IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC NO.36 OF 1998 1. ABHAY KUMAR 2. HRIDESH KUMAR 3. VISHWANATH PRASAD 4. ARUN KUMAR 5. NEELMANI PRASAD, ALL RESIDENTS OF VILLAGE RANJITA, HARSIDHI, EAST CHAMPARAN. Versus 1. STATE OF BIHAR 2. BIJOY KUMAR S/O SRI SHAMBHU PRASAD RESIDENT OF BARHARWA, EAST CHAMPARAN. ----------- FOR THE PETITIONERS:- MR. RAJIV KR. VERMA, SR.ADVOCATE & MEETA SINHA, ADV. FOR THE STATE:- MR. S.RAHMAN, AC TO GA-IX. ------- 8. 06.08.2010. Heard learned counsel for the petitioners and the State, no one appears for respondent no.2 despite valid service of notice. 2. Petitioners pray for quashing the entire criminal proceeding in Motihari Sadar Police Station Case No. 307 of 1981, GR.No. 1693/81, giving rise to Sessions Trial No. 253 of 1983, lodged under sections 147,148,149,323,324, 342,436 and 379 of the I.P.C. on the ground of pendency of trial for long 16 years since its institution on 20.10.1981 and by now about 29 years.. 3. The informant Vijay Kumar is Munshi of one Prema Srivastava w/o Ramanand Srivastava, a resident of Phulwarisharif. On 20.10.1981 at 9.30 am, while he along with 5 labourers were unloading bricks from a truck on land of Prema Srivastava at Chandmari Mohalla, they were 2 surrounded and assaulted by the accused persons with lathi and farsa etc. In the process some of them received injuries. Tyres of the truck were also set on fire. One of the accused Krishna Kumar Prasad set fire to a hut inflicting damage to the tune of Rs. 500/-. 4. After investigation police submitted charge sheet on 28.4.1982 under sections 147,148,149,323,324,436 & 379 I.P.C. against all the accused persons. During pendency of trial, one of the accused Krishna Kumar Prasad, father of petitioner nos.1 to 4, died. 5. Petitioner no.1 also filed a counter case being Motihari Sadar Police Station Case No. 307/1981, GR.No. 1693/81, Tr no. 731/91 under sections 147,148,323 and 426 I.P.C. alleging that on 20.10.1981 at about 9.30 am, Ram Nandan Prasad came to his house with a truck of bricks, along with a mob of 150-200 persons. On his order, the driver of the truck demolished his boundary wall. It is further alleged that the accused persons also set fire to a hut and also assaulted the informant and his younger brother. The police submitted charge sheet against Harendra Kumar Singh, Vijay Kumar Singh, Baliram Singh and Braj Kishore Singh. However, by order dated 13.3.1992, Ram Nandan Prasad, Vinod Kumar and 3 Harihar Singh were also summoned to face trial. 6. Mr Rajiv Kr Verma, Learned Senior counsel appearing for the petitioners, submits that it is a common case of both sides that a truck carrying bricks and labourers had come to the place of occurrence, which lied just in front of house of petitioners. The time of occurrence in both cases is same i.e. about 9.30 am on 20.10.1981. Further, charge sheet was submitted in this case, only after ten years on 24.4.1992. Charge was framed almost 7 years thereafter. Even in the year 1998, the trial was at its initial stage. He submits that section 436 I.P.C. is not made out and the same was added to make the case sessions triable. He submits that in any view of the matter Section 436 I.P.C. was specifically attributable to Krishna Kumar Prasad, who died. Learned counsel submits that prolonged delay of 17 years in disposal of trial would affect his right to speedy trial guaranteed in Article 21 of the Constitution of India. Furthermore, now after 29 years, no useful purpose would be served in remitting the case back. 7. He contends that the prosecution side who were accused in the counter case had moved this Court for quashing criminal prosecution in Motihari Police Station Case No. 4 307/81 on ground of prolong delay in disposal of trial vide Cr.Misc.No. 7700/1992. This Court vide order dated 5.5.1993 quashed the criminal prosecution as the case had lingered for 15 years and the offences were also trivial in nature. He submits that in his case, the prosecution has continued for about 17 years. 8. Heard learned counsel for the petitioners and the State. 9. No one appears for opposite party no.2, despite valid service of notice. 10. There is a case and counter case in which both sides have made allegation of assault against each other. The place of occurrence and time of occurrence are common in both cases. In the instant case, severest of offence alleged is one under section 436 I.P.C. This too is alleged against Krishna Kumar Prasad, father of these petitioners, who died during pendency of trial itself. Thus, as against these petitioners, the charge would be one under sections 147,148,149,323,324,342 & 379 I.P.C. The maximum punishment in respect of any of these offence would be three years, as both sections i.e. sections 324 and 379 I.P.C. are punishable for three years. Furthermore, despite long lapse of 5 16 years, still the trial did not conclude. As such, this Court vide order dated 28.9.1998 issued notice to opposite party no. 2 and stayed further proceeding in the instant trial bearing Sessions Trial No. 253 of 1991. This Court had already quashed prosecution against informant and others in the counter-case instituted by petitioner no.1 on ground of delay in disposal of trial vide order dated 5.5.1997, passed in Cr. Misc. No. 7700/92. 