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CASE NO.: Appeal (crl.) 176  of  2001 Appeal (crl.)   177      of  2001 Special Leave Petition (crl.)   447      of  2001 Special Leave Petition (crl.)   2311     of  2000

PETITIONER: SEETA HEMCHANDRA SHASHITTAL AND ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT:       13/02/2001

BENCH: R.P.Sethi, K.T.Thomas

JUDGMENT:

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     J  U D G M E N T

     THOMAS, J.

      Leave granted.  Two  lady octogenarians feel that there is not much time ahead of them to  complete a trial which is yet to begin, and counting the number  of  years  which   the  investigation  consumed  for finalising the charge-sheet, the trial would not be anything less  than a long drawn out one.  The two ladies  approached the High Court of Bombay, along with their kinsfolk, who too are arrayed in the same case, one of them as the kingpin, to get  the  criminal  case axed down at the threshold  of  the trial  stage,  mainly  on  the   ground  of  long  delay  in completing  the investigation.  But the High Court,  instead of  snipping  down the case charge- sheeted,  dismissed  the writ  petition  solely on the ground that in a similar  case the High Court refused to countenance similar contention.

     The  facts,  barely  necessary for disposal  of  these appeals,  can be stated thus:  Appellant Niranjan Hemchandra Shashittal  is a Government servant who attained the rank of Deputy  Commissioner  in the Department of  Prohibition  and Excise of the Maharashtra Government (he will hereinafter be referred  to as the appellant-public servant).   Appellant Seeta  Hemchandra Shashittal who is now aged 83, and  Shanta Subarao  Shirali,  who  is now aged 81, are the  mother  and mother-in-law of the appellant-public servant, respectively. His  wife  Anuradha  is  also an appellant as  she  too  was arrayed as accused.

     On  the basis of some information received by the Anti Corruption  Bureau (ACB for short) a preliminary enquiry was conducted  and  on 26.6.1986 an FIR was lodged  against  the appellant-public  servant for the offence under Section 5(2) of  the  Prevention  of  Corruption  Act,  1947.   This  was immediately  followed by raids conducted at the places which

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the  ACB  officials  believed  to be the  buildings  of  the appellant-public  servant situated at Mumbai and Nasik.  The raids and certain other enquiries conducted by them revealed that  appellant-public  servant  had acquired  assets  worth Rs.33.44 lacs, in the year 1986, which were far in excess of his   known  sources  of   income.   The  investigation  was completed  by the Assistant Commissioner of Police  attached to the ACB and he submitted the final report to his superior who  was the Director of ACB, in July 1990.  After the draft final  report was approved the ACB approached the Government of  Maharashtra  on  6.4.1991   for  obtaining  sanction  to prosecute  the  appellant-public  servant.   The  Government accorded  sanction  on  22.1.1993 and thereupon  the  charge sheet was laid against all the appellants on 4.3.1993 before the Special Court dealing with offences under the Prevention of   Corruption  Act.   The   offence  alleged  against  the appellant-public  servant was under Section 13(2) read  with Section  13(1)(e) of the Prevention of Corruption Act, 1988. The offence alleged against the lady appellants was abetment of  the  main  offence pitted against  the  appellant-public servant.

     All  the appellants appeared before the Special  Judge on  14.1.1994  when  process was issued to them.   The  next posting  in  the  said court happened to be only  after  the lapse  of  one year.  On the said day appellants moved  some interlocutory  applications.   After  posting  the  case  on different  future  dates for disposal of such  interlocutory applications,  the case moved at a slow pace and reached the stage  of  hearing  preliminary  arguments  for  considering whether  charge  should  be framed or not.  It  was  in  the aforesaid  context  that  the   appellants  filed  the  writ petition  before  the High Court of Bombay on 15.4.1997  for quashing the criminal proceedings.

