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PETITIONER: RAJ DEO SHARMA

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT:       22/09/1999

BENCH: M.Srinivasan, M.B.Shah.

JUDGMENT:

     When  I read the draft judgment prepared by my learnedbrother  Justice  K.T.  Thomas,  I respectfully  endorsed  my agreement  with  the same as I found it to be in  accordance with  law  and justice.  But now, I have received the  draft judgment  from  my  learned brother Justice  M.   B.   Shah. After going through the same, I am of the opinion that it is necessary for me to express my views by a separate order.  I make  it clear at the outset that I am entirely in agreement with the view expressed by Justice Thomas and I am unable to persuade myself to agree with Justice Shah.

     2.    The   present  petition  is   filed   only   for directions/modifications/clarification  of the directions of this  Court dated 8/10/98 in Criminal Appeal No.1045 of 1998 (vide  para 1 of the petition).  This is not a petition  for review  of  the  judgment in the main appeal.   It  is  also needless  to  say that this bench is not sitting  in  appeal over the judgment in the main appeal.  The petitioner herein was  not a party as such in the appeal.  The  Superintendent of  Police, CBI, Patna was impleaded as second respondent in the  petition  for Special Leave to Appeal (Criminal  Appeal No.1177 of 1996) by Court order dated 9/9/96 and on grant of leave, the appeal was numbered as Criminal Appeal No.1045 of 1998.   In  the  course  of  arguments,  learned  Additional Solicitor  General  appearing for the  petitioner  expressly stated  that  he  was only seeking a  clarification  of  the judgment  in  the  main  appeal, as according  to  him,  the subordinate  courts  are under a wrong impression  that  the directions  contained in the said judgment give no option to them  but to close the evidence of the prosecution  whenever the  periods  mentioned  in the  guidelines  are  completed. Thus,  there  is  no  occasion for this  bench  to  consider whether the directions contained in the judgment in the main appeal are against law in the sense that they run counter to the earlier judgments of this Court rendered by Constitution Benches.  In my humble opinion, it is not open to this Bench to  canvass  the legality or correctness of  the  directions contained  in  the  main judgment.  The only prayer  by  the petitioner  is  to clarify the main judgment, in order  that the  Subordinate Courts understand the directions  contained therein  in the proper perspective and carry out the same in letter and spirit.  3.  It is needless to point out that for more  than  two  decades,  this Court  has  been  repeatedly emphasising  the  right  of an accused to speedy  trial  and giving   appropriate  directions  to   the  State  and   the subordinate judiciary with a view to reduce the delay in the disposal  of  criminal matters.  The Constitution  Bench  in

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Antulays  case  1992  (1) SCC 225 thought fit to  lay  down certain guidelines.  The Court said :  In view of the above discussion,  the  following  propositions emerge,  meant  to serve as guidelines.  We must forewarn that the propositions are  not  exhaustive.   It  is   difficult  to  foresee  all situations.   Nor  is it possible to lay down any  hard  and fast rules.

     While  stating  that  it  is  neither  advisable   nor practicable to fix any time limit for trial of offences, the Court  took  care to say in proposition No.  9 as follows  : 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. (underline mine)

