REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 138  OF 2009   (Arising out of S.L.P. (Criminal) No. 6887 of 2007)

VAKIL PRASAD SINGH — APPELLANT (S)

VERSUS

STATE OF BIHAR — RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2. Challenge in this appeal is to the order dated 9th July, 2007 passed by the

High Court  of  Judicature  at  Patna  in  Criminal  Miscellaneous  No.17513 of

1998.  By the impugned order,  the High Court has dismissed the petition

preferred  by  the  appellant  under  Section  482  of  the  Code  of  Criminal

Procedure, 1973 (for short ‘the Cr.P.C.’),  seeking quashing of proceedings

pending against him in Special Case No. 29 of 1987 before the Special Judge,

Muzaffarpur for allegedly committing offences under Sections 161 (before its

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omission by Act 30/2001), 109 and 120B of the Indian Penal Code, 1860 (for

short ‘the I.P.C.’) and Section 5(2) of the Prevention of Corruption Act, 1947

(for short ‘the Act’).

3. The case has a chequered history and, therefore, in order to appreciate the

rival stands of the parties, it would be necessary to notice the background

facts in a little greater detail.

The genesis of the case dates back to 8th April, 1981 when a search

operation was conducted by the office of the Superintendent of Police, Crime

Investigation Department, (Vigilance), Muzaffarpur, on the basis of a complaint

lodged by a civil contractor against the appellant, an Assistant Engineer in the

Bihar State Electricity Board (Civil) Muzaffarpur, for allegedly demanding a sum

of Rs.1000/- as illegal gratification for release of payment for the civil  work

executed by him.  In the trap laid to catch the culprit, the chemically treated

currency notes are stated to have been recovered from appellant’s pocket.  As a

follow up action, after investigation by an Inspector of Police, a chargesheet for

the afore-mentioned offences was filed against the appellant on 28th February,

1982.   The  Magistrate  took  cognizance  on  9th December,  1982.   Nothing

substantial happened till 6th July, 1987 except for dismissal of an application,

dated 30th June, 1983 filed by the prosecution for reinvestigation of the case,

when the case was transferred from Muzaffarpur to Patna.

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4. On 7th December,  1990,  the  appellant  filed  a  petition  under  Section  482

Cr.P.C. before the Patna High Court against the order passed by the Special

Judge, Muzaffarpur taking cognizance of the said offences, on the ground

that the Inspector of Police, who had conducted the investigations, on the

basis  whereof  the  chargesheet  was  filed,  had  no  jurisdiction  to  do  so.

Accepting the plea  of  the appellant,  the High Court,  vide  order  dated 7th

December, 1990 quashed the order of Magistrate taking cognizance, with a

direction to the prosecution to complete the investigation within a period of

three months from receipt of the order, by an officer of the rank of a Deputy

Superintendent of Police or any other officer duly authorised in this behalf.

No further progress was made in the case and the matter rested there till the

year 1998, when the appellant filed yet another petition under Section 482

Cr.P.C.,  giving rise  to the present  appeal,  seeking quashing of  the entire

criminal  proceedings  pending against  him mainly  on  the ground that  re-

investigation in the matter had not been initiated even after a lapse of seven

and a half years of the order passed by the High Court on 7th December, 1990

and in the process the appellant had suffered undue harassment for  over

eighteen years.  On 20th November, 1998, the petition was admitted to final

hearing.

5. Ultimately, when the matter was called out for final hearing after almost nine

years, on 11th May, 2007, counsel for the vigilance department sought time to

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seek instructions in regard to the stage  of  investigations.   In  furtherance

thereof, an affidavit was filed on behalf of the prosecution,  inter alia,  stating

that  the  Superintendent  of  Police,  Muzaffarpur  vide  his  letter  dated  22nd

February, 2007 had directed the Deputy Superintendent of Police to complete

the  investigations.  In  pursuance  of  the  said  direction,  the  Deputy

Superintendent started investigations on 28th February, 2007 and ultimately

filed a fresh chargesheet on 1st May, 2007.

6. As noted earlier, the High Court has dismissed the petition.  Acknowledging

that there has been substantial delay in conclusion of proceedings against the

appellant and some prejudice may have been caused to the appellant in his

professional career on account of continuance of criminal case against him as

he was deprived of the promotion in the meantime, the learned Judge finally

concluded that this reason by itself was not sufficient to quash the entire

criminal  proceedings  against  him,  particularly  keeping  in  view  the

seriousness of the allegations.  The learned Judge, however, directed the trial

court to conduct the trial in the matter on a day to day basis and complete

the same within a period of four months.  The Court also directed that if the

sanction of the State Government had not yet been obtained, the question of

grant of sanction shall be considered by the State Government within a period

of  six  weeks  from  the  date  of  the  order.   Being  aggrieved  by  the  said

decision, the appellant has preferred the present appeal.

