prosecution is not closing it's evidence what is remedy
nishant
(Querist) 16 November 2011
This query is : Resolved
1) when prosecution is not closing it's evidence by giving evidence close pursis & unnecessary/deliberaely prolonging matter what can be done by defence lawyer
2) Is there any citation or landmark case law on this point..........
Guest
(Expert) 16 November 2011
is the list of witnesses has been examined then you can insist the court for closing the prosecution. if not file a petition to discharge from the case.
Raj Kumar Makkad
(Expert) 16 November 2011
1. Pray before court to close the evidence of the prosecution as various chances have been availed by it. As per direction of Apex Court, the prosecution must close its evidence within a period of 2 years from the date of charge.
2. Krishnan V. Krishnaveni-1997 SCC Crl.544 = AIR 1997 SC 987.
Rajeev Kumar
(Expert) 16 November 2011
Mr.Makkad has given apt reply
Shonee Kapoor
(Expert) 17 November 2011
Thanks Mr. Makkad for the reply. I am saving it.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Guest
(Expert) 17 November 2011
Perfect advice by Shri Makkad.
Advocate. Arunagiri
(Expert) 17 November 2011
But, the direction of that SC order is not followed in many of the cases.
At the same time the delay in trial will not entitle for a discharge.
I have some cases drags on even after 10 years.
Swetambara Purohit
(Expert) 17 November 2011
rightly said by Mr.Arunagiri....I agree with him..
dev kapoor
(Expert) 18 November 2011
Hi all there, Plz read the jjmnt.Its hereunder:
AIR 1997 SUPREME COURT 987 "Krishnan v. Krishnaveni"
= 1997 AIR SCW 950
(From : Madras)
Coram : 3 K. RAMASWAMY, S. SAGHIR AHMAD AND G. B. PATTANAIK, JJ.
Criminal Appeal No. 58 of 1997 (arising out of S.L.P. (Cri) No. 1740 of 1992), D/- 24 -1 -1997.
Krishnan and another, Appellants v. Krishnaveni and another, Respondents.
Criminal P.C. (2 of 1974), S.397, S.401, S.482, S.483 - CRIMINAL PROCEEDINGS - REVISION - Scope - Second revision to High Court - Prohibition under S. 397(3) - Not applicable when State seeks revision under S. 401 - High Court can entertain it in case of grave miscarriage of justice or abuse of process of Court etc. by exercising inherent powers and supervisory powers under Ss. 482 and 483, respectively - Word "person" in S. 11, Penal Code - Does not include State.
Penal Code (45 of 1860), S.11.
In view of the principle laid down in the maximum Ex debito justitiae, i.e., in accordance with the requirement of justice, the prohibition under S. 397 (3) on revisional power given to the High Court would not apply when the State seeks revision under S. 481. So the State is not prohibited to avail the revisional power of the High Court under S. 397(1) read with S. 401 of the Code. Though the revision before the High Court under sub-section (1) of S. 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under S. 482 of the Code and as it is paramount power of continuous superintendence of the High Court under S. 483, the High Court is justified in interfering with the order leading to miscarriage of justice. (Paras 9, 10)
The power of the High Court of continuous supervisory jurisdiction under S. 483 is of paramount impotance to examine correctness, legality, or propriety of any finding, sentence or order, recorded or passed as also regularity of the proceedings of all inferior Criminal Courts. (Para 6)
The revisional power of the High Court merely conserves the power of the High Court to see that
@page-SC988
justice is done in accordance with the recognised rules of criminal jurisprudenance and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice. The object of S. 483 and the purpose behind conferring the revisional power under S. 397 read with S. 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to met out justice. In addition, the inherent power of the High Court is preserved by S. 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under S. 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process of miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order. (Paras 7, 8)
Under sub-section (3) of S. 397, revisional jurisdiction can be invoked by "any person" but the Code, has not defined the word 'person' as defined in S. 11 of the Penal Code would include not only the natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word 'person' for the purpose of limiting its right to avail the revisional power of the High Court under S. 397 (1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. (Para 9)
