ORDER [ENTITY], J.
1. The aforesaid two petitions under [SECTION] of the [ACT] (for short hereinafter to be referred as 'the Code') are for quashing the very same proceedings pending in the Court of Chief Judicial Magistrate, Nagaur as Criminal Case No. 436 of [SECTION]80. Hence, they are being disposed of by one common order.
2. Heard learned counsel for the petitioner as well as the learned Public Prosecutor.
3. A First Information Report was lodged on November 28, [SECTION]72 by [ENTITY], Manager, Nagaur Central Cooperative Bank, Nagaur, Branch-Deedwana, before the Station House Officer, Deedwana. According to F.I.R. [ENTITY] Masala Utpadak Sahkari Samiti Limited, [ENTITY] whose Secretary at the relevant time was [ENTITY], took loan of Rs. 33975.[SECTION] Paise on August 25, [SECTION]71 from the Bank and as security for the said loan grinded red chillies were pledged with the Bank on that very date. The said pledged goods after weighing were stored in boxes and the boxes were kept with [ENTITY] and Godown Keeper of the Bank, in room No. 2 of the Bank premises. One key of the lock was kept with [ENTITY]. Loan for Rs. 35,000/- was applied for by [ENTITY], Secretary of the [ENTITY] Masala Utpadak Sahkari Samiti Ltd. [ENTITY] which was irregularly sanctioned by the Chairman of the Bank. The weighing details were written in the handwriting of [ENTITY]. On June 23, [SECTION]72 the complainant had come to verify the pledged goods. On verification by [ENTITY] in the presence of other members of the Society and local M.L.A., it was found that boxes contained stones and sand and not the grinded red chillies. Hence the first information report on November 28, [SECTION]72.
4. Three years later, after investigation in the first instance the police filed challan against [ENTITY] under [SECTION], [ACT] and against [ENTITY] and [ENTITY] only under [SECTION], [SECTION] and [SECTION], [ACT] on December 24, [SECTION]75. On February 23, [SECTION]76, [ENTITY] moved an application that cognizance be taken against [ENTITY], [ENTITY] and [ENTITY]. On this application the Magistrate on January 13, [SECTION]77 directed the police to make further investigation and obtain relevant document from the courts in accordance with rules. The investigating agency was directed to complete the investigation and submit its report by February [SECTION], [SECTION]77. However it took almost two years before the investigating agency submitted its report. The additional challan was filed on February 27, [SECTION]79 against [ENTITY], Chairman of the Bank, for sanctioning loan beyond his powers and [ENTITY] the then Branch Manager of the Bank under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION], [ACT] It was also requested that charge under [SECTION] may be added against [ENTITY], [ENTITY] and [ENTITY] in challan filed against them. On May 20, [SECTION]80, the. case was transferred to Chief Judicial Magistrate on an application filed by A. P. P. under [SECTION] of the Code on April 16, [SECTION]80. Thereafter, Chief Judicial Magistrate took cognizance against [ENTITY] on September 4, [SECTION]81 and issued process to him. On September 26, [SECTION]81 bail application of [ENTITY] was accepted and the Court directed the A.P.P. to deliver the copies of challan papers to the accused [ENTITY]. Such copies were not delivered to the accused up to August 24, [SECTION]84. On August 24, [SECTION]84 also only incomplete copies were delivered. It appears that full set of papers was delivered to said [ENTITY]. Meanwhile, [ENTITY] had challenged the Order of the Court taking cognizance against him by revision. The Court recorded on December 6, l985 that revision of [ENTITY] has been accepted.
