State of Bihar Vs. Baidnath Prasad @ Baidyanath Shah and Anr.
EmailAppeal: Criminal Appeal No.1075 of 2001
(Arising out of S.L.P. (Criminal) No.1116 of 2001)
(From the Judgment and Order dated 24.7.98 of the Patna High Court in Crl.M. No. 8235 of 1998)
(Arising out of S.L.P. (Criminal) No.1116 of 2001)
(From the Judgment and Order dated 24.7.98 of the Patna High Court in Crl.M. No. 8235 of 1998)
Petitioner: State of Bihar
Respondent: Baidnath Prasad @ Baidyanath Shah and Anr.
Apeal: Criminal Appeal No.1075 of 2001
(Arising out of S.L.P. (Criminal) No.1116 of 2001)
(From the Judgment and Order dated 24.7.98 of the Patna High Court in Crl.M. No. 8235 of 1998)
(Arising out of S.L.P. (Criminal) No.1116 of 2001)
(From the Judgment and Order dated 24.7.98 of the Patna High Court in Crl.M. No. 8235 of 1998)
Judges: K.T. THOMAS & S.N. VARIAVA, JJ.
Date of Judgment: Oct 19, 2001
Appearances:
Mr. B.B. Singh, Advocate for the Appellant.
Mr. S.N. Mishra, Senior Advocate, Mohd. Kazim Sher, Advocate for Mr. N.S. Bisht, Advocate with him for the Respondents.
Head Note:
CRIMINAL LAW
Criminal Procedure Code, 1973
Sections 245, 482 – Order of discharge – Case instituted other-wise than on police report – When discharge is possible – Delay – When can be considered as base of discharge – Discharge on grounds of delay – If justified – Delay occurring because of absence of accused or because of challenge laid by them against various orders – Delay of about seven years – Delay on part of prosecution or court, negligible – Quashing by High Court. Held, to be improper. Further held that while considering the ground of delay, seriousness of offence is to be considered. Case law discussed.
Held:
In the present case, cause of the delay is mostly due to the accused either because they challenged the various orders passed or because they were not present in the court and hence proceed-ings could not be continued on many occasions. Causes attribut-able to the prosecution or even to the court are comparably much less as to permit the accused to take advantage of the delay in registering progress of the proceedings. (Para 11)
An order of discharge of the accused after collecting the evi-dence envisaged in section 244 of the Code can be passed only when “the magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebut-ted, would warrant his conviction.” This is the legislative edict of section 245 of the Code. (Para 7)
The ideal situation is to have criminal proceedings completed swiftly. But the ideal is far from practical attainment due to a variety of reasons. If one has to abide by the ideal alone, then any period of delay is enough to axe down the criminal proceed-ings. In considering the question whether delay alone is suffi-cient to quash pending criminal proceedings the seriousness of the offence involved is not to be overlooked. (Paras 8, 9)
Cases Reffered:
1. Seeta Hemchandra Shashittal v. State of Maharashtra (JT 2001 (2) SC 558) (Para 8)
2. Rajiv Gupta v. State of H.P. (2000 (1) SCC 68) (Para 10)
3. Common Cause v. Union of India (1996 (6) SCC 775) (Para 10)
4. A.R. Antuley v. R.S. Naik (JT 1991 (6) SC 431) (Para 9)
2. Rajiv Gupta v. State of H.P. (2000 (1) SCC 68) (Para 10)
3. Common Cause v. Union of India (1996 (6) SCC 775) (Para 10)
4. A.R. Antuley v. R.S. Naik (JT 1991 (6) SC 431) (Para 9)
JUDGEMENT:
THOMAS, J.
1. Leave granted.
2. The accused persons who succeeded greatly in procrastinating a criminal proceedings against them, later succeeded in getting the criminal proceedings quashed solely on the ground of procrastina-tion of court proceedings in the criminal case concerned. State of Bihar has now challenged the judgment of a learned single Judge of the Patna High Court as per which the aforesaid criminal proceedings have been quashed.
