IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 44 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- BHAGWATIPRASAD DOLATRAI MEHTA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AJ PATEL for Petitioners PUBLIC PROSECUTOR for Respondent No. 1 MR AMIT J SHAH for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 09/10/2000 C.A.V. JUDGEMENT 1. By way of filing this petition under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 the petitioners pray for appropriate writ, order or direction quashing and setting aside the impugned order dated 4.1.1999 at Annexure-D passed by the learned Special Judge and Additional Sessions Judge, City Civil and Sessions Court at Ahmedabad in Special Case No. 15 of 1990 under which an application of the petitioners was dismissed by the said Court. The petitioners contended in the said application that the F.I.R. against the petitioners was filed on 21.10.1988. That the petitioners were arrested and chargesheeted on 11.4.1990. That the charge was framed against the petitioners on 8.3.1994. That thereafter, several adjournments have been granted and several dates have been fixed and yet, proceedings and evidence did not start. That three orders were passed after framing of charge without any evidence and, therefore, the petitioners contended before the Trial Court that the evidence may be closed in the said matter in terms of decision of the Hon'ble Supreme Court in the case of Raj Deo Sharma Vs. The State of Bihar, reported in JT 1998 (7) SC 1. The matter was heard at length and the learned Special Judge has considered the arguments of the rival parties and found that this was not a case in which the evidence can be closed. Therefore, the learned Special Judge had dismissed the said application of the petitioners on 4.1.1999. Feeling aggrieved by the said judgement and order of the learned Special Judge, the petitioners have preferred this petition before this Court challenging the said judgement and order of the learned Special Judge with a prayer to close the evidence in the said matter. 2. The petitioners abovenamed have been facing the aforesaid prosecution along with other accused persons for offences punishable under the provisions of Prevention of Corruption Act. The facts are not very much in dispute. The learned advocate for the petitioners has argued at length that the matter requires consideration and learned Special Judge has not properly considered the aforesaid decision of Raj Deo Sharma (supra) and prays that the present petition be allowed and Court should direct the closure of the evidence in the aforesaid matter. 3. On receiving the petition, notice was issued and after hearing the other side, interim relief was granted by this Court on 4.8.1999 for staying further prosecution of the said Special Case No. 15 of 1990 pending against the petitioners. I have heard learned advocate for the petitioners and Mr. K.G.Sheth, leanred APP for State and have perused the papers. 4. In order to appreciate the arguments advanced by the learned advocates for the parties, it would be necessary to consider certain decisions of the Hon'ble Supreme court in different cases. The process can be said to have been started by decision rendered in the case of Abdul Rehman Antulay Vs. R.S.Nayak, reported in AIR 1992 SC 1701. There, the Hon'ble Supreme Court has considered the provisions contained under Article 21 of the Constitution of India with respect to the right of the accused person to have speedy trial for prompt disposal of the criminal case against him. The Hon'ble Supreme Court has found that in regard to speedy trial, some broad propositions can be laid down. Accordingly, the Hon'ble Supreme Court has laid down those propositions in par.54 of the judgement which can be reproduced for ready reference as follows : (1) Fair, just and reasonable procedure implicit in Article 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 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 Article 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 too unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be 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 Rights 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 appliction/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays 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 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 ensue 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 delay may indeed work to his advantage. 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 be come persecution, again depends upon the facts of a given case. (7) The 'demand' rule cannot be recognized or given effect to. 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 against the accused. Even in U.S.A., 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 factors 'balance 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 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 U.S.A. too has repeatedly refused to fix any such other time limit in spite of the Sixty Amendment. Nor it can be said that non-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. 