IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2010 (Arising out of S.L.P. (Crl.) No. 6374 of 2010)
Sajjan Kumar …. Appellant (s)
Versus
Central Bureau of Investigation …. Respondent(s)
Bench: P Sathasivam, A R Dave
JUDGMENT
P. Sathasivam, J.
1) Application for intervention is allowed. 2) Leave granted.
3) This appeal is directed against the order of the High Court of
Delhi at New Delhi dated 19.07.2010 whereby the learned single Judge
confirmed the order dated 15.05.2010 passed by the District
Judge-VII/NE-cum- Additional Sessions Judge, Karkardooma Courts, Delhi
in S.C. No. 26/10, RC SII 2005 S0024. By the said order, 1
the Additional Sessions Judge has ordered the framing of charges
against the appellant for offences punishable under Section 120B read
with Sections 153A, 295, 302, 395, 427, 436, 339 and 505 of the Indian
Penal Code (hereinafter referred to as “IPC”) and for the offence under
Section 109 read with Sections 147, 148, 149, 153A, 295, 302, 395, 427,
435, 339 and 505 IPC, besides framing of a separate charge for offence
punishable under Section 153A IPC and rejected the application for
discharge filed by the appellant.
4) Brief Facts:-
(a) The present case arises out of 1984 anti-Sikh Riot cases in which
thousands of Sikhs were killed. Delhi Police has made this case a part
of FIR No. 416 of 1984 registered at Police Station Delhi Cantt. In this
FIR, 24 complaints were investigated pertaining to more than 60 deaths
in the area. As many as 5 charge-sheets were filed by Delhi Police
relating to 5 deaths which resulted in acquittals. One supplementary
charge-sheet about 2
robbery, rioting etc. was also filed which also ended in acquittal.
The investigation pertaining to the death of family members of Smt.
Jagdish Kaur PW-1, was reopened by the anti-Riot Cell of Delhi Police in
the year 2002 and after investigation, a Closure Report was filed in
the Court on 15/22.12.2005.
(b) After filing of the Closure Report in the present case, on
31.07.2008, a Status Report was filed by the Delhi Police before the
Metropolitan Magistrate, Patiala House Court, New Delhi. Pursuant to the
recommendation of Justice Nanavati Commission, the Government of India
entrusted the investigation to the Central Bureau of Investigation
(hereinafter referred to as “CBI”) on 24.10.2005. On receipt of the said
communication, the respondent-CBI registered a formal FIR on
22.11.2005. The Closure Report was filed by Delhi Police on
15.12.2005/22.12.2005, when a case had already been registered by the
CBI on 22.11.2005 and the documents had already been transferred to the
respondent-CBI. 3
(c) After fresh investigation, CBI filed charge-sheet bearing No.
1/2010 in the present case on 13.01.2010. After committal, charges were
framed on 15.05.2010. At the same time, the appellant has also filed a
petition for discharge raising various grounds in support of his claim.
Since he was not successful before the Special Court, he filed a
revision before the High Court and by the impugned order dated
19.07.2010, after finding no merit in the case of the appellant, the
High Court dismissed his criminal revision and directed the Trial Court
for early completion of the trial since the same is pending from 1984.
5) Heard Mr. U.U. Lalit, learned senior counsel for the appellant, Mr.
