SIRAJUL Vs THE STATE OF U.P.
Bench: J. CHELAMESWAR,ADARSH KUMAR GOEL
Case number: Crl.A. No.-000854-000854 / 2011
Diary number: 31442 / 2009
Advocates: AFTAB ALI KHAN Vs
ANUPAM LAL DAS
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.854 OF 2011
SIRAJUL & ORS. …APPELLANTS
VERSUS
THE STATE OF U.P. & ANR. …RESPONDENTS
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. The appellants have called in question the order dated
6th July, 2009 of the High Court of Judicature, Allahabad,
Bench at Lucknow in Criminal Miscellaneous Case No.2428
of 2009. Thereby, the High Court declined to interfere with
the order of summoning and to quash the complaint dated
3rd May, 2008 registered as Criminal Complaint Case
No.1066 of 2008 under Section 307 of the Indian Penal
Code, P.S. Atrauli, District Hardoi, pending in the Court of
Judicial Magistrate-II, Hardoi. According to the appellants,
the complaint and the proceedings were gross abuse of
process of the Court having been filed after gross delay of
16 years after the incident.
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2. The incident in question took place on 11th February,
1992. In respect of the said incident, there were two cross
cases being Crime Case No.37/92 under Section 307 IPC
registered against the appellants, and Crime Case
No.37A/92 under Section 307 IPC registered at the instance
of the appellants at Police Station Atrauli, District Hardoi.
The investigating Agency charge sheeted respondent No.2,
which gave rise to Session Trial Case No.760 of 1995. After
trial, respondent No.2 and three others were convicted
under Section 307/34 IPC and sentenced to undergo
rigorous imprisonment for seven years and to pay a fine of
Rs.5,000/- each vide judgment dated 23rd September, 2009
by Additional Sessions Judge/F.T.C.-I, Hardoi. However, an
appeal against the said judgment is said to be pending.
Respondent No.2, in his statement under Section 313 Cr.P.C.
stated that he had also lodged a cross case. He also led
defence evidence in support of the cross version. Having
regard to the nature of injuries received on the side of the
appellants and other evidence, version of the appellants
was accepted and respondent No.2 and two others were
convicted.
3. What is significant and undisputed is the fact that
though respondent No.2 had registered Crime Case
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No.37/92 on 11th February, 1992 against the appellants and
no action was taken thereon, he
kept quiet till 11th August, 2005. Meanwhile, respondent
No.2 and other co-accused were charge sheeted on 21st
January, 1993 and session trial commenced against them in
the year 1995. It was only
on 11th August, 2005 that respondent No.2 filed an
application for summoning progress report of Crime Case
No.37/1992, so that the cross case against the appellants
could also be tried along with the trial against respondent
No.2.
4. Case of respondent No.2 is that no order was passed
on the application but it was only on 1st February, 2008 that
respondent No.2 filed another application. There is nothing
to show if any other step was taken by respondent No.2
except on 11th August, 2005
and 1st February, 2008.
5. Application filed on 1st February, 2008 was disposed of
on 20th February, 2008 in view of the report of the police
that the appellants were exonerated during investigation
and the report was filed before the Court. On 3rd May, 2008,
respondent No.2 filed the impugned complaint alleging that
the appellants had committed offence under Section 307
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Criminal Appeal No.854 of 2011
IPC on 11th February, 1992. The said complaint led to
summoning of the appellants vide order dated
3rd June, 2009 which was impugned before the High Court.
The High Court dismissed the petition filed by the appellants
for quashing on the ground that allegation in the complaint
and preliminary evidence led in support thereof made out a
case for summoning and thus no case for quashing was
made out.
6. We have heard learned counsel for the parties and
perused the record.
7. While issuing notice on 23rd November, 2009 further
proceeding in Criminal Case No.1066 of 2008 pending in the
Court of Judicial Magistrate-II, Hardoi was stayed and the
said order has been operative till date.
8. Main contention raised on behalf of the appellants is
that the impugned complaint has been filed 16 years after
the incident and for 13 and a half years after the incident,
respondent No2 did not persue the matter. It is thus
submitted that since the complainant kept quiet for 13
years after the incident and the complaint has been filed
after 16 years, respondent No.2 having been convicted in
the cross case, the prosecution of the appellants at this
stage will be unfair and futile.
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9. On the other hand, respondent No.2-complainant
submitted that bar of limitation does not apply beyond the
statutory bar under Section 468 Cr.P.C. A crime never dies.
A criminal offence is a wrong against the society even
though committed against an individual and thus the
prosecution cannot be thrown out merely on the ground of
delay. In support of this submission, reliance has been
placed in Japani Sahoo vs. Chandra Sekhar Mohanty 1.
10. In response to this stand of the complainant, learned
counsel for the accused submitted that even if it is assumed
that the appellants had caused the injury in question, the
nature of injury, in the circumstances can at best fall under
Section 324 IPC in which case bar under Section 468 Cr.P.C.
is applicable. In any case, even cases not covered by
statutory bar of limitation could be held to be liable to be
quashed on the ground of violation of right of speedy trial
under Article21 of the Constitution.
11. We have given due consideration to the rival
submissions. The question whether the proceedings in
criminal cases not covered by Section 468 Cr.P.C. could be
quashed on the ground of delay has been gone into in
several decisions. While it is true that cases covered by
statutory bar of limitation may be liable to be quashed
1 (2007) 7 SCC 394
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without any further enquiry, cases not covered by the
statutory bar can be quashed on the ground of delay in
filing of a criminal complaint in appropriate cases. In such
cases, the question for consideration is whether there is
violation of right of speedy trial which has been held to be
part of Article 21 of the Constitution having regard to the
nature of offence, extent of delay, person responsible for
delay and other attending circumstances. In this regard,
observations in judgments of this Court may be referred to.