3. An FIR was registered in 1991 for the offence under section 3 of the Railway Property (Unlawful Possession) Act, 1966, (for short ‘the RPUP Act’). An inquiry was conducted under section 8 of the said Act and on completion of the inquiry a complaint was filed in the court of a judicial magistrate of first class on 13.1.1992. The magistrate took cognizance of the offence and issued proceedings against four persons arrayed in the complaint including the respondents in this appeal. Thereafter, the case passed through many vicissitudes. On 5.1.1998, the respondent moved an application in the trial court praying that they may be discharged. The magistrate rejected the application and the said order of the magistrate was challenged before the High Court. On 24.7.1998, learned single judge of the High Court quashed the criminal proceedings as per the impugned order. The reasoning of the learned single judge for adopting such a step is the follow-ing:
“Admittedly, the criminal case was registered against the peti-tioners on the basis of report on 22.2.1991 and cognizance was taken on 13.1.1992 on the basis of the charge-sheet submitted by the Railway Police Force personnel. It is also admitted fact that till date, charge has not been framed although about 7 years have passed and the case is pending for the last seven years. There is nothing on the record to show that the delay in proceed-ing with the case has been caused due to laches on the part of the petitioners. In such circumstances, in my opinion, for the ends of justice, the instant proceeding against the petitioners should not continue any further.”
4. The interval between 13.1.1992 (the date on which the magis-trate took cognizance of the offence) and 24.7.1998 (the date on which the High Court quashed the proceedings) is, no doubt, too long a period. If the criminal case remained without any pro-gress during the said period it portrays a sad picture of the administration of criminal justice. But the uncontroverted fact situation in this case reflects that the respondents accused have no justification in seeking advantage of the said delay because their contribution towards such delay was, by no means, insub-stantial.
5. We may now give an outlay of the said factual position which the respondents, in their counter affidavit, did not dispute. The complaint was filed on 13.1.1992 and process was issued against the four accused arrayed therein. First respondent thereafter moved the sessions court in revision by challenging the order by which the magistrate took cognizance of the offence. Despite the legal position casting burden of proof on the person who is found in possession of railway property, the sessions judge had quashed the criminal proceedings on 29.5.1992. The state thereupon moved the High Court in challenge of the said order of the sessions judge. On 1.4.1994, the High Court overturned the said order of the sessions court.
6. The next stage should have commenced in the trial court soon after the receipt of the records from the High Court, but on account of the absence of one or the other accused the case remained in limbo till 14.10.1996 by which time alone all the accused made their appearance before the magistrate. The trial court adopted the procedure prescribed in chapter XIX of the Code of Criminal Procedure (for short ‘the Code’) for trial of warrant cases instituted otherwise than on police report. The trial magistrate collected preliminary evidence envisaged in section 244 of the Code and then the case was posted for framing charge. On 5.1.1998, the accused filed a petition for discharging them. That petition was dismissed by the trial court on 10.2.1998. It was against the said order of the magistrate that the respondents moved the High Court and learned single judge passed the impugned order.
7. An order of discharge of the accused after collecting the evi-dence envisaged in section 244 of the Code can be passed only when “the magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebut-ted, would warrant his conviction.” This is the legislative edict of section 245 of the Code. The only other exception to the said precept is that it is open to the magistrate to dis-charge the accused at any previous stage of the case “if for reasons to be recorded by such magistrate, he considers the charge to be groundless.” The magistrate had no reason to dis-charge the accused at that stage as he felt that there is evi-dence to frame the charge he could not but dismiss the plea for a discharge. The High Court did not consider the case from the angle provided in section 245 of the Code. As extracted above, the High Court was persuaded to discharge the accused only on the ground that “the case was pending for the last seven years.”
8. The ideal situation is to have criminal proceedings completed swiftly. But the ideal is far from practical attainment due to a variety of reasons. If one has to abide by the ideal alone, then any period of delay is enough to axe down the criminal proceed-ings. In Seeta Hemchandra Shashittal v. State of Maharashtra (JT 2001 (2) SC 558 = 2001 (4) SCC 525) this Court made the follow-ing observations:
“This Court has emphasised, time and again, the need for speeding up the trial as undue delay in culminating the criminal proceed-ings 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.”
