REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.854 OF 2011
SIRAJUL & ORS. …APPELLANTS
VERSUS
THE STATE OF U.P. & ANR. …RESPONDENTS
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. The appellants have called in question the order dated 6th July, 2009
of the High Court of Judicature, Allahabad, Bench at Lucknow in Criminal
Miscellaneous Case No.2428 of 2009. Thereby, the High Court declined to
interfere with the order of summoning and to quash the complaint dated 3rd
May, 2008 registered as Criminal Complaint Case No.1066 of 2008 under
Section 307 of the Indian Penal Code, P.S. Atrauli, District Hardoi,
pending in the Court of Judicial Magistrate-II, Hardoi. According to the
appellants, the complaint and the proceedings were gross abuse of process
of the Court having been filed after gross delay of 16 years after the
incident.
2. The incident in question took place on 11th February, 1992. In
respect of the said incident, there were two cross cases being Crime Case
No.37/92 under Section 307 IPC registered against the appellants, and Crime
Case No.37A/92 under Section 307 IPC registered at the instance of the
appellants at Police Station Atrauli, District Hardoi. The investigating
Agency charge sheeted respondent No.2, which gave rise to Session Trial
Case No.760 of 1995. After trial, respondent No.2 and three others were
convicted under Section 307/34 IPC and sentenced to undergo rigorous
imprisonment for seven years and to pay a fine of Rs.5,000/- each vide
judgment dated 23rd September, 2009 by Additional Sessions Judge/F.T.C.-I,
Hardoi. However, an appeal against the said judgment is said to be
pending. Respondent No.2, in his statement under Section 313 Cr.P.C.
stated that he had also lodged a cross case. He also led defence evidence
in support of the cross version. Having regard to the nature of injuries
received on the side of the appellants and other evidence, version of the
appellants was accepted and respondent No.2 and two others were convicted.
3. What is significant and undisputed is the fact that though respondent
No.2 had registered Crime Case No.37/92 on 11th February, 1992 against the
appellants and no action was taken thereon, he
kept quiet till 11th August, 2005. Meanwhile, respondent No.2 and other
co-accused were charge sheeted on 21st January, 1993 and session trial
commenced against them in the year 1995. It was only
on 11th August, 2005 that respondent No.2 filed an application for
summoning progress report of Crime Case No.37/1992, so that the cross case
against the appellants could also be tried along with the trial against
respondent No.2.
4. Case of respondent No.2 is that no order was passed on the
application but it was only on 1st February, 2008 that respondent No.2
filed another application. There is nothing to show if any other step was
taken by respondent No.2 except on 11th August, 2005
and 1st February, 2008.
5. Application filed on 1st February, 2008 was disposed of
on 20th February, 2008 in view of the report of the police that the
appellants were exonerated during investigation and the report was filed
before the Court. On 3rd May, 2008, respondent No.2 filed the impugned
complaint alleging that the appellants had committed offence under Section
307 IPC on 11th February, 1992. The said complaint led to summoning of the
appellants vide order dated
3rd June, 2009 which was impugned before the High Court. The High Court
dismissed the petition filed by the appellants for quashing on the ground
that allegation in the complaint and preliminary evidence led in support
thereof made out a case for summoning and thus no case for quashing was
made out.
6. We have heard learned counsel for the parties and perused the record.
7. While issuing notice on 23rd November, 2009 further proceeding in
Criminal Case No.1066 of 2008 pending in the Court of Judicial Magistrate-
II, Hardoi was stayed and the said order has been operative till date.
8. Main contention raised on behalf of the appellants is that the
impugned complaint has been filed 16 years after the incident and for 13
and a half years after the incident, respondent No2 did not persue the
matter. It is thus submitted that since the complainant kept quiet for 13
years after the incident and the complaint has been filed after 16 years,
respondent No.2 having been convicted in the cross case, the prosecution of
the appellants at this stage will be unfair and futile.
9. On the other hand, respondent No.2-complainant submitted that bar of
limitation does not apply beyond the statutory bar under Section 468
Cr.P.C. A crime never dies. A criminal offence is a wrong against the
society even though committed against an individual and thus the
prosecution cannot be thrown out merely on the ground of delay. In support
of this submission, reliance has been placed in Japani Sahoo vs. Chandra
Sekhar Mohanty[1].
10. In response to this stand of the complainant, learned counsel for the
accused submitted that even if it is assumed that the appellants had caused
the injury in question, the nature of injury, in the circumstances can at
best fall under Section 324 IPC in which case bar under Section 468 Cr.P.C.
is applicable. In any case, even cases not covered by statutory bar of
limitation could be held to be liable to be quashed on the ground of
violation of right of speedy trial under Article21 of the Constitution.
11. We have given due consideration to the rival submissions. The
question whether the proceedings in criminal cases not covered by Section
468 Cr.P.C. could be quashed on the ground of delay has been gone into in
several decisions. While it is true that cases covered by statutory bar of
limitation may be liable to be quashed without any further enquiry, cases
not covered by the statutory bar can be quashed on the ground of delay in
filing of a criminal complaint in appropriate cases. In such cases, the
question for consideration is whether there is violation of right of speedy
trial which has been held to be part of Article 21 of the Constitution
having regard to the nature of offence, extent of delay, person responsible
for delay and other attending circumstances. In this regard, observations
in judgments of this Court may be referred to.
12. In Japani Sahoo (supra), it was observed :
“16. At the same time, however, ground reality also cannot be ignored. Mere
delay may not bar the right of the “Crown” in prosecuting “criminals”. But
it also cannot be overlooked that no person can be kept under continuous
apprehension that he can be prosecuted at “any time” for “any crime”
irrespective of the nature or seriousness of the offence. “People will have
no peace of mind if there is no period of limitation even for petty
offences.”
