TMI Blog2015 (4) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... STATE OF BIHAR PATNA [ 1979 (2) TMI 194 - SUPREME COURT] , the Hon'ble Apex Court gave anxious consideration to the pathetic plight of under trial prisoners languishing in jail for years together and held that any procedure which would not ensure a speedy trial could not be regarded as reasonable, fair or just and that the right of an accused to speedy trial rather 'a reasonably expeditious trial' is imbibed in Article 21 of the Constitution of India. Right to life means right to live with full human dignity, without humuliation and deprivation or degradation of any sort. The impact of being an accused is evident from the observations of the Hon'ble Supreme Court and therefore, there can be no doubt that the tag of 'accused' would deprive a man the right to live with full human dignity. It is these facets and factors that fetched 'fair trial' the recognition as a human right. Speedy trial is an integral part of fair trial. Therefore, the right to speedy trial is also a human right and no civilized society can deny the same to an accused. Furthermore, it should always be the concern of the society to see that a real culprit is given the condign p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g rise to this application are as under: 5. The applicant aged 70 was serving as a head clerk in the Direct Payment Branch in the Office of the District Education Officer Ahmedabad. On 15th June 1993, a First Information Report was lodged by the respondent No.2., in his capacity as the District Education Officer against the applicant herein and other coaccused for the offence alleged to have been committed between 25th October 1990 and 2nd of August 1991. The First Information Report being C.R. No.I293 of 1993 was lodged for the offence punishable under Sections 409, 420, 465 read with Section 114 of the Indian Penal Code. 6. It is the case of the prosecution that a coaccused running a school availed of payment towards salary of the staff and maintenance for the period between 1.7.1986 and 31.3.1989 twice in collusion with the other accused. It is the case of the prosecution that the school was paid salary/maintenance grant of ₹ 4,38,500/vide order dated 26th March 1989. However thereafter again on 19th June 1991, a bill was produced for the very same period i.e. 1.7.1986 to 31.3.1989 and the school procured a cheque dated 2nd August 1991 for the very same amount. The F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no case worth the name to frame charge against the applicant. 12. This application has been vehemently opposed by Mr.L.B. Dabhi, the learned APP appearing for the State. He submits that having regard to the nature of the offence, which is criminal misappropriation by a public servant, the prosecution should not be quashed solely on the ground that the trial has not commenced till this date. Mr. Dabhi pointed out that there is a prima facie, case against the applicant herein so far as his involvement in the alleged offence is concerned. He, therefore, prays that there being no merit in this application, the same be rejected. 13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the prosecution should be dropped against the applicant herein on the ground that his right to have a speedy trial as embodied under Article 21 of the Constitution could be said to have been violated. 14. On 9th December 2014, the following order was passed: Issue notice to the respondents, returnable on 22nd January, 2015. Mr. Dabhi, the learned APP, waives service of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to challenge the order passed by this court for Discharge application on 20/08/2014 to the Hon'ble High Court of Gujarat and it was granted hence the matter is adjourn on 30/09/2014. A photo copy of Exemption report for your kind perusal. On 30/09/2014, an application was given on behalf of Accused No.3 for bring some certified copies and it was not make by this court office, hence, the adjournment application was granted and the matter was fixed on 07/11/2014. A photo copy of Exemption report for your Honou'r kind perusal. On 07/11/2014, Accused No.1 is present in this Court and Accused No.3 and 4 was not present, hence, exemption application was given on behalf of Accused No.3 and 4 and on that day they have mentioned in this adjournment application that they have filed a petition in the Hon'ble High Court of Gujarat and they will produced a number of petition in next date and it was granted the matter was adjourn for Frame of Charge on 08/12/2014. A photo copy of Exemption report for your Honou'r kind perusal. On 08/12/2014, court was on leave hence, the matter is adjourn on 30/12/2014 for Framing of Charge. On 30/12/2014, Accused No.1 is present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that despite many such orders being passed in the past in different matters the Courts have not be able to complete the trials. Nothing has been pointed out by the State that the delay has occurred on account of any delaying tactics adopted by the applicant herein. 20. The Supreme Court in the case of State through CBI Vs. Dr.Narayan Waman Nerukar and another reported in (2002) 7 SCC 6 has observed as under: 6. Recently a 7Judges Bench of this Court in P. Ramachandra Rao vs. State of Karnataka held as under:(SCC pp.58788, para 1) No person shall be deprived of his life or his personal liberty except according to procedure established by law declares Article 21 of the Constitution. 