9. In considering the question whether delay alone is sufficient to quash pending criminal proceedings the seriousness of the offence involved is not to be overlooked. This aspect has been highlighted in the aforecited decision after extracting the observations made by the constitution bench in A.R. Antuley v. R.S. Naik (JT 1991 (6) SC 431 = 1992 (1) SCC 225). In the present case, the offence charged against the respondents is section 3 of the RPUP Act. That offence is punishable with imprisonment for a term which may extend to five years and in the absence of special and adequate reasons to be mentioned in the judgment, such im-prisonment shall not be less than one year. If it is found that the accused had committed the second or a subsequent offence such minimum term of imprisonment shall be two years. We point out this aspect to show that the offence now pitted against the respondents is serious in nature.
10. Learned counsel for the respondents invited our attention to the decision of this Court in Rajiv Gupta v. State of H.P. (2000 (1) SCC 68). In paragraph 7 of the said judgment, learned judges pointed out that if the trial of a case for an offence punishable with imprisonment up to three years has been pending for more than two years without commencing the trial, the criminal court is required to discharge and acquit the accused. As indicated by this Court in Common Cause v. Union of India (1996 (6) SCC 775), it is apparent that the said decision has no application to the facts of this case.
11. In the present case, cause of the delay is mostly due to the accused either because they challenged the various orders passed or because they were not present in the court and hence proceed-ings could not be continued on many occasions. Causes attribut-able to the prosecution or even to the court are comparably much less as to permit the accused to take advantage of the delay in registering progress of the proceedings.
12. We, therefore, set aside the impugned order and direct the trial court to proceed with the case and complete the prosecution evidence within six months from the date on which the accused would appear before the trial court. We make it clear that if the accused is instrumental in causing the delay, then so much of the period would be debited from the time frame fixed by us above.
13. This appeal is allowed in the above terms.
1. Leave granted.
2. The accused persons who succeeded greatly in procrastinating a criminal proceedings against them, later succeeded in getting the criminal proceedings quashed solely on the ground of procrastina-tion of court proceedings in the criminal case concerned. State of Bihar has now challenged the judgment of a learned single Judge of the Patna High Court as per which the aforesaid criminal proceedings have been quashed.
3. An FIR was registered in 1991 for the offence under section 3 of the Railway Property (Unlawful Possession) Act, 1966, (for short ‘the RPUP Act’). An inquiry was conducted under section 8 of the said Act and on completion of the inquiry a complaint was filed in the court of a judicial magistrate of first class on 13.1.1992. The magistrate took cognizance of the offence and issued proceedings against four persons arrayed in the complaint including the respondents in this appeal. Thereafter, the case passed through many vicissitudes. On 5.1.1998, the respondent moved an application in the trial court praying that they may be discharged. The magistrate rejected the application and the said order of the magistrate was challenged before the High Court. On 24.7.1998, learned single judge of the High Court quashed the criminal proceedings as per the impugned order. The reasoning of the learned single judge for adopting such a step is the follow-ing:
“Admittedly, the criminal case was registered against the peti-tioners on the basis of report on 22.2.1991 and cognizance was taken on 13.1.1992 on the basis of the charge-sheet submitted by the Railway Police Force personnel. It is also admitted fact that till date, charge has not been framed although about 7 years have passed and the case is pending for the last seven years. There is nothing on the record to show that the delay in proceed-ing with the case has been caused due to laches on the part of the petitioners. In such circumstances, in my opinion, for the ends of justice, the instant proceeding against the petitioners should not continue any further.”
4. The interval between 13.1.1992 (the date on which the magis-trate took cognizance of the offence) and 24.7.1998 (the date on which the High Court quashed the proceedings) is, no doubt, too long a period. If the criminal case remained without any pro-gress during the said period it portrays a sad picture of the administration of criminal justice. But the uncontroverted fact situation in this case reflects that the respondents accused have no justification in seeking advantage of the said delay because their contribution towards such delay was, by no means, insub-stantial.
