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CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1220 OF 2019
1. Dev Kumar Agarwal, &
2. Prabha D. Agarwal … Petitioners
…….
Mr. Haresh Jagtiani, Senior Advocate a/w. Suprabh Jain, Pushpvijay
Kanoji, Pranay Kamdar i/b. Haresh Jagtiani and Associates for the
Petitioners.
Mr. Jitendra Mishra, Special Prosecutor a/w. Sangeeta yadav, Rupesh
Dubey, Umesh Gupta for the Respondent No.1 – DRI.
Smt. M.M. Deshmukh, APP
, for the Respondent No.2-State.
……...
ORAL JUDGMENT
1. Heard Mr. Haresh Jagtiani, learned Senior Counsel for the Petitioners, Mr. Jitendra Mishra, learned Special Prosecutor for the Respondent No.1 – DRI and Smt. M.M. Deshmukh, learned APP for the Respondent No.2-State. By consent of the parties, the matter is decided finally at this stage itself, considering the reliefs sought in Deshmane(PS) this Petition. Hence, Rule. Rule is made returnable forthwith.
2. Originally this Petition was filed by two Petitioners Mr. Dev Kumar Agarwal and Mrs. Prabha D. Agarwal in the year 2019. During pendency of this Petition, the Petitioner No.1 Dev Kumar Agarwal (hereinafter referred to as ‘Dev Kumar’) passed away on 27.12.2019. Therefore, the Petition now survives only on behalf of the Petitioner No.2 Mrs. Prabha Agarwal (hereinafter referred to as ‘the Petitioner Prabha’ ), who is 86 years of age as of today. The prayer in the Petition is for quashing of C.C. No.243/CW/1996 pending before the then Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai (the Additional Chief Judicial Magistrate, First Class, 19th Court, Esplanade, Mumbai as of today). The Petition is for quashing of these proceedings on the ground that the Petitioner’s right to speedy trial guaranteed under Article 21 of the Constitution of India is seriously infringed and, therefore, the prosecution needs to be quashed on that ground alone.
3. Before referring to the submissions made by the learned counsel for the contesting parties, very briefly, the allegations in the complaint lodged against the Petitioner Prabha can be referred to as follows.
4. In the year 1983, an intelligence was received by the authorities that the Petitioner’s husband Dev Kumar (original Petitioner No.1) was having in his possession Mercedez Benz 300D Model 1983 car. It was a smuggled car. The registration papers of that car were obtained from the Regional Transport Office, Tardeo, Mumbai. It was observed that the car was registered in the name of the present Petitioner Prabha. With her application for registration, she had submitted certain documents. Those documents were Bill of Entry, no-sale bond, a photo-copy of a document known as CCP dated 14.1.1983 with the list of conditions attached to it, covering the import of that car fitted with accessories, describing her as sole representative of M/s. Etmatree Limited, London, and a photocopy of the letter issued by the Controller of Imports and Exports, Bombay showing the acceptance of no-sale bond for the imported car against the said CCP. The preliminary enquiry showed that no customs duty was paid through the State Bank of India, Airport Branch, Bombay, which was the only the bank authorized to collect the amount of Customs Duty in respect of the consignments cleared through the Air Cargo Complex, Sahar, Bombay. It was apparent that the car was not validly imported and cleared through the Customs. The appropriate Customs Duty was not paid. The car was first detained on 23.6.1986 and was seized under panchnama on 22.7.1986 as it was liable for confiscation under the provisions of the Customs Act, 1962. During the enquiry, statements of both the accused – (the Petitioners) were recorded under Section 108 of the Customs Act. The Petitioner Prabha’s husband Dev Kumar gave the background and according to the prosecution, he gave a statement naming one Amarjeet who was instrumental in getting the car registered with the R.T.O.. Dev Kumar had paid Rs.50,000/- to Mr. Amarjeet. Dev Kumar accepted that neither he nor his wife complied with the requirement of payment of the Customs Duty or other related formalities and those were to be completed by Mr. Amarjeet. Dev Kumar was not aware whether those formalities were completed by Mr. Amarjeet. Dev Kumar was informed by Mr. Amarjeet that he was the owner of M/s. Etmatree Limited, London. The documents showing payment of the customs duty were found to be bogus, but, Dev Kumar could not explain it properly. The Petitioner Prabha herself had stated that she was not aware of the formalities which were required to be complied with. According to the complaint, the car could not have been retained in India