H.P. Rawal, learned Additional Solicitor General for the respondent-CBI
and Mr. Dushyant Dave, learned senior counsel for the intervenor. 6)
Submissions:
(a) After taking us through the charge-sheet dated 13.01.2010,
statements of PW-1, PW-2 and PW-10, order dated 15.05.2010 framing
charges by the District Judge, 4
Karkardooma Courts, Delhi and the impugned order of the High Court
dated 19.07.2010, Mr. Lalit, learned senior counsel for the appellant
submitted that i) the statement of Jagdish Kaur is highly doubtful and
later she made an improvement, hence the same cannot be relied upon to
frame charge against the appellant; ii) reliance on the evidence of
Jagsher Singh PW-2, who gave a statement after a gap of 25 years cannot
be accepted; iii) the statement of Nirprit Kaur PW-10 is also not
acceptable since the same was also made after a gap of 25 years of the
occurrence; iv) other witnesses who were examined in support of the
prosecution specifically admitted that they did not see the appellant at
the time of alleged commission of offence; v) inasmuch as the charge
has been framed after 25 years of occurrence, proceeding against the
appellant, at this juncture, is violative of his constitutional right
under Article 21; vi) after filing of the closure report by the Delhi
Police, by following the procedure, the present action of the CBI
conducting further re- 5
investigation and filing charge-sheet based on fresh and improved
materials is impermissible in law; vii) follow-up action based on the
recommendation of Justice Nanavati Commission is also impermissible at
this juncture; viii) many remarks/observations made by the High Court
are uncalled for and based on conjectures and surmises and also without
there being any material on record. If those observations are not
deleted from the order of the High Court, it would amount to directing
the trial Judge to convict the appellant without proper proof and
evidence. (b) On the other hand, Mr. H.P. Rawal, learned Additional
Solicitor General appearing for the CBI submitted that in view of
categorical statement by the victims before Justice Nanavati Commission
and its recommendation which was deliberated in the Parliament, the
Government of India took a decision to entrust further/re-investigation
in respect of 1984 anti-Sikh riots through CBI. According to him, the
present action by the CBI and framing of charges against the appellant
and 6
others is in consonance with Sections 227 and 228 of the Code of
Criminal Procedure (hereinafter referred to as “Cr.P.C.”). He also
submitted that at the stage of framing of the charges, the material on
record has not to be examined meticulously; a prima facie finding of
sufficient material showing grave suspicion is enough to frame a charge.
He pointed out that there is nothing illegal with the order framing
charge which was rightly affirmed by the High Court. He further
submitted that the High Court has not exceeded in making observations
and, in any event, it would not affect the merits of the case. (c) Mr.
Dushyant Dave, learned senior counsel for the intervenor, while
reiterating the stand taken by the learned Additional Solicitor General
supported the order of the District Judge framing charges as well as the
order of the High Court dismissing the criminal revision filed by the
appellant. He pointed out that it is not a case for interference under
Article 136 of the Constitution of India. No prejudice would be caused
to the appellant and he has 7
to face the trial. He further contended that the delay cannot be a ground for interference.
Relevant Provisions:
7) Before considering the claim of the parties, it is useful to refer
Sections 227 and 228 of the Cr.P.C. which are reproduced below:
“227. Discharge.- If, upon consideration of the record of the case
and the documents submitted therewith, and after hearing the submissions
of the accused and the prosecution in this behalf, the Judge considers
that there is not sufficient ground for proceeding against the accused,
he shall discharge the accused and record his reasons for so doing.
228. Framing of charge- (1) If, after such consideration and hearing
as aforesaid, the Judge is of opinion that there is ground for presuming
that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame
a charge against the accused and, by order, transfer the case for trial
to the Chief Judicial Magistrate or any other Judicial Magistrate of
the first class and direct the accused to appear before the Chief
Judicial Magistrate, or, as the case may be, the Judicial Magistrate of
the first class, on such date as he deems fit, and thereupon such
Magistrate shall try the offence in accordance with the procedure for
the trial of warrant-cases instituted on a police report; (b) is
exclusively triable by the Court, he shall frame in writing a charge
against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and 8
explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”
It is clear that the Judge concerned has to consider all the records
of the case, the documents placed, hear the submission of the accused
and the prosecution and if there is “not sufficient ground” (Emphasis
supplied) for proceeding against the accused, he shall discharge the
accused by recording reasons. If after such consideration and hearing,
as mentioned in Section 227, if the Judge is of the opinion that “there
is ground for presuming” (Emphasis supplied) that the accused has
committed an offence, he is free to direct the accused to appear and try
the offence in accordance with the procedure after framing charge in
writing against the accused.
