Criminal Misc. No. 44858-M of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 44858-M of 2004 Date of decision:- 17.7.2008 A.S. Rana ...Petitioner. Versus State of Punjab and others ...Respondents. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Gurcharan Dass, Advocate for the petitioner. Mr. Anter Singh Brar, DAG, Punjab. Mr. P.S. Brar, Advocate for respondents No.2 and 3. RAJESH BINDAL J. 1. Prayer in the present petition is for quashing of FIR No. 90 dated 3.11.1988 registered under Sections 420, 468, 471 and 380 IPC at police station, Kotwali, Ludhaina against the petitioner and all subsequent proceedings thereto. 2. Briefly the facts are that the impugned FIR came to be recorded on a complaint made by G.S. Aggarwal, Senior Branch Manager, Bank of Baroda, Clock Tower, Ludhiana with the allegation that two draft leaves bearing Nos. DD/87/M/912084 and 912085 were missing from draft book No. DD/87/M/0912001 to 0912100. The FIR did not contain the name of any person who had stolen bank draft. The petitioner, who was working in Criminal Misc. No. 44858-M of 2004 2 the bank was lateron added as an accused in the FIR. 3. The quashing is prayed for on the ground of delay and laches as a right to speedy trial has been held to be fundamental right by Hon’ble the Supreme Court of India. 4. Learned counsel for the petitioner submitted that earlier he had filed a petition bearing Criminal Misc. No. 17831-M of 1994 for quashing of the impugned FIR, however, the same was dismissed with liberty to the petitioner to file appropriate application before the learned Magistrate for dropping of criminal proceedings against him or his discharge. However, in the application filed by the petitioner, a report was submitted by the police that SI Hari Singh had submitted cancellation report on 7.1.1991 but the record was missing. As the cancellation report had not been submitted to the Court, the application filed by the petitioner for discharge was dismissed. 5. Preparation of cancellation report by Inspector Hari Singh on January 7, 1991 and also the fact that the petitioner in fact was not named in the FIR is admitted by the State in the written statement. It is further stated that the cancellation report was not traceable in the police station Kotwali, Ludhiana and on a direction of the Senior Superintendent of Police, inquiry was being conducted to fix responsibility of the guilty official and also to trace out the file, if possible. In additional affidavit dated August 16/20, 2007 filed by Babu Lal Meena, IPS, Assistant Superintendent of Police, City-I, Ludhaina, it is stated that the misplaced file could not be traced despite best efforts and the same has been reconstructed as per rules. The cancellation report in terms of the reconstructed file has been forwarded to the Court for further proceedings. 6. Learned counsel for the petitioner submitted that sword of pending criminal case is hanging on the head of the petitioner for the last twenty years inspite of the fact that the petitioner is not named in the FIR and further that on investigation even a cancellation report was prepared on 7.1.1991 but still as per the State the same having been lost the petitioner is being made to suffer. The conduct of the respondents shows their indifferent attitude towards the innocent citizens. Reliance has been placed on Manjit Singh versus State of H.P. 1998 (1) RCR (Crl) 541. Criminal Misc. No. 44858-M of 2004 3 7. Learned counsel for the State did not dispute the facts stated by the learned counsel for the petitioner. He, however, submitted that once the cancellation report has been submitted now, the court below will take appropriate action thereon. Counsel for respondent Nos. 2 and 3 submitted that though in the initial enquiry they were held guilty for loss of file but in appeal they have been exonerated. 8. Having heard learned counsel for the parties, I find merit in the contentions raised by learned counsel for the petitioner. The undisputed facts on record are that the petitioner is facing the agony of trial in the FIR registered on 3.11.1988, in which the petitioner is not even named. After inquiry on 7.1.1991 a cancellation report was prepared but the same did not see the light of the day as the file was misplaced. On 3.4.2007 this Court passed the following order : “The main prayer made in the petition is for quashing of the FIR on the ground that the cancellation report was prepared in this case by the police, but the same was lost and was not presented before the Court. The state of affairs reflected in the petition would not speak very well of conduct of the police for making the petitioner to suffer for so long. The Counsel for petitioner says that the police has made the petitioner to suffer for last 18-1/2 years. Petitioner seems to be justified in raising this grievance. Let the explanation of SSP concerned be obtained in this regard as to why the petitioner should not be compensated for the sufference due to the negligence of the police. He will also disclose as to who is responsible for the loss of cancellation report due to which the petitioner is facing prosecution for almost two decades.” 9. On 3.5.2007 Senior Superintendent of Police, Ludhiana appeared in person in court and submitted that the departmental enquiry had been initiated and action to reconstruct the file is in process. It was only thereafter that the file was reconstructed and the cancellation report was submitted in the court below, but still this fact cannot be disputed that it is almost for the last 20 years that sword of the criminal case is hanging on the head of the petitioner, in which he is not even named in the FIR and further Criminal Misc. No. 44858-M of 2004 4 even on investigation, the police prepared the cancellation report way back on 7.1.1991. 