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CASE NO.: Appeal (crl.)  774 of 2002

PETITIONER: Moti Lal Saraf                                   

RESPONDENT: State of Jammu & Kashmir &  Another                                      

DATE OF JUDGMENT: 29/09/2006

BENCH: S.B. SINHA & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

Dalveer Bhandari, J.

       Speedy trial as read into Article 21 as an essential  part of the fundamental right to life and liberty  guaranteed and preserved under our Constitution is the  main issue which has arisen for adjudication in this  appeal.

       Brief facts necessary to dispose of this appeal are as  follows.

       The appellant was working as a Manager in the  State Bank of India, Sumbal, Kashmir in the year 1980.   An FIR No. 34 of 1980 under Section 5(2) of the Jammu  & Kashmir Prevention of Corruption Act (for short, ’the J  & K PC Act’) was registered against the appellant,  pursuant to which the appellant was arrested on the  allegation that he had received a sum of Rs.700/- as  illegal gratification, though the amount as alleged was  not recovered from him, but from one Gulam Quadir.

       On 30.4.1981 a challan under Section 173 Cr.P.C.  came to be filed against the appellant before the court of  Special Judge, Anti Corruption, Srinagar, Kashmir under  Section 5(2) of the J & K PC Act.   The appellant  challenged the legality of the proceedings of the Court  before the High Court of Jammu & Kashmir in Criminal  Petition No. 41 of 1982 on the ground that he was not a  public servant within the meaning of Section 21 of the  Ranbir Penal Code (for short, ’RPC’), as such, he could  not be tried under the provisions of the J & K PC Act.

The appellant also urged that the Court had no  jurisdiction to try the case because no valid sanction had  been obtained for prosecution of the appellant from the  competent authority.              The Court, after hearing the parties, held that the  appellant was a public servant within the meaning of  Section 21 RPC being an employee of the State Bank of  India, which was engaged in trading business besides  being owned by the Central Government.   

       The High Court came to a definite finding that  under the service rules of the State Bank of India, the  supervisory staff was not the General Manager

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(Operations).  The appellant at the time of the  commission of the alleged offence was a Branch Manager  and he could be removed from the service by the  appointing authority or by an authority which was  superior to the appointing authority.   That being so, the  sanction given by the General Manager (Operations) for  prosecution of the appellant on 26.5.1981 was given by  an incompetent person who had no jurisdiction or  competence to remove the appellant from the service.   The sanctioning authority was not even the appellant’s  appointing authority.  However, under Section 6 of the J  & K PC Act which provides for initiation of prosecution,  there must be a sanction issued by a person who was  empowered to remove such an official from service.    

       The High Court clearly held that it was well settled  that no prosecution could be brought before a Court  without there being a proper sanction.  Existence of a  valid sanction was a condition precedent for prosecution  under Section 5(2) of the J & K PC Act.  In the absence of  sanction, the trial Judge had no jurisdiction to take  cognizance of the case.   The Court, while allowing the  petition filed by the appellant, quashed the proceedings    pending against the appellant in the trial court under  Section 5(2) of the J & K PC Act and under Section 161  RPC.   

       The appellant, however, was dismissed from service  in the departmental proceedings initiated against him,  and later, in appeal, the dismissal was converted into  removal from the service.

       It may be pertinent to mention that the   respondents again filed a challan against the appellant  before the Court of a Special Judge, Anti Corruption,  Srinagar on 25.7.1986, on the same set of facts that the  appellant was no more in service and the sanction for  prosecution was not required now.   

       The chronic militancy in Srinagar led to mass  migration of the minority community.  The appellant  being a member of the minority community migrated to  Jammu  on 23.9.1998.   The appellant filed a petition  before the High Court of Jammu & Kashmir at Jammu  seeking transfer of the case from the Court of the Special  Judge, Anti Corruption, Srinagar to the Court of the  Special Judge, Anti Corruption, Jammu.  The High Court  vide its order dated 23.9.1998 transferred the case.          The appellant filed an application before the trial  court for quashing of the trial on the plea that the  appellant could not be prosecuted without sanction.

       The learned Special Judge, Anti Corruption, Jammu  after hearing the parties vide order dated 12.3.1999  accepted the application filed by the appellant and  discharged him from the offences under Section 5(2) of   the J & K PC Act read with Section 161 RPC.   The trial  court observed in its order that the Vigilance  Organization, Kashmir, despite having knowledge that  earlier accorded sanction had been quashed, again  produced the instant charge-sheet for his trial in the year  1986 on the plea that the accused had been removed  from the service, as such, no sanction as contemplated  under Section 6 of the J & K PC Act was required.  