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7. Learned counsel appearing on behalf of the appellant vehemently submitted

that though a period of about twenty eight years, since the registration of the

case against the appellant, has elapsed, the trial according to law is yet to

commence and thus, the appellant has been deprived of his constitutional

right  to  speedy  investigation  and  trial  flowing  from  Article  21  of  the

Constitution.   It  was  pleaded  that  having  regard  to  the  prevailing

circumstances  and  the  fact  that  it  is  still  not  clear  whether  the  requisite

sanction to prosecute the appellant has been granted or not, this is eminently

a fit case where the chargesheet against the appellant ought to be quashed.

8. Per  contra,  learned  counsel  for  the  State  contended  that  in  view  of  the

seriousness of the offences alleged against the appellant, the High Court was

fully justified in dismissing the petition by applying the correct principles to

be  kept  in  view  while  exercising  its  inherent  powers  under  Section  482

Cr.P.C.  The learned counsel also submitted that the delay in trial was also, to

some  extent,  attributable  to  the  appellant  because  it  was  he  who  had

belatedly  questioned the jurisdiction of  the investigating officer.   Learned

counsel  also urged that the prosecution could not be held responsible for

delay in trial on account of transfer of the case from Muzaffarpur to Patna

and again from Patna to Muzaffarpur.

9. Before  adverting  to  the  core  issue,  viz.  whether  under  the  given

circumstances  the  appellant  was  entitled  to  approach  the  High  Court  for

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getting the entire  criminal  proceedings against  him quashed,  it  would  be

appropriate to notice the circumstances and the parameters enunciated and

reiterated by this Court in a series of decisions under which the High Court

can exercise its inherent powers under Sections 482 Cr.P.C. to prevent abuse

of process of any Court or otherwise to secure the ends of justice. The power

possessed by the High Court under the said provision is undoubtedly very

wide but it has to be exercised in appropriate cases, ex debito justitiae to do real

and substantial justice for the administration of which alone the courts exist.

The inherent powers do not confer an arbitrary jurisdiction on the High Court

to act according to whim or caprice.  It is trite to state that the said powers

have to be exercised sparingly and with circumspection only where the court

is  convinced,  on  the  basis  of  material  on  record,  that  allowing  the

proceedings to continue would be an abuse of the process of the court or

that the ends of justice require that the proceedings ought to be quashed.

[See: Kurukshetra University & Anr.  Vs. State of Haryana & Anr.1, Janata Dal Vs.  H.S.

Chowdhary & Ors.2, and State of Haryana & Ors. Vs. Bhajan Lal & Ors.3]

10. In Bhajan Lal’s case  (supra), while formulating as many as seven categories of

cases  by  way  of  illustration,  wherein  the  extra-ordinary  power  under  the

afore-stated  provisions  could  be  exercised  by  the  High  Court  to  prevent

abuse of process of the court, it was clarified that it was not possible to lay

1 (1977) 4 SCC 451 2 (1992) 4 SCC 305 3 1992 Supp (1) SCC 335

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down precise and inflexible  guidelines or any rigid formula or to give  an

exhaustive list of the circumstances in which such power could be exercised.

This view has been reiterated in a catena of subsequent decisions.

11. We are of the opinion that having regard to the factual scenario, noted above,

and for the reasons stated hereafter, it is a fit case where the High Court

should have exercised its powers under Section 482 Cr.P.C.

12. 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

Cr.P.C. (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 & Anr.4, in  Hussainara

Khatoon & Ors.  Vs. Home Secretary, State of Bihar5, this Court had observed 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

4 (1978) 1 SCC 248 5 (1980) 1 SCC 81

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reasonably expeditious trial  which is  an integral  and essential  part of  the

fundamental right to life and liberty enshrined in Article 21.

13. The  exposition  of  Article  21  in  Hussainara  Khatoon’s  case  (supra) was

exhaustively  considered  afresh by the Constitution Bench in  Abdul  Rehman

Antulay & Ors. Vs. R.S. Nayak & Anr.6.  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, 6 (1992) 1 SCC 225

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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 a 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

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entertains such a plea, ordinarily it should not stay the proceedings, except in

a case of grave and exceptional nature. Such proceedings in the High Court

must, however, be disposed of on a priority basis.

