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TMI Blog2012 (8) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Sessions Judge (East), Kakardooma Courts, Delhi. 3. The Petitioners herein are the accused and tried for the assassination of Shri. L.N. Mishra, the then Union Railway Minister. It is the case of the prosecution that Shri. L.N. Mishra was injured in a bomb-blast at the Railway Station, Samastipur on 2.01.1975 and later succumbed to his injuries on 3.01.1975. The initial investigation was conducted by the Bihar C.I.D. and subsequently it was transferred to the Central Bureau of Investigation (for short, 'C.B.I.') who filed charge sheet on 10.11.1975. Thereafter, this case was transferred by this Court to Delhi vide its order dated 17.12.1979 due to interference by the then Bihar Government. Learned Additional Sessions Judge, Karkardooma, Delhi, after framing the charges, initiated trial against the accused persons but, unfortunately, the trial is still pending for the past 37 years. In 1987, the Petitioner(s) had preferred a Writ Petition (Crl.) No. 268/87 before this Court for quashing of the charges and proceedings in view of pending trial for over 12 years. This Court had disposed of the writ petitions vide its Order dated 10.12.1991 with a direction to the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused but also takes into consideration the sufferings faced by his family members. He would submit systemic failure has sufficiently punished the Petitioners and the very fact of delay shows prejudice caused to the Petitioners. He would further submit that this is the ideal case where this Court can correct the short-fallings in the criminal justice delivery system by limiting the time for the completion of the trial. He would point out that this Court, on the earlier occasion, had issued direction to the trial court to expeditiously complete the trial on day to day basis, but even after two decades, the trial is still not complete in the year 2012. He would submit that this Court may quash the excruciatingly long trial on the ground that it is unique case which has not only seriously prejudiced petitioners but also brutally violated their right to speedy trial, which is a part of their right to life. He would contend that in a case of delay of 10 to 15 years, this Court can order for expeditious completion of the trial, but not in a case where the delay is for more than 37 years, and therefore, this Court should certainly intervene and give quietus to the trial. 6. The Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its own background and special features, if any. No generalization is possible and should be done. 8. He would further rely on the decision of this Court in Vakil Prasad Singh v. State of Bihar (2009) 3 SCC 355, wherein the charge sheet was filed after the completion of investigation and subsequently, the learned Magistrate took cognizance vide its orders dated 20.02.1982, but nothing substantial did happen till 1987. Thereafter, the accused approached the High Court for fresh investigation as the Investigating Officer had no jurisdiction to investigate. The High Court vide its order dated 07.12.1990 quashed the order of cognizance taken by the Magistrate and ordered fresh investigation. Nothing was done till 1988. The accused again approached the High Court for quashing of entire criminal proceeding son the ground that re-investigation has not been initiated by the prosecuting agency. Subsequently, the reinvestigation was ordered only in the year 2007 and fresh charge-sheet was filed. The High Court dismissed such petition filed by the accused. However, this Court found that there is inordinate delay and has quashed the proceeding. This Court has observed that the speedy tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in a fake encounter. The accused preferred a petition under Section 227 of the Code of Criminal Procedure. before the trial court. The same was dismissed. Thereafter, the accused filed a Criminal Revision Petition before the High Court. The same was also dismissed. Being aggrieved, the accused approached this Court. This Court, while dismissing his appeal, has observed that at this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only course open. Further, whether the trial will end in conviction or acquittal is also immaterial. It is also observed that the question whether the materials at the hands of the prosecution are sufficient or not are matters for trial. 11. Shri Raval would conclude his submission by stating that the real purpose of the criminal proceedings is to find out the truth which can only be done after the conclusion of the trial. 12. We preface our decision by extracting certain observations made by this Court in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225, Kartar Singh v. State of Punjab, (1994) 3 SCC 569 and P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 faith, 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 reckoning cannot be treated as proceedings taken in good faith. The mere 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 regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on -what is called, the systemic delays. It is true that it is the obligation of the State t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 time-limit 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 time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit in effectuates the guarantee of right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is properly reflected in Section 309 of the Code of Criminal Procedure. 