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TMI Blog2003 (4) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... n 7-11-1986 for petitioner's prosecution under Section 135(1)(b)(ii) of the Customs Act, 1962 and Section 85(l)(ii) of the Gold Control Act in the Court of Additional Chief Metropolitan Magistrate. Prior to that requisite permission was obtained from Collector of Customs for the prosecution of the petitioner. Other two accused, however, could not be apprehended. Petitioner was released on bail on 2-1-1987. 12 witnesses were cited by the prosecution but during the pre-charge evidence during the past 15 years only two of them were examined. The petitioner has contended that the prosecution is vitiated as out of 49 dates fixed for hearing in the case on nine occasions the Presiding Officer was on leave, on three occasions the petitioner sought exemption from personal appearance and on the remaining 37 occasions the prosecution sought for adjournment to produce the pre-charge evidence. The petitioner, as such, has been denied speedy trial violating fundamental right of the petitioner enshrined in Article 21 of the Constitution of India. Petitioner on 7-12-2000 filed an application for closing of the pre-charge evidence and his discharge on the ground of delay and violation of Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such delay is a ground to quash the FIR." 6.In Hussainara Khatoon and others (I) v. Home Secretary, State of Bihar - (1980) 1 SCC 81 it was held :- "That imprisonment of under trials is a denial of human rights and withholding of basic freedoms. It was further observed that speedy trial of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. Speedy trial alone has a fundamental right, is implicit in the broad sweep and content of Article 21. 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." 7.A Division Bench of this Court in P.D Sharma v. Union of India & Anr. - 2000 (56) DRJ (Suppl.) 696 (DB) in a case where three of the accused had died during the pendency of the case which was pending for the last 16 years and not a single witness was examined and that the Court was not sure as to how many witnesses woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-jacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma Case (I) and (II). At the most, the periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that ratio of law laid down in Raj Dev Sharma is not applicable in Customs case. Now to come on 5-3-2001 for arguments. The date of 19-4-2001 and 20-4-2001 for recording evidence is hereby cancelled in view of the present order. However, prayer of discharging of accused will be considered at the time of framing of charge after considering the evidence already on the file." 12.Now the case is fixed for hearing on the question of framing of the charges against the petitioner. The petitioner has approached this Court for quashment of the proceedings in the meantime complaining inordinate delay in the trial. 13.Petitioner has filed a summary of the order-sheets to buttress his argument that the delay in the trial is attributable to the complainant and not to him. It is, in fact, contended that in all 49 days were fixed for hearing in the case. Out of it on 9 occasions the presiding Magistrate was on leave and on 3 occasions the petitioner sought exemption from personal appearance and requested for an adjournment and that on the remaining 37 occasions the prosecution sought adjournment to produce pre-charge evidence. Argument of the Counsel for petitioner that the delay is not attr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the reason why adjournments for over six months at a time have been given for recording the evidence. The Supreme Court in P. Ramachandra Rao's case (supra) upheld dictum of law laid down in Abdul Rehman Antulay's case (supra). It was observed : - "The constitution bench, in A.R. Antulay's case, heard elaborate arguments. The Court, in its pronouncement, formulated certain propositions, 11 in number, meant to serve as guidelines. It is not necessary for our purpose to reproduce all those propositions. Suffice it to state that in the opinion of the constitution bench (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial; (iii) who is responsible for the delay and what factors have been contributed towards delay are relevant factors. Attendant circumstances, including nature of the 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 must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy trial or other expressions conveying the said concept - are necessarily relative in nature. One may ask - speedy means, how speedy? How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the work load in the particular Court, means of communication and several other circumstances have to be kept in mind". "...it is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory" (para 83). "....even apart from Article 21, Courts in this country have been cognizant of undue delays in criminal matters and wherever there was inordinate delay or where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put to an end by making appropriate orders" (para 65)". 15.It was observed by the Supreme Court that the guidelines laid down in A.R. Antulay's case (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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