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CASE NO.: Appeal (crl.)  1167 of 2003

PETITIONER: State of Rajasthan                                               

RESPONDENT: Ikbal Hussen                                                     

DATE OF JUDGMENT: 08/09/2004

BENCH: ARIJIT PASAYAT & PRAKASH PRABHAKAR NAOLEKAR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J.

State of Rajasthan questions legality of the judgment rendered by  a learned Single Judge of the Rajasthan High Court at Jodhpur holding  that the trial against the respondent for alleged commission of  offences punishable under Sections 279, 337, 338 and 304(A) of the  Indian Penal Code, 1860 (in short the ’IPC’), could not be continued  indefinitely. The learned Additional Chief Judicial Magistrate,  Gulabpura, Bhilwara, Rajasthan directed acquittal of the respondent who  was facing trial for alleged commission of aforesaid offences. The  alleged incident took place on 28th March, 1995.  The trial court closed  the evidence in the light of the decision of this Court in Raj Deo  Sharma vs. State of Bihar (1998 (7) SCC 507).  

The High Court as noted above, observed that the trial cannot  proceed indefinitely and the trial had not come to an end for a period  of six years, and, therefore, learned Additional Chief Judicial  Magistrate was justified in closing the evidence and directing  acquittal.

The correctness of the decisions in two Raj Deo Sharma’s cases  i.e. Raj Deo Sharma vs. State of Bihar (1998 (7) SCC 507) and (1999 (7)  SCC 604) and that of "Common Cause" a Registered Society vs. Union of  India and Ors.  (1996 (6) SCC 775) and (1996 (4) SCC 33) was considered  by seven-judge Bench in P. Ramachandra Rao vs. State of Karnataka  (2002(4) SCC 578). In the said case after considering the various  decisions it was held as follows :

"For all the foregoing reasons, we are of the  opinion that in Common Cause case (I) - (1996 (4) SCC  33 : 1996 SC (Cri) 589) [as modified in Common Cause  (II) \026 (1996 (6)  SCC 775 : 1997 SCC (Cri) 42) and Raj  Deo Sharma (I)- (1998 (7) SCC 507 : 1998 SCC (Cri)  1692 and (II)- (1999 (7) SCC 604 : 1999 SCC (Cri)  1324) the Court could not have prescribed periods of  limitation beyond which the trial of a criminal case  or a criminal proceeding cannot continue and must  mandatorily be closed followed by an order acquitting  or discharging the accused.  In conclusion we hold:

(1) The dictum in A.R. Antulay case  (1992  (1) SCC 225 : 1992 SCC (Cri) 93) is correct  and still holds the field.

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(2) The propositions emerging from Article  21 of the Constitution and expounding the  right to speedy trial laid down as guidelines  in A.R. Antulay case (supra) adequately take  care of right to speedy trial.  We uphold and  reaffirm the said propositions.

(3) The guidelines laid down in A.R. Antulay  case are not exhaustive but only illustrative.   They are not intended to operate as hard and  fast rules or to be applied like a straitjacket  formula.  Their applicability would depend on  the fact situation of each case.  It is  difficult to foresee all situations and no  generalization can be made.

(4)  It is neither advisable, nor feasible,  nor judicially permissible to draw or  prescribe an outer limit for conclusion of all  criminal proceedings.  The time-limits or bars  of limitation prescribed in the several  directions made in Common Cause (I), Raj Deo  Sharma case (I) and (II) could not have been  so prescribed or drawn and are not good law.  The criminal courts are not obliged to  terminate trial or criminal proceedings merely  on account of lapse of time, as prescribed by  the directions made in Common Cause case (I),  Raj Deo Sharma case (I) and (II).  At the most  the periods of time prescribed in those  decisions can be taken by the courts seized of  the trial or proceedings to act as reminders  when they may be persuaded to apply their  judicial mind to the facts and circumstances  of the case before them and determine by  taking into consideration the several relevant  factors as pointed out in A.R. Antulay case  and decide whether the trial or proceedings  have become so inordinately delayed as to be  called oppressive and unwarranted.  Such time- limits cannot and will not by themselves be  treated by any court as a bar to further  continuance of the trial or proceedings and as  mandatorily obliging the court to terminate  the same and acquit or discharge the accused.

(5) The criminal courts should exercise their  available powers, such as those under Sections  309, 311 and 258 of the Code of Criminal  Procedure to effectuate the right to speedy  trial.  A watchful and diligent trial Judge can  prove to be a better protector of such right  than any guidelines.  In appropriate case,  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.

This is an appropriate occasion to remind the  Union of India and the State Governments of  their constitutional obligation to strengthen  the judiciary \026 quantitatively and qualitatively  \026 by providing requite funds, manpower and  infrastructure.  We hope and trust that the

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Government shall act."

It was held that the dictum of the Constitution Bench in  A.R.Antulay’s case (supra) continues to hold the field and bars of  limitation introduced in Common Cause (I) and Common Cause (II) and Raj  Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained as these  decisions were rendered by two or three Hon’ble judges and run counter  to the view expressed by the Constitution Bench in A.R. Antulay’s case  (supra). It was held as follows.

