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Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 1
HIGH COURT OF DELHI
CRL.M.C. No. 2636/2012 & Crl.M.A.No. 13400/2012
VINAY KUMAR JHAMB ..... Petitioner
Through: Mr.Kunal Sood, Advocate
HIGH COURT OF DELHI
CRL.M.C. No. 2636/2012 & Crl.M.A.No. 13400/2012
VINAY KUMAR JHAMB ..... Petitioner
Through: Mr.Kunal Sood, Advocate
VERSUS
STATE ..... Respondent
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
CRL.M.C. No.3024/2012 & Crl.M.A.No. 15888/2012
ROHIT WASON ..... Petitioner
Through: Mr.Kunal Sood, Advocate
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
CRL.M.C. No.3024/2012 & Crl.M.A.No. 15888/2012
ROHIT WASON ..... Petitioner
Through: Mr.Kunal Sood, Advocate
VERSUS
STATE ..... Respondent
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 14.02.2013
Petitioners are seeking quashing of FIR No. 276 of 2002 under
Section 294/34 of IPC registered at Police Station Tilak Marg, New Delhi on the common ground of infringement of fundamental rights to speedy trial. With the consent of learned counsel for the parties, above captioned two petitions were heard together and are being disposed of by this common order.
2013:DHC:814 Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 2
Asserting infringement of petitioners' fundamental right to speedy trial, quashing of charge sheet in the FIR in question is sought in this petition on the ground that even after a decade, notice under Section 251 of Cr. P.C. has not been framed, resulting in grave injustice to petitioners who were teenagers at the time of alleged commission of the offence in question which is punishable with imprisonment for a term which may extend to three months or with fine or with both. Accused of doing obscene acts at a public place, causing annoyance to the
Complainant/first informant of the FIR in question, petitioners are facing the proceedings of this case since September, 2002, when the process to summon the accused had begun. The sequence of dates on which this matter was taken up by the trial court from time to time is disclosed in the status report filed by the respondent-State and upon its perusal, this Court finds that both the petitioners/accused had infact appeared before the trial court in the year 2005 and thereafter, the trial in this matter has been adjourned from time to time to obtain the presence of remaining two co- accused. Process of declaring co-accused Pooja as proclaimed offender has been long drawn and still the matter is pending before the trial court for proceedings under Section 82 of Cr. P.C. against co-accused-Puneet.
According to learned counsel for petitioners it took three years for the respondent – State to file the charge-sheet in this case and another three years by trial court to declare co-accused Pooja as a proclaimed offender and almost three years have elapsed in the process of declaring co-accused Puneet to be proclaimed offender and still proceedings are pending before the trial court in respect of co-accused Puneet, which violates petitioners' right to speedy trial. To assert so, learned counsel for
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 3 petitioners relies upon decisions reported in Subrata Chkraborty vs. State of West Bengal, 1997 Cri.LJ 1262; Kamaldin & Ors. vs. CBI, 184 (2011)
DLT 692; Vakil Prasad Singh vs. State of Bihar, (2009) 3 SCC 355;
Karambir Singh vs.CBI, 185 (2011) DLT 39.
Learned Additional Public Prosecutor for respondent – State submits that respondent-State cannot be blamed for the delay as the undue delay has occurred on account of attendant circumstances, i.e., work load of the court concerned, prevailing conditions and so, the trial of this case can be expedited by giving time bound directions as the delay in Vakil Prasad (Supra), was of almost seventeen years and was on account of lapse on the part of the prosecution. Thus, it is submitted by learned Additional Public Prosecutor for respondent-State that the decisions relied upon by the petitioners' counsel are distinguishable on facts.
Having considered the submissions advanced and upon perusal of the charge-sheet (Annexure P-3 Colly), filed before the trial court, the status report placed on record by the respondent – State and the decisions cited, I find that the constitutional guarantee of speedy trial as dealt with by the Apex Court in Vakil Prasad (Supra), spells out the following propositions which have to be kept in mind while dealing with the aspect of speedy trial.
