IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      1067      OF 2008 (Arising out of S.L.P. (Criminal) No. 2843 of 2006)

PANKAJ KUMAR — APPELLANT (S)

VERSUS

STATE OF MAHARASHTRA & ORS. — RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2.  This appeal arises from the final judgment and order dated

2nd/4th May, 2006 rendered by the High Court of Judicature

at Bombay, Bench at Aurangabad, in Criminal Writ Petition

No.149 of 1999.  By the impugned judgment, the learned

Single  Judge  has dismissed  the  petition preferred  by the

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appellant  and  his  mother  under  Article  227  of  the

Constitution read with Section 482 of the Code of Criminal

Procedure, 1973 (for short ‘CrPC’), seeking quashing of the

chargesheet  and  the  consequential  proceedings  initiated

against them in Special Case No.3 of 1991 pending in the

court of Special Judge, Latur.

3. A few material facts, necessary for disposal of this appeal

can be stated thus :

0n 12th May, 1998, a First Information Report was lodged

against  one  Sayyad  Mohammad  Sayyad  Ibrahim  and  eight

other persons,  inter alia¸ alleging that during the period from

1st October,  1980 to 22nd February,  1982,  while  working as

District Dairy Development Officer, Government Milk Scheme,

Bhanara, Sayyad Mohammad Sayyad Ibrahim had conspired

with  the  appellant  and his  father  and had  committed  mis-

appropriation of huge amounts in the purchase of spare parts

etc.,  for  the  plant.   The  case  was  referred  to  the  Anti

Corruption Bureau for investigation.

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4. Investigations  dragged  on  for  over  three  years  and

ultimately on 22nd February, 1991, a chargesheet was filed

in the court of Special Judge, Latur against twelve persons

for  offences  punishable  under  Sections  120B,  409,  420,

465,  468,  471,  477  (A)  101  and  34  of  the  Indian  Penal

Code,  1860  (for  short  ‘IPC’)  and  Sections  5(1)(c)(d)  along

with Section 5(c) of the Prevention of Corruption Act, 1947.

In addition thereto, Sections 13(1)(c)(d) read with Section 13

(2) of the Prevention of Corruption Act, 1988 have also been

invoked against accused Nos.1 to 9.   The first nine accused

were the employees of the Government Milk Plant and the

remaining  three  being  the  appellant  and  his  father  and

mother,  arraigned  as  accused  Nos.11,10  and  12

respectively.

5. As per the chargesheet, the case of the prosecution, in brief

is  that  the  said  Sayyad  Mohammad  Sayyad  Ibrahim

(accused  No.1)  and  one  Pashubhai  Narsi  Shah  (accused

No.10),  father  of  the  appellant,  were  friends  since  1976.

Accused No.10 had two concerns styled as India Trading

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Agency, Mumbai and Dairy Equipment Industries, Mumbai,

in  the  name of  his  wife  (accused No.12).   Accused  No.1,

without  calling  for  the  quotations  for  purchase  of  spare

parts for the Milk Plant, got prepared from accused Nos.10

and  11,  bills  in  small  amounts  of  Rs.10,000/-  each  for

purchase of spare parts valued at Rs.2,03,705; got the bills

processed from the staff members (accused Nos. 2 to 9) of

the said Milk Dairy Unit and made payments in cash and

by  way  of  demand  drafts  to  the  present  appellant.   The

second  accusation  is  that  for  two  air  compressors

purchased from M/s Ingersol Rand (India), Mumbai in the

year  1978,  spare  parts  of  the  total  value  of  Rs.91,469/-

were again purchased from the concerns of accused Nos.10

and 11 despite  the fact that quotation had been received

from the original supplier. No inspection and verification of

the spare parts supplied by the said concerns was carried

out; bills were got processed by accused No.1 from other

staff  members  and  payment  was  again  made  to  accused

No.11 in cash and by demand drafts.  The third accusation

against all the accused is that an amount of Rs.64,100/-

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was paid to one M/s Pankaj Chemicals, Mumbai, managed

by accused No.10, the father of the appellant,  for cleaning

of the water softening plant supplied by M/s Ingersol Rand

(India)  Ltd.,  without  actually  doing  any such work.   The

Special  Judge  took  cognizance  of  the  complaint  and

summoned all the accused.

