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TMI Blog2025 (3) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... ere absent. The roznama also shows that the accused were also absent on almost all of these occasions but obviously the trial could not proceed in the absence of the prosecution witnesses. The evidence before charge was not formally closed in the year 2003. The order of the learned Magistrate passed on 13.11.2017, which is annexed at Exhibit-F to this Petition, mentions that till that date i.e. till 13.11.2017 the prosecution had examined only three witnesses - the Court directed that evidence before charge was closed and the matter was fixed for consideration of framing the charge. Thus, this order passed by the learned Magistrate shows that since November, 2003 till November, 2017 the prosecution did not take any steps to complete the step of evidence before charge and it had to be finally closed by the order of the learned Magistrate on 13.11.2017. In the case of Kadra Pahadiya, the Hon'ble Supreme Court in Paragraph-2 has referred to this issue and held that as already held in the case of Hussainara Khatoon and others Vs. Home Secretary, State of Bihar, Patna [1979 (3) TMI 215 - SUPREME COURT], speedy trial was a fundamental right implicit in the guarantee of life and personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arwal and Mrs. Prabha D. Agarwal in the year 2019. During pendency of this Petition, the Petitioner No. 1 Dev Kumar Agarwal (hereinafter referred to as 'Dev Kumar') passed away on 27.12.2019. Therefore, the Petition now survives only on behalf of the Petitioner No. 2 Mrs. Prabha Agarwal (hereinafter referred to as 'the Petitioner Prabha' ), who is 86 years of age as of today. The prayer in the Petition is for quashing of C.C. No. 243/CW/1996 pending before the then Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai (the Additional Chief Judicial Magistrate, First Class, 19th Court, Esplanade, Mumbai as of today). The Petition is for quashing of these proceedings on the ground that the Petitioner's right to speedy trial guaranteed under Article 21 of the Constitution of India is seriously infringed and, therefore, the prosecution needs to be quashed on that ground alone. 3. Before referring to the submissions made by the learned counsel for the contesting parties, very briefly, the allegations in the complaint lodged against the Petitioner Prabha can be referred to as follows. 4. In the year 1983, an intelligence was received by the authorities that the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplied with. According to the complaint, the car could not have been retained in India beyond the period of six months. There was violation of Clause 11 (m) of the Imports Trade (Control) Order, 1955 and the car was imported in India in contravention of prohibition imposed under the Customs Act, 1962; and hence the car was liable for confiscation. According to the complaint, the car was brought in India though it was prohibited in terms of Clause 3 of the Imports Trade (Control) Order, 1955 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. In terms of Section 3(2) of the Imports and Exports (Control) Act 1947, all the goods to which any order under sub-section (1) of Section 3 of the said Act applied, were to be deemed to be the goods of which import or export was prohibited under Section 11 of the Customs Act, 1962. And, therefore, import of the said car was not valid. The allegations are that both the accused along with Mr. Amarjeet produced false and bogus documents for obtaining CCP in respect of that car. Based on all these allegations, the complaint was filed for commission of offences punishable under Sections 132, 135 (1) (a), 135 (1) (b) read with 135 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t itself it was clear that even as per the prosecution case the main allegations were made against the Petitioner Prabha's husband Dev Kumar and one Amarjeet. The prosecution case is that Amarjeet is not traceable. He is not even made an accused. The Petitioner's husband has passed away, therefore, she is deprived of having advantage to consider and rely on the possible defence, which could have been offered by Dev Kumar. But his passing away during the long pendency of the trial has deprived her of any such opportunity, which has affected her another valuable right for no fault of hers. v. In support of his submissions, learned Senior Counsel relied on the judgments of the Hon'ble Supreme Court in the following cases : [i] Kadra Pahadiya and others Vs. State of Bihar (1983) 2 SCC 104. [ii] State of Bihar Vs. Uma Shankar Ketriwal and others (1981) 1 SCC 75. [iii] Vakil Prasad Singh Vs. State of Bihar (2009) 3 SCC 355. [iv] Pankaj Kumar Vs. State of Maharashtra and others (2008) 16 SCC 117. vi. In conclusion of his submissions, learned Senior Counsel Shri Jagtiani emphasized that the Petitioner's right to speedy trial under Article 21 of the Constitution of India is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the prosecution was