beyond the period of six months. There was violation of Clause 11(m) of the Imports Trade (Control) Order, 1955 and the car was imported in India in contravention of prohibition imposed under the Customs Act, 1962; and hence the car was liable for confiscation. According to the complaint, the car was brought in India though it was prohibited in terms of Clause 3 of the Imports Trade (Control) Order, 1955 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. In terms of Section 3(2) of the Imports and Exports (Control) Act 1947, all the goods to which any order under sub-section (1) of Section 3 of the said Act applied, were to be deemed to be the goods of which import or export was prohibited under Section 11 of the Customs Act, 1962. And, therefore, import of the said car was not valid. The allegations are that both the accused along with Mr. Amarjeet produced false and bogus documents for obtaining CCP in respect of that car. Based on all these allegations, the complaint was filed for commission of offences punishable under Sections 132, 135(1)(a), 135(1)(b) read with 135(1)(i) of the Customs Act read with 120-B of IPC. This complaint was filed on 5.8.1996.
5. Cognizance was taken by the learned Magistrate on 6.9.1996 and the process was issued against both the accused i.e. the Petitioner Prabha and Dev Kumar,which was made returnable on 23.10.1996. The journey of the trial from that point onward is inordinately long. The trial progressed slower than a snail’s pace.
6. Learned Senior Counsel appearing for the Petitioner made the following submissions: i. The Petitioner Prabha, as of today, is 86 years of age. She lost her husband in December, 2019, who was a co-accused and also a co-petitioner in this Petition. Today, she is in a precarious health condition. She is suffering from alzheimer’s disease and is not in a position to understand the situation around her. The investigation started in 1983, when she was 44 years of age. Today almost after double that period, she is 86 years of age, and the trial is still pending. He submitted that though the Petition was filed in the year 2019, till then also there was inordinate delay in conducting the trial. The sword of criminal prosecution was hanging on her head since 1983 and continues to hang it till today. ii. Though the investigation was started in the year 1983, the complaint came to be filed only in the year 1996. The evidence of PW-1 before charge was recorded from 1999 onwards. The evidence before charge led by the prosecution was closed on 17.2.2003. The prosecution made an application to lead further evidence on 25.4.2003. From that point onwards upto 2018, there was absolutely no progress. The charges were finally framed on 16.7.2018. After that, the Petitioners preferred the present Petition. In between, about ninety dates had passed without any progress in the trial. This clearly has adversely affected the Petitioner’s right to speedy trial under Article 21 of the Constitution of India. iii. Shri Jagtiani, learned Senior Counsel for the Petitioner added that, during pendency of the Petition, her husband i.e. the original Petitioner No.1 Dev Kumar passed away. There is a presumption under Section 138A of the Customs Act regarding ‘presumption of culpable mental state’ and for that purpose the burden shifts on the accused to prove that the accused had no such mental state. iv. Learned Senior Counsel submitted that in the present case from the complaint itself it was clear that even as per the prosecution case the main allegations were made against the Petitioner Prabha’s husband Dev Kumar and one Amarjeet. The prosecution case is that Amarjeet is not traceable. He is not even made an accused. The Petitioner’s husband has passed away, therefore, she is deprived of having advantage to consider and rely on the possible defence, which could have been offered by Dev Kumar. But his passing away during the long pendency of the trial has deprived her of any such opportunity, which has affected her another valuable right for no fault of hers. v. In support of his submissions, learned Senior Counsel relied on the judgments of the Hon’ble Supreme Court in the following cases: [i] Kadra Pahadiya and others Vs. State of Bihar[1] [ii] State of Bihar Vs. Uma Shankar Ketriwal and others[2] [iii] Vakil Prasad Singh Vs. State of Bihar[3] [iv] Pankaj Kumar Vs. State of Maharashtra and others[4] vi. In conclusion of his submissions, learned Senior Counsel Shri Jagtiani emphasized that the Petitioner’s right to speedy trial under Article 21 of the Constitution of India is seriously infringed and, therefore, the prosecution is liable to be quashed.
