M.Y. Eqbal, J.@mdashThese two matters have been referred by the learned Single Judge to a Division Bench by passing the following order on 18.2.2000:
Heard the learned Counsel for the parties. In the present application the Petitioner has prayed for quashing the order dated 19.1.2000 passed by the learned Special Judge, C.B.I., Dhanbad, in Case No. RC 18(A)/93 (R), whereby and whereunder the application filed by the Petitioner to close the prosecution evidence in view of the judgment reported in
The learned Counsel for the C.B.I, has opposed the prayer and submitted that there is no illegality or impropriety in the order impugned so far the outer limit is concerned, as has been held in the case of
In my humble view the decision will have far reaching consequences in several cases of C.B.I, which are pending for evidence and, therefore, I feel that this matter should be heard by a Division Bench. As such, this case is referred to Division Bench for hearing.
2. Cr. Misc. No. 1185/2000(R) arises out of Cr. Case No. RC 18(A)/93(R) registered u/s 7 of the Prevention of Corruption Act, 1988 on the basis of a written complaint made to the S.P., C.B.I., Ranchi on 25.9.95. In that case after investigation CBI submitted chargesheet on 31.12.93 against the Petitioner u/s 7 and Section 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act and cognizance was taken on 22.2.95. On 8.2.95 the Special Judge CBI, Ranchi framed charges under Sections 7 and 13(i)(e) of the P.C. Act.
3. Cr. Misc. No. 1303/2000(R) arises out of RC 15(A)/88 (D) registered u/s 161 IPC read with Section 5(2) and Section 5(1)(d) of the Prevention of Corruption Act. In that case after investigation chargesheet was submitted on 23.8.95 and charge was framed against the Petitioner u/s 161 IPC and Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act.
4. In both the cases when the prosecution failed to close the evidence within the stipulated time allowed to the prosecution in terms of the judgment of the Apex Court in
5. Mr. A.K. Sinha, learned Sr. counsel appearing on behalf of the Petitioners, assailed the impugned order as being illegal and wholly without jurisdiction. learned Counsel firstly submitted that the Special Judge has not correctly interpreted the modified judgment of the Apex Court in
6. On the other hand, learned Counsel appearing for the CBI firstly submitted that notwithstanding the time limit fixed by the Apex Court in the earlier judgment of Rajdeo Sharma''s case, discretion has been given to the court to grant further time under exceptional circumstances and in the interest of administration of criminal justice. So far the commencement of mi additional period of one year, learned Counsel submitted that additional period of one year can be claimed by the prosecution and the said period will commence from the date of subsequent judgment and not from the date of the earlier judgment.
7. After having heard the learned Counsel for the parties, the main question tails for consideration by this Court is as to from which dale the additional period of one year, which can be claimed by the prosecution, will be counted and what will be the effect of excluding the period when tie earlier judgment of the Apex Court remain suspended.
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After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulay case with the following directions:
(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case.
(ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one-half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit.
(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether. the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time-limit.
(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) to (iii).
(v) Where the trial has been stayed by orders of the court or by operation of law, such time during which the stay was in force shall be excluded from the aforesaid period for closing the prosecution evidence. The above directions will be in addition to and without. prejudice to the directions issued by this Court in "Common Cause" A Registered Society v. Union of India as modified by the same Bench through the Order reported in "Common Cause" A Registered Society v. Union of India.
10. The aforesaid judgment was delivered by the Apex Court on 8.10.98. Subsequently a petition was filed by the Central Bureau of Investigation before the Apex Court for clarification/modification of the directions given in the earlier judgment. The Apex Court, after hearing the counsel has modified/clarified the earlier judgment by judgment dated 22.9.99. For better appreciation of the points raised by the learned Counsels in this case, it would be useful to quote para 15 of the subsequent judgment of the Apex Court, which reads as under:
Shri Altaf Ahmed, learned Additional Solicitor General submitted that unless Directions (i) and (iii) are made prospective from the date of judgment in Rajdeo Sharma prosecution in many pending cases would be jeopardised. He pointed out that on the date of the said judgment the period concerned stood expired in many cases. We have bestowed bur consideration on the said submission and we find force in it. Possibility of a miscarriage of justice resulting therefrom must be averted. We are, therefore, inclined to include a rider that an additional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of judgment in the main appeal, and the court concerned would be free to grant such extension if the court considers it necessary in the interest of administration of criminal justice. As we suspended the operation of the judgment from 14.5.1999 till today the said time of suspension will stand excluded from the aforementioned additional period of one year.
