1 wp.2129.08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2129 OF 2008 Reshma Singh D/o.Late Achal Bahadur Singh, Age 35 years, permanently residing at Flat No.7, Lilly Apartment, B-Wing, St.John Baptist Road, Bandra (West), Mumbai – 400 050. ...Petitioner Versus 1.State of Maharashtra, through the Public Prosecutor, High Court (A.S.), Mumbai. 2.The Senior Inspector of Police, Anti Corruption Bureau, having his office at Madhuban Industrial Estate, Mumbai – 400 013. ...Respondents ...... Mr.Subhash Jha with Ms.Janki Doshi i/b M/s.Law Global for Petitioner. Mr.A.S.Gadkari, A.P.P. for State. ...... CORAM:- A.M.KHANWILKAR AND P.D.KODE, JJ. JUDGMENT RESERVED ON :- OCTOBER 26, 2010. JUDGMENT PRONOUNCED ON :- DECEMBER 21, 2010. 2 wp.2129.08.sxw JUDGMENT : (Per A.M. Khanwilkar, J.): 1. By this Petition under Article 226 of the Constitution of India, it is prayed that the Special Case No. 39/1999 pending in the Court of Special Judge for Greater Mumbai at Mumbai be quashed and set aside qua the Petitioner before this Court on the ground that continuation of the said proceedings against the Petitioner is violative of Article 21 of the Constitution of India. 2. The relevant facts which gave rise to the filing of the present Petition are as follows:- a) The Petitioner alongwith her mother Smt. Mani Kaul and step brother Vikram Kaul and one Manjit Singh Kaur who was employed as Inspector of the State Excise Filing Squad are facing prosecution for offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 109 of Indian Penal Code instituted in the Court of Sessions for Greater Mumbai at Mumbai being Special Case No. 39/1999. b) The prosecution case against the said Manjit Singh Khera (accused 3 wp.2129.08.sxw no. 1) is that the during the period from 1st January, 1980 to 13th October, 1992 he had ill-gotten wealth and properties which were disproportionate to his known source of income. Thus a discreet enquiry was undertaken by the Anti Corruption Bureau, Mumbai bearing VER No. 77/1987 against the said Manjit Singh Khera. That was commenced on 20th May, 1987. The said discreet enquiry was converted into an open enquiry with effect from 8th December, 1987. It was numbered as VER No. 31/1987. On the basis of the information gathered during the said enquiry raid was conducted. c) Thereafter, FIR came to be registered on 13th October, 1992 being C.R. No. 29/1992. The investigation was then handed over and after completion of investigation the chargesheet came to be filed in the concerned Court on 23rd September, 1999, after complying with the formalities of grant of sanction to prosecute the original accused no. 1 Mr. Manjit Singh Khera. d) The Court after taking cognizance against the accused eventually framed charges on 3rd December, 2007. Whereas, the examination-in-chief of PW-1, ACP - Vilas Tupe commenced only on 12th November, 2009. 4 wp.2129.08.sxw e) After the charges were framed, the Petitioner rushed to this Court by way of present Writ Petition on 3rd October, 2008 praying for quashing of the criminal case pending against her on the ground that continuation thereof would infringe her fundamental right guaranteed under Article 21 of the Constitution of India. 3. The Respondents have resisted this Petition by filing two affidavits of Vijay D. Meru - Senior Inspector of Police dated 5th August, 2010 and 7th October, 2010 respectively. By these affidavits the allegation in the Petition to the effect that there has been unwarranted and oppressive delay in the matter of investigation or before the trial Court has been refuted. Insofar as delay in the progress of trial, it is specifically stated that it is attributable to the accused persons themselves as on most of the occasions, the matter was required to be adjourned at their instance. 4. The principal controversy that needs to be examined by us is whether in the fact situation of the present case there has been delay of such nature and magnitude, both at the stage of investigation and at the trial which would warrant quashing of the proceedings on the ground that it has violated fundamental right of the Petitioner guaranteed by Article 21 of the 5 wp.2129.08.sxw Constitution of India. 5. Insofar as the grievance regarding unwarranted delay in the trial, it will have to be considered in two parts namely between the stage of filing of chargesheet and framing of charges and secondly post framing of charges till the institution of this Writ Petition. Insofar as no progress made before the trial Court after institution of the Writ Petition in October 2008 much less after recording of examination-in-chief of PW-1 on 12th November, 2009 is concerned, that is not a matter of serious debate since it is noticed that the accused including the Petitioner has taken adjournment from time to time on the ground of pendency of the Writ Petition before this Court. 