Criminal Writ Petn. No. 147 of 1999. Case: I. P. Shankaran Vs Dy. Superintendent of Police Bombay and others. High Court of Bombay (India)
| Case Number | Criminal Writ Petn. No. 147 of 1999 |
| Counsel | For Petitioner: I. P. Bagaria with Jerry Lewis and S. P. Monghate, Advs. and For Respondents: Dr. D. Y. Chandrachud, Addl. Solicitor General with H. V. Mehta, Addl. Public Prosecutor and B. B. Badami, Sr. Public Prosecutor (for Nos. 1 and 2), Mrs. V. K. Tahilramani, Public Prosecutor with D. N. Salvi, Addl. Public Prosecutor (for No. 3) |
| Judges | A. V. Savant, J. and Mrs. P. Upasani, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 245; Prevention of Corruption Act (2 of 1947) - Section 5 |
| Citation | 1999 CriLJ 2194 |
| Judgement Date | March 31, 1999 |
| Court | High Court of Bombay (India) |
Judgment:
A. V. Savant, J.
-
Heard all the learned Counsel; Mr. Bagaria for the petitioner - original accused. Dr. Chandrachud for respondent No. 1 and 2 and Mrs. Tahilramani, for respondent No. 3.
-
This is a Petition under Article 226 of the Constitution of India, seeking to quash the order dated 2nd February 1999, passed by the learned Special Judge for C.B.I., Greater Mumbai in Misc. Application No. 20 of 1999 for closure of prosecution evidence in Special Case No. 6 of 1989. Under the impugned order, the learned Special Judge (Shri S. R. Mehra) has followed his earlier Order dated 2nd February 1999 in Misc. Application Nos. 1128 of 1998, 25 of 1999 and 26 of 1999 in Case No. 54 of 1988 and has rejected the prayer for closure of the prosecution case and/or acquittal of the petitioner. The prayer was made only on the ground that the charge for the offence punishable under section 5 (2) read with section 5 (1) (e) of the Prevention of Corruption Act, 1947 was framed against the petitioner on 5th December 1996; his plea was recorded on the same day and despite the lapse of a period of more than two years, the trial had not concluded and hence, the petitioner was entitled to the relief in terms of the prayers in the said application dated 30th January 1999 viz. (a) closure of the prosecution evidence and (b) an order of acquittal in accordance with law.
-
The few relevant facts may now be stated. The petitioner was working with the Oil and Natural Gas Commission as a Deputy Superintending Engineer. He was charge-sheeted for the offence punishable under Section 5 (2) read with section 5 (1) (e) of the Prevention of Corruption Act, 1947. The case was registered as Special Case No. 6 of 1989 in the Court of the Special Judge for C.B.I. Greater Mumbai and, as stated above, the charges were framed on the 5th December, 1996. The petitioner pleaded not guilty. It is common ground that the recording of evidence has not yet commenced. In the application made by the petitioner on 30th January 1999, he contended that though a period of two years had expired from the date on which his plea was recorded viz. 5th December 1996, no evidence had been tendered by the prosecution and hence, in view of the Judgment of the Apex Court in Raj Deo Sharma v. State of Bihar, 1998 (6) LJ (SC) 41: (1998 Cri LJ 4596), the prosecution evidence was liable to be closed and he was entitled to an order of acquittal.
-
In the reply filed by respondent No. 1, it was contended that the ratio of the decision in Raj Deo Sharma's case was not applicable to the petitioner's case since the prosecution was under the Prevention of Corruption Act, 1947. Reliance was placed on the earlier decisions of the Apex Court in (i) Common Cause Registered Society v. Union of India, (1996) 4 SCC 33: (1996 Cri LJ 2380) (for short, Common Cause No. I), and (ii) Common Cause Registered Society v. Union of India, 1996 (6) SCC 775: (1997 Cri LJ 195) (for short, Common Cause No. II) where a reference is made to the decision of the Constitution Bench in Abdul Rehman Antulay v. R. S. Nayak, (1992) 1 SCC 225: (1992 Cri LJ 2717) (for short, Antulay's case). Relying on the aforesaid decisions, it was contended that directions (i) and (ii) contained in para 16 of the Judgment in Raj Deo Sharma's case (1998 Cri LJ 4596) (SC) would not be applicable where the offence related to misappropriation of public funds, cheating or offences under the Prevention of Corruption Act. It was then contended that the said directions (i) and (ii) were also inapplicable to other offences like smuggling, foreign exchange violation, offence under the N.D.P.S. Act, 1985, Essential Commodities Act, 1955, Food Adulteration Act and under the Acts dealing with Environment and other economic offences. Placing reliance on the decision in Common Cause No. II, it was contended that the Apex Court had thought it fit to extend the exclusion of directions No. 1 and 2 given in Common Cause No. I to some more offences which are enumerated in para III of the decision in Common Cause No. II. They include matrimonial offences, offences under the Negotiable Instruments Act, offences relating to criminal misappropriation of property, offences under section 304-A of the Indian Indian Penal Code, offences affecting public health, safety, convenience, decency and morals. Respondents No. 1 and 2, therefore, opposed the petitioner's application for closure of the prosecution case and an order of acquittal.