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       The Special Judge after hearing the parties observed  that it was not disputed that earlier sanction accorded to  prosecute the accused was quashed by the High Court  having not been accorded by a competent authority.   Even now, no fresh sanction had been obtained to  prosecute the appellant from the competent authority.   When the instant charge-sheet was presented, no  sanction was in existence.  The learned trial Judge  interpreted Section 6 of the J & K PC Act and stated that,  according to the said Section, sanction was sine qua non  for taking cognizance of the offence.  We deem it  appropriate to reproduce Section 6 of the Act.  It reads as  follows:         "6. Previous sanction  necessary for  prosecution \026 (1) No Court shall take  cognizance of an offence punishable under  section 161 or  section 165 of the Ranbir Penal  Code, or under sub-section (2) of section 5 of  this Act, alleged to have been committed by a  public servant, except with the previous  sanction ___

(a)     in the case of a person who is not  removable from his office save by or  with the sanction of the  Government,  

(b)     in the case of any other person, of  the authority competent to remove  him from his office.

       (2)     Where for any reason whatsoever  any doubt arises whether the previous  sanction as required under sub-section (1)  should be given by the Government or any  other authority, such sanction shall be given  by the Government or authority which would  have been competent to remove the public  servant from his office at the time when the  offence was alleged to have been committed."          

The Court clearly observed that it was immaterial  whether at the time of the presentation of the charge- sheet the accused was in service or not, but the fact was  that he had committed criminal mis-conduct while  discharging his official functions and the cognizance  taken against the appellant without sanction was bad in  the eyes of law.   The accord of sanction was a sine qua  non for taking cognizance of the offence against the  accused.      

       It was submitted by the appellant that the order  dated 12.3.1999 passed by the Special Judge, Anti  Corruption, Jammu was not challenged and, therefore, it  became final and binding between the parties.   

       It was further submitted that it was astonishing  that without challenging the validity of the order passed  by the Special Judge, Jammu a challan was filed against  the appellant on the same set of facts before the Special  Judge, Anti Corruption, Jammu on 12.8.2000, by the  respondent.  By virtue of order dated 12.8.2000 the  appellant again came under judicial restraint and was  asked to produce sureties for his presence in the Court.  

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       The appellant filed a petition before the High Court  for quashing the proceedings pending before the Special  Judge, Anti Corruption, Jammu, being Case No. 34 of  1980.  The High Court vide impugned judgment  dismissed the petition without appreciating the  contentions raised by the appellant in proper perspective.   The appellant has now challenged the impugned order of  the High Court dated 5.9.2001.  The appellant submitted  that the orders of discharge by the High Court in the first  instance and subsequently by the Special Judge, Anti  Corruption, Jammu had become final and binding  because the respondents did not challenge the said  orders. It is also alleged that the respondents could not  be permitted to prosecute the appellant on the same  cause of action and on the same facts and circumstances  for the third time.    According to the appellant, this was  a clear case of gross abuse of the process of law.  He  further submitted that how the respondents could  be  permitted to file a fresh challan for the third time on the  same cause of action and on the same facts and  circumstances?  According to the appellant, the  impugned order suffers from serious infirmities.  He  submitted that the High Court ought to have appreciated  that by dismissing the appellant’s petition the High Court  had in fact reviewed its own order.  There was no  provision in the Criminal Law which enabled the Court to  review its own order.

          The appellant further submitted that repeated  filing of challans by the respondents without any  sanction had caused immense mental, physical and  emotional stress and harassment for more than 26 years.    The appellant also sought relief on the ground that it was  the right of every citizen to seek speedy trial.   Continuation of further proceedings against the appellant  is contrary to the basic spirit of Article 21 of the  Constitution, and consequently, the impugned judgment  is  liable to be set aside.

       In the special leave petition preferred by the  appellant, this Court issued a show-cause-notice.   Pursuant to that show-cause-notice, a counter affidavit  was filed on behalf of the respondents by the Director  General/Commissioner of Vigilance Organization of  Jammu & Kashmir.  It may be pertinent to mention that  the basic facts incorporated in the special leave petition  regarding the three challans produced by the  respondents have not been denied.  Admittedly, in the  last more than 26 years, not even a single witness has  been examined by the prosecution.  The appellant, of  course, had taken the legal remedy available to him to  protect his interests against illegal proceedings initiated  against him by the respondents, but that by itself could  not be a ground to harass and humiliate the appellant for  more than a quarter century.    

