HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION No. 2068 OF 2008 DATED 10th November, 2011 BETWEEN K.Damodar Reddy and ors …….Petitioners and The State of AP, rep. by Public Prosecutor High Court of AP, Hyderabad,and anr …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION No. 2068 OF 2008 ORDER: This Criminal Petition under Section 482 Cr.P.C., is filed seeking to quash PRC.No. 40 of 2007 on the file of the Judicial First Class Magistrate, Allagadda, Kurnool District. The second respondent-Complainant filed a protest complaint under Sections 199 and 200 Cr.P.C. on the file of the learned Judicial First class Magistrate, Allagadda, Kurnool District, the contents of which inter alia read as follows: “ …..That on 30.11.1998n at about 3.00 hours the Accused came to the house of the complainant and threatened her and abused her vulgarly and were taking the logs kept for house purpose in a tractor , then the complainant and her brother-in-law, Srinivasulu, went across the Accused No.1 and stated that it is injustice, then the Accused No.1 kicked Srinivasulu with legs and instructed to drag him away then the Accused Nos. 2 to 4 dragged Srinivasulu aside and taken away the camera and thrown it away. In the meantime the complainant came across the Accused No.1 abused her as ‘Eme Lanjadana Mapaine Saksham Cheptara Ninnu Rape Cheste Evruaddam Vastaro and caught hold of her hair and dragged her on the road and torn her jacket then, the sister of the complainant came in middle then the Accused NO.1 kicked her with legs on her stomach as a result of which she fell down. The Accused Nos. 2 to 4 along with some others by holding the legs of the complainant dragged her by the side of the road. In the meantime one K.Gangiredy, Bodanam Baludu, Chintalapalle Savitri, Chintapalle Pedda Narasimhulu along with some others rescue the complainant, her sister and Srinivasulu from the Accused and warned the accused and the accused went away in a jeep by threatening to see their end. Immediately the complainant, her husband went to Allagadda Police Station and was about to submit a report, the Accused No.1 came there. The police made the complainant to wait outside for one hour and after the Accused No.1 went away, called the complainant and taken the report and registered a case in Cr.No. 141/1998. But till date no enquiry was conducted into the said case. Apart from the above, false case was foisted against the husband of the complainant and tortured him. In spite of various visits, they have been dragging on the matter without conducting any enquiry. About a week back she went to the station to know the case, then the complainant was informed that already they filed a report as false case and advised her to approach the Court. As such having no other alternative the complainant approached the Court. The complainant therefore prays that this Honourable Court may be pleased to register a case against the accused for assaulting the complainant, tearing her jacket and tried to outrage the modesty and kicked her sister with shoe legs and threatening to kill them and investigate into the matter and render justice.” From the above, it is clear that in respect of the very same incident and with the very same allegations, the second respondent had initially filed a complaint with the police, which was registered as a case in Cr.No.141 of 1998. Pursuant to the same, the police took up investigation and filed Final Report on 13.02.2007, i.e. nearly after eight years. The investigation discloses that the complainant—Vara Lakshamma, her husband and her younger brother-in-law are the habitual forest offenders and they used to get the forest produce by cutting the big trees and transport to the required persons at higher price; and that having received the credible information on 30.11.1998 with regard to the same, the petitioners herein conducted a raid and found stocking of 37 Forest logs out of them 29 Nos. are Yagi and 8 Nos are Nallamaddi and seized the said stock pertaining to the husband of the complainant; and that when they requested the Range Officer to release the seized stock by accepting the compounding fee, the same was rejected; and that on such rejection, the complainant and her husband assaulted the Forest Ranger by pulling him and when the Forester intervened, the complainant party beat him with cheppals and abused him by raising his caste name as he belongs to Scheduled Caste and pursuant to the same a case in Crime No. 140 of 1998 punishable under Sections 353, 355, 506 r/w 34 IPC and Sec.3(1)(x) of SCs & STs (Prevention of Atrocities) Act, 1989 was registered against the complainant party. It was further stated that during the course of investigation, an independent witness states that the complaint made by the complainant was false. The confidential enquiries made by the Sub Inspector also revealed that it was a false complaint. Heard both sides. Perused the case file. It is the case of the petitioners that the de facto complainant and her family members are involved