Statements of PW-1, PW-2, PW-8 and PW-10 8) Mr. Lalit, learned senior
counsel for the appellant pointed out that the prosecution, for framing
the impugned charges, heavily relied on the statements of 9
Jagdish Kaur, Jagsher Singh and Nirprit Kaur. He also took us through
their statements made at various stages which are available in the
paper-book. It is true that Jagdish Kaur PW-1, in her statement under
Section 161 Cr.P.C. dated 20.01.1985, did not mention the name of the
appellant. Even in the affidavit dated 07.09.1985, filed before Justice
Ranganath Misra Commission she has not whispered a word about the role
of the appellant. According to him, for the first time i.e. in the year
2000, after a gap of 15 years an affidavit was filed before Justice
Nanavati Commission, wherein she referred the name of the appellant and
his role along with certain local Congress workers. According to Mr.
Lalit, except the above statement in the form of an affidavit before
Justice Nanavati Commission, she had not attributed anything against the
appellant in the categorical statements made on 20.01.1985 as well as
on 07.09.1985 before Justice Ranganath Misra Commission.
10
9) He also pointed out that even after submission of Justice Nanavati
Commission’s report and entrusting the investigation to CBI, she made a
statement before the CBI officers at the initial stage by mentioning
“that the mob was being led by Congress leaders”. Only in later part of
her statement, she mentioned that “she learnt that Sajjan Kumar, the
Member of Parliament was conducting meeting in the area”. She confirmed
the statement in the form of an affidavit dated 07.09.1985 filed before
Justice Ranganath Misra Commission as well as her deposition with regard
to the appellant before Justice Nanavati Commission on 08.01.2002. No
doubt, in the last part of her statement, it was stated that in the year
1984-85, the atmosphere was totally against the Sikh community and
under pressure she did not mention the name of Sajjan Kumar. She also
informed that she could not mention his name for the safety of her
children.
10) The other witness Jagsher Singh, first cousin of Jagdish Kaur, in his statement recorded by the CBI on 11
07.11.2007 i.e. after a gap of 23 years, mentioned the name of the
appellant and his threat to Sikhs as well as to Hindus who had given
shelter to Sikhs. According to Mr. Lalit, this witness mentioned the
name of the appellant for the first time before the CBI nearly after 23
years of the incident which, according to him, cannot be relied upon.
11) The other witness relied on by the prosecution in support of framing
of charges is Nirprit Kaur PW-10. It is pointed out that she also made
certain statements to the CBI after a gap of 23 years and she did not
mention the name of the appellant except stating that one Balwan Khokhar
who is alleged to be a nephew of Sajjan Kumar, came to her house for
discussing employment for her nephew as driver.
12) The other statement relied on by the prosecution in support of
framing of charges against the appellant is that of Om Prakash PW-8. He
narrated that during the relevant time he had given shelter to a number
of women and children of Sikh community including Jagdish Kaur 12
PW-1. Mr. Lalit pointed out that in his statement, he did not even
utter a word about the appellant but at the end of his statement on
being asked, stated that he knew Shri Sajjan Kumar, Member of
Parliament. However, he further stated that he did not see him in that
mob or even in their area during the said period. In the last sentence,
he expressed that he had heard from the people in general that Sajjan
Kumar was also involved in the 1984 riots. 13) By pointing out the
earlier statement of Jagdish Kaur PW-1, recorded by the CBI, her
affidavit before Justice Nanavati Commission and the statement of
Jagsher Singh PW-2, Nirpreet Kaur PW-10 and Om Prakash PW-8 before the
CBI, Mr. Lalit submitted that there was no assertion by anyone about the
specific role of the appellant except the bald statement and that too
after 23 years. In such circumstances, according to him, the materials
relied on by the prosecution are not sufficient to frame charges.
According to him, mere suspicion is not sufficient for which he relied
on the judgments of this Court in Union 13
14) In Prafulla Kumar Samal (supra), the scope of Section 227 of the
Cr.P.C. was considered. After adverting to various decisions, this Court
has enumerated the following principles:
“(1) That the Judge while considering the question of framing the
charges under Section 227 of the Code has the undoubted power to sift
and weigh the evidence for the limited purpose of finding out whether or
not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly explained the
Court will be fully justified in framing a charge and proceeding with
the trial. (3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a
rule of universal application. By and large however if two views are
equally possible and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction under Section 227 of the Code
the Judge which under the present Code is a senior and experienced
court cannot act merely as a Post Office or a mouthpiece of the
prosecution, but has to consider the broad probabilities of the case,
the total effect of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a roving enquiry into
the pros and 14
cons of the matter and weigh the evidence as if he was conducting a trial.”
