TMI Blog2006 (9) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... adir. 3. On 30.4.1981 a challan under Section 173 Cr.P.C. came to be filed against the appellant before the court of Special Judge, Anti Corruption, Srinagar, Kashmir under Section 5(2) of the J K PC Act. The appellant challenged the legality of the proceedings of the Court before the High Court of Jammu Kashmir in Criminal Petition No. 41 of 1982 on the ground that he was not a public servant within the meaning of Section 21 of the Ranbir Penal Code (for short, 'RPC'), as such, he could not be tried under the provisions of the J K PC Act. The appellant also urged that the Court had no jurisdiction to try the case because no valid sanction had been obtained for prosecution of the appellant from the competent authority. The Court, after hearing the parties, held that the appellant was a public servant within the meaning of Section 21 RPC being an employee of the State Bank of India, which was engaged in trading business besides being owned by the Central Government. 4. The High Court came to a definite finding that under the service rules of the State Bank of India, the supervisory staff was not the General Manager (Operations). The appellant at the time of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Judge, Anti Corruption, Jammu after hearing the parties vide order dated 12.3.1999 accepted the application filed by the appellant and discharged him from the offences under Section 5(2) of the J K PC Act read with Section 161 RPC. The trial court observed in its order that the Vigilance Organization, Kashmir, despite having knowledge that earlier accorded sanction had been quashed, again produced the instant charge-sheet for his trial in the year 1986 on the plea that the accused had been removed from the service, as such, no sanction as contemplated under Section 6 of the J K PC Act was required. 8. The Special Judge after hearing the parties observed that it was not disputed that earlier sanction accorded to prosecute the accused was quashed by the High Court having not been accorded by a competent authority. Even now, no fresh sanction had been obtained to prosecute the appellant from the competent authority. When the instant charge-sheet was presented, no sanction was in existence. The learned trial Judge interpreted Section 6 of the J K PC Act and stated that, according to the said Section, sanction was sine qua non for taking cognizance of the offence. We deem it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged the impugned order of the High Court dated 5.9.2001. The appellant submitted that the orders of discharge by the High Court in the first instance and subsequently by the Special Judge, Anti Corruption, Jammu had become final and binding because the respondents did not challenge the said orders. It is also alleged that the respondents could not be permitted to prosecute the appellant on the same cause of action and on the same facts and circumstances for the third time. According to the appellant, this was a clear case of gross abuse of the process of law. He further submitted that how the respondents could be permitted to file a fresh challan for the third time on the same cause of action and on the same facts and circumstances? According to the appellant, the impugned order suffers from serious infirmities. He submitted that the High Court ought to have appreciated that by dismissing the appellant's petition the High Court had in fact reviewed its own order. There was no provision in the Criminal Law which enabled the Court to review its own order. 11. The appellant further submitted that repeated filing of challans by the respondents without any sanction had caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehman Antulay v. R.S. Nayak 1992CriLJ2717 . In this case, the Court held that the right to a speedy trial was a part of fair, just and reasonable procedure implicit in Article 21 of the Constitution. This Court, in this case, observed that each case had to be decided on its own facts. In this case, this Court further observed that it was not advisable and feasible to fix an outer time limit for conclusion of the criminal proceedings. It was submitted in the said case that the framers of Indian Constitution were aware of the 6th Amendment in the Constitution of the USA providing in express terms the right of an 'accused' to be tried speedily. Yet, similar provision was not incorporated in the Indian Constitution. It was submitted in that case that it is neither permissible nor possible nor desirable to lay down an outer limit of time. The US Supreme Court also had refused to do so. 15. We deem it appropriate to reproduce the relevant observations made by this Court in the case of Hussainara Khatoon (I) v. Home Secretary, State of Bihar 1979CriLJ1036 as under: We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The Court held that it would not be in the interests of justice to allow a prosecution to start and trial to be proceeded with after a lapse of twenty six years even though one of the accused was himself responsible for most of the delays caused by his mala fide tactics. 18. In Machander v. State of Hyderabad 1955CriLJ1644 , this Court observed that while it was incumbent on the Court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and accused persons are not indefinitely harassed. The Court observed that the scales must be held even between the prosecution and the accused. In the facts of that case, the Court refused to order trial on account of the time already spent and other relevant circumstances of that case. 19. In the case of A.R. Antulay (supra), this Court gave propositions meant to serve as guidelines. This Court held that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. This Court further observed as under: (1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to do so, but because it was neither advisable nor practicable to do so. The Court observed that since the law laid down by the Constitution Bench still holds the field, any declaration made in derogation thereof fixing time limit by a smaller Bench is overruled by virtue of the doctrine of binding precedents. The Court also laid down that the question of delay had to be decided by the Court having regard to the totality of circumstances of an individual case. The Court observed that it must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted. It would be pertinent to mention that the Sixth Amendment to the U.S. Constitution states that In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay will impair the ability of an accused to defend himself. In England, from the time of the Magna Carta, an accused, in theory at least, enjoyed the right to a speedy trial, which was secured by the commission of goal delivery, under which the jails were cleared at least twice each year. 24. In Commonwealth v. Hanley 337 Mass 384 : 149 NE 2d 608 : 66 ALR 2d 222 : cert den 358 US 850 : 3 L ed 2d 85 : 79 S Ct 79 the guarantee of speedy trial has been held to serve a threefold purpose: it protects the accused, if held in jail to await trial against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and, like statutes of limitation, it prevents him from being exposed to the hazards of a trial after the lapse of so great a time that the means of proving his innocence may have been lost. In the case of State v. Carrillo 41 Ariz 170, 16 P 2d 965, it has been held that an accused who has been denied speedy trial, or who has not been brought to trial within the time required by an implementing statute, can generally move to dismiss the prosecution on that ground. Rule 48(b) of the Federal Rules of Criminal Prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into a finality, can be averted. 26. This Court in Hussainara Khatoon (I) (supra) further observed as under: 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. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge leveled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21. This Court in a number of cases has reiterated that speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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