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TMI Blog1998 (10) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... atna on 5.12.1995 praying inter alia for quashing the entire prosecution including the F.I.R. on the ground that more than 13 years had elapsed since the institution of the F.I.R. and thus the right of the petitioner to speedy trial was violated. The petition registered as Cr. W.J.C. No. 809/95 was dismissed by the High Court on 7.12.1995 on the ground that the delay was due to the fact that there was only one Special Court of the C.B.I. functioning and a large number of cases were pending before it. It is the said order which is challenged in this petition. 2. The petitioner filed a writ petition in the High Court of Patna on 5.12.1995 praying inter alia for quashing the entire prosecution including the F.I.R on the ground that more than 13 years had elapsed since the institution of the F.I.R and thus the right of the petitioner to speedy trial was violated. The petition registered as Cr. W.J.C. No. 809/95 was dismissed by the High Court on 7.12.1995 on the ground that the delay was due to the ract that there was only one Special Court of the C.B.I. functioning and a large number of cases were pending before it. It is the said order which is challenged in this petition. 3. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r non bailable warrants could be obtained against the witnesses, as the trial court always remained busy in other cases. It is pertinent to mention that the Special Judge for C.B.I., is also Special judge for Vigilances Cases. The Special Court for C.B.I. also hears Sessions Trials and Civil Appeals and as such the Court is hardly left with time to hear exclusively the cases of Anti Corruption matters. Over and above, C.B.I. had 256 cases pending before the special judge in June. 1995, besides cases of Vigilance Department, Government of Bihar and other regular cases such as Cr. Appeals, Session trials entrusted to him by the District and Session Judge, Patna. 5. A rejoinder has been filed by the petitioner refuting the allegations in the counter-affidavit and reiterating that the delay in this case is entirely due to the fault of the prosecution which has prejudiced his fundamental right to speedy trial. It is stated therein that the prosecution failed to produce the documents on 48 occasions and failed to produce witnesses on 46 occasions. 6. The question before us is whether on the facts and circumstances of the case, the prosecution against the petitioner is to be quashe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto imprisonment for life. The Court also observed that no fixed period of delay would be considered to be decisive. 11. In Abdul Rehman Antulay and others versus R.S. Nayak and another (1992) 1 S.C.C. 225 the Constitution Bench of this Court dealt with this aspect of the matter and laid down certain guidelines. The relevant passages in the judgment are as follows:- Another question seriously canvassed before us related to the consequence flowing from an infringement of right to speedy trial. Counsel for accused argued on the basis of the observations in Sheela Barse and Strunk that the only consequence is quashing of charges and/or conviction, as the case may be. Normally, it may be so. But we do not think that is the only order open to court. In a given case, the facts including the nature of offence - may be such that quashing of charges may not be in the interest of justice. After all, every offence more so economic offences, those relating to public officials and food adulteration - is an offence against society. It is really the society - the State - that prosecutes the offender. We may in this connection recall the observations of this court in Champalal Punjaji Shah. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, 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 delays 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? Proceedings taken by either party in good Maith to vindicate their rights and interest, as perceived 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 proceedings or proceedings taken merely for delaying the day of rockoning cannot be treated as proceedings taken in good faith. The more fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 timelimit 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 timelimit in spite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses, crowded dockets on the file of the court etc. 13. The above observations have to be understood in the backdrop of the issues involved in that case. The constitutional validity of Terrorist and Deisruptive Activities (Prevention ) Act, 1987 (TADA) was questioned and a five judge bench was then considering various contentions including the possibility of persons accused of offences under TADA remaining in jail as under trial prisoners for long period on account of harsher and more stringent provisions relating to grant of bail. The observations made therein cannot, therefore, be read as in any way different from the observations made by the seven judge bench in AR Antulay (1992) (1) SCC 225). Hence, the legal position adumbrated by this court in AR Antulay that the right to speedy trial flows from Article 21 and it encompasses the stages right from the date of registration of the FIR and onwards remains unaltered. 14. But it has become necessary to consider the matter at some length and lay down the additional guidelines in view of the large pendency of the cases before the Special Court, Patna for more than two decades by now. There may be similar pendency in other St ..... X X X X Extracts X X X X X X X X Extracts X X X X
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