5. No charges have yet been framed.
6. In the aforesaid circumstances these two petitions have been filed by accused [ENTITY] and [ENTITY] under [SECTION] of the Code on October 17, [SECTION]89 and January 3, [SECTION]90 respectively for quashing the proceedings on the ground that their right of speedy and fair trial has been infringed which is integral part of fundamental right of liberty enshrined under [SECTION] of the [ACT],
7. The issue is no more res integra since the decision in [PRECEDENT], and [ENTITY] v. Home Secretary, State of Bihar, Patna, , through the catena of decisions to [PRECEDENT], , that speedy trial is integral part of the fundamental right of liberty of a citizen under [SECTION] of the [ACT]. A person cannot be deprived of his liberty, except through procedure established by law. Procedure established by law means a procedure which is reasonable, fair or just, because reasonableness and fairness in all state actions and laws antithesis of arbitrariness is necessary adjunct to guarantee of equality before law under [SECTION] and [SECTION] and every state action, in all spheres of activities, must withstand the test of reasonableness and fairness.
8. In [ENTITY]'s case , the Apex Court put beyond doubt the integral connection between [SECTION], [SECTION] and [SECTION]. Justice [ENTITY] spoke thus (paras 55 and 56):
"The law must, therefore, now be taken to be well settled that [SECTION] does not exclude [SECTION] and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by [SECTION] such law insofar as it abridges or takes away any fundamental right under [SECTION] would have to meet the challenge of that Article. This proposition can no longer be disputed after the decisions in [ENTITY]'s case, , [ENTITY]'s case, and [ENTITY]'s case, .
[SECTION] strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades [SECTION] like a brooding omnipresence and the procedure contemplated by [SECTION] must answer the best of reasonableness in order to be in conformity with [SECTION]. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of [SECTION] would not be satisfied."
9. This is firmly established that procedure contemplated under [SECTION] by which a person can be deprived of his liberty must conform to test of reasonableness required under [SECTION] and [SECTION]. Right to speedy trial is part of right to a procedure which must be reasonable, just and fair and not arbitrary and oppressive.
10. In [ENTITY]'s case ([SECTION]79 Cri LJ 1036), their Lordships declared as under (para 5):-
"A procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures 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, fair or just' and it would fall foul of [SECTION]. 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 [SECTION]."
11. In [ENTITY] v. State of Bihar, , Justice [ENTITY] speaking for the Court said (para 9) :-
"The constitutional position is now well settled that the right to a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by [SECTION] of the [ACT]."
The Court further stated that (para 9):
"The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty guaranteed by [SECTION] has been infringed is ultimately question of fairness in the administration of criminal justice even as 'acting fairly' is of the essence of the principles of natural justice (In re H. K. [SECTION]67 (1) All ER 226) and a 'fair and reasonable procedure' is what is contemplated by the expression 'procedure established by law' in [SECTION]."
12. In [ENTITY]'s case ([SECTION]92 Cri LJ 2717), the [ACT] Bench after reviewing the host of decisions under [ACT], American [ACT] and British Jurisprudence reaffirmed the speedy trial to be an integral part of fundamental right guaranteed under [SECTION] and concluded its opinion as under (para 54):
"(1)Fair, just and reasonable procedure implicit in [SECTION] of the [ACT] creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also does not make it any-the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
(2) Right to speedy trial flowing from [SECTION] encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. This is how this Court has understood this right and there is no reason to take a restricted view."
13. If one looks at precedents earlier to [ENTITY]'s case ([SECTION]79 Cri LJ 1036) (SC) then also one cannot fail to notice that even apart from [SECTION] 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 warranted (unwarranted), they were put to an end by making appropriate orders. Reference in this connection may be made to [PRECEDENT], , [PRECEDENT], , [PRECEDENT], and [PRECEDENT], , where the Apex Court stopped continuance of trial on the ground of long lapse of time.
[SECTION]. The next question is what is the remedy if the trial is unduely delayed?
15. In United States, right to a speedy trial is a [ACT]al right. In our country where the right to speedy trial is not expressly guaranteed under the [ACT], it has been held implicit in a right to a fair trial which has been held to be a part of life and liberty guaranteed under [SECTION] of the [ACT]. Therefore, every delayed trial is not necessarily an unfair trial vitiating the proceedings. That proposition necessarily brings into consideration of various factors which tends to make a trial unfair. As the host of circumstances and reasons may be responsible for delay, the established view is that the question whether the proceedings or conviction tainted with delay is to be quashed or not has to be answered in each case on the facts and circumstances of the case.