        It was submitted that the appellant could not have  been prosecuted without a valid sanction.  The  respondents were not justified in filing the fresh challan  without getting the earlier order of the High Court and  the order of the Special Judge, Anti Corruption, Jammu  quashed.  It was urged that the proceedings initiated  against the appellant were totally without jurisdiction  and consequently were liable to be set aside.   

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       The appellant, in the instant case, has been facing  the criminal prosecution for almost more than two and a  half decades.  The speedy trial is an integral part of  Article 21 of the Constitution.  In the instant case, in the  last twenty six years, not even a single prosecution  witness had been examined.   It was urged that for more  than one reasons, the prosecution, in the instant case,  cannot be permitted to continue.   The proceedings taken  by the respondents against the appellant were clearly an  abuse of process of law.   

        This Court had repeatedly emphasized that the  speedy trial is implicit in the spectrum of Article 21 of the  Constitution.

       Reference was made to a Constitution Bench  Judgment of this Court in the case of Abdul Rehman  Antulay v. R. S. Nayak (1992) 1 SCC 225.   In this case,  the Court held that the right to a speedy trial was a part  of fair, just and reasonable procedure implicit in Article  21 of the Constitution.  This Court, in this case, observed  that each case had to be decided on its own facts.  In this  case, this Court further observed that it was not  advisable and feasible to fix an outer time limit for  conclusion of the criminal proceedings.            It was submitted in the said case that the framers of   Indian Constitution were aware of the 6th Amendment  in  the Constitution of the USA providing in express terms  the right of an ’accused’ to be tried speedily.  Yet, similar  provision was not incorporated in the Indian  Constitution.  It was submitted in that case that it is  neither permissible nor possible nor desirable to lay  down an outer limit of time.  The US Supreme Court also  had refused to do so.   

       We deem it appropriate to reproduce the relevant  observations made by this Court in the case of  Hussainara Khatoon (I) v. Home Secretary, State of  Bihar (1980) 1 SCC 81 as under:         "We think that even under our  Constitution, though speedy trial is not  specifically enumerated as a fundamental  right, it is implicit in the broad sweep and  content of Article 21 as interpreted by this  Court in Maneka Gandhi v. Union of India  [(1978) 1 SCC 248].  We have held in that case  that Article 21 confers a fundamental right on  every person not to be deprived of his life or  liberty except in accordance with the  requirement of that Article that some  semblance of a procedure should be prescribed  by law, but that the procedure should be  "reasonable, fair and just".   If a person is  deprived of his liberty under a procedure  which is not "reasonable, fair or just", such  deprivation would be violative of his  fundamental right under Article 21 and he  would be entitled to enforce such fundamental  right and secure his release.  Now obviously  procedure prescribed by law for depriving a  person of his liberty cannot be ’reasonable, fair  or just’ unless that procedure ensures a  speedy trial for determination of the guilt of

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such person.  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.  There can,  therefore, be no doubt that speedy trial, and by  speedy trial we mean reasonably expeditious  trial, is an integral and essential part of the  fundamental right to life and liberty enshrined  in Article 21."

       In a number of cases, this Court on consideration of  peculiar facts and circumstance of individual cases had  quashed the proceedings.          In Rakesh Saxena v. State through C.B.I. (1986)  Supp. SCC 505, this Court quashed the proceedings on  the ground that any further continuance of the  prosecution after lapse of more than six years in the case  of the appellant who was merely a trader at the lowest  rung of the hierarchy in the Foreign Exchange Division of  the Bank is uncalled for, particularly, in view of the  complicated nature of the offence charged.

       This Court, in the case of Srinivas Gopal v. Union  Territory of Arunachal Pradesh (1988) 4 SCC 36  quashed the proceedings on the ground of delay in  investigation and commencement of trial.  The  investigation commenced in November 1976 and the case  was registered on completion of the investigation in  September 1977.  Cognizance was taken by the Court in  March 1986.   

       In T. J. Stephen v. Parle Bottling Co. (P) Ltd.  (1988) Supp. SCC 458, this Court quashed the charges  against the accused under Section 5 of the Import and  Exports (Control) Act, 1947.  The Court held that it would  not be in the interests of justice to allow a prosecution to  start and trial to be proceeded with after a lapse of  twenty six years even though one of the accused was  himself responsible for most of the delays caused by his  mala fide tactics.            In Machander v. State of Hyderabad (1955) 2  SCR 524, this Court observed that while it was  incumbent on the Court to see that no guilty person  escapes, it is still more its duty to see that justice is not  delayed and accused persons are not indefinitely  harassed.  The Court observed that the scales must be  held even between the prosecution and the accused.  In  the facts of that case, the Court refused to order trial on  account of the time already spent and other relevant  circumstances of that case.   