6. Before we proceed to analyse the factual matrix of the case, it may be apposite and useful to refer to the legal position expounded by the Constitution Bench consisting of seven Judges of the Apex Court in the case of P. Ramachandra Rao v/s. State of Karnataka reported in 2002 4 SCC 578. This is an authoritative pronouncement on the mandate of Article 21 of the Constitution of India which guarantees right to speedy trial. The opening part of the Judgment makes it amply clear that speedy trial would encompass within its sweep all its stages including 6 wp.2129.08.sxw investigation, enquiry, trial, appeal, revision and re-trial. It is observed that everything commencing with an accusation and expiring with the final verdict – the two being respectively the terminus a quo and terminus ad quem – of the journey which an accused must necessarily undertake once faced with an accusation. This decision has restated the legal position expounded in the case of Abdul Rehman Antulay v/s. R.S. Naik (1992) I SCC 225. In Paragraph 9, the Guidelines 8 – 11 of Antulay’s case have been re-produced, which read thus:- “(8) Ultimately, the court has to balance and weigh the several relevant factors – '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 any time- limit for trial of offences. Any such rule is bound to be a 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 7 wp.2129.08.sxw 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 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.” These guidelines are still relevant. In Paragraph 20 of this decision the Court had occasion to observe thus:- “20. Several cases coming to our notice while hearing appeals, petitions and miscellaneous petitions (such as for bail and quashing of proceedings) reveal, apart from inadequate judge strength, other factors contributing to the delay at the trial. Generally speaking, these are : (I) absence of, or delay in appointment of, Public Prosecutors proportionate with the number of courts / cases; (ii) absence of or belated service of summons and warrants on the accused / witnesses; (iii) non-production of undertrial prisoners in the court; (iv) presiding Judges proceeding on leave, though the cases are fixed for trial (v) strikes by members of the Bar; and (vi) counsel engaged by the accused suddenly declining to appear or seeking an adjournment for personal reasons or personal inconvenience....” The observations in Paragraph 21 of this decision are also useful to 8 wp.2129.08.sxw answer the controversy on hand. The same read thus:- “21. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every enquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Explanation 2 to Section 309 confers power on the court to impose costs to be paid by the prosecution or the accused, in appropriate cases, and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the courts. Section 258, in Chapter XX Cr. P.C, on trial of summons cases, empowers the Magistrate trying summon cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused having effect of discharge. This provision is almost never used by the courts. In appropriate case, inherent power of the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reasons amounting to oppression or harassment in 9 wp.2129.08.sxw any trial, inquiry or proceedings. In appropriate cases, th High Courts have exercised their jurisdiction under Section 482 CrPC for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A. R. Antulay case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted.” (emphasis supplied) 7. From these observations it is amply clear that the trial Court itself has wide powers and if the same are judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, enquiry or proceedings. Secondly, the Court opined that even if the High Court can exercise jurisdiction under Section 482 of Criminal Procedure Code for quashing of First Information Report and investigation and terminating criminal proceedings, if it were to be a case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right guaranteed by Article 21 of the 10 wp.2129.08.sxw Constitution. Then, it will have to be shown that there has been undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted. Besides, quashing of criminal action is not the only order that ought to be passed. In a given case, the Court can pass appropriate orders so as to direct the trial Court to judiciously and consciously exercise powers bestowed in it by virtue of Section 309, 311 and 258. This view is reinforced by the exposition in Paragraph 28 of the same decision. After referring to the bars of limitation enacted in Common Cause (I) and common cause (II) and Raj Deo Sharma (I) and Raj Deo Sharma (II), the Court went on to observe thus:- “.....It must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trail has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A. R. Antulay. In Kartar Singh case the Constitution Bench while recognizing the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state: “92. Of course, no length of time is per se too long to 11 wp.2129.08.sxw pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors – (1) length of delay, (2) the justification of the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay.” (SCC pp.639-40, para 92).” (emphasis supplied) 8. Thus, the test to be applied to examine the controversy on hand is whether the investigation or trial as the case may be, remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted. The Court has to adopt the balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceedings has been deprived of his right of having speedy trial with unreasonable delay. In Paragraph 29 of the same decision the Court has recorded its conclusion in the following words:- “29. For all the foregoing reasons, we are of the opinion that in Common Cause case (1) [as modified in Common Cause (II)[ and Raj Deo