15) In Dilawar Balu Kurane (supra), the principles enunciated in
Prafulla Kumar Samal (supra) have been reiterated and it was held:
“12. Now the next question is whether a prima facie case has been
made out against the appellant. In exercising powers under Section 227
of the Code of Criminal Procedure, the settled position of law is that
the Judge while considering the question of framing the charges under
the said section has the undoubted power to sift and weigh the evidence
for the limited purpose of finding out whether or not a prima facie case
against the accused has been made out; where the materials placed
before the court disclose grave suspicion against the accused which has
not been properly explained the court will be fully justified in framing
a charge and proceeding with the trial; by and large if two views are
equally possible and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not grave suspicion
against the accused, he will be fully justified to discharge the
accused, and in exercising jurisdiction under Section 227 of the Code of
Criminal Procedure, the Judge cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the
documents produced before the court but should not make a roving enquiry
into the pros and cons of the matter and weigh the evidence as if he
was conducting a trial (see
Union of India v. Prafulla Kumar Samal).
14. We have perused the records and we agree with the above views
expressed by the High Court. We find that in the alleged trap no police
agency was involved; the FIR was lodged after seven days; no
incriminating articles were found in the possession of the accused and
statements of witnesses were recorded by the police after ten months of
the occurrence. We are, therefore, of the opinion that not to speak of
grave suspicion against 15
the accused, in fact the prosecution has not been able to throw any
suspicion. We, therefore, hold that no prima facie case was made against
the appellant.” 16) It is clear that at the initial stage, if there is a
strong suspicion which leads the Court to think that there is ground
for presuming that the accused has committed an offence, then it is not
open to the court to say that there is no sufficient ground for
proceeding against the accused. The presumption of the guilt of the
accused which is to be drawn at the initial stage is only for the
purpose of deciding prima facie whether the Court should proceed with
the trial or not. If the evidence which the prosecution proposes to
adduce prove the guilt of the accused even if fully accepted before it
is challenged in cross-examination or rebutted by the defence evidence,
if any, cannot show that the accused committed the offence, then there
will be no sufficient ground for proceeding with the trial. A Magistrate
enquiring into a case under Section 209 of the Cr.P.C. is not to act as
a mere Post Office and has to come to a conclusion whether the case
before him is fit for 16
commitment of the accused to the Court of Session. He is entitled to
sift and weigh the materials on record, but only for seeing whether
there is sufficient evidence for commitment, and not whether there is
sufficient evidence for conviction. If there is no prima facie evidence
or the evidence is totally unworthy of credit, it is the duty of the
Magistrate to discharge the accused, on the other hand, if there is some
evidence on which the conviction may reasonably be based, he must
commit the case. It is also clear that in exercising jurisdiction under
Section 227 of Cr.P.C., the Magistrate should not make a roving enquiry
into the pros and cons of the matter and weigh the evidence as if he was
conducting a trial. 17) Exercise of jurisdiction under Sections 227
& 228 of Cr.P.C.
On consideration of the
authorities about the scope of Section 227 and 228 of the Code, the
following principles emerge:- (i) The Judge while considering the
question of framing the charges under Section 227 of the Cr.P.C. has the
undoubted 17
power to sift and weigh the
evidence for the limited purpose of finding out whether or not a prima
facie case against the accused has been made out. The test to determine
prima facie case would depend upon the facts of each case. ii) Where the
materials placed before the Court disclose grave suspicion against the
accused which has not been properly explained, the Court will be fully
justified in framing a charge and proceeding with the trial.
iii) The Court cannot act merely
as a Post Office or a mouthpiece of the prosecution but has to consider
the broad probabilities of the case, the total effect of the evidence
and the documents produced before the Court, any basic infirmities etc.