Ordinarily, when revision has been barred by S. 397(3) of the Code, a person accused/complainant - Cannot be allowed to take recourse to the revision to the High Court under S. 397(1) or under inherent powers of the High Court under S. 482 of the Code since it may amount to circumvention of the provisions of S. 397(3) or S. 397(2) of the Code. However, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under S. 397(1) read with S. 401 of the Code. It may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. (Para 10)
Cases Referred : Chronological Paras
(1995) 7 JT (SC) 175 : (1995) 5 SCC 751 4, 12
1993 AIR SCW 303 : (1993) 1 SCC 435 : AIR 1993 SC 1361 : 1993 Cri LJ 1049 : 1993 All LJ 691 3, 12
AIR 1990 SC 1605 : (1990) 2 SCC 4 : 1990 Cri LJ 1599 4, 13
1990 (Supp) SCC 132 3, 12
AIR 1980 SC 962 : (1980) 2 SCR 380 : 1980 Cri LJ 690 12
AIR 1978 SC 47 : (1977) 4 SCC 551 : 1978 Cri LJ 165 11, 12
V. Krishnamurthy, S. Arvind, T. Harish Kumar, Advocates, for Appellants; V.G. Pragasam, Advocate, for (K. V. Venkataraman), Advocate and Mrs. Sharada Devi, Advocate (N.P.), for Respondents-State.
Judgement
K. RAMASWAMY, J.:- Leave granted.
2. This appeal by special leave arises from the judgment dated 26th March, 1992 passed by the Madras High Court in Crl. O.P. No. 10678 of 1991. The facts relevant for our purpose are that in a litigation between Krishnaveni, the first respondent and Tulasiammal, the second wife of
@page-SC989
her husband, Chinnikrishnan, the first appellant, Krishnan had offered his services and promised to help the first respondent in conducting the said litigation and asked her to execute a Power of Attorney for that purpose in his favour. It is the case of the first respondent that on faith of the promise of the first appellant, she went to Sub-Registrar's office at Madurai where the first appellant made her sign on some stamp papers in the presence of the Sub-Registrar. Later it transpired the first appellant had got her signature on an agreement to sell her land (which indicates that she had received Rs. 20,000/-) and not the Power of Attorney as she was given to understand. According to the first respondent, when the appellants came to her house on April 15, 1989 and demanded money purported to have been spent by the first appellant in the litigation and wanted her to execute the sale deed in her favour, she made enquiries and came to know that the first appellant had played fraud upon her with dishonest intention to cheat her and obtained her signatures on the purported agreement to sell dated September 13, 1988. Consequently, she lodged a complaint with the police on April 24, 1989 and the crime came to be registered as Crime No. 31 of 1989 under Ss. 420 and 406, I.P.C. The Sub-inspector after investigation submitted a report stating that the case was essentially of a civil nature and no criminal case was made out. Thereupon, the first respondent feeling aggrieved, brought the matter to the notice of Superintendent of Police, Madurai and requested him to assign the same to another officer to make an honest investigation. Accordingly, the Inspector of Police, Crime branch was entrusted with the investigation. After thorough investigation, the Inspector filed the charge-sheet under S.173, Crl. P.C. on December 4, 1989 which disclosed commission of the offences under Ss. 420 and 406, I.P.C. On receipt thereof, the Judicial Magistrate No. 1 Madurai had taken cognizance of the offences and issued summons on February 22, 1990. Thereupon, the appellants filed an application to discharge them. The Magistrate on the said application discharged the accused in Criminal M.P. No. 262 of 1990 by order dated 22nd February, 1990. The respondents feelings aggrieved thereby, filed revision applications before the Sessions Judge and the matter was transferred to the First Additional Sessions Judge who by order dated March 26, 1991 dismissed the revision petition. On a further revision filed by the first respondent in the High Court, by order dated March 26, 1992 it allowed the revision by the impugned order and set aside the order of the Magistrate and directed him to consider the facts on merits at the trial. Thus this appeal by special leave.