16. The settled principle adhered to by the Courts in India, in this regard is that where the accused himself is responsible for delay and no prejudice is caused to the accused, the trial is not affected. At the same time inordinate long delay is presumed to be proof of prejudice.
17. The underlined concerns in support of the said presumption are that:
1. The accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
2. The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
3. Undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
18. This is also well established that ordinarily where the Court comes to conclusion that right to speedy trial has been violated, the proceedings, charge or the conviction as the case may be, shall be quashed. However, this is not the only course open to the courts. Looking to the various circumstances and principles emerging from various decisions governing the issue of delay in completing trail depending on facts and circumstances of the each case, the Court is empowered to make such appropriate order as the situation demands.
[SECTION]. In [ENTITY]'s case ([SECTION]92 Cri LJ 2717) (SC), in summarising the propositions emerging from the detailed discussions of decided cases in the light of constitutional provisions of India as well as United States of America, the Court observed as under:
"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."
20. The next question arises in the context is that a delay of how long duration can be considered as fatal infringing the fundamental right to a fair trial.
21. In this connection, learned counsel for the petitioners had relied on a Full Bench decision of Patna High Court in [PRECEDENT], .
22. The Full Bench of Patna High Court was of the view that:
"Laying down of an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. A callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones plainly violate the constitutional guarantee of a speedy public trial under [SECTION]. Unless the fundamental right to speedy trial is to be whittled down into a mere pious wish, its enforceability in Court must at least be indicated by an outer limit to which an investigation and the trial in a criminal prosecution may ordinarily extend. Holding otherwise would be merely paying lip service to a precious right whilst denuding it of the benefits of its actual enforceability."
23. The Court, therefore, fixed seven years as a outer limit beyond which the prosecution should be halted in its tracks by holding that this would bring in the weightiest presumption that the enshrined right of speedy trial is violated and such delay would per se be indicative of prejudice.
24. However, this attempt of fixing as outer limit for determining the fairness of the trial on the strength of its age by judicial pronouncement where it "has not been prescribed by statute was specifically disapproved in [ENTITY]'s case ([SECTION]92 Cri LJ 2717) (SC) and the Court opined that whether the delay would result in infringement of right to fair trial in each case would depend on the facts and circumstances of the case.
25. The Court expressed its opinion in the following terms ([SECTION]92 Cri LJ 2717, para 54):
"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."
26. It is a well known fact and cannot be doubted that it is usually the accused who is interested in delaying the proceedings as a well known defence tactics and delay ordinarily prejudices the prosecution on whom the burden of proving the guilt of accused beyond all reasonable doubt lies. Therefore, wherever, the question of infringement of right to speedy trial is alleged, the first question is to be answered is, who is responsible for the delay.
27. In laying down the general principle for determining the question of undue delay, the Apex Court in [ENTITY]'s case ([SECTION]87 Cri LJ 157), opined that the relevant question would be, was the delay unreasonable, was any part of the delay caused by the wilfulness or the negligence of the prosecuting agency, was any part of the delay caused by the tactics of the defence, was the delay due to causes beyond the control of the prosecuting and defending agencies? Where irrespective of any likelihood of prejudice in the conduct of his defence was the very length of the delay sufficiently prejudicial to the accused?
28. In [ENTITY] v. State of Rajasthan, ([SECTION]90) 2 Raj LW 328, this Court observed as under:
"Every accused has a fundamental right for speedy trial and if the accused is not tried speedily and his case remains pending before the Court for an unreasonable length of time then there is violation of this fundamental right guaranteed under [SECTION] of the [ACT]. There may be some reasons like : on account of the Court of the Magistrates being over-burdened or on account of inadequacy of the strength and lack of satisfactory working conditions, but on account of inadequacy or insufficiency of the staff in the Court, or the Court being over burdened, this right of speedy trial cannot be taken away."