5. Then, the leaned advocate for the petitioners has relied upon another decision of the Hon'ble Supreme Court in the case of Common Cause, A Registered Society Vs. Union of India and Others, reported in (1996) 4 SCC 33. There, the Hon'ble Supreme Court has considered that it would be necessary to issue guidelines for the speedy trial of criminal case and, therefore, the guidelines were issued by the Hon'ble Supreme Court in the said matter. The said guidelines can be found in para.4 of the said decision which can be reproduced for ready reference as follows : 1(a). Where the offences under IPC or any other law for the time being in force for which the accused are charged before any criminal court are punishable with imprisonment no exceeding three years with or without fine and if trials for such offences are pending for ne year or more and the accused concerned have not been released on bail but are in jail for a period of six months or more, the criminal court concerned shall release the accused on bail or on personal bond to be executed by the accused and subject to such conditions, if any, as may be found necessary, in the light of Section 347 of the Criminal Procedure Code (CrPC). (b) Where the offences under IPC or any other law for the time being in force for which the accused are charged before any criminal court are punishable with imprisonment nor exceeding five years, with or without fine, and if the trials for such offences are pending for two years or more and the accused concerned have not been released on bail but are in jail for a period of six months or more, the criminal court concerned shall release the accused on bail or on personal bond to be executed by the accused and subject to the imposing of suitable conditions, if any, in the light of Section 437 CrPC. (c) Where the offences under IPC or any other law for the time being in force for which the accused are charged before any criminal court are punishable with seven years or less, with or without fine, and if the trials for such offences are pending for two years or more and the accused concerned have not been released on bail but are in jail for a period of one years or more, the criminal court concerned shall release the accused on bail or on personal bond to be executed by the accused and subject to imposing of suitable conditions, if any, in the light of Section 437 CrPC. 2(a). Where criminal proceedings are pending regarding traffic offences in any criminal court for more than two years on account of non-serving summons to the accused or for any other reason whatsoever, the court may discharge the accused and close the case. (b) Where the cases pending in criminal courts for more than two years under IPC or any other law for the time being in force are compoundable with permission of the court and if in such cases trials have still not commenced, the criminal court shall, after hearing the public prosecutor and other parties represented before it or their advocates, discharge or acquit the accused, as the case may be, and close such cases. (c) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force pertain to offences which are non-cognizable and bailable and if such pendency is for more than two years and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases. (d) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are pending in connection with offences which are punishable with fine only and are not of recurring nature, and if such pendency is for more than one year and if in such cases trial have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases. (e) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are punishable with imprisonment upto one year, with or without fine, and if such pendency is for more than one year and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases. (f) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are punishable with imprisonment upto three years, with or without fine, and if such pendency is for more than two years and if in such cases trial have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases. 3. For the purpose of directions contained in clauses (1) and (2) above, the period of pendency of criminal cases shall be calculated from the date the accused are summoned to appear in the court. 4. Directions (1) and (2) made hereinabove shall not apply to cases of offences involving (a) corruption, misappropriation of public funds, cheating, whether under the Indian Penal Code, Prevention of Corruption Act or any other statute, (b) smuggling, foreign exchange violation and offences under the Narcotics Drugs and Psychotropic Substances Act, (c) Essential Commodities Act, Food Adulteration Act, Acts dealing with Environment or any other economic offences, (d) offences under Arms Act, Explosive Substances Act, Terrorists and Disruptive Activities Act, (e) offences relating to the Army, Navy and Air Force, (f) offences against public tranquility; (g) offences relating to public servants, (h) offences relating to coins and Government stamp, (i) offences relating to elections, (j) offences relating to giving false evidence and offences against public justice (k) any other type of offences against the State (1) offences under the Taxing enactments and (m) offences of defamation as defined in Section 499 I.P.C." 6. It is not much in dispute that these guidelines have been made applicable through out the State covering all criminal cases at all levels in the country though the matter was aimed at the State of Bihar only. Naturally there is no dispute about the same. Then comes the second judgement between the same parties i.e. Common Cause, a Registered Society through its Director Vs. Union of India, reported in (1996) 6 SCC 775. There, it is laid down that time limit mentioned in