3. When the matter had come up for hearing, upon consideration of the decisions cited by the learned counsel for the appellants, in particular Dharampal v. Ramshri (Smt.) (1993) 1 SCC 435 : (1993 AIR SCW 303) and Rajan Kumar Manchanda v. State of Kerala, 1990 (Supp) SCC 132 the matter was referred to a three-Judge Bench. Thus, the appeal has come up before us.
4. Shri Krishnamurthy, learned counsel for the appellants, contended that the State as well as the respondents having availed of the remedy of revision under S. 397 of the Code of Criminal Procedure 1973 (for short, the "Code") the High Court was devoid of power and jurisdiction to entertain the second revision due to prohibition by sub-section (3) of S. 397 of the Code. Therefore, the impugned order is one without jurisdiction and vitiated by manifest error of law warranting interference. In support of his contention, the learned counsel placed strong reliance on the abovesaid two decisions of this Court. He further contended that when there is a prohibition under S. 397(3) of the Code, the exercise of the power being in violation thereof, is non est. He further placed reliance on the decision of this Court in Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee, (1990) 2 SCC 437 : (AIR 1990 SC 1605) and Deepi alias Aarati Rai v. Akhil Rai, (1995) 7 JT (SC) 175. The question, therefore, is : whether the High Court has power to entertain a revision under S. 397(1) in respect of which the Sessions Judge has already exercised revisional power and whether, under the circumstances of the present case, it could be considered to be one under S. 482 of the Code?
5. Chapter XXX of the Code relating to reference and revisional powers of the High Court, consists of Ss. 395 to 405. Under the Code, the revisional power of the High Court has concurrently been given by operation of sub-section (1) of S. 397 to Sessions Judge, to call for the records of any proceeding and to exercise powers of revision. The power is given to examine the record of any proceedings before any inferior
@page-SC990
Criminal Court situated within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence, or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Sub-section (3) thereof provides that if an application under the said section has been made by any person either to the High court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This was brought by way of amendment of S. 435 of the predecessor Code, i.e., Act 5 of 1898.
6. Section 401 of the Code gives to every High Court power of revision. Sub-section (1) of the said section provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Ss. 386, 389 and 391 and on a Court of sessions by Ss. 307. Apart from the express power under S. 397(1), the High Court has been invested with suo motu power under S. 401 to exercise revisional powers. In addition, S. 482 saves inherent powers of the High Court postulating that "Nothing in this Court shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." Section 483 enjoins upon every High Court to so exercise its continuous superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expenditious and proper disposal of cases by such Magistrates. It is, therefore, clear that the power of the High Court of continuous supervisory jurisdiction is of paramount importance to examine correctness, legality, or propriety of any findings, sentence or order, recorded or passed as also regularity of the proceedings of all inferior Criminal Courts.
7. It is seen that exercise of the revisional power by the High Court under S. 397 read with S. 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any findings, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Session and the Magistrate are inferior Criminal Courts to the High Court and Courts of Judicial Magistrate are inferior Criminal Courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, S. 397 and S. 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under S. 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any findings, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under S. 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice.
8. The object of S. 483 and the purpose behind conferring the revisional power under S. 397 read with S. 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by S. 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under S. 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order.
9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of S. 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen, under sub-section (3) of S. 397,
@page-SC991
revisional jurisdiction can be invoked by "any person" but the Code has not defined the word 'person.' However, under S. 11 of the IPC, 'person' includes any Company or Association or body of persons, whether incorporated or not. The word 'person' would, therefore, include not only the natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word 'person' for the purpose of limiting its right to avail the revisional power of the High Court under S. 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as to deems proper. The object behind criminal law is to maintain law, public, order, stability as also peace and progress in the society. Generally, private complaints under S. 202 of the Code are laid in respect of non-cognizance offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report as mistake of fact. In view of the principle laid down in the maxim Ex debito justitiae,i.e., in accordance with the requirements of justice, the prohibition under S. 397(3) on revisional power given to the High Court would not apply when the State seeks revision under S. 401. So the State is not prohibited to avail the revisional power of the High Court under S. 397(1) read with S. 401 of the Code.