'Life and liberty', the words employed in shaping Article 21, by the founding fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Embarking upon the interpretation thereof, feeling the heartthrob of the Preamble, deriving strength from the Directive Principles of state policy and alive to their constitutional obligation, the courts have allowed Article 21 to stretch its arms as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal proceedings merely on account of lapse of time, as prescribed by the directions made in the aforesaid cases. 8. As was observed in P. Ramchandra Rao's case (supra), at the most periods of time prescribed in those decisions can be taken by the Courts in seisin of the trial or proceedings to act as reminder when they may be persuaded to apply to their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration several relevant factors as pointed in A.R. Antulay's case (supra) and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time limits cannot and will not be treated by any court as a bar to further trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. 9. While considering the question of delay the court has a duty to see whether the prolongation was on account of any delaying tactics adopted by the accused and other relevant aspects which contributed to the delay. Number of witnesses examined, volume of documents likely to be exhibited, nature and complexity of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India (AIR 1978 SC 597). We have held in that case that article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously 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. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, far or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. In Abdul Rehman Antulay's case (AIR 1992 SC 1701) (supra), a Constitution Bench of the Hon'ble Supreme Court held that right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in S. 309, Cr. P. C. and that the said right comprehends all stages viz., investigation, inquiry, trial, appeal, revision and retrial. In paragraph 81, it was held : 81. Article 21 declares that no person shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The main procedural law in this country is the Code of Criminal Procedure, 1973. Several other enactments too contain many a procedural provision. After Maneka Gandhi v. Union of India (AIR 1978 SC 597), it can hardly be disputed that the 'law' (which has to be understood in the sense the expression has been defined in clause (3)(a) of Article 3 of the Constitution) in Article 21 has to answer the test of reasonableness and fairness inherent in Articles 19 and 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That 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 priod of remand and preconviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation 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 nonavailability 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 tactic . Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Nonavailability of witnesses, disappearance of evidence by lapse of time really works against the interest of the prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere nonasking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule 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 a 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereunder, it was held : The criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482, Cr. P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. (Emphasis added) 24. In Pankaj Kumar's case (AIR 2008 SC 3077) (supra), the Hon'ble Supreme Court even considered the question of the duty of the Court on infringement of the right to speedy trial. In the light of the aforesaid decisions of the Hon'ble Supreme Court, the contra contention of the respondent to the petitioners' contention that right to speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India can only be a claptrap and therefore, it must fail. In short, speedy trial is undoubtely a right flowing from Article 21 of the Constitution of India. In A. R. Antulay's case (AIR 1992 SC 1701) (supra), the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (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 a given case. 25. I deem fit to take cognizance of one more fact that there is a charge of Section 465 of IPC i.e. forgery, I am of the view that even if the entire case of the prosecution as accepted as true, no case of forgery is made out. The case on hand is one in which a school availed of monitory benefit in the form of salary/maintenance grant twice by placing a bill knowingly well that the amount earlier had already been disbursed. The monitory benefit was in favour of the school. Of course, the case of the prosecution is that the applicant herein and other coaccused had acted in collusion with the each other. 26. I am not going into the merit of the matter because I am of the view that this is a case wherein the prosecution deserves to be dropped so far as the applicant is concerned, on the ground that his right to have a speedy trial under Article 21 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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