       In the case of A. R. Antulay (supra), this Court  gave propositions meant to serve as guidelines.   This  Court held 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.  This Court further  observed as under:         "(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

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also in public interest or that it serves the  social 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 re-trial.  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, 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.

xxx                      xxxx                     xxxx

xxx                      xxxx                     xxxx"

       This Court also observed that while determining  whether undue delay has in fact occurred, one must have  regard to all the attendant circumstances, including  nature of offence, number of accused and witnesses, the  workload of the court concerned, prevailing local  conditions and so on \026 what is called, the systematic  delays.  The sum and substance is that it is neither  advisable nor practicable to fix any time limit for trial of  offence.  Each case has to be decided on its own facts  and circumstances.              This Court, as per the majority in a seven-Judge  Bench, in the case of P. Ramachandra Rao v. State of  Karnataka (2002) 4 SCC 578 came to the conclusion  and declared that this Court can interpret the law and in  the process remove any lacuna, fill the gaps in the  Legislation and even lay down a law with reference to the  dispute before it. But it, cannot declare a new law of  general application in the manner the Legislature does.   In this case, the Court relied upon Antulay’s case  (supra) and refrained from fixing any time limit not  because the Court had no power to do so, but because it

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was "neither advisable nor practicable" to do so.   The  Court observed that since the law laid down by the  Constitution Bench still holds the field, any declaration  made in derogation thereof fixing time limit by a smaller  Bench is overruled by virtue of the doctrine of binding  precedents.   The Court also laid down that the question  of delay had to be decided by the Court having regard to  the totality of circumstances of an individual case.  The  Court observed that 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 trial has remained pending for such a length of time  that the inordinate delay can legitimately be called  oppressive and unwarranted.

       It would be pertinent to mention that the Sixth  Amendment to the U.S. Constitution states that "In all  criminal prosecutions, the accused shall enjoy the right  to a speedy and public trial, by an impartial jury of the  State and district wherein the crime shall have been  committed.   "These guarantees are the most basic rights  preserved by the Constitution; fundamental liberties  embodied in the Bill of Rights.  The due process clause of  the Fourteenth Amendment made them applicable to all  States."

       The Constitutional guarantee is for the protection of  both the accused and the society.   Even in the United  States where there has been a constitutional amendment  recognizing speedy trial as an extremely valuable right of  the accused even then the Court held that no time limit  could be fixed for concluding the criminal trial.  It has  been held that it depends on the facts and circumstances  of each case.

       In a celebrated American case, Beavers v. Haubert  (1905) 198 US 77, 49 L Ed 950, 25 S Ct 573, it was  recognized that the right to a speedy trial is necessarily  relative, and that it is consistent with delays and depends  upon circumstances.             In another case of U.S. Supreme Court, Pollard v.  United States 1957) 352 US 354, 1 L Ed 2d 393, 77 S Ct  481, it was recognized that whether delay in completing a  prosecution amounts to an unconstitutional deprivation  of rights depends upon the circumstances, and that the  delays must not be purposeful or oppressive.   

       It was recognized that "the constitutional guarantee  of a speedy trial is an important safeguard (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  delays will impair the ability of an accused to defend  himself.  Adhering to the views expressed in earlier  decisions, the Court reiterated that the right to a speedy  trial is necessarily relative; that it is consistent with  delays; that whether delay in completing a prosecution  amounts to an unconstitutional deprivation of rights  depends upon the circumstances and that the delay  must not be purposeful or oppressive."  

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       In Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d  607, 89 S Ct 575, it was recognized that the Sixth  Amendment guarantee of the right to a speedy trial is  essential to protect at least three basic demands of  criminal justice:  (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.

       In England, from the time of the Magna Carta, an  accused, in theory at least, enjoyed the right to a speedy  trial, which was secured by the commission of goal  delivery, under which the jails were cleared at least twice  each year.    

       In Commonwealth v. Hanley [337 Mass 384, 149  NE2d 608, 66 ALR2d 222, cert den 358 US 850, 3 L ed  2d 85, 79 S Ct 79], the guarantee of speedy trial has been  held to serve a threefold purpose:  it protects the  accused, if held in jail to await trial against prolonged  imprisonment; it relieves him of the anxiety and public  suspicion attendant upon an untried accusation of crime;  and, like statutes of limitation, it prevents him from  being exposed to the hazards of a trial after the lapse of  so great a time that the means of proving his innocence  may have been lost.