7. Shri Mishra, learned Special Prosecutor appearing for the Respondent No.1, on the other hand, opposed these submissions. His main thrust of argument was that while considering infringement of Article 21 of the Constitution of India for speedy trial, as far as the accused is concerned, the merits of the matter cannot be overlooked. In support of his contention, he relied on the observations of the Hon’ble Supreme Court in the case of Niranjan Hemchandra Sashittal and another Vs. State of Maharashtra[5].
8. Mr. Mishra submitted that the prosecution case is quite serious. There was evasion of duty, illegal import of the car in India, and presentation of forged documents for registration of the car. He submitted that the car stood in the name of the present Petitioner Prabha and, therefore, she was made an accused. He submitted that the delay from 2019 onwards may be discounted because the Petitioners have approached this Court and the Petition was pending before this Court since then. He further submitted that in the year 2015, a warrant was issued against the petitioner which required some time for execution and thus the Petitioner has contributed to the delay in concluding the trial. He further submitted that, after the complaint was filed in the year 1996, immediately evidence before charge had started and there was no intentional delay on the part of the prosecution. In these circumstances, benefit may not be given to the Petitioner. He added that in the year 2018 also, on two occasions, the witnesses were present but the Petitioners’ Advocate did not conduct the trial.
9. We have considered these submissions. Before making a reference to the various judgments cited before us, the history of this trial can be looked at. The Petitioner has annexed roznama of the case. As rightly submitted by the learned Senior Counsel for the Petitioner, there were about ninety dates between 1996 upto 2018; but before that there was inordinate delay in filing of the complaint itself. The investigation had started in the year 1983 and the complaint was actually filed in the year 1996. It took thirteen long years for the authorities to even file the complaint. After that, cognizance was taken and evidence before charge started in the year 1999. It was closed in February, 2003 but the prosecution was permitted to lead further evidence by recalling a witness on 25.4.2003. The dates after that reflect sorry state of affairs. From 3.7.2003 onwards till October, 2003 the prosecution witnesses were continuously absent. On 17.11.2003 PW-3 Damle on behalf of the prosecution was present but his cross-examination was declined. Again from 5.1.2004 onwards the roznama simply repeats that the Prosecution Witnesses were absent. This went on continuously till
2018. On 16.7.2018, the summons were issued to the prosecution witnesses for cross-examination. For the first time after that, on 4.9.2018 witness Mr. Yadav, on behalf of the prosecution, was present but the Advocate for the accused filed an application for adjournment. Thereafter on 16.10.2018, the accused were absent though the witness was present. On 13.11.2018, an application was filed by the accused for recalling of prosecution witness No.2. On 14.1.2019, again the witness was absent; and after that this Petition was filed.
10. Thus, it can be seen that from 2003 upto 2018 continuously the prosecution witnesses were absent. The roznama also shows that the accused were also absent on almost all of these occasions but obviously the trial could not proceed in the absence of the prosecution witnesses. The evidence before charge was not formally closed in the year 2003. The order of the learned Magistrate passed on 13.11.2017, which is annexed at Exhibit-F to this Petition, mentions that till that date i.e. till 13.11.2017 the prosecution had examined only three witnesses. The last witness was examined on 17.11.2003 at the stage of evidence before charge. It was observed by the learned Magistrate that the matter was too old of the year 1996 and since more than ten years, no steps were taken. Hence, the Court directed that evidence before charge was closed and the matter was fixed for consideration of framing the charge. Thus, this order passed by the learned Magistrate shows that since November, 2003 till November, 2017 the prosecution did not take any steps to complete the step of evidence before charge and it had to be finally closed by the order of the learned Magistrate on 13.11.2017.
11. After that, on 13.6.2018, by a separate order the learned Magistrate observed that there was sufficient material to frame the charge against the accused and the matter was fixed for framing of the charge. The charge was framed on 16.7.2018. Thus, from the observations of the learned Magistrate himself, it is quite clear that from November, 2003 to November, 2017 there were absolutely no steps taken by the prosecution to make any sort of progress in the trial.