     The  main  ground urged in the writ petition  is  that there  was  gross delay of 11 years for filing  the  charge- sheet  and  that  such  delay violates  Article  21  of  the Constitution.   According to the appellants, such delay  had caused  unbearable mental trauma, fear psychosis and tension to  them  as  well as to the other members  of  the  family, besides  tremendous  humiliation  and defamation  heaped  on them.   They  also said that the abnormal delay  had  caused colossal  financial losses to the appellants and the  impact of  it had shattered the prospects of personal, professional and business development of the members of the family.

     A  Division Bench of the High Court dismissed the writ petition  merely  because two other writ petitions filed  by some others, in some other cases were dismissed.  The entire judgment  of the Division Bench in the present writ petition is  in a cryptic form and the same is extracted below:   In view  of  the common order passed in Criminal Writ  Petition No.1642  of 1999 and Criminal Writ Petition No.1742 of 1999, this petition stands disposed of accordingly.

     As a copy of the said common order was produced by the appellants we could peruse the same, but the fact situations@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ in  those other cases were vastly different from the present case,  except  the common factor that offences alleged  were under  the  provisions of the Prevention of Corruption  Act. Of  course,  learned counsel for the appellants made a  plea before  us to remand the writ petition to the High Court for fresh disposal.  But we refrain from adopting that shortcut,

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lest, that would further protract the already delayed case.

     Dr.   Rajeev  Dhawan,  who  argued for  the  old  lady appellants,  divided the post FIR period of the present case into  three different stages.  First is the period from 1986 to  1990  which  is  claimed  to be  the  period  taken  for investigation.   Second is from 1990 to 1993, which is  said to  be  the  period  taken for  obtaining  sanction  of  the Government  for laying charge-sheet before the court.  Third is  the period from 1994 till the date of filing of the writ petition  in  the  High  Court in  1997,  during  which  the progress in the trial court was slower than creeping through the process and consequently no charge could be framed until the  appellants  filed  the writ petition  before  the  High Court.

     This  Court  has emphasised, time and again, the  need for  speeding up the trial as undue delay in culminating the criminal  proceedings  is antithesis to  the  Constitutional protection  enshrined  in  Article 21 of  the  Constitution. Nonetheless  the  court  has  to   view  it  from  pragmatic perspectives  and the question of delay cannot be considered entirely  from an academic angle.  In other words, the  High Court  and  this Court, when approached by accused to  quash proceedings  on the ground of delay, must consider each case on  its own facts.  Unfortunately the delay has so permeated in  our legal system that at all levels tardiness has become the leitmotif.  Such a malady has been judicially reprobated and  efforts  have been made to curtail the delay which  has developed as a systemic canker.

     For  the  first  time the Code of  Criminal  Procedure provided  periods for completing investigation in regard  to offences  punishable  with sentences upto  imprisonment  not exceeding three years.  Provisions have been incorporated in Chapter  36 of the Code imposing a legal bar on the court to take  cognizance  of  such offences after the lapse  of  the period   of  limitation  fixed  in  respect   of   different categories  of  offences  the punishment of which  does  not exceed  the aforesaid limit.  However, the offences relating to  corruption were among those excluded from the purview of such periods of limitation.

     In  Hussainara Khatoon and ors.  vs.  Home  Secretary, State  of  Bihar {1980 (1) SCC 81} the entire focus made  by the  three-Judge Bench was on the trial stage.  An  advocate of this Court filed a habeas corpus petition on the basis of newspaper   reports  that   several  under-trial  prisoners, including  women  and  children, were languishing  in  Bihar jails   for  several  years   awaiting  trial.   Hence   the consideration  in  that  case  was  confined  to  the  delay involved in trials.