87. This Court in Hussainara Khatoon (I) v. Home Secretary, State of Bihar while dealing with Article 21 of the Constitution of India has observed thus:(SCC p. 89, para 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. 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 levelled 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. See also (1) Sunil Batr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion we hold: (1) The dictum in A.R. Antulay case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The 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 like a straitjacket 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognized in the Hussainara Khatoon's Case AIR 1979 SC 1360, wherein, the court held that a speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution. Subsequently, in a series of judgments, this Court has held that 'reasonably' expeditious trial is an integral and essential part of the Fundamental Right to Life and Liberty enshrined in Article 21 of the Constitution of India. 18. The guarantee of a speedy trial is intended to avoid oppression and prevent delay by imposing on the court and the prosecution an obligation to proceed with the trial with a reasonable dispatch. The guarantee serves a threefold purpose. Firstly, it protects the accused against oppressive pre-trial imprisonment; secondly, it relieves the accused of the anxiety and public suspicion due to unresolved criminal charges and lastly, it protects against the risk that evidence will be lost or memories dimmed by the passage of time, thus, impairing the ability of the accused to defend him or herself. Stated another way, the purpose of both the criminal procedure rules governing speedy trials and the constitutional provisions, in particular, Article 21, is to relieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caused great prejudice to the Petitioners but also their family members. Presumptive prejudice is not an alone disparities of speedy trial claim and must be balanced against other factors. The accused has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. When the accused makes a prima-facie showing of prejudice, the burden shifts on the prosecution to show that the accused suffered no serious prejudice. The question of how great lapse it is, consistent with the guarantee of a speedy trial, will depend on the facts and circumstances of each case. There is no basis for holding that the right to speedy trial can be quantified into specified number of days, months or years. The mere passage of time is not sufficient to establish denial of aright to a speedy trial, but a lengthy delay, which is presumptively prejudicial, triggers the examination of other factors to determine whether the rights have been violated. 21. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise powers under Sections 258, 309 and 311 of the Code of Criminal Procedure. to effectuate the right to a speedy trial. In an appropriate case, directions from the High Court under Section 482 Code of Criminal Procedure. and Article 226/227 can be invoked to seek appropriate relief. 24. In view of the settled position of law and particularly in the facts of the present case, we are noting agreement with the submissions made by learned Senior Counsel, Shri. T.R. Andhyarujina. Before we conclude, we intend to say, particularly, looking into long adjournments sought by the accused persons, who are seven in number, that accused cannot take advantage or the benefit of the right of speedy trial by causing the delay and then use that delay in order to assert their rights. 25. The learned Senior Counsel would tell us, please don't look who caused the delay in completing the trial but only look at whether there is delay in completion of the trial and if it is there, please put a big full stop for the trial. In our view, this submission of the learned Senior Counsel cannot be accepted by us, in view of the observations by this Court in P. Ram Chandra's case(supra). Befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r prayer is to quash the prosecution primarily on the ground of violation of their fundamental right of speedy trial guaranteed under Article 21 of the Constitution of India. 32. Mr. T.R. Andhyarujina, Senior Advocate appears in support of the writ petitions. He submits that delay of37 years in conclusion of the trial, for whatever reason, are atrocious and a civilized society cannot permit continuance of the trial for such a long period. He appeals to us to rise to the occasion and make history by holding that the system which allows trial for such a long period is barbaric, oppressive and atrocious and, therefore, in the teeth of right of speedy trial guaranteed under Article 21 of the Constitution. Systemic delay cannot be a defence to deny the right of speedy trial, emphasizes Mr. Andhyarujina. 33. I have given my most anxious consideration to the submission advanced and, at one point of time, in deference to his passionate appeal I was inclined to consider this issue in detail and give a fresh look but, having been confronted with the Five-Judge Constitution Bench decision in the case of Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 and Seven-Judge Constitution Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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