since it is difficult to foresee all situations nor is it possible to lay down any hard and fast rules.

10. The Apex Court in Kartar Singh v. State of Punjab (supra), after reviewing the case law, once again reiterated right to speedy trial and it was pointed out that the Court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors - (1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay. It was further pointed out that however, the fact of delay is dependent on the circumstances of each case, because reasons for delay will vary, such as, delay in investigation on account of the wide-spread ramification of crimes and its designed network either nationally or internationally, the deliberate absence of witness or witnesses, crowded dockets on the file of the court etc.

11. In Raj Deo Sharma v. State of Bihar (I) (supra), after reviewing the case law, the Apex Court issued further guidelines in addition to the propositions laid down by the Apex Court in Abdul Rehman Antulay v. R. S. Nayak (supra). The additional guidelines to supplement the guidelines laid down in Antulay's case (supra) are :-

"(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has been examined all the witnesses or not, within the said period and the Court can proceed to the next step provided by law for the trial of the case.

(ii) In the cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial Court shall release the accused on bail forthwith on such conditions as it deems fit.

(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charges framed, whether the prosecution has examined all the witnesses or not within the said period and the Court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the Court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time limit.

(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no Court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) to (iii).

(v) Where the trial has been stayed by orders of Court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in "Common Cause" v. Union of India (1996) SCC 33 : (1996 AIR SCW 2279 : 1997 ALL MR (Cri) 3 (S.C.)) as modified the same Bench through the order reported in "Common Cause" a Registered Society v. Union of India (1996) 6 SCC 775 : (1997 AIR SCW 290 : 1997 ALL MR (Cri) 1 (S.C.))."

12. In Raj Deo Sharma v. State of Bihar (II) (1999 Cri.L.J. 4541 : 1999 ALL MR (Cri) 1865 (S.C.)), on a petition filed by the CBI for clarification and for modification of the directions given in Raj Deo Sharma v. State of Bihar (I) (supra), following clarifications have been given :-

"(i) The directions given in Raj Deo Sharma v. State of Bihar, AIR 1999 SCW 3208 : AIR 1998 SC 3281 : 1998 Cri.L.J. 4596 : (1999 ALL MR (Cri) 1554 (S.C.)) do not curtail the power of 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 S.311 of the Code. Evidence of any witness, it 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.

(ii) 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 such time can also be excluded by the Court from the period which the Supreme Court have prescribed in the judgment for completing prosecution evidence.

(iii) 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 (ii) for enabling the State Government to appoint a Public Prosecutor to that office.

(iv) Every High Court is to remind the trial Judges through a circular of the need to comply with S.309 of the Code in letter and spirit and 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.

(v) An additional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of a 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."

13. At this stage, I would also like to refer to three other judgments upon which reliance was placed by the learned Advocate for the applicant. In R. Mahadevan Iyer v. State of Maharashtra and anr. (supra), the proceedings could not be completed even after a lapse of 12 years. In this case, it was noticed that the Investigating Officer had died; five of the witnesses had also died and majority of others had ceased to be in service and there was possibility of the greater number of others being not traceable/available and the question posed before the High Court was, whether judicial time should be expended to an empty exercise of further prosecuting those cases. Taking these factors into consideration, it was held that there was no possibility of achieving useful result by allowing continuance of prosecution and that the accused was likely to be heavily prejudiced in his defence in respect of incidents extremely old in point of time. Therefore, it was held that right of speedy trial would be violated and the High Court could exercise power under Section 482 Cr.P.C. by quashing the proceedings. The prosecution were accordingly quashed.

