1. Entire proceeding of Criminal (P) 4 of 2011/219/2013, arising out of a case registered as FIR No.525(7) of 1987 Imphal P.S. u/s 468/420 of IPC is being sought to be quashed on the ground of denial of speedy justice to the petitioner infringing fundamental right as enshrined under Art. 21 of the Constitution of India.
Before coming to the submission advanced on behalf of
the parties the case of the prosecution needs to be taken notice of.
2. It appears that the then Branch Manager, Vijaya Bank,
Imphal Branch lodged a written report on 28.7.1987 alleging therein
that an account payee draft bearing No. 204/87 having its number as
024681 dated 5.3.19887 issued from Aizwal Branch of Vijaya Bank
for Rs.86,400/- in favour of one Doungliana was presented on
23.3.1987 by the beneficiary for its credit in his SB Account No.2522.
On the same day, it was withdrawn by way of a loose cheque. Later
one another such demand draft No.1 of 1987 issued by the same
Aizwal Branch in favour of the same beneficiary was presented.
Since some discrepancy was found with respect to DD Number, the
matter was referred to Aizwal Branch for confirmation as to whether
the same had been issued by the said Branch. Upon verification it
was informed by the Aizwal Branch that the aforesaid two drafts had
never been issued from the said Branch. However, they asked for
photocopies of the said demand drafts. Accordingly, it was sent.
Upon verification, it was reported that their branch does not have any
concern with those demand draft numbers. Upon getting such
information when verification was made, it was found that the
concerned Register and Vouchers of the whole day was missing. It
could also be detected that in the year 1984 also such type of draft
had been encahsed by the said beneficiary. The voucher and the
relevant register were also found missing. It could also be found that
in the year,1986 said beneficiary had also withdrawn a sum of
Rs.87,200 upon depositing a draft of the said amount. On such
disclosure being made, the Branch Manager suspected conspiracy to
a great deal and thereby submitted a written report upon which the
case was registered.
3. During investigation it was found that amounts drawn from A/C NO.2522 on deposit of 4(four) demand drafts bearing Nos.985/85 worth Rs.95,500/-, DD No.3435/84 dt. 18.9.1984 worth Rs.86,200/- , DD No. 204 of 1987 dated 5.3.1987 worth Rs.86,400/- and one DD of 1986 of Rs.87,200/- produced by the beneficiary, accused Dongliana, before the Imphal Branchof the Vijaya Bank shown to have been issued by the Aizwal Branch of the said Bank, were all forged which had never been issued by the Aizwal Branch, rather the same were found to have been missing from Saikul Branch.
4. So far as the petitioner, who happened to be the clerk is concerned, it was found against him that upon receiving of the advice of the DD No.985 of 1985 dt. 18.2.1985, the petitioner was asked to make entry after it was handed over to the petitioner which he did. Thereafter, the petitioner did not do anything. However, it is the case of the prosecution that the amount of the DD was credited in the account of the beneficiary which was withdrawn. It also transpired in course of investigation that one officer namely Biswanath Chhettry when received the advices of the DD along with pay in-slip, he personally verified the signature and obtained counter signature of the Branch Manager. Subsequently, the amount credited was withdrawn by virtue of loose cheques. It has been alleged against the petitioner that in spite of making endorsement of the receipt of the DD advice, said Register was never placed before the said Biswanath Chhetry for his signature. Upon completion of the investigation, charge sheet was submitted with respect to 4 DDs whose description are as follows:
| (i) DD No.985/85 dt. 18.2.1995 | -Rs.95,500/- |
| (ii) DD No.3435/84 dt. 18.9.1984 | -Rs.86,200/- |
| (iii) DD No.204/87 dt. 05.3.1987 | -Rs.86,400/- |
| (iv) DD dated 27.9.1986 | -Rs.87,200/- |
5. The charge sheet was submitted against the following persons:
| 1. | Amrjit Kar(Petitioner) |
| 2. | Dangpu Tonshing |
| 3. | Meiginglung Rongmei |
| 4. | Brinjanda Prasad |
| 5. | K. Akum Kom |
6. It would be very pertinent to state that the case was registered on 28.7.1987 whereas the charge sheet, as per the respondent, was submitted on 17.2.1993 which does not find support from the record of the case as record shows that the charge sheet was submitted only on 20.1.2011, which is also the case of the petitioner and on that day itself cognizance of the offence was taken. Upon cognizance being taken summons/warrant of arrest were issued against the accused persons. In response of which only two persons, namely Amrjit Kar(Petitioner) and also Dongpu Tonshing put appearance. The petitioner did appear in the year 2012 itself. Two persons namely Brinjanda Prasad and K. Akum Kom are said to have been absconding whereas the accused, Meijinglung Rongmei was reported to have died. From the record, it does appear that still trial has not commenced so far this petitioner and other accused are concerned as the court by issuing process is intending to have appearance of rest of the accused persons. In such situation when trial has not commenced even after 29 years of the institution of the case, this application has been filed for quashing of the entire criminal proceedings on the ground of denial of right to speedy justice/trial.
