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CASE NO.:

Appeal (crl.) 176 of 2001

Appeal (crl.) 177 of 2001

Special Leave Petition (crl.) 447 of 2001

Special Leave Petition (crl.) 2311 of 2000

PETITIONER:

SEETA HEMCHANDRA SHASHITTAL AND ANR.

Vs.

RESPONDENT:

STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT: 13/02/2001

BENCH:

R.P.Sethi, K.T.Thomas

JUDGMENT:

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J U D G M E N T

THOMAS, J.

Leave granted. Two lady

octogenarians feel that there is not much time ahead of them

to complete a trial which is yet to begin, and counting the

number of years which the investigation consumed for

finalising the charge-sheet, the trial would not be anything

less than a long drawn out one. The two ladies approached

the High Court of Bombay, along with their kinsfolk, who too

are arrayed in the same case, one of them as the kingpin, to

get the criminal case axed down at the threshold of the

trial stage, mainly on the ground of long delay in

completing the investigation. But the High Court, instead

of snipping down the case charge- sheeted, dismissed the

writ petition solely on the ground that in a similar case

the High Court refused to countenance similar contention.

The facts, barely necessary for disposal of these

appeals, can be stated thus: Appellant Niranjan Hemchandra

Shashittal is a Government servant who attained the rank of

Deputy Commissioner in the Department of Prohibition and

Excise of the Maharashtra Government (he will hereinafter be

referred to as the appellant-public servant). Appellant

Seeta Hemchandra Shashittal who is now aged 83, and Shanta

Subarao Shirali, who is now aged 81, are the mother and

mother-in-law of the appellant-public servant, respectively.

His wife Anuradha is also an appellant as she too was

arrayed as accused.

On the basis of some information received by the Anti

Corruption Bureau (ACB for short) a preliminary enquiry was

conducted and on 26.6.1986 an FIR was lodged against the

appellant-public servant for the offence under Section 5(2)

of the Prevention of Corruption Act, 1947. This was

immediately followed by raids conducted at the places which

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the ACB officials believed to be the buildings of the

appellant-public servant situated at Mumbai and Nasik. The

raids and certain other enquiries conducted by them revealed

that appellant-public servant had acquired assets worth

Rs.33.44 lacs, in the year 1986, which were far in excess of

his known sources of income. The investigation was

completed by the Assistant Commissioner of Police attached

to the ACB and he submitted the final report to his superior

who was the Director of ACB, in July 1990. After the draft

final report was approved the ACB approached the Government

of Maharashtra on 6.4.1991 for obtaining sanction to

prosecute the appellant-public servant. The Government

accorded sanction on 22.1.1993 and thereupon the charge

sheet was laid against all the appellants on 4.3.1993 before

the Special Court dealing with offences under the Prevention

of Corruption Act. The offence alleged against the

appellant-public servant was under Section 13(2) read with

Section 13(1)(e) of the Prevention of Corruption Act, 1988.

The offence alleged against the lady appellants was abetment

of the main offence pitted against the appellant-public

servant.

All the appellants appeared before the Special Judge

on 14.1.1994 when process was issued to them. The next

posting in the said court happened to be only after the

lapse of one year. On the said day appellants moved some

interlocutory applications. After posting the case on

different future dates for disposal of such interlocutory

applications, the case moved at a slow pace and reached the

stage of hearing preliminary arguments for considering

whether charge should be framed or not. It was in the

aforesaid context that the appellants filed the writ

petition before the High Court of Bombay on 15.4.1997 for

quashing the criminal proceedings.

The main ground urged in the writ petition is that

there was gross delay of 11 years for filing the charge-

sheet and that such delay violates Article 21 of the

Constitution. According to the appellants, such delay had

caused unbearable mental trauma, fear psychosis and tension

to them as well as to the other members of the family,

besides tremendous humiliation and defamation heaped on

them. They also said that the abnormal delay had caused

colossal financial losses to the appellants and the impact

of it had shattered the prospects of personal, professional

and business development of the members of the family.

A Division Bench of the High Court dismissed the writ

petition merely because two other writ petitions filed by

some others, in some other cases were dismissed. The entire

judgment of the Division Bench in the present writ petition

is in a cryptic form and the same is extracted below: In

view of the common order passed in Criminal Writ Petition

No.1642 of 1999 and Criminal Writ Petition No.1742 of 1999,

this petition stands disposed of accordingly.

As a copy of the said common order was produced by the

appellants we could peruse the same, but the fact situations@@

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in those other cases were vastly different from the present

case, except the common factor that offences alleged were

under the provisions of the Prevention of Corruption Act.