14. In Santosh De v. Archana Guha and ors. (supra), the Apex Court has dealt with number of appeals wherein prosecutions had been quashed. While dealing with the right to speedy trial in a case under Section 5 of the Prevention of Corruption Act wherein the accused was discharged for possession of disproportionate assets valued at Rs.2 lakhs, the Apex Court found that the prosecution launched in 1978 was pending till 1993 and yet the examination of witnesses had not begun though final charge-sheet was filed in 1990. The accused had retired from service in November 1991. In the circumstances, the Apex Court did not interfere with the order of the High Court quashing the proceedings. In the same, the Apex Court dealt with another matter where incident took place in 1973 wherein FIR was filed under Section 307 IPC and later on converted under Section 302 IPC. The case was committed to Sessions Court on 15.7.1974. No trial took place till 1982. Thereafter four witnesses were examined in two years after which prosecution took 90 adjournments for producing other witnesses including Inquiry Officer. The High Court held that delay in trial was entirely on account of default of the prosecution. The Apex Court held that since there was unexplained delay of eight years in commencing the trial, that by itself infringes the right of the accused to speedy trial. The prosecution in the case before the Apex Court was pending for 14 years. It was found that the delay could not be attributed to the accused and that the charges were framed after a lapse of about eight years of committal of case to the Sessions Court and since the delay was entirely on account of default of the prosecution, the Apex Court held that the order quashing the proceedings was not liable to be interfered with. The Apex Court pointed out that this is not a case of what is called "systemic delay" as explained in Antulay's case (supra). In another appeal dealt with by the Apex Court, in this case the incident took place on 10.7.1976 and charge-sheet for the offences under Section 147, 148, 448, 327 read with Sections 34 and 149 of the Indian Penal Code and under Section 27 of the Arms Act was filed on 20.12.1976. The case was committed to the Court of Sessions in 1980 and by 1986 only two witnesses had been examined when proceedings were quashed by the High Court on December 19, 1986. The Apex Court had granted stay, but still further evidence was not recorded. The Apex Court found that 17 years had elapsed and the delay in committal and recording evidence had not been explained, the Apex Court held that in the circumstances right to speedy trial had been breached and quashing of proceedings could not be interfered with.

15. In Mansukhlal Vithaldas Chauhan v. State of Gujarat (supra), 14 years had elapsed since the incident and the order according sanction for prosecution under Section 5(2) of the Prevention of Corruption Act, 1947 and Section 161 of the Indian Penal Code was found to be bad by the Apex Court. The accused had been convicted for the said offences by Special Judge and the High Court had confirmed the conviction. In this set of facts, it is held that it will not be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant therein to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial. Consequently, the Apex Court acquitted accused in the said case since the incident was of 1983 and 14 years had already elapsed.

16. Similarly, in K. K. Bharadwaj v. Union of India and ors. (supra), the Division Bench of Delhi High Court found that criminal trial of offences under Sections 409 and 120-B of the Indian Penal Code was delayed for over thirteen years and out of 13 witnesses cited, evidence of even a single witness was not completed. In this case, various adjournments were taken by prosecution due to absence of witnesses. It was found that the prosecution was not only callous, but also lethargic. The proceedings, in the circumstances, were ordered to be quashed.

17. There is, thus, no straight-jacket formula and the decision depends upon balancing of various relevant facts referred to in Antulay's case (supra) and Rajdeo Sharma's cases (supra) wherein guidelines have been laid down, facts and circumstances of each case while taking a decision whether right to speedy trial has been denied and whether the continuation of proceedings would be an abuse of process of law so as to justify quashing of the proceedings.

18. In the case under consideration, a total number of 95 hearings have taken place with effect from 29.7.1991. There is no record available as to what transpired after filing of the charge-sheet in the Special Court at Greater Bombay in the year 1985 till the case was transferred to the Special Judge, Nagpur in the year 1990. The relevant information relating to the break-up of the hearings with effect from 29.7.1991 is as under :-

(1). Time taken for preliminaries : For appearance and furnishing of bail - 29.7.91 to 25.11.91 (3 hearings).

(2). Time taken from framing charge and supply of copy of challan :

(a). Supply of copies :

It is not known whether copy of challan was supplied to the accused before the case was transferred to the Special Judge, Nagpur, but even after the accused appeared on 27.9.1991 before the Special Judge, Nagpur, the prosecution took almost one year to furnish copy of challan to the accused which was furnished on 30.9.1992. (Total hearing - 11).