7. Mr. Tarunkumar, learned counsel submits that the case was instituted in the year, 1987 whereas the charge sheet has been submitted in the year 2011, i.e. more than 24 years though it is the case of the prosecution that charge sheet was submitted in the year 1993 which plea does not find corroboration from the record of the case but even if it is assumed that it was submitted in the year 1993 but the facts remains that still trial has not commenced and thereby there has been denial of right to speedy justice/ trial and hence entire proceedings warrants to be quashed. In this regard, it was submitted that a great prejudice has been caused to the petitioner on account of protected trial as at a number of occasions the petitioner''s matter relating to promotion could not be taken up and this is on account of criminal charge being brought against the petitioner. In such circumstance, allowing the proceeding to continue further would be an abuse of the process of the court and as such it be quashed.
The learned counsel, in support of his case, has referred to a
decision in a case of Vakil Prasad Singh vs. State of Bihar
reported in (2009) 3 SCC 355 and also a case of Lokesh Kumar
Jain vs. State of Rajasthan reported in (2013) 11 SCC 130 .
8. As against this, learned counsel for the State and also
of the private respondent submit that admittedly there has been delay
in commencement of the trial but since charge sheet has already
been submitted, necessary order be passed so that trial be
concluded at the earliest. Further, it was submitted that right to
speedy trial is the essence of criminal trial but it depends upon
several circumstances such as accused absconding, accused
adopting dilatory tactics etc. and thereby delay in trial cannot be a
ground alone for quashing of the proceeding, rather it would be
determined by a number of factors and one of the factors would be
gravity of the crime and its effect on a judicial system and therefore
the Court should not adopt mechanical approach whenever plea of
infringement of right to speedy justice is taken. The learned counsel,
further, submits that in the instant case the accused by producing
forged demand drafts succeeded in withdrawing huge amount with
the connivance of the Bank''s staffs including the petitioner and in
such circumstance criminal proceeding never warrants to be quashed
in view of the decision rendered in a case of Niranjan Hemchandra
Sashittal vs. State of Maharastra decided by Hon''ble Supreme
Court on March 15, 2013.
9. As against this, Mr. Tarunkumar submits that it has never been the case of the prosecution that it was the petitioner, who at the relevant point of time, working as Clerk, did produce the draft for getting it encashed rather the indictment which has been made against the petitioner is that when Bank''s advice relating to one of the drafts was received in the Vijaya Vank, Imphal Branch, the petitioner was asked by one of the officers to make entry in the relevant Register which he did but only fault lies with the petitioner is that he did not produce the Register before the officer concerned for his counter-signature but excepting those two allegations to be true, it never goes in any manner to establish element of conspiracy and thereby allegation against the petitioner is as such that it will never secure conviction. Under the circumstances, it is the fit case for interference by this Court for quashing of the entire proceeding so far it relates to the petitioner.
10. Admittedly, FIR was lodged against the petitioner on 28.7.1987 which was taken for investigation and it took almost 24 years in investigating the case which is the stand of the petitioner but according to prosecution it took only 6(six) years as the charge was submitted on 17.2.1993. This plea of the prosecution does not get support from the record as the record shows that the charge sheet was submitted on 20.1.2011 on which date even the cognizance of the offence was taken.
11. Be that as it may, the fact remains that till date, even after passing of 29 years, the trial has not commenced and as such there has been denial of the right to speedy justice/trial to the petitioner. The right of speedy trial in all the criminal proceedings is the fundamental right under Art. 21 of the Constitution and right to speedy trial exists equally to all criminal proceedings and is not confined to a particular case which proposition has been laid down by Hon''ble Supreme Court in cases of Maneka Gandhi vs. Union of India (1978) 1 SCC 248 and Hussainara Khatoon(1) vs. State of Bihar (1980) 1 SCC 81 wherein it was observed that Art.21 confers a fundamental right on every person not to be deprived of 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 has been further observed in a case of Hussainara Khatoon(supra) that no procedure which does not ensure reasonably quick trial can be regarded as ''reasonable, fair or just'' and it would fall foul of Article 21. The exposition of Art.21 as propounded in Hussainara Khatoon was considered afresh by the Constitution Bench in a case of Abdul Rehman Antulay Vs. R.S. Nayak : (1992)1 SCC 225. There, their lordships formulated following propositions with a note of caution that those were not exhaustive and were meant only to serve as guidelines :
"(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial;(iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is - - who is responsible for the delay?;(iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on--what is called, (1992)1 SCC 225 the systemic delays;(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case;(vi) ultimately, the court has to balance and weigh several relevant factors--''balancing test'' or ''balancing process''--and determine in each case whether the right to speedy trial has been denied;(vii) Ordinarily speaking, where the court comes to a conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;(viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint;(ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in the High Court must, however, be disposed of on a priority basis."
