State Of Karnataka v. M.S.S Narayan

Ramachandriah, J.:—

State of Karnataka has filed a petition under Section 482 Cr. P.C for setting aside the order of the Special Judge, Metropolitan Area, Bangalore (for short ‘the Special Judge’) dated 20-7-1988 in C.C No. 9/1976 dismissing the application - I.A 58 filed by the prosecution under Section 309 Cr. P.C praying for adjournment of the case to the month of October 1988 for trial.

2. Respondents 1 to 3 are accused Nos. 1 to 3 respectively in C.C.9/1976. Reference will hereinafter be made to the parties to this petition with reference to the positions they occupy in the Criminal Case in the trial Court.

3. The relevant facts which are necessary to be stated for consideration of the prayer of the petitioner-complainant are as under:

First respondent-first accused was the Branch Manager of the Canara Bank, Devarajeevanahalli Branch, Bangalore, at the relevant time. Respondents 2 and 3 - accused Nos. 2 and 3 are partners of a firm called P.C Srinivasamurthy & Co., carrying on business in cement and other articles in Bangalore. They were the constituents of the Canara Bank of which the first accused was the Manager at the relevant time. Special Police Establishment, Bangalore (SPE) submitted an FIR to the Special Judge on 19-3-1975 against all the three accused for offences under Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act (P.C Act) and Sections 120-B, 165, 165-A and 420 IPC and clause (3) of the Karnataka Cement Control Order, 1973 read with Section 7 of the Essential Commodities Act (for short ‘the Order’ and ‘the Act respectively). Pursuant to the said FIR, Crime No. R.C.5/1975 was registered by the CBI, Bangalore against the accused. After due investigation of the case, a charge-sheet was filed against all the three accused in the Special Court on 30-10-1976 indicting them for the above mentioned offences. More than seven years after filing of the charge-sheet, charges were framed against the accused for the above mentioned offences on 19-12-1983. It was ordered on 16-1-1984 that 11-6-1984 was fixed for the examination of the prosecution witnesses, 93 witnesses were cited in the charge-sheet. On 31-5-1988, the Public Prosecutor representing the CBI/SPE, Bangalore filed a memo praying date 6-6-1988, C.Ws 4 to 7 for the hearing date 9-6-1988 and C.Ws 8 to 10 for the hearing date 10-6-1988. Accordingly, summons were ordered to the said witnesses on the same day. On 6-6-1988, all the three accused were present. Public Prosecutor returned the witness summons without effecting service on them and prayed for time for evidence on the ground that the witnesses were not available at the addresses mentioned in the summons. On a consideration of the representation made by the Public Prosecutor, the learned Special Judge passed an order wherein he briefly narrated the chequered history of the case and further observed that it is made clear to both sides that the case would not be adjourned on any count on the next dates that would be given and if the respective parties are not ready to go on with the case, suitable order as required would be passed in the matter and posted the case finally on 18-7-1988, 19-7-1988 and 20-7-1988 for prosecution evidence and directed issue of summons as per the memo to be filed by the Public Prosecutor within three days from that date. On 18-7-1988, all the accused were present. One formal witness was examined in full as P.W 1 on that day. Thereafter, the Public Prosecutor prayed for time for further evidence. Noting that the case is of the year 1976, the learned Special Judge directed the prosecution to keep all the witnesses present on the scheduled dates and adjourned the case to 19-7-1988. On 19-7-1988, I.A No. 57 was filed praying for time. It was allowed and the case was adjourned to 20-7-1988 for further evidence. On 20-7-1988, all the accused were present. It is on that date that I.A No. 58 was filed by the prosecution praying for adjournment of the case to October, 1988. Learned Special Judge passed the impugned order on that date by dictation in open Court dismissing I.A No. 58. He further noted in the Order-sheet that the prosecution evidence is closed and the case is posted for statement of the accused on 26-8-1988 taking into consideration the submission made by the Public Prosecutor that he intends to prefer a Revision against the order pronounced on I.A No. 58 and obtain stay order from the High Court. Learned Special Judge has in the impugned order referred to the history of the case in respect of which the charge-sheet was filed in 1976. He has also referred to his previous order in which he had made it clear that no adjournment would be granted under any circumstances if the parties are not ready on the adjourned date. He further observed that it is clear from the history of the case that the prosecution was not diligent in going on with the case inspite of sufficient opportunities being given. He has also observed that the submission made by the Public Prosecutor that the delay in the progress of the case was due to the fact that the consent granted for functioning of the CBI/SPE was withdrawn by the State Government in 1978 was without any substance as the consent had been restored to the CBI/SPE in the year 1980 and thereafter eight years had elapsed and he had given sufficient time after taking charge from his predecessor. He finally concluded that there are no substantial grounds to grant any more time to the prosecution for adducing evidence. Consequently, he dismissed I.A No. 58.