(b). Charge not framed till 23.8.2001.

PP was asked to give draft charge, but though farad order dated 26.11.93 shows that in Special Case No.20 of 1990 copy of draft charge was delivered to the accused persons, yet it does not show that draft charge was given in Special Case No.21 of 1990 to the accused. Farad orders dated 5.1.1994, 4.2.1994, 5.3.1994, 25.3.1994, 21.4.1994 show that the draft charge was not filed and it appears that draft charge was never filed by the P.P.

(3). Absence of APP :-

From 25.11.1991 to 1.12.1992 the presence of Special P.P. is not reflected. Similarly, the Roznamas dated 5.3.1993, 20.3.1993, 3.4.1993, 24.9.1993, 5.1.1994, 4.2.1994, 5.3.1994, 2.8.1994, 3.10.1994, 21.12.1994, 2.2.1995, 18.2.1995, 10.3.1995, 4.4.1995, 26.4.1995, 29.5.1995, 28.8.1995, 9.10.1995, 3.1.1996, 26.2.1996, 18.5.1996, 24.7.1996, 21.9.1996, 25.10.1996, 6.3.1997, 17.5.1997, 25.6.1997, 28.7.1996, 6.10.1997, 16.3.1998, 15.6.1998, 19.8.1998, 10.11.1998, 17.2.1999, 19.3.1999, 16.6.1999, 4.8.1999, 24.9.1999, 8.10.1999, 1.2.2000, 12.6.2000, 10.7.2000, 29.8.2000, 14.9.2000, 16.10.2000, 15.12.2000 and 20.7.2001 show Special PP absent/do not reflect the appearance of the Special PP.

(4). The Court not having powers to try the case :-

It appears that from 25.9.1995 to 9.10.1995 the Court had no power to try the case. Farad order dated 6.3.1997 and farad order dated 17.5.1997 also indicate that the special power had not been received.

(5). Presiding Officer on transfer, promotion, leave, Court vacant etc :

20.5.1992, 30.9.1992, 3.10.1992, 3.2.1993, 11.2.1993, 24.2.1993, 28.10.1993, 2.8.1994, 25.10.1996, 6.10.1997, 16.6.1999 and 24.9.1999.

(6). Presiding Officer being busy :

8.1.1998, 4.8.1999, 29.1.2001, 12.3.2001 and 19.6.2001.

(7). Exemptions sought by the accused :-

11.2.1993, 24.2.1993, 5.3.1993 (on all these dates, Presiding Officer had already been transferred); 17.6.1993, 24.9.1993 and 22.2.2001.

(8). Absence of the accused :-

17.5.1997 and 22.2.2001.

(9). Adjournments sought by the accused :-

11.1.1993, 16.1.1993 and 10.3.1993.

(11). Adjournments granted without any reason whatsoever :-

50 times approximately.

19. The above state of affairs furnishes a dismal picture and the same is in the background where twice directions have been given by this Court to expedite hearing of the case. The first direction was given on 23.9.1992 wherein the Special Judge was directed to take up trial of Special Case No.21 of 1990 expeditiously, preferably from day-to-day and complete the same on or before 31.12.1992. The directions were second time issued on 29.6.1993 by which hearing of the Special Case No.21 of 1990 pending before the Special Judge (Joint District Judge, Nagpur) was ordered to be expedited and to be disposed of as early as possible. Learned Special Counsel has brought to my notice that in fact, the prosecution had drawn the attention of the Court for expediting hearing of the case by filing application on 22.12.1992. Farad order dated 19.1.1993 shows that the CBI was directed to be more careful in prosecuting the case. By order dated 4.5.1995 the prosecution was directed to take thorough and serious survey of the availability of the witnesses; their present positions and addresses as it will be futile to open the evidence and go on adjourning the case for procuring the presence of the witnesses. The prosecution was asked to file a detailed report on 10.1.1995. The prosecution reported on 10.1.1995 that the Head of Department assured that all the witnesses will be available for the purpose of evidence as and when called by the Court. The Court vide its order dated 16.1.1995 observed that the prosecution was not serious about making before hand preparations for finding out the present addresses and positions of the witnesses. The Presiding Judge deprecated the negligence of the Pairavi Officer and as to the state of affairs towards the anxiety of the Court.