12. In spite of such an elaborate enunciation of Art.21, some confusion arose in a case of "Common Cause" A Registered Society Vs. Union of India (UOI) (1996u)4 SCC 33, "Common Cause", A Registered Society Vs. Union of India (1996)6 SCC 775, Raj Deo Sharma Vs. State of Bihar (1998) 7SCC 507, Raj Deo Sharma Vs. State of Bihar (II) Vs. State of Bihar (1999) 7 SCC 604 on the point as to whether an outer time limit for conclusion of the criminal proceeding could be prescribed whereafter the trial court would be obliged to terminate the proceeding and necessarily conclude or discharge the accused. The said confusion on the issue was set at rest by a 7 Judges Bench of the Hon''ble Supreme Court in a case of P. Ramachandra Rao Vs. State of Karnataka : (2002) 4 SCC 578. Their lordships, by majority view, affirmed the dictum laid down in AR Antulay''s case as correct and one which still holds the field and proposition emerging from Art. 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the case adequately takes care of the right to speedy trial. However, it was held as under:
"(3).....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 as straitjacket formula. Their applicability would depend on the fact situation of each case as it is difficult to foresee all situations and no generalization can be made."
13. Ultimately it was held that it is neither advisable nor feasible nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceeding. None the less, it was held that the criminal court should exercise their available power such as those under sections 309/311 and 258 Cr. PC to effectuate the right to speedy trial ..................In appropriate cases, jurisdiction of the High court u/s 482 Cr. PC and Art.226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable direction.
14. Subsequently, their lordships in a case of Vakil Prasad vs. State of Bihar :(2009) 3 SCC 355, after taking into account all those cases referred to above, was pleased to hold as under:
"24.It is, therefore, well settled that the right to speedy trial in all criminal prosecution is an inalienable right under Art.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.25. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charge or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time-frame for conclusion of trial.26. Tested on the touchstone of the broad principles enumerated above, we are convinced that in the present case the appellant''s constructional right recognized under Article 21 of the Constitution stands violated."
15. Thus, it is evident that wherever question relating to denial of speedy justice is raised, court needs to take into account all the attendant circumstances to find out as to whether right to speedy justice has been denied in a given case. So far as the case of Niranjan Hemchandra Sashittal vs. State of Maharastra relied upon by the learned counsel for the respondent is concerned, Their Lordships, after putting reliance on the cases referred to above, also came to same conclusion which would be evident from the observation made in para 19 of the judgment which reads as follows:
"19. It is to be kept in mind that on one hand, the right of the accused is to have a speedy trial and on the other, the quashment of the indictment or the acquittal or refusal for sending the matter for re-trial has to be weighed, regard being had to the impact of the crime on the society and the confidence of the people in the judicial system. There cannot be a mechanical approach. From the principles laid down in many an authority of this court, it is clear as crystal that no time limit can be stipulated for disposal of the criminal trial. The delay caused has to be weighed on the factual score, regard being had to the nature of the offence and the concept of social justice and the cry of the collective.........."
16. In this regard, I may refer to a decision rendered in a case of Mohd. Hussain @ Julfikar Ali vs. State (Government of NCT of Delhi) reported in (2012) 9 SCC 408. Their lordships, after taking into account a number of cases, has been pleased to observe as follows:
"40."Speedy trial" and "fair trial" to a person accused of a crime are integral part of Art.21. There is, however, qualitative difference between the right to speedy trial and the accused''s right of fair trial. Unlike the accused''s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused''s right to speedy trial have to be weighed vis-a-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures right to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuance of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end."
In view of the settled principle as stated above, it is to
be determined as to the facts appearing in this case justifying
quashment of the criminal proceeding.
17. As I have already stated that upon institution of the
case the Investigating agency, as per the case of the prosecution,
took 6(six) years whereas as per the case of the petitioner it took 24
years which is also supported by the record and that even after
passing of 29 years, trial has not commenced. Though the petitioner
had put appearance in the case when the charge sheet was
submitted in the year 2011, still trial has not commenced and the
petitioner, in no manner, is responsible in delaying the trial. Further,
there has been no direct accusation of the petitioner committing
offence of forgery of the drafts and withdrawing the money, rather the
allegation is that petitioner did put entry of receipt of advice but said
Register could not be placed before his superior office for his
counter-signature which accusation, prima facie, would never go to
prove that the petitioner had had hands in glove with the main
accused. Under the circumstances, I do feel that further continuance
of criminal proceeding against the petitioner would be unwarranted
and would be defeating the right of speedy justice and thereby entire
proceeding of the case bearing Criminal (P) Case No.4 of
2011/219/2013(arising out of the FIR Case No.525(7)87 Imphal PS is
hereby quashed so far the petitioner is concerned.
Thus, this Cril. Petition is disposed of.