-
As stated earlier, the learned Special Judge by his impugned Order dated 2-2-1999 rejected the petitioner's application dated 30-1-1999. While doing so, he has placed reliance on his earlier Order dated 2-2-1999 passed in similar applications made in the companion case No. 54 of 1988. He was of the view that directions (i) contained in para 16 of the Judgment in Raj Deo Sharma's case (1998 Cri LJ 4596) (SC) was inapplicable to economic offences which were not minor offences. Since the offences relating to corruption, misappropriation of public funds, cheating and offences under the Prevention of Corruption Act were specifically excluded by the Judgments of the Apex Court in the two Common Causes cases (1996 Cri LJ 2380 and 1997 Cri LJ 195), the learned Judge held that direction (i) in Raj Deo Sharma's case was not applicable. Since the petitioner is on bail, direction (ii) is not attracted. In the result, the petitioner's application has been rejected.
-
Having heard all the learned Counsel at length, the short question which arises for our consideration is whether having regard to the law laid down by the Constitution Bench of the Apex Court in Antulay's case (1992 Cri LJ 2717) and in the two Common Cause cases (1996 Cri LJ 2380 and 1997 Cri LJ 195), the petitioner's case would be covered by direction (i) in para 16 in Raj Deo Sharma's case, (1998 Cri LJ 4596) (SC). The said direction (i) reads as under:-
16. After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulay's case (supra) 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.
-
There can be no dispute that the right to a speedy trial is a part of the right to life guaranteed under Art. 21 of the Constitution. However, it is difficult to say as to how much delay would amount to too long a delay and whether a delayed trial is necessarily an unfair trial. It would depend upon a variety of factors such as (i) the nature of the offence alleged (ii) the extent to which the accused is responsible for the delay, (iii) whether the delay has occurred due to systemic reasons on which the prosecution of offence has no control, (iv) whether any prejudice has been caused to the accused by the delay (v) whether the interest of fairness in the administration of criminal justice would be better served by an order of expedition of the case, may be on a day today basis and similar other factors.
-
We must first consider the decision of the Constitution Bench in Antulay's case (1992 Cri LJ 2717) (SC). The petition was filed under Art. 32 of the Constitution by the former Chief Minister of Maharashtra. He was prosecuted for the offences punishable under the Prevention of Corruption Act pursuant to the sanction granted by the Governor of Maharashtra under S. 6 of the Prevention of Corruption Act. The sanction was granted on July 28, 1982. Certain objections were raised before the Special Judge, where the case was pending. The matter had come to this Court on the question of competence of the Special Judge to take cognizance and validity of the sanction. The matter was then taken to the Apex Court which agreed with the view taken by this Court that the investigation by a police officer under S. 50 was not a condition precedent for taking cognizance under S. 8 of the Criminal Law Amendment Act, 1952 and that cognizance could be taken by a Special Judge even on a private complaint. Later on, a challenge before the Apex Court to the validity of the proceedings pending before a Judge of this Court was upheld as a result of which all the proceedings which were taken in this Court including the recording of evidence for a period of over one year became non est and the case had to be tried before the Special Judge in accordance with the 1952 Act. However, there was no progress after April 29, 1988 on which day the decision of the Apex Court was delivered. A contention was raised that the case which was instituted in 1982 was still pending. The petitioner, therefore, prayed under Art. 32 for quashing the pending proceedings on the ground of violation of the right to a speedy trial which, according to him, was implicit in the right under Art. 21 of the Constitution. The Apex Court, inter alia, considered its earlier decisions in (i) A. K. Gopalan v. State of Madras, AIR 1950 SC 27: (1950 (51) Cri LJ 1383), (ii) Maneka Gandhi v. Union of India, AIR 1978 SC 567, (iii) Hussainara Khatoon v. Home Secretary, State of Bihar (1980) 1 SCC 81 and (1980) 1 SCC 93: (1979 Cri LJ 1036) and (iv) State of Maharashtra v. Champalal Punjaji Shah, AIR 1981 SC 1675: (1981 Cri LJ 1273). In the light of the ratio of these decisions, the Court came to the conclusion that while speedy trial was an implicit ingredient of a fair trial, the converse was not necessarily true. A delayed trial was not necessarily an unfair trial. The delay may have been occasioned on account of several factors beyond the control of both, the prosecution as well as the accused. A...
To continue reading
Request your trial