11. From perusal of the above paragraph of the judgment of the Apex Court, it is manifestly clear that the Apex Court further relaxed the guidelines by holding that despite the judgment dated 8.10.98 an additional period of one year can b claimed by the prosecution for examination of the prosecution witnesses in a those prosecutions which were pending on the date of that judgment. The Lordships, however, observed that while computing the additional period of one year the period when that judgment remain suspended shall be excluded. In other words the period from 14.5.99 to 22.9.99 i.e. 4 months 8 days shall be ex eluded. Taking both the condition together it is clear that by the subsequent judgment the prosecution was allows one additional year i.e. upto 8.10.99 for prosecuting the cases and by excluding the aforesaid period of 4 months 8 days the period of one year extended upto 16.2.2000. I am, therefore, of the view that in all pending cases where the prosecution failed to examine all the witnesses upto 16.2.2000 the court shall have to close the evidence of the prosecution and dispose of the cases in accordance with law for the trial of the cases. However, notwithstanding, the time limit as aforesaid fixed by the Apex Court, their Lordships further held that the court is not debarred to grant further time to the prosecution to adduce evidence if the court considers it necessary in the interest of justice after recording exceptional reasons.
12. Mr. A.K. Sinha, learned Sr. counsel for the Petitioners has drawn my attention to direction No. (iii) of paragraph 17 of the judgment quoted above and submitted that the courts are empowered to grant further time only in those cases where the offence under trial is punishable with, imprisonment for a period exceeding 7 years. According to the learned Counsel this power has not been given to (H courts in direction No. (i) where trial is for an offence punishable with imprisonment for a period not exceeding 7 years. I do not find much force in the submission of the learned Counsel. The Apex Court in the judgment dated 22.9.99 has clarified in paragraph 6 of the judgment that the discretion of the court in granting further time can be exercised with respect to the trial where the imprisonment is upto 7 years. For better appreciation paragraph 6 of the judgment Is quoted herein-below:
We are inclined to state by way of clarification that the discretion of the courts in granting further time exercisable "for very exceptional reasons to be recorded and in the interest of justice" as for Direction (iii) above can be imported in respect of Direction (i) as well.
13. Now I shall deal with the two cases in hand and the order passed by the Special Judge which is the subject matter of these cases.
14. As noticed above, Cr. Misc. No. 1185/2000(R) arises out of RC 18(A)/93(R) instituted in the year 1993 on the basis of a written complaint. The allegation made in the written complaint is that the Petitioner illegally demanded a sum of Rs. 20,000/- for regularizing the work done by one Jai Narain Singh, partner of M/s. Singh Builders. The CBI after investigation submitted chargesheet on 31.12.93. On 8.2.95 charge was framed and the case was adjourned to 28.2.95 for evidence. However, on 28.2.95 it appears that due to inadvertance the case was fixed on the next date for supply of police paper. Thereafter the case remained pending before the Special Judge for supply of police paper. The file of the case was then transferred to Special Judge CBI, Dhanbad and the record was received on 28.7.95. Again the case was adjourned for supply of police paper. The Special Judge, in the impugned order, has pointed out that during the long span of time neither prosecution nor the accused ever pointed out that charges had already been framed by the Special Judge, Ranchi on 8.2.95 and so the case should be posted for evidence. Admittedly, till February, 99 the prosecution neither produced nor examined any witness and consequently on 26.2.99 the Petitioner filed an application for closure of the evidence on the basis of the judgment of the Apex Court in Rajdeo Sharma''s case (supra). It appears that the Special Judge rejected the application on 9.8.99 and fixed the case for evidence on 10.9.99. It further appears that after the judgment dated 8.10.98 in Rajdeo Sharma''s case the prosecution even not claimed additional time for examination of the prosecution witnesses. The Special Judge in the impugned order observed as under:
The admitted position is that so far the performance of the prosecution has been very dismal, dismaying and deplorable in that it never produced any witness nor remained vigilant and alert therefor.