20. A report was called from the Special Judge with reference to the directions of this Court date 23.9.1992 as also subsequent directions dated 29.6.1993 and the report of the Special Judge states that there is no fault on the part of the prosecution, but the accused are responsible for delay caused. Report further states that the accused never moved any application for expeditious trial though the matter was handled by almost seven Presiding Officers. It is further stated that accused never brought to the notice of any Presiding Officer about the orders of the High Court and urgency of the matter. How lightly and without even going through the record, the report has been sent by Shri. K. S. Deshmukh, the Ist Additional District Judge, Nagpur is worthy to note. The Roznamas of the case itself reflect that the writ of the High Court had been received on 9.9.1993 to expedite the trial. In application dated 22.12.1992 (exhibit 21) filed by Special PP, the directions given by this Court vide order dated 23.9.1992 have been mentioned stating that the directions are to take up Special Case No.21 of 1990 expeditiously and preferably on day-to-day basis and complete the same on or before 31.12.1992. In the light of this, how can 1st Additional Sessions Judge, Nagpur say that the Presiding Officers were not aware of such directions. This will go to show that the Presiding Officers have never cared to look into the case in order to comply with the directions of this Court. When there are directions of this Court to expedite the trial and even a dead line was fixed and the learned Special PP had brought to the notice of the Court the dead line fixed, how can the 1st Additional District Judge, Nagpur harp on the ground that the accused never brought to the notice of any Presiding Officer the said directions. The statement in the report that there is no fault on the part of the prosecution but the accused is responsible for delay caused is totally unfounded, incorrect and contrary to the record. I must say categorically that the accused cannot be said to be in any manner responsible for delay in the trial. The delay is mainly on account of lethargic attitude of the prosecution. I have already stated that there is nothing on record to show if copy of challan was furnished to the accused prior to the case being transferred to the Special Judge, Nagpur. However, it is crystal clear that from 27.9.1991 after the accused appeared before the Special Judge, Nagpur that the copy of challan was supplied to the accused only after one year, that is to say, on 30.9.1992. The matter was adjourned from time to time for filing draft charge, but the same was not filed for almost a year with effect from 26.11.1993 and there is nothing on record to suggest that the said draft charge was at any time filed by prosecution. I have already pointed out that the Special PP was absent on large number of occasions when the matter came up before the Court. Should the accused go on attending the courts on dates after dates given in the matter and continue to suffer indefinitely in the process? The case, in may opinion, is such that interference of this Court in quashing the proceedings is called for. The applicant was under suspension from the year 1985 and has since retired in the year 1993. He is 68 years old and is reported to be suffering from hemiparesis due to paralytic attacks in 2000 and 2001 which fact has not been challenged by the respondent in reply. The applicant has attended the court hearings on 90 occasions approximately from 1991; he has suffered more than enough and the said sufferings may be more than what he would have been subjected to suffer if the case had ended in conviction. Till todate even the charge has not been framed even though the charge-sheet was filed in the year 1985. The evidence has not yet started.

21. For the aforesaid reasons proceedings against the applicant are hereby quashed. In relation to the non-compliance of the directions of this Court, it is considered that necessary administrative enquiry be conducted against the Presiding Officers who are responsible for not complying with the directions of this Court and for that purpose, the matter be placed before the Honourable the Chief Justice of Bombay High Court for further necessary action deemed fit in the matter. Criminal Application is allowed in the aforesaid terms.

Application allowed.