10. Ordinarily, when revision has been barred by S. 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under S. 397(1) or under inherent powers of the High Court under S. 482 of the Code since it may amount to circumvention of the provisions of S. 397(3) or S. 397(2) of the Code. It is seen that the High Court has suo motupower under S. 401 and continuous supervisory jurisdiction under S. 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under S. 397(1) read with S. 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. There malpractices need to be curbed and public justice can be ensured only when expeditious trial is conducted.
11. In Madhu Limaye v. State of Maharashtra (1997) 4 SCC 551 : AIR 1978 SC 47), a three-Judge Bench was to consider the scope of the power of the High Court under S. 482 and S. 397(2) of the Code. This Court held that the bar on the power of revision was put in order to facilitate expedient disposal of the cases but in S. 482 it is provided that nothing in the Code, which would include S. 397(2) also, shall be deemed to limit or affect the inherent powers of the High Court. On an harmonious construction of said two provisions in this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government had decided to prosecute the appellant for offence under S. 500, I.P.C. After obtaining the sanction, on a complaint made by the public prosecutor, cognizance of the commission of the offence by the appellant was taken to take trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under S. 406. The order of the Sessions Judge was challenged in revision in the High Court on a preliminary objections raised on the maintainability, this Court held that power of the High Court to entertain the revision was not
@page-SC992
taken away under S. 397 or inherent power under S. 482 of the Code.
12. In V. C. Shukla v. State through C.B.I. (1980) 2 SCR 380 at 393 : (AIR 1980 SC 962 at p. 967), a four-Judge Bench per majority had held that sub-section (3) of S. 397, however, does not limit at all the inherent powers of the High Court contained in S. 482. It merely curbs the revisional power given to the High Court or the Sessions Court under S. 397(1) of the Code. In Rajan Kumar Manchanda case, (1990 Supp SCC 132) (supra), the case relating to release of a truck from attachment, obviously on filing of an interlocutory application. It was contended that there was prohibition on the revision by operation of S. 397(2) of the Code. In that context it was held that it was not revisable under S. 482 in exercise of inherent powers by operation of sub-section (3) of S. 397. On the facts in that cases, it was held that by virtue of provisions contained in S. 397(3), the revision is not maintainable. In Dharam Pal case, (1993 AIR SCW 303) (supra) which related to the exercise of power to issue an order of attachment under S. 146 of the Code, it was held that the inherent power under S. 482 was prohibited. On the facts in that case it could be said that the learned Judges would be justified in holding that it was not revisable since it was prohibitory interim order of attachment covered under S. 397(2) of the Code but the observations of the learned Judges that the High Court had no power under S. 482 of the code were not correct in view of the ratio of this Court in Madhu Limaye's case, (AIR 1978 SC 47) (supra) as upheld in V.C. Shukla's case, (AIR 1980 SC 962) (supra) and also in view of our observations stated earlier. The ratio in Deepti's case, (1995 (7) JT (SC) 175) (supra) is also not apposite to the facts in the present case. To the contrary, in that case an application for discharge of the accused was filed in the Court of Magistrate for an offence under S. 498A, I.P.C. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under S. 498-A, the High Court without applying its mind had discharged the accused. On appeal, this Court after going through the record noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under S. 498-A, I.P.C. The High Court, since it failed to apply its mind had committed an error of law in discharging the accused leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under S. 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this court had set aside the order of the High Court and confirmed that of the Magistrate.
13. The ratio of Simrikhia's case (AIR 1990 SC 1605) (supra) has no application to the facts in this case. Therein, on a private complaint filed under Ss. 452 and 323, IPC the Judicial Magistrate, First Class had taken cognizance of the offence. He transferred the case for inquiry under S. 202 of the Code to the Second Class Magistrate who after examining the witnesses issued process to the accused. The High Court exercising the power under S. 482 dismissed the revision. But subsequently on an application filed under S. 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case.
14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of S. 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under S. 482 of the Code and as it is paramount power of continuous superintendence of the High Court under S. 483, the High is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the
@page-SC993
revisional power u/S. 397(1) read with S. 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.