4. In the light of the above mentioned facts, the point for consideration is: whether the impugned order calls for interference in exercise of the inherent powers under Section 482 Cr. P.C?

5. Sri B.S Satish, learned High Court Government Pleader, representing the petitioner-State, submitted that as the date for trial of the case hard been fixed on 24-2-1988 though it was of the year 1976, the learned Special Judge was not justified in rejecting I.A No. 53 and closing the prosecution case.

6. On the other hand, Sri A.H Bhagawan, learned Counsel for Respondents 2 and 3, whose argument was adopted in toto by Sri C.G Gopalaswamy, learned Counsel for Respondent 1, argued in support of the impugned order by submitting that right to speedy trial is one of the fundamental rights guaranteed to an accused under Article 21 of the Constitution of India (COI) as has been repeatedly pointed by the Supreme Court in a catena of decisions and the prosecution case had not even reached the take off stage even in 1988 and having regard to the default of the prosecution to keep C.Ws present as directed by the Special Judge on the previous hearing dates, the learned Special Judge was perfectly justified in rejecting I.A No. 58. He placed reliance in support of the said contention on quite a good number of decisions.

7. Sri A.H Bhagawan, submitted on the basis of the notes made in the Order-sheet of C.C No. 9/1976 that one formal witness is examined as P.W 1 in the 12th year of the case which had undergone 159 adjournments after filing of the charge-sheet. Learned Counsel for the respondent-accused have further stated in the joint memo filed by them on 21-9-1990 that A-1 had remained absent on 16 hearing dates, that A-2 had remained absent only on 5 hearing dates. The said facts were not disputed by the learned High Court Government Pleader. Therefore, it can be taken that all the three accused were present atleast on more than 140 hearing dates after filing of the charge-sheet on 30-10-1976.

8. The Constitutional position is now well settled by the pronouncements of the Supreme Court that “the right to a speedy trial is one of the dimensions of the fundamental rights to life and liberty guaranteed to an accused by Article 21 of the “COL” Vide (a) Hussainara Khatoon v. Home Secretary, State of Bihar, Patna;1 (b) Kadra Pahadia (II) v. State of Bihar;2 (c) State of Maharashtra v. Champalal;3 and (d) Raghubir Singh v. State of Bihar.4

9. In State of Bihar v. Uma Shankar Kotriwal . 1981 Cr. L.J 159 SC. the Supreme Court has observed as under:

“…We cannot lose sight of the fact that the trial has not made much headway even though no less than 20 years have 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 may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher Courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. In this view of the matter, we do not consider the present case a proper one for our interference inspite of the fact that we feel that the allegations disclosed the commission of an offence which we regard as quite serious.”

10. In State Delhi Administration v. Vishwanath Lugnani . 1981 Supp SCC 64 the Supreme Court has refused to interfere with an order similar to the one that is challenged in the instant case. The facts of that case are that the Additional Sessions Judge, Delhi by order dated 11-5-1973 had closed the prosecution case rejecting the prayer for adjournment made on behalf of the prosecution on the stand that it was made clear in the earlier order dated 12th April 1972 that no further adjournment would be allowed. The allegations made against the accused in that case related to the year 1968. The High Court had rejected the Revision Petition of the State by observing that the prosecution had taken four years before the committing Court to examine three witnesses and fifteen months to produce fourteen witnesses. Their Lordships of the Supreme Court have observed in paragraph-3 that although it is debatable whether some of the general observations made in the two orders were unwarranted, they are of the opinion that in the circumstances of the case, the order of the Additional Sessions Judge cannot be questioned as wrong or unreasonable and that the High Court was perfectly justified in affirming it.

11. It is held by the Calcutta High Court in Mihir Kumar Ghosh v. State of West Bengal . 1990 Cr. L.J 26 Calcutta. that:

“‘Sword of Damocle’ should not hang over the head of accused for indefinite period and that prolongation of trial beyond 15 years from the date of offence violates constitutional right to speedy trial of a fair, just and reasonable procedure recognised under Article 21, and, therefore, the accused is entitled to be released from the travails of prosecution.”