para.2(a) to 2(f) in the first case shall not apply to cases wherein the accused themselves are responsible for protraction of trials. Then expression "pendency of trial" in para 1(a) to 1 (c) and 'non-commencement of trial' in paras 2(b) to 2(f) have been explained and certain additional offences have also been enumerated in this decision to which directions of the Court in the said Common Cause case would not apply. This shows that this decision which clarifies certain situation and also includes some exceptions in para.4 of the previous decision between the same parties. Therefore, it is not necessary to consider the same in detail. In the decision of Raj Deo Sharma Vs. State of Bihar, reported in (1998) 7 SCC 507 in which more guidelines have been issued, the same can be reproduced for ready reference as follows : (i) Where the offence is punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witness or not within the said period and the court can proceed to the nest step provided by law for the trial of the case. (ii) In such cases, if the accused has been in jail for a period of not less than on-half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit. (iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considered it necessary to grant further time to the prosecution to adduce evidence beyond the said time-limit. (iv) But if the inability for completing the prosecution within the said period is attributable to the conduct of the accused in protracting the trial, the time-limit for closing the prosecution evidence mentioned in the preceding clause would not apply. Where the trial has been stayed by orders of the court or by operation of law, the period of such stay shall be excluded from the said period for closing the prosecution evidence. The above directions will be in addition, and without prejudice, to the directions issued by the Supreme Court in "Common Cause" A Registered Society Vs. Union of India[(1996) 4 SCC 33] as modified in "Common Cause" A Registered Society Vs. Union of India [(1996) 6 SCC 775]. Now, it is important to note that it has been clarified at the bottom of para-17 that above directions will be in addition and without prejudice to the direction issued by the Hon'ble Supreme Court in the case of Common Cause, A Registered Society Vs. Union of India, reported in (1996) 4 SCC 33 (supra). This shows that there supplementary provisions do not supersede and by-pass the earlier directions issued in the case of Common Cause referred to hereinabove. 7. Then there is again another decision between the same parties i.e. Raj Deo Sharma Vs. State of Bihar, reported in JT 1999(7) SC 317. Some clarifications are made in this judgement but again it does not supersede or overrule the first decision of Common Cause case referred to hereinabove. 8. We can also consider one more judgement rendered by the Division Bench of the Bombay High court in the case of I.P.Shankaran Vs. Dy. Superintendent of Police, Bombay and others, reported in 1999 Cri.L.J. 2194. This decision makes it clear that it has considered earlier decision of Common Cause (supra) as well as Raj Deo Sharma (supra) and on appreciation of the previous decision, the Division Bench of Bombay High Court was pleased to observe that the directions issued in the first Commons Cause case have not been overruled, dissented with or by-passed by subsequent decision of the Hon'ble Supreme Court. It would be relevant to consider that so far as the first Common Cause case is concerned, it has been positively mentioned in pra.4 of the said decision that said guidelines will not apply to the cases enumerated in para.4 of the said decision. Para.4 reproduced hereinabove makes it clear that it has been positively mentioned therein that directions 1 and 2 in the said decision would not apply to the cases of offence involving corruption, misappropriation of public funds, cheating whether under the Indian Penal Code, Prevention of Corruption Act, 1974 or any other Statute. This shows that offence involving corruption would not be covered by those guidelines issued in para. 1 and 2 of the said decision. As stated above, the aforesaid guidelines have not been by-passed or overruled or cancelled or dissented by any other subsequent decision of the Hon'ble Supreme Court and this has been reiterated in the decision of the Bombay High Court referred to hereinabove. This would clearly mean that the guidelines with respect to closure of evidence and stoppage of prosecution would not apply to the cases enumerated in para.4 of the first Common Cause case. As said above, the said directions in para.4 clearly covers the case of corruption. In other words, the cases involving the offences punishable under the Prevention of Corruption Act would be covered by para.4 of the first Common Cause case and, therefore, in accordance with the said direction contained in para.4 of the first Common Cause case, it would be clear that the offences punishable under the provisions of Prevention of Corruption Act cannot be stopped by applying the guidelines of para. 1 and 2 of the first Common Cause case. Then second Common Cause case and subsequent cases of Raj Deo Sharma do not directly, specifically or by necessary implication by-pass or overrule the said guidelines, they do not say that the guidelines in para.4 have been cancelled or modified. It has been consistently said that these directions have been issued as supplementry and, therefore, they stand