However, at this stage, there cannot be a roving enquiry into the pros
and cons of the matter and weigh the evidence as if he was conducting a
trial.
iv) If on the basis of the
material on record, the Court could form an opinion that the accused
might have committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved beyond reasonable
doubt that the accused has committed the offence. 18
v) At the time of framing of the
charges, the probative value of the material on record cannot be gone
into but before framing a charge the Court must apply its judicial mind
on the material placed on record and must be satisfied that the
commission of offence by the accused was possible. vi) At the stage of
Sections 227 and 228, the Court is required to evaluate the material and
documents on record with a view to find out if the facts emerging
therefrom taken at their face value discloses the existence of all the
ingredients constituting the alleged offence. For this limited purpose,
sift the evidence as it cannot be expected even at that initial stage to
accept all that the prosecution states as gospel truth even if it is
opposed to common sense or the broad probabilities of the case.
vii) If two views are possible
and one of them gives rise to suspicion only, as distinguished from
grave suspicion, the trial Judge will be empowered to discharge the
accused and at this stage, he is not to see whether the trial will end
in conviction or acquittal.
19
18) With the above principles, if we discuss the statements of PW-1,
PW-2, PW-10 as well as of PW-8, it cannot be presumed that there is no
case at all to proceed. However, we are conscious of the fact that the
very same witnesses did not whisper a word about the involvement of the
appellant at the earliest point of time. It is the grievance of the
appellant that the High Court did not take into account that the
complainant Jagdish Kaur PW-1 had not named him in her first statement
filed by way of an affidavit dated 07.09.1985 before Justice Ranganath
Misra Commission nor did she named him in her subsequent statements made
before the Delhi Police (Riots Cell) and in her deposition dated
08.01.2002 before Justice Nanavati Commission except certain hearsay
statement. It is the stand of Jagdish Kaur PW-1, the prime prosecution
witness, that apart from her statement dated 03.11.1984, she has not
made any statement to Delhi Police at any stage. However, it is also the
claim of the C.B.I. that the alleged statements of Jagdish Kaur PW-1,
dated 20
20.01.1985 and 31.12.1992 are doubtful. Likewise, Nirprit Kaur PW-10,
in her statement under Section 161 Cr.P.C., has denied having made any
statement before the Delhi Police. At the stage of framing of charge
under Section 228 of the Cr.P.C. or while considering the discharge
petition filed under Section 227, it is not for the Magistrate or a
Judge concerned to analyse all the materials including pros and cons,
reliability or acceptability etc. It is at the trial, the Judge
concerned has to appreciate their evidentiary value, credibility or
otherwise of the statement, veracity of various documents and free to
take a decision one way or the other. Investigation by the C.B.I.
19) Learned Additional Solicitor General has brought to our notice
the letter dated 24.10.2005 from Mr. K.P. Singh, Special Secretary (H)
to Mr. U.S. Mishra, Director, Central Bureau of Investigation, North
Block, New Delhi. A perusal of the said letter shows that in reply to
the discussion held in the Lok Sabha on 10.08.2005 and the 21
Rajya Sabha on 11.08.2005 on the report of Justice Nanavati
Commission of Inquiry into 1984 anti-Sikh riots, the Prime Minister and
the Home Minister had given an assurance that wherever the Commission
has named any specific individuals as needing further examination or re-
opening of case the Government will take all possible steps to do so
within the ambit of law. The letter further shows that based on the
assurance on the floor of the Parliament, the Government examined the
report of Justice Nanavati Commission, its recommendations regarding
investigation/re-investigation of the cases against (a) Shri Dharam Das
Shastri, (b) Shri Jagdish Tytler, and (c) Shri Sajjan Kumar. The letter
further shows that the Government had decided that the work of
conducting further investigation/re-investigation against the
abovementioned persons as per the recommendations of Justice Nanavati
Commission should be entrusted to the CBI. Pursuant to the said
decision, Home Department forwarded the relevant records connected with
the cases 22
against the abovementioned persons. It also shows those additional
records/information required in connection with investigation are to be
obtained from the Delhi Police. The materials placed by the CBI show
that Justice Nanavati Commission submitted its report on 09.02.2005, its
recommendations were discussed by the Lok Sabha on 10.08.2005 and the
Rajya Sabha on 11.08.2005, Government of India asked CBI to inquire
those recommendations on 24.10.2005 and the F.I.R. No. 416 of 1984 dated
04.11.1984 of Police Station, Delhi Cantt was re-registered by the CBI
as case RC-24(S)/2005- SCU.I/CBI/SCR.I/New Delhi. Pursuant to the same,
on 22.11.2005, investigation was taken up and it revealed that the
accused persons committed offences punishable under Section 109 read
with Sections 147, 148, 149, 153A, 295, 302, 396, 427, 436, 449, 505 and
201 IPC and accordingly filed the charge-sheet. It is relevant to note
that no one including the appellant has not challenged appointment of
CBI to inquire into the recommendations 23
made by Justice Nanavati Commission.