     4.  Thus, the Constitution Bench had in Antulays case itself  contemplated an order to conclude the trial within a fixed  time in appropriate cases.  In fact, in the  judgment in  the  main appeal in the present case, the court has  not fixed  any time limit for the conclusion of trial.  As such, the  court  has  only laid down guidelines for  closing  the prosecution in certain circumstances.  There is a difference between  fixing a time limit for the disposal of a trial and fixing  time  limit  for  the prosecution  to  complete  its evidence.  A perusal of the guidelines contained in the main judgment  would  themselves show that there is no  hard  and fast  rule  applicable to every case, irrespective of  facts and  circumstances thereof.  If the delay is not due to  any fault  of the prosecution, it is open to the prosecution  to place  the relevant facts before the court and seek  further time  for producing its evidence.  It is clear from the last part  of  clause  3 in paragraph 16 of the  judgment.   Even though,  there  is no express exception similar to  that  in clause  1  in paragraph 16, the same position  will  obtain. The judgment in the appeal cannot be understood as punishing the  prosecution  and  preventing  the  same  from  adducing evidence  even when it is not responsible for the delay.  5. It  is necessary to place on record certain facts brought to the  notice of the court when the main appeal was heard.  In the  State  of Bihar alone, several cases were  pending  for more  than  25  years.  A report submitted  by  the  Special Judge,  CBI  Court in December 1996 pointed out that in  one case  which was pending from 1982, the prosecution had cited as  many as 40 witnesses, but had examined only 3  witnesses up  to 1996;  the last of them was examined on 3/9/93.   The report also pointed out that thereafter, the prosecution had taken  36  adjournments to examine the remaining  witnesses, but  had not produced even one of them.  There were hundreds of  such  cases  and  if  this court is  going  to  look  on helplessly  by merely reiterating that right to speedy trial is  a  fundamental  right  enshrined in Article  21  of  the Constitution  of India, but no time limit could be fixed for conclusion  of trials, the problem will remain unsolved  for ever.   It is stated by my learned brother Justice Shah that the  accused would get undeserving benefit by the time limit prescribed  in  the judgment in the main appeal and  it  may

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result  in  doing  injustice  to the society.   It  is  also observed  by  him that all the beneficiaries of  the  large scale  frauds,  all the employees who  have  misappropriated large  sum  of  money from the public exchequer  or  private employer or accused who are tried for corruption cases would get  undeserving benefit at the system of implementation  of law.  With respect, I am unable to agree.  In fact, Justice Shah has himself quoted, a passage in the judgment in Ganesh Narain Hegde vs.  S.  Bangarappa & Others [1995 (4) SCC 41]. In that passage it is pointed out that when the case reaches the stage of trial after all the interruptions by the higher courts,  the  time  would  have  taken  its  own  toll,  the witnesses   are  won  over,   evidence  disappears  and  the prosecution  loses interest.  It is unnecessary to point out that  when  the  prosecution delays the  production  of  its witnesses,  the failing human memory of such witnesses could be  certainly  advantageous to the accused and even in  such cases,  there will be a failure of the system.  The  problem is  one  of  basic human rights of  persons  languishing  in prison  for years together which in several cases exceed the maximum  period  of punishment prescribed for  the  offences alleged to have been committed by them even before the trial is  concluded.  Even if the accused are not in prison,  they would  be suffering from immense mental agony as if a dagger is  hanging  over their heads.  Can they be  compensated  if they  are found to be innocent at the end of the trial?.  6. As  pointed out in Antulays case, the court has to  balance and weigh the several relevant factors and determine in each case  whether  the right to speedy trial has been denied  in the given case.  It is only to enable the Subordinate Courts to  apply the right balancing test or balancing process, the guidelines  have  been  given in the judgment  in  the  main appeal.   7.   The judgment has also taken care  to  mention that the directions given therein are only to supplement the propositions   laid  down  by   the  Constitution  Bench  in Antulays case and also in addition to and without prejudice to  the  directions issued by this Court in  Common  Cause case [(1996) (4) SCC 33] and [(1996) (6) SCC 775].  8.  I am unable  to  appreciate  how  the  operation  of  a  judgment rendered  by the Court can be held in abeyance  indefinitely when  there is no appeal or review against the same.  Prayer a  in  the  petition  is unsustainable and  it  cannot  be countenanced   by  this  Bench.   As  regards  prayer   e, directions  were  being given by this Court again and  again ever   since  Hussainara  Khatoon   and  Others  vs.    Home Secretary,  State  of Bihar [(1980) 1 SCC 81] to  the  State Governments  and  it  is  mandatory duty of  all  the  State Governments  to  take appropriate steps to comply with  such directions.   If the State Governments are interested in the proper  administration of justice, they should fulfill their constitutional  obligations,  as repeatedly pointed  out  by this Court in its earlier judgments.  9.  In the result, the only  clarifications which are required to be made are found in  the order of Justice Thomas and I express my concurrence with  the  same.  Neither prayer a nor prayer e  can  be granted as stated by my brother Justice Shah.