15. The appeal is accordingly dismissed.
Appeal dismissed.
dev kapoor
(Expert) 18 November 2011
Hi all !
In order to satisfy my quest on the most vital aspect of the criminal justice delivery system,regarding the public outcry about inordinate delay (even in closing prosecution evidence)in the disposal of the criminal cases,the reply tendered by one senior expert & endorsed by almost all above named And that too in the light of SC judgment in "Krishnan v. Krishnaveni" case (supra),I am sorry to say that THIS FORUM NEEDS MORE .
Following will satisfy everybody's mind on the qn posed by Sh.Nishant on 16/11/11.....
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Closing evidence (for prosecution) even when a delay has taken place has the background of ‘accused’s right to speedy trial’ and there is no provision in the Code of Criminal procedure. Earlier in Raj Deo Sharma’s cases (I & II) & Common Cause cases-I & II,SC did prescribe some guidelines for closing prosecution evidence. But in the recent FB Judgment Apex Court has ruled out the guidelines laid down in those cases. This case is titled ‘P. Ramachandra Rao, Appellant v. State of Karnataka, Respondent’ AIR 2002 SC 1856;
(From : Karnataka)*
Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.
Crl. A. No. 535 of 2000 with Crl. A. Nos. 536 to 542 of 2000, D/- 16 -4 -2002.
P. Ramachandra Rao, Appellant v. State of Karnataka, Respondent.
(A) Constitution of India, Art.21, Art.32, Art.141, Art.142, Art.226 - Criminal P.C. (2 of 1974), S.309, S.311, S.258 - SPEEDY TRIAL - Right to speedy trial - Enacting bars of limitation entailing termination of trial or proceedings by judicial verdict - Held, uncalled for and impermissible judicial legislation - Guidelines laid down in A. R. Antulay's case reaffirmed - Decision to operate prospectively.
Raj Deo Sharma v. State of Bihar, 1998 AIR SCW 3208 : AIR 1998 SC 328 : 1998 Cri LJ 4596; Raj Deo Sharma v. State of Bihar, 1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1999 Cri LJ 4541; Common Cause v. Union of India, 1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380; Common Cause v. Union of India, 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195, Overruled.
A. R. Antulay v. R. S. Nayak, 1992 AIR SCW 1872 : AIR 1992 SC 1701 : 1992 Cri LJ 2717, Approved.
In its zeal to protect the right to speedy trial of an accused, the Court cannot devise and almost enact bars of limitation beyond which trial shall not proceed and arm of law shall lose its hold though the Legislature and the Statutes have not chosen to do so. Bars of limitation, judicially engrafted, are, no doubt, meant to provide a solution to the aforementioned problems. But a solution of this nature gives rise to greater problems like scuttling a trial without adjudication, stultifying access to justice and giving easy exit from the portals of justice. Such general remedial measures cannot be said to be apt solutions. For two reasons held, such bars of limitation uncalled for and impermissible : first, because it tantamounts to impermissible legislation - an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A. R. Antulay's case (1992 AIR SCW 1872 : AIR 1992 SC 1701 : 1992 Cri LJ 2717) and, therefore, run counter to the doctrine of precedents and their binding efficacy. Prescribing periods of limitation at the end of which the trial Court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and, further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional Courts, howsoever, liberally Court may interpret Arts. 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated, in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do. But it may not, like legislature, enact a provision akin to or on the lines of Chap. XXXVI of the Code of Criminal Procedure, 1973. (Paras 24, 28)
Therefore, the dictum in A. R. Antulay's case, 1992 AIR SCW 1872 : AIR 1992 SC 1701 : 1992 Cri LJ 2717 is correct and still holds the field. The propositions emerging from Art. 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay's case adequately take care of right to speedy trial. Court upholds and re-affirm the said propositions. The guidelines laid down in A. R. Antulay's case 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. It is difficult to foresee all situations and no generalization can be made. 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) 1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380, Raj Deo Sharma (I) 1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596 and Raj Deo Sharma (II) 1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1999 Cri LJ 4541 could not have been so prescribed or drawn. 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's case 1992 AIR SCW 1872 : AIR 1992 SC 1701 : 1992 Cri LJ 2717 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. The Criminal Courts should exercise their available powers, such as those under Ss. 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under S. 482 of Cr. P.C. and Arts. 226 and 227 of 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 - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure.