Status Report by Delhi Police
20) Mr. Lalit heavily relied on the status report of the Delhi Police
and consequential order of the Magistrate. By pointing out the same, he
contended that the CBI is not justified in re-opening the case merely
on the basis of observations made by Justice Nanavati Commission. The
following conclusion in the status report dated 31.07.2008 filed by the
Delhi Police was pressed into service. “From the investigation and
verification made so far it was revealed that:-
(a) There is no eye-witness to support the version of the complaint
of Smt. Jagdish Kaur. (b) The complaints and affidavits made by Smt.
Jagdish Kaur are having huge contradictions. (i) In her first statement
recorded by local police during the investigation, she did not name any
person specifically and also
stated that she could not identify any one among the mob.
(ii) She even did not name Shri Sajjan Kumar in her statement
recorded by the I.O. of the Spl. Riot Cell after a gap of seven years.
24
(iii) She suspected the involvement of one Congress Leader Balwan Khokhar in these
riots but she had not seen him personally. She was told by one Om Prakash who was
colleague of her husband, about the killing of her husband and son.
(iv) In the statement recorded on 22.01.1993 under Section 161 Cr.P.C. during the
course of further investigation, the witness Om Prakash stated that he had seen
nothing about the riots. Jagdish Kaur stayed at his house from 01.11.1984 to
03.11.1984 but she did not mention the
name of any person who was indulged in
the killing of her husband and son.” It is seen from the report that
taking note of lot of contradictions in the statement of Jagdish Kaur
PW-1 before the Commissions and before different investigating officers
and after getting legal opinion from the Public Prosecutor, closure
report was prepared and filed before the Metropolitan Magistrate,
Patiala House Courts, New Delhi on 31.07.2008. It is further seen that
before 25
accepting the closure report, the Magistrate issued summons to the
complainant i.e, Smt. Jagdish Kaur number of times and the same were
duly served upon her by the officers of the Special Riot Cell but she
did not appear before the Court. In view of the same, the Magistrate, on
going through the report and after hearing the submissions and after
noting that the matter under consideration is being further investigated
by the CBI and the investigation is still pending and after finding
that no definite opinion can be given in respect of the closure report,
without passing any order closed the matter giving liberty to the
prosecution to move appropriate motion as and when required.
21) Mr. Lalit, learned senior counsel, by placing copy of the final
report under Section 173 Cr.P.C. by Delhi Police as well as endorsement
therein including the date on which the said report was filed before the
Court, submitted that the action taken by Delhi Police cannot be
faulted with. In other words, according to him, till the 26
entrustment of further investigation by the CBI, Delhi Police was
free to proceed further and there is no error in the action taken by the
Delhi Police. In view of the order dated 31.07.2008 of the Magistrate,
declining to give definite opinion on the closure report since the same
was under further investigation by CBI, we are of the view that no
further probe/enquiry on this aspect is required. Delay
22) Learned senior counsel appearing for the appellant further
submitted that because of the long delay, the continuation of the
prosecution and framing of charges merely on the basis of certain
statements made after a gap of 23 years cannot be accepted and according
to him, it would go against the protection provided under Article 21 of
the Constitution. Mr. Lalit heavily relied on para 20 of the decision
of this Court in
Vakil Prasad Singh vs. State of Bihar,
(2009) 3 SCC 355 which reads as under: “20. For the sake of brevity, we
do not propose to reproduce all the said propositions and it would
suffice 27
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 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 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
workload 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 the 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 28
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.” After adverting to various
decisions including
Abdul Rehman Antulay and Ors. vs. R.S. Nayak & Anr., this Court further held:
“24. It is, therefore, well settled that the right to speedy trial in
all criminal persecutions (sic 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. 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
Considering the factual position therein, namely, alleged demand of a
sum of Rs.1,000/- as illegal gratification for release of payment for
the civil work executed by a contractor, a charge was laid against
Assistant Engineer in the Bihar State Electricity Board and taking note
of considerable length of delay and insufficient materials, based on the
above principles, ultimately the Court after finding that further
continuance of criminal proceedings pending against the appellant
therein is unwarranted and quashed the same. Though the principles
enunciated in the said decision have to be adhered to, considering the
factual position being an extraordinary one, the ultimate decision
quashing the criminal proceedings cannot be applied straightaway.