in the forest offence as they are illegally cutting, transporting and storing the Forest Wood and the petitioners in discharge of their official duties have seized the forest wood which was kept by the side of Telugu Ganga Canal behind the house of one Golla Kirshnudu of Ahobhilam village and a case in Crime No. 74 of 1998-99 was registered against them; that the police investigated the said case and found it as a false case and reported that no offence as alleged took place under Section 354 IPC and thus the learned Magistrate erred in taking cognizance of the alleged offence. It is their specific case that there is no fault on their part for the delay caused in concluding the investigation by prosecution and after lapse of nearly ten years the cognizance of the offence was taken by the learned Magistrate, which is nothing but violation of Article 21 of the Constitution of India and that the same would make them to suffer unnecessary harassment in facing the trial for no fault of them. In support of their contentions, they relied on the decision of the Supreme Court in Pankaj Kumar Vs. State of Maharastra (AIR 2008 SC 3077). The learned Additional Public Prosecutor appearing for the State submitted that in as much as no period of limitation is prescribed, the Court below rightly taken the cognizance of the alleged offence. She further submitted that the contents of the protest complaint submitted by the complainant would clearly disclose that the petitioners have committed the alleged offences punishable under Sections 323, 354 and 506 IPC and as such there are no valid grounds to interfere with the decision of the trial Court in taking cognizance of the alleged offences against the petitioners. Before proceeding to discuss the merits or otherwise of the arguments advanced by the Learned Counsel for the parties, it would be worthwhile to observe that in exercise of its inherent powers under Section 482 Cr.P.C., the court has to meticulously examine whether the prosecution evidence discloses the commission of any offence and whether by allowing the criminal prosecution to continue, there would be no abuse of the process of the court. Without prejudice to the merits of the case, I may observe that there has been undoubtedly inordinate delay in filing the impugned complaint against the petitioners. Admittedly the offence alleged took place on 30.11.1998. On the same day, the complaint was lodged and the police registered a case in Crime No. 141 of 1998 for the offence punishable under Section 354 IPC. Thereafter, the police took up investigation and filed a Final Report on 13.02.2007 nearly after eight years, stating that the same is a false complaint and no offence as alleged took place. Knowing the filing of the Final Report, the complainant filed the impugned Protest Complaint on 02.03.2007 against the petitioners in respect of the very same incident and with same allegations, for the offences punishable under Sections 323, 354 and 506 IPC. The Court below took cognizance of the offence on file on the ground that there is no limitation prescribed for such offences to take cognizance of the offences. In identical and similar circumstances, in the decision relied on by the learned Counsel for the petitioners, in the case of Pankaj Kumar (supra), it was observed as follows: “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 Crpc. (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 Vs. Union of India and Anr. , 1978 1 SCC 248, in hussainara Khatoon and Ors. Vs. Home Secretary, State of Bihar, 1980 1 SCC 81, this Court had said 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 no procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. THE exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered afresh by the constitution Bench in Abdul Rehman Antulay and Ors. Vs. R. S. Nayak and Anr. , 1992 1 SCC 225. Referring to a number of decisions of this Court and the American precedents on the Sixth amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: (i)fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii)in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is --who is responsible for the delay?; (iv) 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; (v) each and every delay does not necessarily prejudice the accused. Some delays 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 become persecution, again depends upon the facts of a given case; (vi) ultimately, the court has to balance and weigh several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has been denied; (vii) 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 and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial; (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 High Court must, however, be disposed of on a priority basis. 