However, the learned Special P.P. (CBI), Ranchi earnestly urged and strenuously submitted that according to the recent judgment of the Hon''ble Supreme Court the prosecution side can claim an additional period of one year for examining its witnesses in those cases which were pending as such he may be given such an opportunity to examine the prosecution witnesses.
15. In spite of laches and negligence on the part of the prosecution the Special Judge has allowed additional period of one year to the prosecution side to examine the witnesses and rejected the petition filed by the Petitioner. In my opinion, the Special Judge has not correctly interpreted the subsequent judgment of the Apex Court in Rajdeo Sharma''s case. Their Lordships of the Apex Court in the subsequent judgment has not given a discretion to the courts to grant additional period of one year from the date of passing of the order to the prosecution for examination of witnesses. When the prosecution never remained diligent in the matter of examination of the witnesses from the date of framing of charge i.e. 8.2.95 then it cannot be said to be an exceptional circumstance where the prosecution should be allowed additional time for examination of witnesses. In my opinion, therefore, the Special Judge has not exercised its discretion in accordance with law and in the light of the decisions of the Apex Court in the case of A.R. Antulay (supra) and Rajdeo Sharma (supra). The impugned order, therefore, cannot be sustained in law.
16. In Cr. Misc. No. 1303/2000(R) arises out of RC 15(A)/88 (D) instituted against the Petitioner on the complaint made against him alleging that he demanded a sum of Rs. 200/- as illegal gratification for allowing overtime in favour of the complainant. In that case after investigation charge-sheet was submitted and after submission of chargesheet the Special Judge framed charge on 23.8.95. It is stated that although there are 15 chargesheet witnesses but only Six chargesheet witnesses were examined by the prosecution. The last witness was examined on 29.1.99 and thereafter the prosecution has not examined any witness. The Petitioner therefore, filed an application on 24.2.99 for closure of the evidence. The said application was rejected by the Special Judge on 8.9.99. However, after clarification of the judgment by the Apex Court the Petitioner filed another application on 6.10.99 praying therein to close the prosecution evidence on the ground that no further witness has been examined by the prosecution. The court below rejected the application by passing the impugned order. The reasons recorded by the Special Judge is that in the interest of criminal justice it is just and proper to give a further period of one year to the prosecution to examine its remaining witnesses. As observed by me above, the Special Judge has not correctly interpreted the decisions of the Apex Court, and has committed error of law in extending a further period of one year from the date of passing of the order for examination of prosecution witnesses. Moreover, no exceptional reasons have been recorded by the Special Judge in granting further time for examination of the prosecution witnesses. This order also cannot be sustained in law.
17. Mr. P.P.N. Roy, learned Counsel for the CBI, has drawn our attention to the judgment passed in Cr. Misc. No. 1023/2000(R) Chandraket Narain Singh v. State in which one of us is a party and submitted that the learned Single Judge affirmed the order whereby the prosecution was granted one year more time for examination of remaining witnesses. The learned Single Judge in that order further held that the order passed by the court granting time in the interest of administration of criminal justice need* no interference.
18. There is no dispute that the court has discretion to grant further time to the prosecution to adduce evidence after recording exceptional reasons and in the interest of justice. The only point raised by the Petitioner in that case was that the additional period of one year should be counted from the date of charge. However ever, this question was not gone into by the learned Judge rather the case was decided on different context. In my view therefore, the decision in the aforesaid will be of no help to the prosecution.
19. Having regard to the facts and circumstances of the case and the discussions made hereinabove, these two applications are, therefore, allowed and the impugned orders passed by the Special Judge, Dhanbad are quashed. The pi Judge, Dhanbad is directed to case evidence of the prosecution in to two cases and proceed ahead for the disposal of the case in accordance (sic) law.