23) In P. Vijayan vs. State of Kerala and Another, (2010) 2 SCC 398,
this Court while considering scope of Section 227 of Crl.P.C. upheld the
order dismissing the petition filed for discharge and permitted the
prosecution to proceed further even after 28 years. In that case, from
30
1970 till 1998, there was no allegation that the encounter was a fake
and only in the year 1998 reports appeared in various newspapers in
Kerala that the killing of Varghese in the year 1970 was in a fake
encounter and that senior police officers were involved in the said fake
encounter. Pursuant to the said news reports, several writ petitions
were filed by various individuals and organisations before the High
Court of Kerala with a prayer that the investigation may be transferred
to the Central Bureau of Investigation (CBI). In the said writ petition,
Constable Ramachandran Nair filed a counter affidavit dated 11.01.1999
in which he made a confession that he had shot Naxalite Varghese on the
instruction of the then Deputy Superintendent of Police (DSP),
Lakshmana. He also stated that the appellant was present when the
incident occurred. By order dated 27.01.1999, learned Single Judge of
the High Court of Kerala passed an order directing CBI to register an
FIR on the facts disclosed in the counter affidavit filed by Constable
Ramachandran 31
Nair. Accordingly, CBI registered an FIR on 3-3-1999 in which
Constable Ramachandran Nair was named as Accused 1, Mr Lakshmana was
named as Accused 2 and Mr. P. Vijayan, the appellant, was named as
Accused 3 for an offence under Section 302 IPC read with Section 34 IPC.
After investigation, CBI filed a charge-sheet before the Special Judge
(CBI), Ernakulam on 11.12.2002 wherein all the abovementioned persons
were named as A-1 to A-3 respectively for an offence under Sections 302
and 34 IPC. The appellant – P. Vijayan filed a petition under Section
227 of the Code on 17.05.2007 for discharge on various grounds including
on the ground of delay. The trial Judge, by order dated 08.06.2007,
dismissed the said petition and passed an order for framing charge for
offences under Sections 302 and 34 IPC. Aggrieved by the aforesaid
order, the appellant – Vijayan filed Criminal Revision Petition No. 2455
of 2007 before the High Court of Kerala. By an order dated 04.07.2007,
learned Single Judge of the High Court dismissed his criminal revision
petition. The 32
said order was challenged by Mr. P. Vijayan before this Court. Taking
note of all the ingredients in Section 227 of the Criminal Procedure
Code and the materials placed by the prosecution and the reasons
assigned by the trial Judge for dismissing the discharge petition filed
under Section 227, this Court confirmed the order of the trial Judge as
well as the order of the High Court. Though, there was a considerable
lapse of time from the alleged occurrence and the further investigation
by CBI inasmuch as adequate material was shown, the Court permitted the
prosecution to proceed further.
24) Though delay is also a relevant factor and every accused is
entitled to speedy justice in view of Article 21 of the Constitution,
ultimately it depends upon various factors/reasons and materials placed
by the prosecution. Though Mr. Lalit heavily relied on paragraph 20 of
the decision of this Court in Vakil Prasad Singh’s case (supra), the
learned Additional Solicitor General, by drawing our attention to the
subsequent paragraphs i.e., 33
21, 23, 24, 27 and 29 pointed out that the principles enunciated in
A.R.Antulay’s case (supra) are only illustrative and merely because of
long delay the case of the prosecution cannot be closed.