29. In [ENTITY]'s case ([SECTION]90 (2) Raj LW 328), the incident occurred in the year [SECTION]80 and the charges were framed in [SECTION]85 and thereafter no evidence was recorded up to September [SECTION]90 i.e. to say even after nine years after submitting of the challan in [SECTION]81 and five years after framing of charges no witnesses were examined. The Court found that this pendency of nine years after filing of the challan and five years after framing of the charge was sufficiently long to violate the right to speedy trial guaranteed under [SECTION] of the [ACT] and quashed the proceedings holding that the sword of Damocles cannot be allowed to remain hanging over the head of the accused for indefinite period.
30. In K.K. Tiwari v. Supdt. of Police, CBI, Rajasthan, Jaipur ([SECTION]89) 1 Raj LR 80, where the accused was tried under [SECTION] of the [ACT], the trial against petitioner was not completed even after lapse of ten years of the framing of the charge, was found by a Division Bench to be vitiated due to inordinate delay and the proceedings were quashed.
31. In yet another case Rakesh Kumar Gupta v. State of Rajasthan, [SECTION]91 Raj Cri C 510, wherein FIR was filed in the year [SECTION]78 for offence under [SECTION], [ACT], challan was filed within five months of the FIR in November [SECTION]78 and charges were framed in September [SECTION]82. The trial was not completed until [SECTION]91. The delay was found to be inordinate resulting in vitiating the fair procedure and the proceedings were quashed.
32. In [ENTITY] v. State of Rajasthan, [SECTION]92 Raj Cri C 370, the Court found that the incident had taken place in [SECTION]72, FIR was lodged in [SECTION]75, challan was filed in [SECTION]80 and charges were framed in [SECTION]81, but so far not a single witness was examined on behalf of the prosecution. The charges were under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION], [ACT]. The proceedings in the aforesaid circumstances were held to be tainted with unfairness on the ground of inordinate delay in trial, and the proceedings were quashed,
33. In the light of the aforesaid principles guiding the way, the facts of the present case may be examined. The incident is alleged to have occurred in [SECTION]71. FIR was lodged in the year [SECTION]72. Challan against three persons viz. [ENTITY], [ENTITY] and [ENTITY] was filed in the Court of Munsif Magistrate, Nagaur after a lapse of three years in December [SECTION]75 under [SECTION], [SECTION] and [SECTION], [ACT]. Thereafter, the Court directed for further investigation on January 13, [SECTION]77 by fixing a period of one month for that purpose. However, the investigating agency took more than two years to submit the result of its investigation and additional challan was filed in the year [SECTION]79 against [ENTITY] and [ENTITY] (one of the petitioner's above) under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION], [ACT] as were in the case of [ENTITY] v. State of Rajasthan ([SECTION]92 Raj Cri C 370). Charge under [SECTION] was added against [ENTITY] and [ENTITY]. Thereafter cognizance was taken against [ENTITY] in September [SECTION]81 by issuing the process to him which were ultimately quashed by the superior Court in revision in [SECTION]85. Even during this period, challan papers were not supplied to [ENTITY]. Even after December [SECTION]85, charges have not been framed uptil [SECTION]89 when the petitioner approached this Court. No witnesses whatsoever were examined, because that stage has not even reached.
34. From the various orders, passed by the Court since the submitting of challan in [SECTION]75, goes to show that it cannot be said that accused were in any way responsible for such delay that even charges could not be framed.
35. In all the cases noticed above, the Court have found a delay of five or more years in completing evidence after framing of charge and delay in completing the trial within ten to thirteen years from the date of occurrence or lodging the FIR fatal.
36. In the present case, from the date of occurrence eighteen years had elapsed when the petitioner approached this Court and more than fourteen years had elapsed in the case of [ENTITY] from the date of filing of challan against him and ten years had elapsed in the case of [ENTITY] from the date of filing the challan against the said accused, yet even charge have not been framed. One of the accused viz. [ENTITY] died during the period.