5. We may now give an outlay of the said factual position which the respondents, in their counter affidavit, did not dispute. The complaint was filed on 13.1.1992 and process was issued against the four accused arrayed therein. First respondent thereafter moved the sessions court in revision by challenging the order by which the magistrate took cognizance of the offence. Despite the legal position casting burden of proof on the person who is found in possession of railway property, the sessions judge had quashed the criminal proceedings on 29.5.1992. The state thereupon moved the High Court in challenge of the said order of the sessions judge. On 1.4.1994, the High Court overturned the said order of the sessions court.
6. The next stage should have commenced in the trial court soon after the receipt of the records from the High Court, but on account of the absence of one or the other accused the case remained in limbo till 14.10.1996 by which time alone all the accused made their appearance before the magistrate. The trial court adopted the procedure prescribed in chapter XIX of the Code of Criminal Procedure (for short ‘the Code’) for trial of warrant cases instituted otherwise than on police report. The trial magistrate collected preliminary evidence envisaged in section 244 of the Code and then the case was posted for framing charge. On 5.1.1998, the accused filed a petition for discharging them. That petition was dismissed by the trial court on 10.2.1998. It was against the said order of the magistrate that the respondents moved the High Court and learned single judge passed the impugned order.
7. An order of discharge of the accused after collecting the evi-dence envisaged in section 244 of the Code can be passed only when “the magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebut-ted, would warrant his conviction.” This is the legislative edict of section 245 of the Code. The only other exception to the said precept is that it is open to the magistrate to dis-charge the accused at any previous stage of the case “if for reasons to be recorded by such magistrate, he considers the charge to be groundless.” The magistrate had no reason to dis-charge the accused at that stage as he felt that there is evi-dence to frame the charge he could not but dismiss the plea for a discharge. The High Court did not consider the case from the angle provided in section 245 of the Code. As extracted above, the High Court was persuaded to discharge the accused only on the ground that “the case was pending for the last seven years.”
8. The ideal situation is to have criminal proceedings completed swiftly. But the ideal is far from practical attainment due to a variety of reasons. If one has to abide by the ideal alone, then any period of delay is enough to axe down the criminal proceed-ings. In Seeta Hemchandra Shashittal v. State of Maharashtra (JT 2001 (2) SC 558 = 2001 (4) SCC 525) this Court made the follow-ing observations:
“This Court has emphasised, time and again, the need for speeding up the trial as undue delay in culminating the criminal proceed-ings 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.”
9. In considering the question whether delay alone is sufficient to quash pending criminal proceedings the seriousness of the offence involved is not to be overlooked. This aspect has been highlighted in the aforecited decision after extracting the observations made by the constitution bench in A.R. Antuley v. R.S. Naik (JT 1991 (6) SC 431 = 1992 (1) SCC 225). In the present case, the offence charged against the respondents is section 3 of the RPUP Act. That offence is punishable with imprisonment for a term which may extend to five years and in the absence of special and adequate reasons to be mentioned in the judgment, such im-prisonment shall not be less than one year. If it is found that the accused had committed the second or a subsequent offence such minimum term of imprisonment shall be two years. We point out this aspect to show that the offence now pitted against the respondents is serious in nature.
10. Learned counsel for the respondents invited our attention to the decision of this Court in Rajiv Gupta v. State of H.P. (2000 (1) SCC 68). In paragraph 7 of the said judgment, learned judges pointed out that if the trial of a case for an offence punishable with imprisonment up to three years has been pending for more than two years without commencing the trial, the criminal court is required to discharge and acquit the accused. As indicated by this Court in Common Cause v. Union of India (1996 (6) SCC 775), it is apparent that the said decision has no application to the facts of this case.
11. In the present case, cause of the delay is mostly due to the accused either because they challenged the various orders passed or because they were not present in the court and hence proceed-ings could not be continued on many occasions. Causes attribut-able to the prosecution or even to the court are comparably much less as to permit the accused to take advantage of the delay in registering progress of the proceedings.
12. We, therefore, set aside the impugned order and direct the trial court to proceed with the case and complete the prosecution evidence within six months from the date on which the accused would appear before the trial court. We make it clear that if the accused is instrumental in causing the delay, then so much of the period would be debited from the time frame fixed by us above.
13. This appeal is allowed in the above terms.