11. The right of accused to speedy trial fell for consideration time and again before Hon'ble Apex court. More than three decades ago, the Hon’ble Supreme Court in case of Hussain Ara Khatoon Vs. Union of India, reported in (1979)3 SCR 196 held that right to speedy trial is implicit in the broad sweep and content of Article 21. It cannot be said that without outer limit right to speedy trial becomes illusory. 12. Twelve years latter, Constitutional bench of the Hon’ble Supreme Court in case of A.R.Antulay (supra), reiterated the view expressed in case of Hussain Ara Khatoon. The Constitution Bench held that the constitutional guarantee of speedy trial emanates from Article 21 of the Constitution of India and the said principle cannot be diluted on the ground that without any outer limit, provided under any of the law, 6 the right to speedy trial becomes illusory. The Supreme Court further observed that the right to speedy trial also finds expressions in various provisions of Cr.P.C., like sections 309, 311 etc. 13. In case of P. Ramchandra Rao Vs. State of Karnataka (Constitution bench comprising of seven judges), reported in 2002(3) PLJR 229, the Hon'ble Apex court held that though fixing of outer limit may not be appropriate on general parameter, but in appropriate cases the inherent power of court under section 482 Cr.P.C. and Article 226 of the Constitution can be invoked, seeking appropriate relief or suitable direction. The Cr.P.C. also incorporates provisions to which resort can be made, for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Criminal courts should exercise their available powers, such as those u/s 309,311 and 258 Cr.P.C. to effectuate the right to speedy trial. It may not be expedient to prescribe outer limit. 14. In recent time, Hon’ble Supreme Court in case of Vakil Prasad Singh Vs. State of Bihar, reported in 2009(1) PLJR 277 was seized with similar issue. The Apex court after examining provision of Articles 21, 226, 7 227 r/w sections 258,309,311 & 482 Cr.P.C., held that speedy trial is an integral and essential part of fundamental right to life and liberty. Furthermore, in appropriate cases, jurisdiction of the High court u/s 482 Cr.P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions in every case, where the right to speedy trial is alleged to have been infringed, particularly when the delay has occurred not on account of fault of accused facing trial. It was further observed by Hon’ble Apex court, that guidelines laid in case of A.R.Antulay are not exhaustive but illustrative, and are not intended to operate as hard and fast rules or to be applied as a straitjacket formula. Their applicability would depend on the fact-situation of each case, as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. However, in appropriate cases, jurisdiction of the High Court under section 482 Cr.P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. 15. It would be relevant to quote para 15 of the 8 judgment which runs as follows:- It is, therefore, well settled that the right to speedy trial in all criminal persecution 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 proceeding 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. 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 I a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial. 16. Thus the principle is well settled in view of various pronouncements of Hon’ble Apex court that in appropriate cases, the courts can quash the prosecution of a criminal case under its inherent power under section 482 Cr.P.C. and Article 226 of the Constitution where right to speedy trial has been infringed. 17. In the instant case, as observed earlier, the accused petitioners at the most would be facing trial under 9 sections 147,148,324,342,379. Offence under section 436 I.P.C. was specifically alleged against another accused Krishna Kumar Prasad, who was died. It does not appear anywhere from the prosecution case that petitioners are responsible for prolonged delay in trial. Furthermore, there is a case and counter case and maximum punishment for the severest of the offence with which petitioners are charged would be of 3 years. The charagesheet was filed after 10 ½ years and charges were framed after 16 years of the FIR. By now it is about 29 years since institution of the case. In the aforesaid circumstances, this Court is of the view that the right to speedy trial guaranteed under Article 21 of the Constitution is infringed on account of inexplicable delay of 17 years at the time of filing of writ petition in this Court in 1998. 18. In the result, this application is allowed and criminal prosecution arising out of Motihari Sadar Police Station Case No. 307 of 1981, GR.No. 1693/81 giving rise to Sessions Trial No. 253 of 1983 lodged under sections 147,148,149,323,324, 342,436 and 379 of the I.P.C. is quashed. Shashi/AFR. ( Samarendra Pratap Singh, J.)