permitted to lead further evidence by recalling a witness on 25.4.2003. The dates after that reflect sorry state of affairs. From 3.7.2003 onwards till October, 2003 the prosecution witnesses were continuously absent. On 17.11.2003 PW-3 Damle on behalf of the prosecution was present but his cross-examination was declined. Again from 5.1.2004 onwards the roznama simply repeats that the Prosecution Witnesses were absent. This went on continuously till 2018. On 16.7.2018, the summons were issued to the prosecution witnesses for cross-examination. For the first time after that, on 4.9.2018 witness Mr. Yadav, on behalf of the prosecution, was present but the Advocate for the accused filed an application for adjournment. Thereafter on 16.10.2018, the accused were absent though the witness was present. On 13.11.2018, an application was filed by the accused for recalling of prosecution witness No. 2. On 14.1.2019, again the witness was absent; and after that this Petition was filed. 10. Thus, it can be seen that from 2003 upto 2018 continuously the prosecution witnesses were absent. The roznama also shows that the accused were also absent on almost all of these occas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments relied on by the learned Senior Counsel for the Petitioners are important. 15. In the case of Kadra Pahadiya, the Hon'ble Supreme Court in Paragraph-2 has referred to this issue and held that as already held in the case of Hussainara Khatoon and others Vs. Home Secretary, State of Bihar, Patna (1980) 1 SCC 93, speedy trial was a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution of India and any accused who is denied this right of speedy trial is entitled to raise this issue. 16. In Uma Shankar Ketriwal's case, the Hon'ble Supreme Court considered the order passed by a learned Single Judge of Patna High Court quashing the entire proceedings in a criminal case against seven accused who were facing the charge under Section 7 of the Essential Commodities Act before the Court of Magistrate at Bhagalpur. The observations of the Hon'ble Patna High Court were reproduced with approval. That particular part is as follows : "Another important aspect of the matter is that the prosecution commenced in the year 1963 and it is still going on in 1979. It is true that the accused persons themselves are partly blamed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... important in the context of the present case. Those paragraphs are as follows : "18. Time and again this Court has emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the Cr.P.C. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi v. Union of India and Anr. [1978] 1 SCC 248 and in Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1980) 1 SCC 81, this Court had observed that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be 'reasonable, fair and just'; and therefrom flows, without doubt, the right to speedy trial. It was also observed that : [Hussainara Khatoon case SCC p. 89, para 5] "5. ..... No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. 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; (ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in the High Court must, however, be disposed of on a priority basis. xxxxxx xxxxxx 24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinately long delay may be taken as presumptive proof of prejudice. 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. It is not feasible to prescribe an outer time limit for conclusion of all criminal proceedings. 19. In Pankaj Kumar's case, Paragraphs-22, 23, 24 and 27 are important which are as follows: "22. It is, therefore, well settled that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. 23. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g any adjournment of the trial for various reasons. Therefore, the ratio of this judgment does not help Shri Mishra's submissions. Undoubtedly the merits of the matter assumes importance while considering the plea of quashing of the prosecution on the ground of infringement of the valuable right of speedy trial, but, in this particular case before us the delay is so inordinate and gross that even after considering seriousness of the allegations made in the complaint, we still feel that the delay is so much that merits would not affect the outcome of this Petition and save the prosecution. Even on merits, the complaint shows that the main role was played by the Petitioner Prabha's husband Dev Kumar in collusion with Amarjeet. Though the car was registered in the name of the present Petitioner Prabha; the complaint itself shows that everything was allegedly done by Dev Kumar and Amarjeet. To that extent, on merits also, the Petitioner Prabha had a much lesser role to play. 22. As mentioned earlier, the delay is not only at the stage of conduct of the trial but it starts right from the time when the investigation started as is observed by the Hon'ble Supreme Court in the judgments re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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