25) Mr. Dave, learned senior counsel appearing for the intervenor has
pointed out that in criminal justice “a crime never dies” for which he
relied on the decision of this Court in
Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394. In para-14, C.K. Thakker, J. speaking for the Bench has observed:
“It is settled law that a criminal offence is considered as a wrong
against the State and the society even though it has been committed
against an individual. Normally, in serious offences, prosecution is
launched by the State and a court of law has no power to throw away
prosecution solely on the ground of delay.” In the case on hand, though
delay may be a relevant ground, in the light of the materials which are
available before the Court through CBI, without testing the same at the
trial, the proceedings cannot be quashed merely on the ground of delay.
As stated earlier, those materials 34
have to be tested in the context of prejudice to the accused only at the trial.
Observations by the High Court
26) Coming to the last submission about the various observations made
by the High Court, Mr. Lalit pointed out that the
observations/reference/conclusion in paragraphs 64, 65, 69, 70, 72, 73
and 50 are not warranted. According to him, to arrive such conclusion
the prosecution has not placed relevant material. Even otherwise,
according to him, if the same are allowed to stand, the trial Judge has
no other option but to convict the appellant which would be against all
canons of justice. He further submitted that even if it is clarified
that those observations are to be confined for the disposal of the
appeal filed against framing of charges and dismissal of discharge
petition and need not be relied on at the time of the trial,
undoubtedly, it would affect the mind of the trial Judge to take
independent conclusion for which he relied on a judgment of this Court
in Common Cause, A 35
“177. Mr Gopal Subramaniam contended that the Court has itself taken
care to say that CBI in the matter of investigation, would not be
influenced by any observation made in the judgment and that it would
independently hold the investigation into the offence of criminal breach
of trust or any other offence. To this, there is a vehement reply from
Mr Parasaran and we think he is right. It is contended by him that this
Court having recorded a finding that the petitioner on being appointed
as a Minister in the Central Cabinet, held a trust on behalf of the
people and further that he cannot be permitted to commit breach of the
trust reposed in him by the people and still further that the petitioner
had deliberately acted in a wholly arbitrary and unjust manner and that
the allotments made by him were wholly mala fide and for extraneous
consideration, the direction to CBI not to be influenced by any
observations made by this Court in the judgment, is in the nature of
palliative. CBI has been directed to register a case against the
petitioner in respect of the allegations dealt with and findings reached
by this Court in the judgment under review. Once the findings are
directed to be treated as part of the first information report, the
further direction that CBI shall not be influenced by any observations
made by this Court or the findings recorded by it, is a mere lullaby.”
On the other hand, learned Additional Solicitor General highlighted
that these observations by the High Court are based on the materials
placed and, in any event, it would not affect the interest of the
appellant in the ultimate trial. In view of the apprehension raised by
the learned senior counsel for the appellant, we also verified the
relevant 36
paragraphs. In the light of the fact that it is for the trial Judge
to evaluate all the materials including the evidentiary value of the
witnesses of the prosecution such as Jagdish Kaur PW-1, Jagsher Singh
PW-2, Nirpit Kaur PW-10 and Om Prakash PW-8, alleged contradictory
statements, delay and the conduct of the Delhi Police in filing Status
Report and on the basis of further investigation by the CBI, we clarify
that all those observations of the High Court would not affect the
ultimate analysis and final verdict of the trial Judge. Conclusion:
27) In the light of the above discussion, we are of the view that it
cannot be concluded that framing of charges against the appellant by the
trial Judge is either bad in law or abuse of process of law or without
any material. However, we clarify that de hors to those comments,
observations and explanations emanating from the judgment of the learned
single Judge, which we referred in para 26, the trial Judge is free to
analyse, appreciate, 37
evaluate and arrive at a proper conclusion based on the materials
being placed by prosecution as well as the defence. Inasmuch as the
trial relates to the incident of the year 1984, we direct the trial
Judge to take sincere efforts for completion of the case as early as
possible for which the prosecution and accused must render all
assistance. Interim order granted on 13.08.2010 is vacated. With the
above observation and direction, the appeal is disposed of.
……………………………………J. (P. SATHASIVAM)
……………………………………J. (ANIL R. DAVE)
NEW DELHI;
SEPTEMBER 20, 2010.