     It  was  in State of Andhra Pradesh vs.  PV  Pavithran [1990(2) SCC 340] that delay in completing investigation was recognised  as  a ground for quashing criminal  proceedings. The  following observation was made by the learned Judges in the said decision:

     There  is  no denying the fact that a  lethargic  and lackadaisical  manner  of  investigation  over  a  prolonged period  makes  an accused in a criminal proceedings to  live every  moment under extreme emotional and mental stress  and strain  and  to  remain  always   under  a  fear  psychosis. Therefore,  it  is  imperative that if  investigation  of  a

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criminal  proceedings staggers on with tardy pace due to the indolence  or  inefficiency  of   the  investigating  agency causing  unreasonable  and  substantial delay  resulting  in grave prejudice or disadvantage to the accused, the court as the  protector  of  the right and personal  liberty  of  the citizen  will  step in and resort to the drastic  remedy  of quashing further proceedings in such investigation.

     Nonetheless,  learned Judges hastened to add that  it is  not possible to formulate inflexible guidelines or rigid principles  of uniform application for speedy  investigation or  to  stipulate any arbitrary period of limitation  within which investigation in a criminal case should be completed.

     The   matter   gained  further    attention   when   a Constitution  Bench of this Court has made a glimpse of  the delay  involved in criminal proceedings at all stages  (A.R. Antulay  vs.   R.S.  Nayak - 1992 (1) SCC 225).  Though  the background  for  the  reference  made in that  case  to  the Constitution  Bench  pertained  to the delay  in  the  trial stages,  the Bench has made clear references to the delay in the  investigation stage also.  In paragraph 81 the  learned Judges have observed thus:

     Now, can it be said that a law which does not provide for  a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable?  It is both in the interest of the accused as well as the society that a criminal  case is concluded soon.  If the accused is guilty, he  ought  to  be  declared so.   Social  interest  lies  in punishing  the  guilty and exoneration of the  innocent  but this  determination (of guilt or innocence) must be  arrived at   with  reasonable  despatch    reasonable  in  all  the circumstances  of the case.  Since it is the accused who  is charged  with the offence and is also the person whose  life and/or  liberty  is at peril, it is but fair to say that  he has  a  right to be tried speedily.  Correspondingly, it  is the  obligation  of  the State to respect  and  ensure  this right.   It needs no emphasis to say, the very fact of being accused  of  a crime is cause for concern.  It  affects  the reputation  and  the  standing  of   the  person  among  his colleagues  and in the society.  It is a cause for worry and expense.   It  is  more so, if he is arrested.  If it  is  a serious  offence,  the  man  may stand  to  lose  his  life, liberty, career and all that he cherishes.

     While  laying  down the propositions the  Constitution Bench encompassed investigation as part of the amplitude for registering speedy trial.  At the same time the bench struck a  note  of caution that a realistic and practical  approach should   be  made  regard  being   had  to  all   attending circumstances,  including  the nature of the  offences,  the number  of accused and witnesses etc. Each case, therefore, must  be  considered  on  its   own  facts,  without   being pedantically  persuaded merely because delay had  occasioned during investigation stage.

     Though  learned  Senior Counsel made reference to  the decision of this Court in Rajdeo Sharma vs.  State of Bihar, [1998  (7) SCC 507, as well as in 1999 (7) SCC 604]  wherein the  earlier  directions  were   slightly  modified,   those directions  need  be applied during the post charge  period. The trial was explained in the said decision as covering the period commencing from recording the plea of the accused.

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     With  the  above  legal position in mind  we  have  to analysis this case to find out whether the delay involved in the  investigation  have impaired the fundamental rights  of the  appellants  which  is enshrined in Article  21  of  the Constitution.  Viewing the investigation in this case from a realistic angle it has spread over to a period of four years i.e.    from  June  1986  to   July  1990.   The   Assistant Commissioner  of Police attached to the ACB who has sworn to an  affidavit  before  the  High  Court  in  answer  to  the averments  contained  in the Writ Petition, has stated  that the  case  involves  voluminous records as well as  a  large number  of  properties which are situated at various  places and that hundreds of documents regarding shares, debentures, fixed  deposits  and  receipts  pertaining  to  hundreds  of companies  were  also to be scrutinized.  According  to  him such a heavy work turned out to be a time consuming job.  It is  not disputed that the documents sought to be produced by the  prosecution run into fourteen large volumes.  Officials of  the  ACB  had  to  take a lot of  time  to  conduct  the investigation  relating  to every item of assets  which  was suspected to be belonging to the appellant public servant.