6. Aggrieved,  the  appellant  and  his  mother  (A-12)  filed  the

afore-stated writ petition.  During the pendency of the writ

petition,  the  mother  of  the  appellant  expired.   Accused

No.10, namely, the father of the appellant had also expired

earlier.

7. Rejecting the main plea of the appellant that being born on

18th September,  1963,  the  appellant  was  a  minor  at  the

time  of  transactions  in  question  in  the  year  1981  and,

therefore, he could not be proceeded against and that even

otherwise  the  chargesheet  did  not  disclose  any  offence

against  the  appellant  and  his  mother,  by  the  impugned

order,  the  High  Court  dismissed  the  petition.   The  High

Court has come to the conclusion that the appellant has

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failed to produce any document showing his date of birth

and that the chargesheet  prima facie  discloses commission

of offences by the appellant.  Aggrieved by the said decision,

the appellant has preferred this appeal.

8. Learned  counsel  appearing  on  behalf  of  the  appellant

submitted that there was sufficient material  on record to

show that when the alleged acts of malfeasance took place,

the appellant was a minor and had nothing to do with the

affairs  of  the  concerns,  which had made  supplies  to  the

milk plant.  He was neither the proprietor nor a partner in

the said concerns/firms which were managed by his father,

accused  No.10.   In  support  of  the  proposition  that  the

reckoning date for determining the age of an accused, who

claims to be a child, is the date of occurrence and not the

date  when  the  offender  is  produced  before  the  court,

reliance  was  placed  on  the  decision  of  the  Constitution

Bench in Pratap Singh Vs. State of Jharkhand & Anr.1.

Referring us to certain portions of the chargesheet, learned

counsel contended that except for the bald averment that

1 (2005) 3 SCC 551

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the  appellant  had prepared  bogus  bills  and had received

the  payment,  no  other  incriminating  material  has  been

brought on record, to show that the appellant was looking

after the affairs of the concerns/firms owned or managed by

his father and mother, namely accused No.10 and 12 (since

deceased) and, therefore, the conclusion of the High Court

that  a  prima facie  case  had  been  made  out  against  the

appellant is without any basis.    Lastly, it was pleaded that

the appellant has been deprived of his constitutional right

to have a speedy investigation and trial, inasmuch as the

FIR  was  registered  on  12th May,  1987  for  the  offences

allegedly  committed  some  time  in  the  year  1981;

chargesheet was filed on 22nd February, 1991 but till date

not a single witness has been examined by the prosecution.

In support, reliance was placed on a decision of this Court

in Santosh De Vs. Archna Guha & Ors.2, wherein a delay

of  eight  years  in  commencing  the  trial  was  held  to  be

violative of the right of the accused to a speedy trial and the

2 AIR 1994 SC 1229

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High Court’s decision quashing the criminal proceedings on

that ground was affirmed.

9. Learned counsel for the State, on the other hand, submitted

that  in  the  light  of  clear  averment  in  the  chargesheet,

implicating the appellant, the High Court was justified in

dismissing  the  writ  petition  by  applying  the  correct

principles to be kept in view while exercising power under

Article 227 of the Constitution or under Section 482 CrPC,

recently reiterated by a three-Judge Bench of this Court in

Som Mittal  Vs.  Government of Karnataka3.   Regarding

delay  in  trial,  learned  counsel  submitted  that  the

prosecution cannot be  held responsible  for  delay at least

from the year 1999, when the records had been summoned

by the High Court.  It was also submitted that even if the

date of birth of the appellant is taken as 18th September,

1963, being more than 16 years of age in March, 1981, still

he  could  not  be  treated  as  a  juvenile  under  the  1986

Juvenile Justice Act.  Learned counsel also placed reliance

on the decisions in Pratap Singh (supra)  and Jameel  Vs.

3 (2008) 3 SCC 574

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State  of  Maharashtra4.  It  was  also  urged  that  since

offences,  punishable  under  the  Prevention  of  Corruption

Act, 1988 have been committed by the appellant, in view of

the observations of this Court in Satya Narayan Sharma

Vs. State  of  Rajasthan5, this  Court  should  be  loath  to

interfere in the matter.