"The Constitution makers were aware of the Sixth  Amendment provisions in the Constitution of the USA  providing in express terms the right of an ’accused’ to be  tried speedily.  Yet this was not incorporated in the Indian  Constitution.  So long as A.K. Gopalan v. State of Madras  (1950 SCR 88) held the field in India, only such speedy  trial was available as the provisions of the Code of  Criminal Procedure made possible.  No proceeding could ever  be quashed on the ground of delay.  On a proper grievance  being made, or suo moto, court could always ensure speedy  trial by suitable directions to the trial court including  orders of transfer to a court where expeditious disposal  could be ensured.

       With the decision of this Court in Maneka Gandhi v.  Union of India (1978 (1) SCC 248) Article 21 received a new  content.  Procedure relating to punishment of crime must be  fair, just and reasonable. Hussainara Khatoon (I) v. Home  Secretary, State of Bihar (1980 (1) SCC 81) and later  decisions have spelt out a so-called ’Right to Speedy Trial’  from Article 21.  It is both a convenient and self- explanatory description.  But it does not follow that every  incident attaching to the Sixth Amendment right ipso facto  is to be read into Indian Law.  In the USA, the right is  express and unqualified.  In India it is only a component of  justice and fairness.  Indian courts have to reconcile  justice and fairness to the accused with many other  interests which are compelling and paramount.

       Article 21 cannot be so construed as to make mockery  of directive principles and another even more fundamental  right i.e., the right of equality in Article 14.

       The concept of delay must be totally different  depending on the class and character of the accused and the  nature of his offence, the difficulties of a private  prosecutor and the leanings of the government.

       The court must respect legislative policy unless the  policy is unconstitutional.

       Statutes of limitation, limited though they are on  the criminal side, do not apply to :  

       (a) serious offences punishable with more than 3  years imprisonment;

       (b) all economic offences. Corruption by high public servants is not protected  for both these reasons.

       Right to speedy trial is not a right not to be tried.   Secondly it only creates an obligation on the prosecutor to  be ready to proceed to trial within a reasonable time;

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       That is to say without any delay attributable to his  deviousness or culpable negligence.

The actual length of time taken by a trial is wholly  irrelevant.  In each individual case the court has to  perform a balancing act.  It has to weigh a variety of  factors, some telling in favour of the accused, some in  favour of the prosecutor and others wholly neutral.  Every  decision has to be ad-hoc.  It is neither permissible nor  possible nor desirable to lay down an outer limit of time.   The U.S. Supreme Court has refused to do so.  Similar view  is taken by our court.  There is no precedent warranting  such judicial legislation.

       The following kinds of delay are to be totally  ignored in giving effect to the plea of denial of speedy  trial:

(A)     Delay wholly due to congestion of the Court  calendar, unavailability of judges, or other  circumstances beyond the control of the prosecutor.

(B) Delay caused by the accused himself not merely by  seeking adjournments but also by legal devices which  the prosecutor has to counter.

(C) Delay caused by orders, whether induced by the  accused or not of the court, necessitating appeals or  revision or other appropriate actions or proceedings.

(D)      Delay caused by legitimate actions of the  prosecutor e.g., getting a key witness who is kept out  of the way or otherwise avoids process or appearance  or tracing a key document or securing evidence from  abroad.

       Delay is usually welcomed by the accused.  He  postpones the delay of reckoning thereby.  It may impair the  prosecution’s ability to prove the case against him.  In the  meantime, he remains free to indulge in crimes.  An accused  cannot raise this plea if he has never taken steps to demand a  speedy trial.  A plea that proceedings against him be quashed  because delay has taken place is not sustainable if the record  shows that he acquiesced in the delay and never asked for an  expeditious disposal.  In India the demand rule must be  rigorously enforced.  No one can be permitted to complain that  speedy trial was denied when he never demanded it.

The core of ’Speedy Trial’ is protection against  incarceration.  An accused who has never been incarcerated  can hardly complain.  At any rate, he must show some other  very strong prejudice.  The right does not protect an  accused from all prejudicial effects caused by delay.  Its  core concern is impairment of liberty.

       Possibility of prejudice is not enough.  Actual  prejudice has to be proved.

       The plea is inexorably and inextricably mixed up with  the merits of the case.  No finding of prejudice is possible  without full knowledge of facts.  The plea must first be  evaluated by the trial court."

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In the aforesaid background the decision of the High Court  affirming the acquittal of respondent cannot be maintained.  We set  aside the judgments of the trial court and the High Court.  The trial  before the trial court shall be revived. Since the trial is pending for  a considerable period of time, it would be appropriate for the  concerned court to take up the matter on day to day basis, keeping in  view the mandate of Section 309 of the Code of Criminal Procedure, 1973  (in short the "Cr.P.C.").

Appeal is accordingly allowed.