The propositions spelt out in Vakil Prasad (Supra), are as under:-
(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
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 4 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, 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
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 5 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."
Conceptually, speedy trial means reasonably expeditious trial, which is integral part of fundamental right to life and liberty enshrined in
Article 21 of the Constitution.
In the instant matter, the systemic delay has prolonged these proceedings. To examine this aspect, I have carefully gone through the synopsis of dates, as detailed in the status report, which reveals that it is somewhat tardy progress of these proceedings, which has led to the delay in trial of this case. Petitioners/accused had appeared before the trial court in 2005 and they are facing these proceedings for last about seven years and not ten years, as asserted by petitioners' counsel. Even from the year
2005 till now, trial court has been listing this matter at least three times in a year. No doubt proceedings to declare co-accused of petitioners as proclaimed offender has consumed much time but judicial notice can be taken of the fact that these proceedings are infact time consuming. If petitioners were aggrieved by any delay on account of initiation of proceedings to declare an accused as proclaimed offender against co- accused, then they ought to have moved the trial court much earlier to seek segregation of the trial qua them. No such steps were taken.
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 6
Apart from this, I find that it is not the case of petitioners appearing before the trial court on each and every date of hearing. On many dates either of petitioners had not appeared before the trial court, which had led to issuance of non-bailable warrants against them and this process had not consumed much time. In any case, this Court is not trying to justify the delay of seven years in these proceedings but is of the opinion that for the delay occasioned, the blame cannot be squarely put on the administration of justice system. Though it was urged at the hearing that petitioner-
Vinay Kumar is an Engineer, but it was not disclosed as to what he is doing in life. Similarly, much is not said about petitioner- Rohit, who had been not so regular in appearing before the trial court, as is evident from the status report placed on record.
It cannot be said that there is no gravity of offence, as offence of obscenity in public places cannot be encouraged by quashing the proceedings in these matters just on the ground of delay when neither prosecution nor the system is to be squarely and wholly blamed. It is being so said because quashing of proceedings like the instant one, would not send a right message to the society. If petitioners were prejudiced by the delay in proceedings in this matter, they ought to have approached the
Court earlier or to have taken some effective steps before the trial court by seeking segregation of trial, which would have shown the bonafides of petitioners.
Judicial notice can be also taken of the fact that in the preceding years, work load on the trial courts was quite heavy but now, with the bifurcation of Districts, the work load has been equally balanced and so, quashing of these proceedings on the ground of failure of administration
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 7 of justice, would not be a step in the right direction. Keeping in view the ground realities, by applying parameters, as spelt out by the Apex Court in Vakil Prasad (Supra) noted herein above, the proceedings in this matter can be expedited to allay the apprehension of petitioners that there is no likelihood of concluding trial of this case in near future.
Reliance placed by petitioners' counsel upon decisions in Subrata
Chkraborty; Kamaldin, Vakil Prasad & Karambir (Supra), would be of no assistance to the case of petitioners, as in Subrata Chkraborty (Supra), the prolonged delay was of fifteen years, whereas in Kamaldin (Supra), delay was of twenty two years and in Vakil Prasad (Supra), it was of seventeen years and in Karambir (Supra), also the trial had been pending for fourteen years and in the afore-cited decisions, prosecution was held accountable for the prolonged delay. In the instant cases, no blame can be put upon prosecution for the delay in the instant proceedings.
In view of the aforesaid, both these petitions are disposed of while applying the balancing test to prescribe an outer limit for conclusion of these proceedings, as this is also one of the options available in view of the dictum of the Apex Court in Vakil Prasad (Supra). In the first instance, let petitioners seek segregation of their trial by moving an appropriate application before the trial court, who shall expedite the trial of this case by giving shortest possible dates and to effectively take steps to proceed with this matter in accordance with the law. If any application for exemption is filed by petitioners, then same ought to be allowed by the trial court by ensuring that proceedings of this case do not get stalled.