Of course, learned counsel for the appellants made a plea

before us to remand the writ petition to the High Court for

fresh disposal. But we refrain from adopting that shortcut,

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lest, that would further protract the already delayed case.

Dr. Rajeev Dhawan, who argued for the old lady

appellants, divided the post FIR period of the present case

into three different stages. First is the period from 1986

to 1990 which is claimed to be the period taken for

investigation. Second is from 1990 to 1993, which is said

to be the period taken for obtaining sanction of the

Government for laying charge-sheet before the court. Third

is the period from 1994 till the date of filing of the writ

petition in the High Court in 1997, during which the

progress in the trial court was slower than creeping through

the process and consequently no charge could be framed until

the appellants filed the writ petition before the High

Court.

This Court has emphasised, time and again, the need

for speeding up the trial as undue delay in culminating the

criminal proceedings is antithesis to the Constitutional

protection enshrined in Article 21 of the Constitution.

Nonetheless the court has to view it from pragmatic

perspectives and the question of delay cannot be considered

entirely from an academic angle. In other words, the High

Court and this Court, when approached by accused to quash

proceedings on the ground of delay, must consider each case

on its own facts. Unfortunately the delay has so permeated

in our legal system that at all levels tardiness has become

the leitmotif. Such a malady has been judicially reprobated

and efforts have been made to curtail the delay which has

developed as a systemic canker.

For the first time the Code of Criminal Procedure

provided periods for completing investigation in regard to

offences punishable with sentences upto imprisonment not

exceeding three years. Provisions have been incorporated in

Chapter 36 of the Code imposing a legal bar on the court to

take cognizance of such offences after the lapse of the

period of limitation fixed in respect of different

categories of offences the punishment of which does not

exceed the aforesaid limit. However, the offences relating

to corruption were among those excluded from the purview of

such periods of limitation.

In Hussainara Khatoon and ors. vs. Home Secretary,

State of Bihar {1980 (1) SCC 81} the entire focus made by

the three-Judge Bench was on the trial stage. An advocate

of this Court filed a habeas corpus petition on the basis of

newspaper reports that several under-trial prisoners,

including women and children, were languishing in Bihar

jails for several years awaiting trial. Hence the

consideration in that case was confined to the delay

involved in trials.

It was in State of Andhra Pradesh vs. PV Pavithran

[1990(2) SCC 340] that delay in completing investigation was

recognised as a ground for quashing criminal proceedings.

The following observation was made by the learned Judges in

the said decision:

There is no denying the fact that a lethargic and

lackadaisical manner of investigation over a prolonged

period makes an accused in a criminal proceedings to live

every moment under extreme emotional and mental stress and

strain and to remain always under a fear psychosis.

Therefore, it is imperative that if investigation of a

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criminal proceedings staggers on with tardy pace due to the

indolence or inefficiency of the investigating agency

causing unreasonable and substantial delay resulting in

grave prejudice or disadvantage to the accused, the court as

the protector of the right and personal liberty of the

citizen will step in and resort to the drastic remedy of

quashing further proceedings in such investigation.

Nonetheless, learned Judges hastened to add that it

is not possible to formulate inflexible guidelines or rigid

principles of uniform application for speedy investigation

or to stipulate any arbitrary period of limitation within

which investigation in a criminal case should be completed.

The matter gained further attention when a

Constitution Bench of this Court has made a glimpse of the

delay involved in criminal proceedings at all stages (A.R.

Antulay vs. R.S. Nayak - 1992 (1) SCC 225). Though the

background for the reference made in that case to the

Constitution Bench pertained to the delay in the trial

stages, the Bench has made clear references to the delay in

the investigation stage also. In paragraph 81 the learned

Judges have observed thus:

Now, can it be said that a law which does not provide

for a reasonably prompt investigation, trial and conclusion

of a criminal case is fair, just and reasonable? It is both

in the interest of the accused as well as the society that a

criminal case is concluded soon. If the accused is guilty,

he ought to be declared so. Social interest lies in

punishing the guilty and exoneration of the innocent but

this determination (of guilt or innocence) must be arrived

at with reasonable despatch reasonable in all the

circumstances of the case. Since it is the accused who is

charged with the offence and is also the person whose life

and/or liberty is at peril, it is but fair to say that he

has a right to be tried speedily. Correspondingly, it is

the obligation of the State to respect and ensure this

right. It needs no emphasis to say, the very fact of being

accused of a crime is cause for concern. It affects the

reputation and the standing of the person among his

colleagues and in the society. It is a cause for worry and

expense. It is more so, if he is arrested. If it is a

serious offence, the man may stand to lose his life,

liberty, career and all that he cherishes.