       In the case of State v. Carrillo [41 Ariz 170, 16 P2d  965], it has been held that an accused who has been  denied speedy trial, or who has not been brought to trial  within the time required by an implementing statute, can  generally move to dismiss the prosecution on that  ground.    

       Rule 48(b) of the Federal Rules of Criminal  Prosecution authorizes dismissal if there is unnecessary  delay in presenting the charge to a grand jury or in filing  an information against an accused who has been held to  answer to the district court, or if there is unnecessary  delay in bringing an accused to trial.    This rule has the  same effect in implementing the Sixth Amendment right  to speedy trial, as an act of Congress would have had.    

       A Constitution Bench of this Court has, in the case  of Kartar Singh v. State of Punjab (1994) 3 SCC 569,  mentioned that the right to a speedy trial is a derivation  from a provision of Magna Carta.   This principle has also  been incorporated into the Virginia Declaration of Rights  of 1776 and from there into the Sixth Amendment of the  Constitution of United States of America which reads, "In  all criminal prosecutions, the accused shall enjoy the  right to a speedy and public trial...".  It may be pointed  out, in this connection, that there is a Federal Act of  1974 called ’Speedy Trial Act’ establishing a set of time- limits for carrying out the major events, e.g., information,  indictment, arraignment, in the prosecution of criminal  cases.

       In this case, this Court further observed as under:         "The right to a speedy trial is not only an  important safeguard to prevent undue and  oppressive incarceration,  to minimize anxiety  and concern accompanying the accusation and

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to  limit  the possibility of impairing the  ability   of  an accused to  defend  himself  but also  there is a societal interest  in providing a  speedy trial. This right has been actuated in  the recent past and the courts have laid down  a series        of decisions opening up new vistas  of fundamental rights.   In fact, lot of cases are  coming before the courts for quashing of  proceedings on the ground of inordinate and  undue delay stating that the invocation of this  right even need not await formal indictment or  charge."

       The concept of speedy trial is read into Article 21 as  an essential part of the fundamental right to life and  liberty guaranteed and preserved under our Constitution.   The right to speedy trial begins with the actual restraint  imposed by arrest and consequent incarceration and  continues at all stages, namely, the stage of investigation,  inquiry, trial, appeal and revision so that any possible  prejudice that may result from impermissible and  avoidable delay from the time of the commission of the  offence till it consummates into a finality, can be averted.

       This Court in Hussainara Khatoon (I) (supra)  further observed as under:         "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.  There can, therefore, be no  doubt that speedy trial, and by speedy trial we  mean reasonably expeditious trial, is an  integral and essential part of the fundamental  right to life and liberty enshrined in Article 21.   The question which would, however, arise is as  to what would be the consequence if a person  accused of an offence is denied speedy trial  and is sought to be deprived of his liberty by  imprisonment as a result of a long delayed trial  in violation of his fundamental right under  Article 21.   Would he be entitled to be released  unconditionally freed from the charge levelled  against him on the ground that trying him  after an unduly long period of time and  convicting him after such trial would  constitute violation of his fundamental right  under Article 21."          

       This Court in a number of cases has reiterated that  speedy trial is one of the facets of the fundamental right  to life and liberty enshrined in Article 21 and the law  must ensure ’reasonable, just and fair’ procedure which  has a creative connotation after the decision of this Court  in Maneka Gandhi’s case (supra).    

When we examine the instant case in the light of the  aforementioned decisions of this Court and of the US  Supreme Court, it becomes abundantly clear that no  general guideline can be fixed by the court and that each  case has to be examined on its own facts and  circumstances.  

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  It is the bounden duty of the court and the  prosecution to prevent unreasonable delay.

       The purpose of right to a speedy trial is intended to  avoid oppression and prevent delay by imposing on the  courts and on the prosecution an obligation to proceed  with reasonable dispatch.

In order to make the administration of criminal  justice effective, vibrant and meaningful,  the Union of  India, the State Governments and all concerned  authorities must take necessary steps immediately so  that the important constitutional right of the accused of a  speedy trial does not remain only on papers or is a mere  formality.

In the instant case not a single witness has been  examined by the prosecution in the last twenty six years  without there being any lapse on behalf of the appellant.   Permitting the State to continue with the prosecution and  trial any further would be total abuse of the process of  law.  Consequently, the criminal proceedings are  quashed.  The appeal is accordingly allowed and disposed  of.