12. In Japani Sahoo (supra), it was observed :
“16. At the same time, however, ground reality also cannot be ignored. Mere delay may not bar the right of the “Crown” in prosecuting “criminals”. But it also cannot be overlooked that no person can be kept under continuous apprehension that he can be prosecuted at “any time” for “any crime” irrespective of the nature or seriousness of the offence. “People will have no peace of mind if there is no period of limitation even for petty offences.”
13. In Vakil Prasad Singh vs. State of Bihar 2, it was
observed :
“18. Time and again this Court has emphasised the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of CrPC [in particular, Sections 197, 173, 309, 437(6) and 468, etc.] and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka
2 (2009) 3 SCC 355
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Gandhi v. Union of India [(1978) 1 SCC 248] and in Hussainara Khatoon (1) v. State of Bihar [(1980) 1 SCC 81] this Court had observed that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be “reasonable, fair and just”; and therefrom flows, without doubt, the right to speedy trial. It was also observed that: [Hussainara Khatoon (1) case, SCC p. 89, para 5].
“5. … No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21.”
The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
19. The exposition of Article 21 in Hussainara Khatoon (1) case was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225]. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines.
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22. Speaking for the majority in P. Ramachandra Rao [(2002) 4 SCC 578, R.C. Lahoti, J. (as His Lordship then was) while affirming that the dictum in A.R. Antulay case as correct and the one which still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as
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guidelines in the said case adequately take care of the right to speedy trial, it was held that: (P. Ramachandra case, SCC p. 603, para 29)
“(3) … guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied [as] a straitjacket formula. Their applicability would depend on the fact situation of each case [as] [i]t is difficult to foresee all situations and no generalisation can be made.”
23. It has also been held that: (P. Ramachandra case, SCC p. 603, para 29)
“(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings.”
Nonetheless,
“(5) [t]he criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 CrPC to effectuate the right to speedy trial. … In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions” ** .
(emphasis added)
The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent.
24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions (sic prosecutions) is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the
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preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case.”
14. In Ranjan Dwivedi vs. CBI 3, declining to quash
proceedings even after 37 years of delay in completion of
trial, it was observed :
“23. The length of the delay is not sufficient in itself to warrant a finding that the accused was deprived of the right to a speedy trial. Rather, it is only one of the factors to be considered, and must be weighed against other factors. Moreover, among factors to be considered in determining whether the right to speedy trial of the accused is violated, the length of delay is least conclusive. While there is authority that even very lengthy delays do not give rise to a per se conclusion of violation of constitutional rights, there is also authority that long enough delay could constitute per se violation of the right to speedy trial. In our considered view, the delay tolerated varies with the complexity of the case, the manner of proof as well as the gravity of the alleged crime. This, again, depends on case-to-case basis. There cannot be universal rule in this regard. It is a balancing process while determining as to whether the accused’s right to speedy trial has been violated or not. The length of delay in and itself, is not a weighty factor.”
3 (2012) 8 SCC 495
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15. In Sajjan Kumar vs. CBI 4, even after 23 years of
delay in completion of trial, proceedings were not quashed
and it was observed:
“39. In the case on hand, though delay may be a relevant ground, in the light of the materials which are available before the Court through CBI, without testing the same at the trial, the proceedings cannot be quashed merely on the ground of delay. As stated earlier, those materials have to be tested in the context of prejudice to the accused only at the trial.”
16. In NOIDA Entrepreneurs Assn. vs. NOIDA 5, even
delay of 17-18 years was held not to be adequate to stop
criminal proceedings having regard to the gravity of
offence, it was observed :
“21. Thus, it is evident that question of delay in launching criminal prosecution may be a circumstance to be taken into consideration in arriving at a final decision, but it cannot itself be a ground for dismissing the complaint. More so, the issue of limitation has to be examined in the light of the gravity of the charge.
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42. In view of the above, we are of the considered opinion that these allegations being of a very serious nature and as alleged, Respondent 4 had passed orders in colourable exercise of power favouring himself and certain contractors, require investigation. Thus, in view of the above, we direct CBI to have preliminary enquiry and in case the allegations are found having some substance warranting further proceeding with criminal prosecution, may proceed in
4 (2010) 9 SCC 368 5 (2011) 6 SCC 508
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accordance with law. It may be pertinent to mention that any observation made herein against Respondent 4 would be treated necessary to decide the present controversy. CBI shall investigate the matter without being influenced by any observation made in this judgment.”
17. It is thus clear from the above observations that mere
delay in completion of proceedings may not be by itself a
ground to quash proceedings where offences are serious,
but the Court having regard to the conduct of the parties,
nature of offence and the extent of delay in the facts and
circumstances of a given case, quash the proceedings in
exercise of jurisdiction under Section 482 Cr.P.C. in the
interest of justice and to prevent abuse of process of the
Court.
18. In the present case, conduct of the complainant can
certainly be taken into account. Admittedly, the
complainant stood convicted in a cross case. At least for
ten years after commencement of the trial, the complainant
did not even bother to seek simultaneous trial of the cross
case, the step which was taken for the first time in the year
2005 which could certainly have been taken in the year
1995 itself when the trial against respondent No.2
commenced. Having regard to the nature of allegations and
entirety of circumstances, it will be unfair and unjust to
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permit respondent No.2 to proceed with a complaint filed 16
years after the incident against the appellants
19. We accordingly, allow this appeal set aside the
impugned order and quash the proceedings in Criminal
Complaint Case No.1066 of 2008 pending in the Court of
Judicial Magistrate-II, Hardoi.
…………..…………………………….J. [ J. CHELAMESWAR ]
.…...….………………………………..J. [ ADARSH KUMAR GOEL ]
NEW DELHI JULY 6, 2015
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