Raj Deo Sharma v. State of Bihar, 1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596; Raj Deo Sharma v. State of Bihar, 1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1999 Cri LJ 4541; Common Cause v. Union of India, 1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380; Common Cause v. Union of India, 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195, Overruled. (Para 30)
Further, Court in instant case does not make a departure from the law as to speedy trial and speedy conclusion of criminal proceedings of whatever nature and at whichever stage before any authority or the Court. It is the constitutional obligation of the State to dispense speedy justice, moreso in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Arts. 21, 19 and 14 and the Preamble of the Constitution as also from the Directive Principles of State Policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction of strengthening the justice delivery system. Court further clarifies that this judgment should not be read as an interpretation of those Articles of the Constitution and laying down, defining or limiting the scope of the powers exercisable thereunder by Supreme Court. This decision shall not be a ground for reopening a case or proceeding by setting aside any such acquittal or discharge as is based on the authority of 'Common Cause', 1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380 and 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 and 'Raj Deo Sharma', 1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596 and 1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1999 Cri LJ 4541 cases and which has already achieved finality and reopen the trial against the accused therein. (Paras 35, 36, 37)
Doraiswamy Raju, J. :- Even Supreme Court in A. R. Antulay's case has chosen to decline the request for fixation of any period of time limit for trial of offences not on any total want or lack of jurisdiction in Supreme Court, "but for the reason that it is neither advisable nor practicable" to fix any such time limit and that the non-fixation does not ineffectuate the guarantee of right to speedy trial. This Court should never venture to disown its own jurisdiction on any area or in respect of any matter or over any one authority or person, when the Constitution is found to be at stake and the Fundamental Rights of citizens/persons are under fire, to restore them to their position and uphold the Constitution and the Rule of Law - for which this Court has been established and constituted with the primacy and necessary powers, authority and jurisdiction, both express and implied. This Court, is the ultimate repository of all judicial powers at National level by virtue of it being the Summit Court at the pyramidal height of Administration of Justice in the country and as the upholder and final interpreter of the Constitution of India and defender of the fundamentals of 'Rule of Law'. It is not only difficult but impossible to foresee and enumerate all possible situations arising, to provide in advance solutions with any hard and fast rules of universal application for all times to come. It is well known that where there is right, there should be a remedy. In what exceptional cases, not normally visualized or anticipated by law, what type of an extraordinary remedy must be devised or designed to solve the issue arising would invariably depend upon the gravity of the situation, nature of violation and efficacy as well as utility of the existing machinery and the imperative need or necessity to find a solution even outside the ordinary framework or avenue of remedies to avert any resultant damage beyond repair or redemption to any person. (Paras 40, 41)
NOTE : As regards directions in regard to bail made by Court in Common Cause case I, 1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380 and II 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 and Raj Deo Sharma case I, 1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596 and II 1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1999 Cri LJ 4541, the Supreme Court abstained from dealing with legality, propriety as that was not the subject matter of reference. (Para 34)
(B) Criminal P.C. (2 of 1974), S.378 - Prevention of Corruption Act (49 of 1988), S.13(1)(e), S.13(2) - APPEAL - CORRUPTION - Accused charged for offence under- Trial, however did not commence till period of 2 years - Accused, acquitted - Appeal against acquittal - High Court not only condoned delay of 55 days in filing appeal but allowed appeal without noticing the accused - Held, not proper - Matter remitted to High Court for hearing afresh after noticing accused and consistently with principles of law laid down in instant case.
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I have highlighted the extract relevant for this qn &excerpts only is brought here.This is sure to supply required information.
REGARDS.
Devajyoti Barman
(Expert) 18 November 2011
Very apt decision cited by Mr Kapoor.