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 persecutions 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 in 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 for conclusion of trial TESTED on the touchstone of the broad principles, enumerated above, we are of the opinion that in the instant case, appellant's constitutional right recognised under article 21 of the Constitution stands violated. It is common ground that the First Information Report was recorded on 12th May, 1987 for the offences allegedly committed in the year 1981, and after unwarranted prolonged investigations, involving afore-stated three financial irregularities; the chargesheet was submitted in court on 22nd February, 1991. Nothing happened till April, 1999, when the appellant and his deceased mother filed criminal writ petition seeking quashing of proceedings before the trial court. Though, it is true that the plea with regard to inordinate delay in investigations and trial has been raised before us for the first time but we feel that at this distant point of time, it would be unfair to the appellant to remit the matter back to the High Court for examining the said plea of the appellant. Apart from the fact that it would further protract the already delayed trial, no fruitful purpose would be served as learned Counsel for the State very fairly stated before us that he had no explanation to offer for the delay in investigations and the reason why the trial did not commence for eight long years. Nothing, whatsoever, could be pointed out, far from being established, to show that the delay was in any way attributable to the appellant. Moreover, having regard to the nature of the accusations against the appellant, briefly referred to above, who was a young boy of about eighteen years of age in the year 1981, when the acts of omission and commission were allegedly committed by the concerns managed by his parents, who have since died, we feel that the extreme mental stress and strain of prolonged investigation by the Anti Corruption Bureau and the sword of damocles hanging perilously over his head for over fifteen years must have wrecked his entire career. Be that as it may, the prosecution has failed to show any exceptional circumstance, which could possibly be taken into consideration for condoning the prolongation of investigation and the trial. The lackadaisical manner of investigation spread over a period of four years in a case of this type and inordinate delay of over eight years (excluding the period when the record of the trial court was in the High court), is manifestly clear. Thus, on facts in hand, we are convinced that the appellant has been denied his valuable constitutional right to a speedy investigation and trial and, therefore, criminal proceedings initiated against him in the year 1987 and pending in the court of Special Judge, Latur, deserve to be quashed on this short ground alone.” In State of Andhra Pradesh Vs. P.V.Pavithran (1990 CriLJ 1306) the Apex Court upheld the decision of this High Court in quashing the F.I.R. on the ground of inordinate delay in completing the investigation. In Machander Vs. State of Hyderabad (1955 CriLJ 1644), this Court observed that while it is incumbent on the court to see that no guilty person escapes, it is equally its duty to see that justice is not delayed and accused persons are not indefinitely harassed. In the case on hand, there was inordinate delay of nearly eight years in completing the investigation by the prosecution police. When the police authorities are said to be causing delay in investigating the offence, nothing prevented the complainant to file the protest complaint without waiting for eight years if she is so aggrieved. In the absence of such action having not been filed such a complaint and taking cognizance of the offence against the petitioners at this juncture is nothing but infringement of their constitutional right recognized under Article 21 of the Constitution. Further it is to be seen that, the first respondent-police have filed final report in FIR No.141 of 1998 stating that no such offence took place and complaint filed by the second respondent was false. In the protest complaint filed at this later stage by the second respondent and party in respect of the same incident also, the police may file a similar final report as was filed in FIR.No.141 of 1998. On the other hand, the second respondent had filed a protest complaint immediately after a reasonable lapse of time after the filing of police complaint, the things would have been otherwise. Having failed to act diligently in perusing remedy, the complainant cannot be permitted to raise her grievance at this belated stage. As held by the Apex Court in the decisions cited supra, the said inordinate delay would nothing but fraudulent violation of the constitutional right of the petitioners guaranteed under Article 21 of the Constitution of India, and thus the crime in PRC.No. 40 of 2007 is liable to be quashed. For the foregoing reasons, the proceedings in PRC.No. 40 of 2007 on the file of the learned Judicial First Class Magistrate, Allagadda are hereby quashed. The Criminal Petition is accordingly allowed. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 10th November, 2011 Msnro