37. In these circumstances, in my opinion, present is one of the case where from the very length of the delay sufficient prejudice to the accused can be presumed, if the proceedings are further allowed to be continued. It may be noticed here that the accused was nowhere responsible for delay in any manner until the exoneration of [ENTITY] and even after exoneration of [ENTITY] in [SECTION]85, the accused cannot be said to be primarily responsible for such delays. It is true that in the last stages after [SECTION]88, few adjournments have been sought on behalf of the accused on the ground of illness or non-availability of their lawyer, but most of the time, the case has been adjourned either for want of availability of the Presiding Officer or non-availability of the time with the Presiding Officer or for some other reason not attributable to the accused it is clear that the prosecution has been at fault in making delay in investigation and by filing piecemeal challan. Even in spite of the court's orders, the additional investigation which was directed to be completed within one month, the investigating agency took more than two years for the same. There is no material on the record to show that the defence has engaged in deliberate tactics of delaying the matter. 1 am, therefore, of the opinion that the ratio of the aforesaid decisions of this Court more particularly of [ENTITY]'s case ([SECTION]92 Raj Cri C 370), in which the charges were of the like gravity and the delay of ten years from the date of occurrence and five years from the date of framing of the charges was found to be fatal governs the case.
38. In this connection, it would be relevant to refer to one decision of their Lordships of the Supreme Court in [PRECEDENT], , wherein the Court even after finding the delay, after the complaint had been filed, has been mostly on account of mala fide move of the accused. The Supreme Court set aside the judgment of High Court, by which the High Court had quashed the charges framed by the Judicial Magistrate against respondent No. 2 and held that the order of Judicial Magistrate revived, yet ordered the closing of proceedings against respondent No. 2 on the ground of inordinate delay of twenty years. It would be apposite to refer to following observations of their Lordships of the Supreme Court (para 3):
"Once the order of the High Court is vacated the order of the learned Magistrate would revive and the prosecution as directed by the learned Magistrate has now to continue. The petition of the complainant at page 21 of the paper-book shows that the offence was committed between [SECTION]67 and [SECTION]69 which is some twenty years back. While we have no sympathy for the respondent No. 2 and we are clearly of the opinion that he has no equity in his favour and the delay after the complaint had been filed has been most cm account of his mala fide move, we do not think it would be in the interest of justice to allow a prosecution to start 20 years after the offence has been committed. If we could convict the respondent No. 2 in accordance with law, we would have been prepared to do so taking the facts of the case and conduct of the respondent into consideration but that would not be possible within the framework of the law of procedure. We, therefor, do not propose to allow the learned Magistrate to proceed with the trial of the case at this belated stage."
39. From the above, it is apparent that notwithstanding that the cause of delay lay at the doors of the accused, the Court did not find it in the interest of justice to allow the prosecution to re-start twenty years after the case was committed notwithstanding the fact that as a result of the reversal of the High Court order, the charges against the accused revived.
40. The case in hand is a step further. The charges have not yet been framed and almost 22 years have elapsed since the alleged occurrence of the offence. Thus in my opinion, it would be unfair to permit the continuation of the trial in the present case as the delay is such an inordinate which is sufficient by itself to raise weighty presumption of prejudices against the accused without anything more.
41. As a result, both the petitions are allowed and the criminal proceedings pending in the Court of Chief Judicial Magistrate, Nagour in [CASE NUMBER] under [SECTION], [SECTION], [SECTION] and [SECTION] against [ENTITY] and under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] against [ENTITY] are hereby quashed. As the case of the other co-accused are also not different in any manner, it will be just and proper to quash proceedings against them also. Accordingly, entire proceedings in [CASE NUMBER] pending in the Court of Chief Judicial Magistrate, Nagour are hereby quashed against all the accused. Record of the lower Court be sent back immediately.