     If  this was a case which needed no sanction from  the government for submitting the charge-sheet before the court, the  investigating agency could have filed the  charge-sheet at  the end of four years from the lodgment of FIR.  In this context, it is apposite to refer to the legislative fixation of  periods for taking cognizance of different offences.  An offence   punishable  with  imprisonment   for  a  term  not exceeding  three years has to be taken cognizance of by  the court   concerned  within  three  years   of  the  date   of registration  of  the  FIR.  Of course, this is  subject  to certain  other  exceptions.   As pointed  out  earlier,  the legislature  has  not  chosen  to fix  any  period  to  take cognizance  of  the  offence if  the  punishment  prescribed thereto  exceeds imprisonment for three years.  The  offence alleged   against   the  appellant    is   punishable   with imprisonment   up  to  seven   years.   These  aspects  were highlighted  by  us for the purpose of satisfying  ourselves that  criminal  proceedings pending against  the  appellants cannot  be quashed on the mere ground that the investigation consumed a period of four years.

     The  delay  taken  for  obtaining  sanction  from  the Government  cannot  be  attributed   to  the   investigating officers.   As pointed out earlier, sanction was applied for on   6.4.1991  and  the   Government  accorded  sanction  on 21.2.1993.  Though we are unable to approve the said time of two  years  for  the Government to decide  the  question  of giving  sanction, considering the number of desks over which the  matter  had to pass, and the voluminous records  to  be studied  at  all levels, we hesitate to hold that  the  said interval  was  so  unreasonably  long   as  to  affect   the fundamental  right of the appellants.  The charge-sheet  was laid within a few days of obtaining the sanction.

     For the aforesaid reasons we are not inclined to quash the  criminal  prosecution  merely on the  ground  of  delay@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ highlighted by the appellants.

     Nonetheless, we are told that the only offence alleged against  the  two  senescent lady appellants  is  that  they@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

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abetted  the  public  servant to commit  the  offence  under Section  13(2)  of  the P.C.  Act.  For two reasons  we  are disposed  to quash the criminal proceedings as against those two ladies.  First is, the materials are too insufficient to prove  that  those two old ladies intentionally abetted  the public    servant   in    acquiring    assets   which    are disproportionate  to his known source of income.  If that is the  position, why should those two old ladies be  compelled to  embark upon a trial which, in all probabilities,  cannot end  in  conviction  against them, even  assuming  that  the octogenarian ladies would be able to survive till the end of the trial.  Second is, the trial is not likely to end within one  or two years.  Even if the Special Court would strictly adhere  to  the  directions issued by this Court  in  Rajdeo Sharmas  case  (supra)  we   reasonably  foresee  that  the prosecution  would  be  able to complete the  evidence  only within  the  farthest time permitted in Rajdeo Sharma as  we can  have  a glimpse of the volume of documents and  of  the evidence  to be adduced by the prosecution.  We feel that it would  be unfair and unreasonable to compel the two  ladies, who  by  the  advancement  of old age  would  possibly  have already  crossed  into  geriatric stage, to stand  the  long trial  having no reasonable prospect of ultimate  conviction against  them.   We are, therefore, inclined to delink  them from the array of accused and quash the criminal prosecution so far as those two ladies are concerned.  We do so.

     Thus,  the appeals filed by the two lady appellants  - Seeta  Hemchandra  Shashittal and Shanta Subarao  Shirali  - would  stand allowed but the appeals filed by the appellant- public  servant Niranjan Hemchandra Shashittal and his  wife Anuradha Niranjan Shashittal, would stand dismissed.