13. In Vakil Prasad Singh vs. State of Bihar[2], it was observed :
“18. Time and again this Court has emphasised the need for speedy
investigations and trial as both are mandated by the letter and spirit of
the provisions of 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 v. Union
of India [(1978) 1 SCC 248] and in Hussainara Khatoon (1) v. State of Bihar
[(1980) 1 SCC 81] 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: [Hussainara Khatoon (1) case, SCC p. 89,
para 5].
“5. … 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.
19. The exposition of Article 21 in Hussainara Khatoon (1) case was
exhaustively considered afresh by the Constitution Bench in Abdul Rehman
Antulay v. R.S. Nayak [(1992) 1 SCC 225]. 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.
xxxxxx
22. Speaking for the majority in P. Ramachandra Rao [(2002) 4 SCC 578, R.C.
Lahoti, J. (as His Lordship then was) while affirming that the dictum in
A.R. Antulay case 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 take care of the right to speedy trial, it was held that:
(P. Ramachandra case, SCC p. 603, para 29)
“(3) … 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 [as] a straitjacket formula. Their applicability would
depend on the fact situation of each case [as] [i]t is difficult to foresee
all situations and no generalisation can be made.”
23. It has also been held that: (P. Ramachandra case, SCC p. 603, para 29)
“(4) It is neither advisable, nor feasible, nor judicially permissible to
draw or prescribe an outer limit for conclusion of all criminal
proceedings.”
Nonetheless,
“(5) [t]he criminal courts should exercise their available powers, such as
those under Sections 309, 311 and 258 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”**.
(emphasis added)
The outer limits or power of limitation expounded in the aforenoted
judgments were held to be not in consonance with the legislative intent.
24. It is, therefore, well settled that the right to speedy trial in all
criminal persecutions (sic prosecutions) 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 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.”
14. In Ranjan Dwivedi vs. CBI[3], declining to quash proceedings even
after 37 years of delay in completion of trial, it was observed :
“23. The length of the delay is not sufficient in itself to warrant a
finding that the accused was deprived of the right to a speedy trial.
Rather, it is only one of the factors to be considered, and must be weighed
against other factors. Moreover, among factors to be considered in
determining whether the right to speedy trial of the accused is violated,
the length of delay is least conclusive. While there is authority that even
very lengthy delays do not give rise to a per se conclusion of violation of
constitutional rights, there is also authority that long enough delay could
constitute per se violation of the right to speedy trial. In our considered
view, the delay tolerated varies with the [pic]complexity of the case, the
manner of proof as well as the gravity of the alleged crime. This, again,
depends on case-to-case basis. There cannot be universal rule in this
regard. It is a balancing process while determining as to whether the
accused’s right to speedy trial has been violated or not. The length of
delay in and itself, is not a weighty factor.”
15. In Sajjan Kumar vs. CBI[4], even after 23 years of delay in
completion of trial, proceedings were not quashed and it was observed:
“39. In the case on hand, though delay may be a relevant ground, in the
light of the materials which are available before the Court through CBI,
without testing the same at the trial, the proceedings cannot be quashed
merely on the ground of delay. As stated earlier, those materials have to
be tested in the context of prejudice to the accused only at the trial.”
16. In NOIDA Entrepreneurs Assn. vs. NOIDA[5], even delay of 17-18 years
was held not to be adequate to stop criminal proceedings having regard to
the gravity of offence, it was observed :
“21. Thus, it is evident that question of delay in launching criminal
prosecution may be a circumstance to be taken into consideration in
arriving at a final decision, but it cannot itself be a ground for
dismissing the [pic]complaint. More so, the issue of limitation has to be
examined in the light of the gravity of the charge.
xxxx
42. In view of the above, we are of the considered opinion that these
allegations being of a very serious nature and as alleged, Respondent 4 had
passed orders in colourable exercise of power favouring himself and certain
contractors, require investigation. Thus, in view of the above, we direct
CBI to have preliminary enquiry and in case the allegations are found
having some substance warranting further proceeding with criminal
prosecution, may proceed in accordance with law. It may be pertinent to
mention that any observation made herein against Respondent 4 would be
treated necessary to decide the present controversy. CBI shall investigate
the matter without being influenced by any observation made in this
judgment.”
17. It is thus clear from the above observations that mere delay in
completion of proceedings may not be by itself a ground to quash
proceedings where offences are serious, but the Court having regard to the
conduct of the parties, nature of offence and the extent of delay in the
facts and circumstances of a given case, quash the proceedings in exercise
of jurisdiction under Section 482 Cr.P.C. in the interest of justice and to
prevent abuse of process of the Court.
18. In the present case, conduct of the complainant can certainly be
taken into account. Admittedly, the complainant stood convicted in a cross
case. At least for ten years after commencement of the trial, the
complainant did not even bother to seek simultaneous trial of the cross
case, the step which was taken for the first time in the year 2005 which
could certainly have been taken in the year 1995 itself when the trial
against respondent No.2 commenced. Having regard to the nature of
allegations and entirety of circumstances, it will be unfair and unjust to
permit respondent No.2 to proceed with a complaint filed 16 years after the
incident against the appellants
19. We accordingly, allow this appeal set aside the impugned order and
quash the proceedings in Criminal Complaint Case No.1066 of 2008 pending in
the Court of Judicial Magistrate-II, Hardoi.
…………..…………………………….J.
[ J. CHELAMESWAR ]
.…...….………………………………..J.
[ ADARSH KUMAR GOEL ]
NEW DELHI
JULY 6, 2015
-----------------------
[1] (2007) 7 SCC 394
[2] (2009) 3 SCC 355
[3] (2012) 8 SCC 495
[4] (2010) 9 SCC 368
[5] (2011) 6 SCC 508