While laying down the propositions the Constitution

Bench encompassed investigation as part of the amplitude for

registering speedy trial. At the same time the bench struck

a note of caution that a realistic and practical approach

should be made regard being had to all attending

circumstances, including the nature of the offences, the

number of accused and witnesses etc. Each case, therefore,

must be considered on its own facts, without being

pedantically persuaded merely because delay had occasioned

during investigation stage.

Though learned Senior Counsel made reference to the

decision of this Court in Rajdeo Sharma vs. State of Bihar,

[1998 (7) SCC 507, as well as in 1999 (7) SCC 604] wherein

the earlier directions were slightly modified, those

directions need be applied during the post charge period.

The trial was explained in the said decision as covering the

period commencing from recording the plea of the accused.

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With the above legal position in mind we have to

analysis this case to find out whether the delay involved in

the investigation have impaired the fundamental rights of

the appellants which is enshrined in Article 21 of the

Constitution. Viewing the investigation in this case from a

realistic angle it has spread over to a period of four years

i.e. from June 1986 to July 1990. The Assistant

Commissioner of Police attached to the ACB who has sworn to

an affidavit before the High Court in answer to the

averments contained in the Writ Petition, has stated that

the case involves voluminous records as well as a large

number of properties which are situated at various places

and that hundreds of documents regarding shares, debentures,

fixed deposits and receipts pertaining to hundreds of

companies were also to be scrutinized. According to him

such a heavy work turned out to be a time consuming job. It

is not disputed that the documents sought to be produced by

the prosecution run into fourteen large volumes. Officials

of the ACB had to take a lot of time to conduct the

investigation relating to every item of assets which was

suspected to be belonging to the appellant public servant.

If this was a case which needed no sanction from the

government for submitting the charge-sheet before the court,

the investigating agency could have filed the charge-sheet

at the end of four years from the lodgment of FIR. In this

context, it is apposite to refer to the legislative fixation

of periods for taking cognizance of different offences. An

offence punishable with imprisonment for a term not

exceeding three years has to be taken cognizance of by the

court concerned within three years of the date of

registration of the FIR. Of course, this is subject to

certain other exceptions. As pointed out earlier, the

legislature has not chosen to fix any period to take

cognizance of the offence if the punishment prescribed

thereto exceeds imprisonment for three years. The offence

alleged against the appellant is punishable with

imprisonment up to seven years. These aspects were

highlighted by us for the purpose of satisfying ourselves

that criminal proceedings pending against the appellants

cannot be quashed on the mere ground that the investigation

consumed a period of four years.

The delay taken for obtaining sanction from the

Government cannot be attributed to the investigating

officers. As pointed out earlier, sanction was applied for

on 6.4.1991 and the Government accorded sanction on

21.2.1993. Though we are unable to approve the said time of

two years for the Government to decide the question of

giving sanction, considering the number of desks over which

the matter had to pass, and the voluminous records to be

studied at all levels, we hesitate to hold that the said

interval was so unreasonably long as to affect the

fundamental right of the appellants. The charge-sheet was

laid within a few days of obtaining the sanction.

For the aforesaid reasons we are not inclined to quash

the criminal prosecution merely on the ground of delay@@

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highlighted by the appellants.

Nonetheless, we are told that the only offence alleged

against the two senescent lady appellants is that they@@

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abetted the public servant to commit the offence under

Section 13(2) of the P.C. Act. For two reasons we are

disposed to quash the criminal proceedings as against those

two ladies. First is, the materials are too insufficient to

prove that those two old ladies intentionally abetted the

public servant in acquiring assets which are

disproportionate to his known source of income. If that is

the position, why should those two old ladies be compelled

to embark upon a trial which, in all probabilities, cannot

end in conviction against them, even assuming that the

octogenarian ladies would be able to survive till the end of

the trial. Second is, the trial is not likely to end within

one or two years. Even if the Special Court would strictly

adhere to the directions issued by this Court in Rajdeo

Sharmas case (supra) we reasonably foresee that the

prosecution would be able to complete the evidence only

within the farthest time permitted in Rajdeo Sharma as we

can have a glimpse of the volume of documents and of the

evidence to be adduced by the prosecution. We feel that it

would be unfair and unreasonable to compel the two ladies,

who by the advancement of old age would possibly have

already crossed into geriatric stage, to stand the long

trial having no reasonable prospect of ultimate conviction

against them. We are, therefore, inclined to delink them

from the array of accused and quash the criminal prosecution

so far as those two ladies are concerned. We do so.

Thus, the appeals filed by the two lady appellants -

Seeta Hemchandra Shashittal and Shanta Subarao Shirali -

would stand allowed but the appeals filed by the appellant-

public servant Niranjan Hemchandra Shashittal and his wife

Anuradha Niranjan Shashittal, would stand dismissed.