12. A Division Bench of the same High Court has again observed in Ranjit Kumar Pal v. The State . 1990 Cr. L.J 643 Calcutta. that:

“In the event of a trial being dragged on for years together, judicial view is in favour of dropping of the proceedings irrespective of the nature of the case. The mental torture and the anxiety suffered by an accused for a long length of time is to be treated as sufficient punishment inflicted on him. The prosecution cannot have the luxury of dragging a case in a Court of Law for years together.”

13. In Srinivas Pal v. Union Territory of Arunachal Pradesh,9 it is observed in paragraph-9 at page 1732 that:

“Quick justice is a sine qua non of Article 21 of the Constitution. Keeping a person, in suspended animation for 9½ years without any cause at all and none was indicated before the learned Magistrate or before the High Court or before us cannot be with the spirit of the procedure established by law. In that view of the matter, it is just and fair and in accordance with equity to direct that the trial or prosecution of the appellant to proceed to further. We do so accordingly.”

14. In K. Achuta Rao v. State of Orissa . 1987 Cr. L.J 2022 Orissa. there was inordinate delay of about 7 years in the commencement of the trial. The offence said to have been committed by the accused concerned in that case was one under Section 308 IPC. It is held that the inordinate delay of about 7 years in the commencement of the trial constitutes abuse of process of Court and, therefore, the Criminal proceedings are quashed in exercise of the High Court's inherent powers under Section 482 Cr. P.C

15. The observations made in the above decisions no doubt at first sight lend support to the argument of Sri A.H Bhagawan. But, it is necessary to find out whether the observations made and the principles of law enunciated in the above mentioned decisions with reference to the facts of those cases are applicable to the facts of the case on hand bearing in mind the nature of the offences said to have been committed by the accused in order to determine whether the learned Special Judge was justified in rejecting the prayer made by the prosecution in I.A No. 58.

16. Except mentioning the offences for which the accused are charge-sheeted, neither the learned High Court Government Pleader nor the learned Counsel for the accused stated anything about the nature of the allegations made against the accused in the charge-sheet. Therefore, a copy of the charges framed against the accused by the learned Special Judge is secured, the same is perused and kept in the records for reference. It is seen from the copy of the charges that as many as 12 charges are framed against the accused on 19-12-1983. The gist of the offences alleged in the charge-sheet and charges framed against the accused are that the first accused in his official capacity as the Manager of Devarjeevanahalli Branch of the Canara Bank (for short ‘the Bank’) and accused Nos. 2 and 3 as partners of the Firm called P.C Srinivasamurthy & Co., during the year 1973-1974 entered into a criminal conspiracy by agreeing to do certain illegal acts or acts by illegal means, to obtain pecuniary gain by corrupt and illegal means by the Firm and also for the sister concerns of the Firm called Shree Brick Works and Cement Trading Co., Bangalore in the shape of open cash credit facility by deliberately violating the norms prescribed by the Bank and by inducing the Bank dishonestly and fraudulently to part with huge sums of moneys thereby causing corresponding loss to the Bank. It is alleged that pursuant to the said conspiracy, accused Nos. 2 and 3 had drawn from the Bank Rs. 2,06,138/- in excess of the sanctioned credit limit of Rs. 9,00,000/- between 24-10-1973 and 28-7-1974 and considerably huge sum of Rs. 48,81,554.38p. in excess of the sanctioned credit limit of Rs. 4,20,000/- only in a short span of about 1½ months between 6-9-1974 and 19-10-1974 and the first accused had connived at their said action. It is also alleged that A-1 had received free of cost 325 bags of cement worth Rs. 8,000/- from A-2 and A-3 between 18-5-1974 and 16-10-1974 by way of illegal gratification. Accused are also alleged to have committed various other illegal acts such as making use of stale railway receipts and other acts of omission and commission set out in the various charges by defrauding the Bank, Railway authorities etc., and thereby causing wrongful loss to the Bank, Railways and others and making wrongful gain for themselves. If the accused are tried and eventually convicted, the punishment provided for the offences for which they are charged, are as under:

Sl. No. Offence Punishment 1. Section 5(2) of the P.C Act .. Imprisonment for 7 years. 2. Section 165 IPC .. Imprisonment for 3 years 3. Section 165A IPC .. Imprisonment for 3 years. 4. Section 420 IPC .. Imprisonment for 7 years and fine. 5. Clause (3) of the Order read with Section 7 of the EC Act .. Imprisonment for 7 years.