14. Notwithstanding elaborate enunciation of  Article  21 of the Constitution in

Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of

right  to  speedy  trial  for  laying  down  time-limits  as  bar  beyond  which  a

criminal trial shall not proceed,  pronouncements of this Court in “Common

Cause”  A Registered Society  Vs.  Union  of  India  (UOI) & Ors.7,  “Common Cause”,  A

Registered Society Vs. Union of India & Ors.8, Raj Deo Sharma Vs. State of Bihar9 and Raj

Deo Sharma II  Vs.  State of Bihar10 gave rise to some confusion on the question

whether an outer time limit for conclusion of criminal proceedings could be

prescribed  whereafter  the  trial  court  would  be  obliged  to  terminate  the

proceedings and necessarily acquit or discharge the accused.  The confusion

on the  issue  was  set  at  rest  by  a  seven-Judge  Bench  of  this  court  in  P.

Ramachandra Rao Vs. State of Karnataka11.  Speaking for the majority, R.C. Lahoti,

J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's

case  (supra)  as  correct  and  the  one  which  still  holds  the  field  and  the

propositions emerging from Article 21 of the Constitution and expounding

the right to speedy trial laid down as guidelines in the said case adequately

7 (1996) 4 SCC 33 8 (1996) 6 SCC 775 9 (1998) 7 SCC 507 10 (1999) 7 SCC 604 11 (2002) 4 SCC 578

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take care of right to speedy trial, it was held that guidelines laid down in the

A.R. Antulay's case (supra) are not exhaustive but only illustrative.  They are not

intended to operate as hard and fast rules or to be applied as a strait-jacket

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.  Nonetheless, the criminal courts should exercise their available

powers  such  as  those  under  Sections  309,  311  and  258  of  Cr.P.C.  to

effectuate the right to speedy trial.  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.

The  outer  limits  or  power  of  limitation  expounded  in  the  aforenoted

judgments were held to be not in consonance with the legislative intent.

15. 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 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

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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 frame for conclusion

of trial.

16. Tested on the touchstone of the broad principles enumerated above, we are

convinced that in the present case appellant’s constitutional right recognised

under Article 21 of the Constitution stands violated.  It is manifest from the

facts narrated above that in the first instance investigations were conducted

by an officer, who had no jurisdiction to do so and the appellant cannot be

accused of delaying the trial  merely because he successfully exercised his

right to challenge an illegal investigation. Be that as it may, admittedly the

High  Court  vide  its  order  dated  7th September,  1990  had  directed  the

prosecution to complete the investigation within a period of three months

from the date of the said order but nothing happened till 27th February, 2007

when, after receipt of notice in the second petition preferred by the appellant

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complaining  about  delay  in  investigation,  the  Superintendent  of  Police,

Muzaffarpur directed the Deputy Superintendent of Police to complete the

investigation.  It was only thereafter that a fresh chargesheet is stated to have

been filed on 1st May, 2007.  It is also pertinent to note that even till date,

learned counsel for the State is not sure whether a sanction for prosecuting

the appellant is required and if so, whether it has been granted or not.  We

have no hesitation in holding that at least for the period from 7th December,

1990 till 28th February, 2007 there is no explanation whatsoever for the delay

in investigation.  Even the direction issued by the High Court seems to have

had no effect on the prosecution and they slept over the matter for almost

seventeen years. Nothing could be pointed out by the State, far from being

established to show that the delay in investigation or trial was in any way

attributable  to  the  appellant.   The  prosecution  has  failed  to  show  any

exceptional circumstance which could possibly be taken into consideration

for condoning a callous and inordinate delay of more than two decades in

investigations and the trial. The said delay cannot, in any way, be said to be

arising from any default on the part of the appellant. Thus, on facts in hand,

in our opinion, the stated delay clearly violates the constitutional guarantee

of a speedy investigation and trial under Article 21 of the Constitution. We

feel  that  under  these  circumstances,  further  continuance  of  criminal

proceedings,  pending against  the appellant  in  the court  of  Special  Judge,

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Muzaffarpur, is unwarranted and despite the fact that allegations against him

are quite serious, they deserve to be quashed.

17. Consequently, the appeal is allowed and the proceedings pending against the

appellant in Special Case No. 29 of 1987 are hereby quashed.  

.…………………………………………J.

      (D.K. JAIN)  

                             .….…………………………………….J.        (R.M. LODHA)

NEW DELHI; JANUARY 23, 2009.

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