10. The scope  and ambit  of  powers of  the High Court under

Section 482,  CrPC or Article  227 of  the Constitution has

been enunciated and reiterated by this Court in a series of

decisions and several circumstances under which the High

Court  can  exercise  jurisdiction  in  quashing  proceedings

have  been  enumerated.    Therefore,  we  consider  it

unnecessary to burden the judgment by making reference

to all the decisions on the point.  It would suffice to state

that  though  the  powers  possessed  by  the  High  Courts

under the said provisions are very wide but these should 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 4 (2007) 11 SCC 420 5 (2001) 8 SCC 607

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an arbitrary jurisdiction on the High Court to act according

to  whim  or  caprice.   The  powers  have  to  be  exercised

sparingly,  with  circumspection  and  in  the  rarest  of  rare

cases,  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:  Janata Dal Vs.  H.S. Chowdhary &

Ors.6, Kurukshetra  University  &  Anr.  Vs.  State  of

Haryana  &  Anr.7 and  State  of  Haryana  &  Ors.  Vs.

Bhajan Lal & Ors.8]

11. Although in Bhajan Lal’s case (supra), the court by way of

illustration,  formulated  as  many  as  seven  categories  of

cases,  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 yet  it  was clarified

that it was not possible to lay down precise and inflexible

guidelines or any rigid formula or to give an exhaustive list

6 (1992) 4 SCC 305 7 (1977) 4 SCC 451 8 1992 Supp (1) SCC 335

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of  the  circumstances  in  which  such  power  could  be

exercised.  

12. The  purport  of  the  expression  “rarest  of  rare  cases”  has

been  explained  very  recently  in  Som  Mittal (supra).

Speaking  for  the  three-Judge  Bench,  Hon’ble  the  Chief

Justice has said thus:

“When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection'  while  describing  the scope of Section 482, those words merely emphasize and reiterate what is intended to  be  conveyed  by  the  words  'sparingly and  with  circumspection'.  They  mean that  the  power  under  Section  482  to quash  proceedings  should  not  be  used mechanically or routinely, but with care and caution, only when a clear case for quashing  is  made  out  and  failure  to interfere  would  lead to a miscarriage  of justice.  The  expression  "rarest  of  rare cases" is not used in the sense in which it is used with reference to punishment for offences  under  Section  302  IPC,  but  to emphasize that the power under Section 482 Cr.P.C. to quash the FIR or criminal proceedings  should  be  used  sparingly and with circumspection.”

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13.Bearing  in  mind the  above  legal  position,  we are  of  the

opinion that, for the reasons stated hereafter, the ends of

justice require that prosecution proceedings in the instant

case be quashed.

14. 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 & Anr.9, in

Hussainara Khatoon & Ors. Vs. Home Secretary, State

of Bihar10, 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 9 (1978) 1 SCC 248 10 (1980) 1 SCC 81

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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.

15. 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.11.  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)

11 (1992) 1 SCC 225

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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

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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

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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.

16. 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.12,  “Common  Cause”,  A

Registered Society Vs. Union of India & Ors.13, Raj Deo

Sharma Vs. State of Bihar14 and Raj Deo Sharma II Vs.

State  of  Bihar15 gave  rise  to  some  confusion  on  the

question  whether  an  outer  time  limit  for  conclusion  of

criminal  proceedings  could  be  prescribed  whereafter  the

12 (1996) 4 SCC 33 13 (1996) 6 SCC 775 14 (1998) 7 SCC 507 15 (1999) 7 SCC 604

16

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

Karnataka16.  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)  is correct and 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 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 like 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

16 (2002) 4 SCC 578

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criminal  proceedings.   Nonetheless,  the  criminal  courts

should exercise their available powers such as those under

Sections 309, 311 and 258 of CrPC to effectuate the right to

speedy trial.  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.   The  outer  limits  or  power  of

limitation  expounded  in  the  aforenoted  judgments  were

held to be not in consonance with the legislative intent.

17. 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

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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.

18. 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,

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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

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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.

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19.For the view we have taken, we deem it unnecessary to go

into the merits of the accusations against the appellant as

also the question of his age, at the time of commission of

alleged offences.

20.Consequently, the appeal  is allowed and the proceedings

against  the  appellant  in  criminal  case  arising  out  of  FIR

No.78 of 1987 are hereby quashed.

………………………………………….J.  (C.K. THAKKER)

                              ..….…………………………………….J.  (D.K. JAIN)

NEW DELHI; JULY 11, 2008.

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