In the fact and circumstances of this case, trial court is directed to expeditiously conclude proceedings of this case within a period of one
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 8 year from the date fixed in this matter.
With aforesaid directions, this petition is disposed of.
Trial court be apprised of this order forthwith.
(SUNIL GAUR)
Judge FEBRUARY 14, 2013 pkb/rs
Petitioners are seeking quashing of FIR No. 276 of 2002 under
Section 294/34 of IPC registered at Police Station Tilak Marg, New Delhi on the common ground of infringement of fundamental rights to speedy trial. With the consent of learned counsel for the parties, above captioned two petitions were heard together and are being disposed of by this common order.
2013:DHC:814 Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 2
Asserting infringement of petitioners' fundamental right to speedy trial, quashing of charge sheet in the FIR in question is sought in this petition on the ground that even after a decade, notice under Section 251 of Cr. P.C. has not been framed, resulting in grave injustice to petitioners who were teenagers at the time of alleged commission of the offence in question which is punishable with imprisonment for a term which may extend to three months or with fine or with both. Accused of doing obscene acts at a public place, causing annoyance to the
Complainant/first informant of the FIR in question, petitioners are facing the proceedings of this case since September, 2002, when the process to summon the accused had begun. The sequence of dates on which this matter was taken up by the trial court from time to time is disclosed in the status report filed by the respondent-State and upon its perusal, this Court finds that both the petitioners/accused had infact appeared before the trial court in the year 2005 and thereafter, the trial in this matter has been adjourned from time to time to obtain the presence of remaining two co- accused. Process of declaring co-accused Pooja as proclaimed offender has been long drawn and still the matter is pending before the trial court for proceedings under Section 82 of Cr. P.C. against co-accused-Puneet.
According to learned counsel for petitioners it took three years for the respondent – State to file the charge-sheet in this case and another three years by trial court to declare co-accused Pooja as a proclaimed offender and almost three years have elapsed in the process of declaring co-accused Puneet to be proclaimed offender and still proceedings are pending before the trial court in respect of co-accused Puneet, which violates petitioners' right to speedy trial. To assert so, learned counsel for
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 3 petitioners relies upon decisions reported in Subrata Chkraborty vs. State of West Bengal, 1997 Cri.LJ 1262; Kamaldin & Ors. vs. CBI, 184 (2011)
DLT 692; Vakil Prasad Singh vs. State of Bihar, (2009) 3 SCC 355;
Karambir Singh vs.CBI, 185 (2011) DLT 39.
Learned Additional Public Prosecutor for respondent – State submits that respondent-State cannot be blamed for the delay as the undue delay has occurred on account of attendant circumstances, i.e., work load of the court concerned, prevailing conditions and so, the trial of this case can be expedited by giving time bound directions as the delay in Vakil Prasad (Supra), was of almost seventeen years and was on account of lapse on the part of the prosecution. Thus, it is submitted by learned Additional Public Prosecutor for respondent-State that the decisions relied upon by the petitioners' counsel are distinguishable on facts.
Having considered the submissions advanced and upon perusal of the charge-sheet (Annexure P-3 Colly), filed before the trial court, the status report placed on record by the respondent – State and the decisions cited, I find that the constitutional guarantee of speedy trial as dealt with by the Apex Court in Vakil Prasad (Supra), spells out the following propositions which have to be kept in mind while dealing with the aspect of speedy trial.
The propositions spelt out in Vakil Prasad (Supra), are as under:-
(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
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 4 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, 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
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 5 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."
Conceptually, speedy trial means reasonably expeditious trial, which is integral part of fundamental right to life and liberty enshrined in
Article 21 of the Constitution.