10. It is settled law that any person accused of a criminal offence has a right of speedy trial. It is implicit in the right to life guaranted under Article 21 of the Constitution of India. If speedy trial cannot be enshrined, the liberty of an accused cannot be curtailed by indefinite prolonged trial. Whether an accused, who is facing trial, is in custody or on bail is of no consequence in this regard, because the liberty of an accused is still curtailed completely or partially because of prolonged trial. It is only the prosecution which suffers because inevitably some or many of the witnesses may not be available and there is possibility of the record getting misplaced. It is important for the reason that the burden of establishing the charge rests heavily on the oral/documentary evidence led by the prosecution. There is likely to be natural decay in the memory of the oral evidence. If the evidence that is to be presented in a trial is delayed unreasonably that would be complete waste of judicial time, which would be an exercise in futility as on the basis thereof the prosecution can never hope to succeed. Looking at the problem from another angle even an accused is highly prejudiced with the delayed trial, because any lapse on the part of the defence would inevitably result in penal consequences to the accused which may entail imprisonment and/or fine. It is for this reason that a speedy trial is good for prosecution as well as the accused. 11. The humanitarian and social element involved in these cases also cannot lost sight off. If a person who is really guilty of an offence is not punished immediately because of delayed trial this will go against the criminal jurisprudence and his conviction at a later date will not succeed in having deterrent effect. Similarly, if innocent person is involved in a false case and the agony of trial is kept hanging on his head for years together, he may loose number of opportunities in his life because of pending criminal case. 12. In Manjit Singh’s case (supra) Hon’ble the Supreme Court opined as under: “16. In AIR 1990 SC 1266 : 1990 Cri LJ 1306 State of Andhra Pradesh v. P.V. Pavithran, the Apex Court said that (para 7 page Criminal Misc. No. 44858-M of 2004 5 1268 of AIR). “7. There is no denying the fact that a lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceedings to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis. Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence or inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the Court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation.” Again, in para 9 of this judgment it has been said that : “9. The determination of the question whether the accused has been deprived of a fair trial on account of delayed or protracted investigation would also, therefore, depend on various factors including whether such delay was unreasonably long or causing deliberately or intentionally to hamper the defence of the accused or whether such delay was inevitable in the nature of things or whether it was due to the dilatory tactics adopted by the accused. The Court, in addition, has to consider whether such delay on the part of the investigating agency has caused grave prejudice or disadvantage to the accused.” 17. In 1922(1) SCC 225 : 1992 Cri LJ 2717 Abdul Rehman Antulay v. R.S. Nayak, after detailed analysis of the question by the Apex Court, following propositions have been laid down by way of guidelines, although, they have not been laid exhaustively. These are (para 86, pp. 270-272 of SCC). Criminal Misc. No. 44858-M of 2004 6 “86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: (1) Fair, just and reasonable procedure implicit in Art. 21 of the Constitution 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 social interest also, does not make it any 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 Art. 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the right to speedy trial from the point of view of the accused are: (a) the period of remand and pre- conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expenses and disturbances to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be Criminal Misc. No. 44858-M of 2004 7 minimal; and (c ) 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. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, “delay is a known defence tactic”. Since the burden of proving the guilt of the accused lies upon the prosecution, 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 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. Criminal Misc. No. 44858-M of 2004 8 (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 work-load 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 to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker “it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate.” The same idea has been stated by White, J. in U.S. v. Ewell in the following words: '...................the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredient; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of the given case. Criminal Misc. No. 44858-M of 2004 9 (7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put in his favour, but the mere non- asking for speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases. (8) Ultimately, the Court has to balance and weigh the several relevant facts – 'balancing test' or 'balancing process' – and determine in each case whether the right to speedy trial has been denied in a given case. (9) 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. 