It is thus seen that the offences alleged to have been committed by the accused are sufficiently grave and not trivial offences.

17. In this context, I consider it apt to refer to a decision of the Supreme Court in V.K Agarwal v. Vasantraj Bhagwanji Bhatia.11 The facts of that case are that respondents 1 to 3 (accused) came to be prosecuted for an offence punishable under Section 111 read with Section 135 of the Customs Act, 1962 as primary gold valued at Rs. 84,770-00 in 1968 and some other articles were found in their house when it was raided on 15-11-1968. In that case, third respondent was convicted whereas, respondents 1 and 2 were acquitted. The same alleged offenders were later on sought to be prosecuted under Section 85 of the Gold Control Act, 1968, relying on the finding of primary gold from the very same premises at the time and on the occasion of the very same raid which gave rise to the prosecution under the Customs Act which had culminated in the conviction of respondent No. 3 and the acquittal of respondents 1 and 2. A contention was thereupon raised on behalf of the respondent that the new trial was barred. The Chief Judicial Magistrate accepted that plea and ordered the prosecution be dropped. The said order was confirmed by the Sessions Judge. The High Court also affirmed the decision of the Court below holding that the subsequent trial of the respondents was barred by virtue of Section 403(1) of old Cr. P.C Therefore, the matter was taken to the Supreme Court. The Supreme Court has held that Section 403(1) old Cr. P.C does not come to the rescue of the respondents as Section 403(2) of old Cr. P.C clearly concludes the matter against them, and, therefore, the High Court was in error in holding that subsequent trial of the respondents was barred. However, it was argued on behalf of the respondents that there was no need to try them again as the purpose of filing the appeal was to have the true position in law settled especially, when 20 years had elapsed since the date of seizure of gold and other articles. Their Lordships of the Supreme Court have rejected that contention by observing in paragraph-9 at page 1111 as under:

“That 20 years have elapsed since the date of seizure (November 15, 1968) is, in our opinion, no ground for not proceeding further with the matter inasmuch as the offence in question is a serious economic offence, which undermines the entire economy of the Nation. The delay occasioned in the working of the judicial system by the ever increasing workload cannot provide an alibi for upholding such a plea…”

18. In my opinion, the said observations apply with equal force to the facts of the case on hand as the offences alleged to have been committed by the accused are sufficiently grave offences. It is no doubt true that the accused have attended the Court on more than 140 hearing dates. But, they are residents of Bangalore and not of remote places. Although the case was of the year 1976, the trial of the accused has assumed some seriousness from 6-6-1988 only and I.A No. 58 filed by the prosecution seeking adjournment on 20-7-1988 on the ground that C.W 6 who was served with summons was on medical leave and witness summons could not be served on one other witness as his whereabouts are not known is rejected under the impugned order. Therefore, I find it difficult to hold that the accused are put to unnecessary harassment, mental agony and expenses. On the other hand, the consequence of confirmation of the impugned order would result in automatic acquittal of the accused of grave offences covered by 12 charges thereby resulting in miscarriage of justice inasmuch as nothing turns upon the evidence of P.W 1 as he is admittedly a formal witness. Therefore, I am of the opinion that the impugned order deserves to be set aside in exercise of the inherent powers under Section 482 Cr. P.C “to secure the ends of justice” by directing the prosecution to proceed with the trial with utmost diligence and thus enabling the trial Court to conclude the trial of the 14 year old case within the shortest possible time.

19. In the result, for the foregoing reasons, the Petition is allowed, the impugned order of the learned Special Judge is set aside and the learned Special Judge is directed to proceed with the further trial of the accused after giving reasonable opportunity to the prosecution to summon and secure the attendance of such of the material prosecution witnesses whom they propose to examine in order to substantiate the charges framed against the accused. At the same time, the prosecution is also directed to proceed with the trial of the case with utmost diligence without resorting to avoidable adjournments so as to enable the learned Special Judge to conclude the 14 year old case within the shortest possible time by fixing an early date for further evidence and proceeding with the trial from day-to-day, if possible, having regard to other older part-heard cases, if any, on his file.