Sharma beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an 12 wp.2129.08.sxw order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A. R. Antulay case is correct and still holds the field.] (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A. R. Antulay case are not exhaustive but only illustrative. They are nor intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time- limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A. R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits 13 wp.2129.08.sxw cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatory obliging the court to terminate the same and acquit or discharge the accused. (5) The criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments to their constitutional obligation to strengthen the judiciary – quantitatively and qualitatively – by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.” (emphasis supplied) 9. Keeping the above guidelines in mind we shall now first advert to the grievance of the Petitioner that there has been undue and unwarranted delay at the stage of investigation itself which has infringed her right guaranteed under Article 21 of the Constitution of India. In this context, it is alleged that discreet enquiry was commenced on 20th May, 1987 against the accused no.1 Manjeet Singh khera. The said discreet enquiry was converted into open enquiry on 8th December, 1987 in relation to the ill gotten wealth and properties which were disproportionate to the known source of income of 14 wp.2129.08.sxw the accused no. 1. The period covered under investigation was from 1st January, 1980 to 13th October, 1992 in relation to properties worth around Rs. 43.54 lacs. On completion of the said enquiry FIR came to be registered on 13th October, 1992 and the investigation was completed and culminated with filing of final report or chargesheet before the concerned Court on 23rd September, 1999. The question is whether any explanation has been offered by the Respondents with regard to such long time spent from the stage of initiation of discreet enquiry on 20th May, 1987 till registration of FIR on 13th October, 1992. This aspect has been explained in Paraghraph – 2 of the second affidavit. It is stated as under:- “2. I say that as per the record maintained by the Anti Corruption Bureau, the discreet enquiry with respect to the disproportionate asset and the properties gathered by the original Accused No. 1 Mr. Manjit Singh Khera started on 20.05.1987 bearing VE.R.No. 77 of 1987. I say that the said enquiry was conducted by ACP Shri. Shukla, then attached to the Anti Corruption Bureau. I say that on 08.12.1987 the said discreet enquiry was subsequently converted into open enquiry and the same was numbered as V.E.R. No. 31 of 1987. I say that ACP Shri. Tupe conducted the said open enquiry from 08.12.1987 to 09.10.1992 for the period from 01.01.1980 to 13.10.1992. I say that during the course of the said open enquiry, it was revealed that the said accused No. 1 Mr. Manjit Singh Khera, a public servant has purchased properties either in the names of his close relatives or in the name of co-accused in the present C. R. No. 29 of 1992. I say that after completion of the said open 15 wp.2129.08.sxw enquiry, ACP Shri. Tupe lodged FIR bearing C. R. No. 29 of 1992 on 09.10.1992 and it has been stated in the said First Information Report that at the initial stage of FIR the original Accused No. 1 Mr. Manjit Singh Khera was having disproportionate assets to the tune of Rs. 7,91,04.64 than his known sources of income.” 10. We have no hesitation in taking the view that the time spent between 20th May, 1987 till 8th December, 1987 in the discreet enquiry conducted by the Anti Corruption Burueu, Mumbai, cannot be termed as unreasonable or unwarranted. Obviously, on the basis of the material gathered during such discreet enquiry, the authority thought it appropriate to convert the enquiry into open enquiry. Going by the dates mentioned by the Petitioner it may appear that the concerned officials took almost five years to complete the enquiry before registration of FIR on 13th October, 1992. No doubt the open enquiry commenced on 8th December, 1987 with registration of VER No. 31/1987. The ACP Tupe conducted the said open enquiry from 8th December, 1987 till 9th October, 1992. However, it cannot be overlooked that the open enquiry was in relation to disproportionate assets of accused no.1 which revealed that accused no. 1 purchased properties either in the names of his close relatives or in the names of co-accused. Having regard to the nature of enquiry, and due diligence, as the enquiry was required to be made with regard to circular transactions between the accused persons to 16 wp.2129.08.sxw ascertain the extent of disproportionate assets belonging to the accused no.1, it was bound to take some time. On such enquiry, the conclusion arrived at by the officer was that the accused no. 1 possessed disproportionate assets to the tune of Rs. 7,91,04.64 than his known source of income. Only thereafter raid was conducted and FIR was registered on 13th October, 1992. 11. Considering the nature of enquiry undertaken and the material required to be gathered regarding the circular transactions during such enquiry, it is not possible to countenance the grievance of the Petitioner that the delay in the enquiry was of such nature that it