In the instant matter, the systemic delay has prolonged these proceedings. To examine this aspect, I have carefully gone through the synopsis of dates, as detailed in the status report, which reveals that it is somewhat tardy progress of these proceedings, which has led to the delay in trial of this case. Petitioners/accused had appeared before the trial court in 2005 and they are facing these proceedings for last about seven years and not ten years, as asserted by petitioners' counsel. Even from the year
2005 till now, trial court has been listing this matter at least three times in a year. No doubt proceedings to declare co-accused of petitioners as proclaimed offender has consumed much time but judicial notice can be taken of the fact that these proceedings are infact time consuming. If petitioners were aggrieved by any delay on account of initiation of proceedings to declare an accused as proclaimed offender against co- accused, then they ought to have moved the trial court much earlier to seek segregation of the trial qua them. No such steps were taken.
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 6
Apart from this, I find that it is not the case of petitioners appearing before the trial court on each and every date of hearing. On many dates either of petitioners had not appeared before the trial court, which had led to issuance of non-bailable warrants against them and this process had not consumed much time. In any case, this Court is not trying to justify the delay of seven years in these proceedings but is of the opinion that for the delay occasioned, the blame cannot be squarely put on the administration of justice system. Though it was urged at the hearing that petitioner-
Vinay Kumar is an Engineer, but it was not disclosed as to what he is doing in life. Similarly, much is not said about petitioner- Rohit, who had been not so regular in appearing before the trial court, as is evident from the status report placed on record.
It cannot be said that there is no gravity of offence, as offence of obscenity in public places cannot be encouraged by quashing the proceedings in these matters just on the ground of delay when neither prosecution nor the system is to be squarely and wholly blamed. It is being so said because quashing of proceedings like the instant one, would not send a right message to the society. If petitioners were prejudiced by the delay in proceedings in this matter, they ought to have approached the
Court earlier or to have taken some effective steps before the trial court by seeking segregation of trial, which would have shown the bonafides of petitioners.
Judicial notice can be also taken of the fact that in the preceding years, work load on the trial courts was quite heavy but now, with the bifurcation of Districts, the work load has been equally balanced and so, quashing of these proceedings on the ground of failure of administration
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 7 of justice, would not be a step in the right direction. Keeping in view the ground realities, by applying parameters, as spelt out by the Apex Court in Vakil Prasad (Supra) noted herein above, the proceedings in this matter can be expedited to allay the apprehension of petitioners that there is no likelihood of concluding trial of this case in near future.
Reliance placed by petitioners' counsel upon decisions in Subrata
Chkraborty; Kamaldin, Vakil Prasad & Karambir (Supra), would be of no assistance to the case of petitioners, as in Subrata Chkraborty (Supra), the prolonged delay was of fifteen years, whereas in Kamaldin (Supra), delay was of twenty two years and in Vakil Prasad (Supra), it was of seventeen years and in Karambir (Supra), also the trial had been pending for fourteen years and in the afore-cited decisions, prosecution was held accountable for the prolonged delay. In the instant cases, no blame can be put upon prosecution for the delay in the instant proceedings.
In view of the aforesaid, both these petitions are disposed of while applying the balancing test to prescribe an outer limit for conclusion of these proceedings, as this is also one of the options available in view of the dictum of the Apex Court in Vakil Prasad (Supra). In the first instance, let petitioners seek segregation of their trial by moving an appropriate application before the trial court, who shall expedite the trial of this case by giving shortest possible dates and to effectively take steps to proceed with this matter in accordance with the law. If any application for exemption is filed by petitioners, then same ought to be allowed by the trial court by ensuring that proceedings of this case do not get stalled.
In the fact and circumstances of this case, trial court is directed to expeditiously conclude proceedings of this case within a period of one
Crl. M.C.No. 2636/2012 & Crl. M.C.No. 3024/2012 Page 8 year from the date fixed in this matter.
With aforesaid directions, this petition is disposed of.
Trial court be apprised of this order forthwith.
(SUNIL GAUR)
Judge FEBRUARY 14, 2013 pkb/rs
JUDGMENT