12. The contention of Shri Mishra that the Petitioners themselves were contributory to the delay in the trial hardly has any substance. Only on one occasion i.e. in February 2015 a warrant was issued against the accused. Only on three dates i.e. in July, September and October 2018 the prosecution witness was present and the accused did not take steps to cross-examine. In the context of the above ninety dates, these three dates hardly amount to any delay caused exclusively by the accused. It was primarily the duty of the prosecution to keep the witnesses present and to proceed with the trial.
13. Thus, from the record it is more than clear that there was gross inordinate, unexplained delay on the part of the investigating agency as well as the prosecution in conducting the investigation and trial expeditiously or at least within a reasonable time.
14. In this context, the observations of the Hon’ble Supreme Court in the judgments relied on by the learned Senior Counsel for the Petitioners are important.
15. In the case of Kadra Pahadiya, the Hon’ble Supreme Court in Paragraph-2 has referred to this issue and held that as already held in the case of Hussainara Khatoon and others Vs. Home Secretary, State of Bihar, Patna[6], speedy trial was a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution of India and any accused who is denied this right of speedy trial is entitled to raise this issue.
16. In Uma Shankar Ketriwal’s case, the Hon’ble Supreme Court considered the order passed by a learned Single Judge of Patna High Court quashing the entire proceedings in a criminal case against seven accused who were facing the charge under Section 7 of the Essential Commodities Act before the Court of Magistrate at Bhagalpur. The observations of the Hon’ble Patna High Court were reproduced with approval. That particular part is as follows: “Another important aspect of the matter is that the prosecution commenced in the year 1963 and it is still going on in 1979. It is true that the accused persons themselves are partly blamed for this delay because several revision applications have been filed at their instance in the High Court and in the District Court. The situation, however, continues to be unjustified because the last revision application was some time disposed in 1973 and the record was returned in 1974. This fact has been stated by the learned counsel for the petitioners and five years have elapsed since then. I am told that four witnesses have been examined and the last witness was examined in April 1979 and after that no witness has been examined. It has been stated in the order sheet that prosecution is not in a position to know the address of the witnesses who are mostly Government Officials. Luxury of protracted trial cannot be allowed to the prosecution. If they did not know the address of their own witnesses and if the prosecution was not in a position to conclude its evidence by now it will be an abuse of the process of the court to allow the prosecution go on any further.” The Hon’ble Supreme Court further observed that the Court could not lose sight of the fact that the trial had not made much headway even though no less than twenty years had gone by. Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in Court, apart from anxiety. It might well be that the Respondents themselves were responsible in a large measure for the slow pace of the case in as much as quite a few orders made by the Trial Magistrate were challenged in higher courts, but then there had to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. Observing thus, the order passed by the Patna High Court for quashing of the proceedings was upheld. It was also observed by the Hon’ble Supreme Court that they did not interfere with the Patna High Court order inspite of the fact that the allegations disclosed the commission of a serious offence.
17. In the present case before us, the Petitioners – original accused had not challenged any order passed by the learned Magistrate before any higher forum. In that sense they had not caused any delay in conduct of the trial by approaching higher forums.
18. Vakil Prasad Singh is another important case, in which the Hon’ble Supreme Court had made certain observations. Paragraphs- 18, 20, 24, 25, 29 and 30 are important in the context of the present case. Those paragraphs are as follows:
The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
19. xxxxx
20. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: [A.R. antulay case, SCC pp. 270-73, para 86]
(i) fair, just and reasonable procedure implicit in Article
(ii) right to speedy trial flowing from Article 21
(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 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. xxxxxx xxxxxx
24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 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 charges 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.
29. We have no hesitation in holding that at least for the period from 7th December, 1990 till 28th February, 2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or trial was in any way attributable to the appellant. The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant.
30. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution. We feel that under these circumstances, further continuance of criminal proceedings, pending against the appellant in the court of Special Judge, Muzaffarpur, is unwarranted and despite the fact that allegations against him are quite serious, they deserve to be quashed.”. The issues which the Courts have to consider in such cases are crystallized in Paragraph-20 based on the case of Abdul Rehman Antulay and others Vs. R.S. Nayak and another[7]. Some of the important considerations which can be highlighted is the systemic delays but inordinately long delay may be taken as presumptive proof of prejudice. The Court has to balance and weigh the several relevant factors- ‘balancing test’ or ‘balancing process’ and determine in each case whether the right to speedy trial has been denied. It is not feasible to prescribe an outer time limit for conclusion of all criminal proceedings.
19. In Pankaj Kumar’s case, Paragraphs-22, 23, 24 and 27 are important which are as follows: “22. It is, therefore, well settled that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 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.
23. 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. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges 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 for conclusion of trial.
24. Tested on the touchstone of the broad principles, enumerated above, we are of the opinion that in the instant case, appellant's constitutional right recognised under Article 21 of the Constitution stands violated. It is common ground that the First Information Report was recorded on 12th May, 1987 for the offences allegedly committed in the year 1981, and after unwarranted prolonged investigations, involving afore-stated three financial irregularities; the chargesheet was submitted in Court on 22nd February, 1991. Nothing happened till April, 1999, when the appellant and his deceased mother filed criminal writ petition seeking quashing of proceedings before the trial court.
27. Be that as it may, the prosecution has failed to show any exceptional circumstance, which could possibly be taken into consideration for condoning the prolongation of investigation and the trial. The lackadaisical manner of investigation spread over a period of four years in a case of this type and inordinate delay of over eight years (excluding the period when the record of the trial court was in the High Court), is manifestly clear. ”
20. Shri Mishra relied on a case of Niranjan Sashittal. In that case before the Hon’ble Supreme Court the delay had occurred due to the dilatory tactics adopted by the accused, laxity on the part of the prosecution and faults on the part of the system. The accused had sought adjournments and had filed Misc. Applications for prolonging the trial. It was observed that when the delay was caused on the said score the accused could not advance a plea that the delay in trial had caused colossal hardship and agony warranting quashment of the entire criminal proceedings.
21. In the present case, as discussed earlier, the trial was adjourned from time to time because the prosecution witnesses were not present. There was no question of the accused seeking any adjournment of the trial for various reasons. Therefore, the ratio of this judgment does not help Shri Mishra’s submissions. Undoubtedly the merits of the matter assumes importance while considering the plea of quashing of the prosecution on the ground of infringement of the valuable right of speedy trial, but, in this particular case before us the delay is so inordinate and gross that even after considering seriousness of the allegations made in the complaint, we still feel that the delay is so much that merits would not affect the outcome of this Petition and save the prosecution. Even on merits, the complaint shows that the main role was played by the Petitioner Prabha’s husband Dev Kumar in collusion with Amarjeet. Though the car was registered in the name of the present Petitioner Prabha; the complaint itself shows that everything was allegedly done by Dev Kumar and Amarjeet. To that extent, on merits also, the Petitioner Prabha had a much lesser role to play.
22. As mentioned earlier, the delay is not only at the stage of conduct of the trial but it starts right from the time when the investigation started as is observed by the Hon’ble Supreme Court in the judgments referred hereinabove.
23. There is considerable force in the submissions of learned Senior Counsel Shri Jagtiani that the sword of prosecution was hanging on the Petitioner for almost half of her entire life which cannot be justified by any arguments which could be advanced in favour of saving the prosecution against the Petitioner Prabha. The delay in this case is so inordinate, so gross and so unjust, that in our opinion this is a fit case where we must exercise our powers under Article 226 of the Constitution of India to quash the proceedings.
24. Based on the above discussion, the Petition is allowed. Hence the following order::: O R D E R:: i. The Petition is allowed. ii. The criminal prosecution being C.C. No.243/CW/1996 pending before the Additional Chief Judicial Magistrate, First Class, 19th Court, Esplanade, Mumbai (the then Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai), is quashed and set aside. iii. Rule is made absolute in aforesaid terms. iv. The Petition is disposed of accordingly. (S.M. MODAK, J.) (SARANG V. KOTWAL, J.) Deshmane (PS)