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 Criminal Misc. No. 44858-M of 2004 10 any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evovled merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right of speedy right, 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 ineffectuates 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 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 High Court must, however, be disposed of on a priority basis.” xxx xxx xxx 20. In Prithvi Raj v. State of Haryana, 1981 Cri LJ 984 (P&H), the following observations are worth noticing ( at pp.985 and 986 of Cri LJ): “To allow the criminal proceedings to continue further after a long lapse of time of about 11 years from the date of alleged commission of offence would, in my opinion, amount to permitting a Court proceeding to degenerate into a weapon of harassment and would not at this stage, achieve any salutary public purpose. On the facts and circumstances obtaining in the instant case, such Criminal Misc. No. 44858-M of 2004 11 continuance constitutes gross abuse of process of Court. It is thus imperative for securing the ends of justice that this criminal proceeding should no longer be allowed to stand and must be quashed.” 21. Chief Justice Warren, delivering the opinion of the United States Supreme Court in Peter H. Klopfer v. State of North Carolina, (1967) 18 Law Ed 2d 1 : 386 US 213: “We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, 'we will sell to no man, we will not deny or defer to any man either justice or right', but evidence of recognition of the right to speedy justice in even earlier times is found in the Assilize of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of goal delivery and/or oyer and terminer were visiting the countryside three times a year.” 22. Another aspect of the right to speedy trial was then highlighted in Barker v. Wingo, 1972(33) Law Ed 2d 101 : 407 US 514 in these words: “The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and, at times in opposition to, the interest of the accused.” Yet again, the basic principles underlying the right were concretised in the following terms in Richard M. Sumith v. Fred M. Hooey, 1969 (21) Law Ed 2d 607 : 393 US 374: Criminal Misc. No. 44858-M of 2004 12 “Suffice it to remember that this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: “(1) To prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and, (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.” 13. Hon'ble the Supreme Court in Mahendra Lal Das versus State of Bihar and others (2002) 1 SCC 149 opined that the investigating agency cannot be given the latitude of protracting the conclusion of investigation without any limit of time. Speedy trial was considered to be a part of fundamental right of any citizen as enshrined in Article 21 of the Constitution of India. The right to speedy trial was held to encompass all stages namely investigation, inquiry, trial, appeal, revision and retrial. Para 5 of the judgment can be referred to for the purpose which is as under: “5. It is true that interference by the court at the investigation stage is not called for. However, it is equally true that the investigating agency cannot be given the latitude of protracting the conclusion of the investigation without any limit of time. This Court in Abdul Rehman Antulay v. R.S. Nayak while interpreting the scope of Article 21 of the Constitution held that every citizen has a right to speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest also. It is in the interest of all concerned that guilt or innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. While determining the alleged delay, the court has to decide each case on its facts having regard to all attending Criminal Misc. No. 44858-M of 2004 13 circumstances including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case. Inordinate long delay can be taken as a presentive proof of prejudice.” 14. Right to speedy trial has been reiterated by a Bench of seven Hon’ble Judges of Hon'ble the Supreme Court in P. Ramchandra Rao versus State of Karnataka 2002 (4) SCC 578. 15. If the facts of present case are examined in the light of enunciation of law as referred to above, what is found is that the petitioner is facing the agony of pending criminal case against him since 3.11.1988. More important is that a cancellation report was prepared way back on 1.1.1991, which did not see in the light of the day. Even where the trial has not commenced against the petitioner he is being treated as an accused in the FIR and for all purposes criminal case is pending against him for the last about two decades, which is following on him as a shadow. 16. For the reasons mentioned above, I find merit in the present petition. Accordingly the impugned FIR No. 90 dated 3.11.1988 and all proceedings subsequent thereto against the petitioner are quashed. Keeping in view peculiar facts and circumstances of the case, the petitioner is entitled to special costs of Rs. 25,000/-. The cost shall be paid by the State to the petitioner within one month from the date of receipt of a copy of the order. However, it shall be entitled to