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CASE NO.:

Appeal (crl.) 1075 of 2001

Special Leave Petition (crl.) 1116 of 2001

PETITIONER:

STATE OF BIHAR

Vs.

RESPONDENT:

BAIDNATH PRASAD @ BAIDYANATH SHAH AND ANR.

DATE OF JUDGMENT: 19/10/2001

BENCH:

K.T.Thomas, S.N.Variava

JUDGMENT:

THOMAS, J.

Leave granted.

The accused persons who succeeded greatly in

procrastinating a criminal proceedings against them, later

succeeded in getting the criminal proceedings quashed

solely on the ground of procrastination of court

proceedings in the criminal case concerned. State of Bihar

has now challenged the judgment of a learned single Judge

of the Patna High Court as per which the aforesaid criminal

proceedings have been quashed.

An FIR was registered in 1991 for the offence under

Section 3 of the Railway Property (Unlawful Possession)

Act, 1966, (for short the RPUP Act). An inquiry was

conducted under Section 8 of the said Act and on completion

of the inquiry a complaint was filed in the court of a

judicial magistrate of First Class on 13.1.1992. The

magistrate took cognizance of the offence and issued

proceedings against four persons arrayed in the complaint

including the respondents in this appeal. Thereafter, the

case passed through many vicissitudes. On 5.1.1998, the

respondent moved an application in the trial court praying

that they may be discharged. The magistrate rejected the

application and the said order of the magistrate was

challenged before the High Court. On 24.7.1998, learned

single Judge of the High Court quashed the criminal

proceedings as per the impugned order. The reasoning of

the learned single Judge for adopting such a step is the

following:

Admittedly, the criminal case was

registered against the petitioners on the

basis of report on 22.2.1991 and cognizance

was taken on 13.1.1992 on the basis of the

charge-sheet submitted by the Railway Police

Force personnel. It is also admitted fact

that till date charge has not been framed

although about 7 years have passed and the

case is pending for the last seven years.

There is nothing on the record to show that

the delay in proceeding with the case has

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been caused due to laches on the part of the

petitioners. In such circumstances, in my

opinion, for the ends of justice, the

instant proceeding against the petitioners

should not continue any further.

The interval between 13.1.1992 (the date on which the

magistrate took cognizance of the offence) and 24.7.1998

(the date on which the High Court quashed the proceedings)

is, no doubt, too long a period. If the criminal case

remained without any progress during the said period it

portrays a sad picture of the administration of criminal

justice. But the uncontroverted fact situation in this

case reflects that the respondents accused have no

justification in seeking advantage of the said delay

because their contribution towards such delay was, by no

means, insubstantial.

We may now give an outlay of the said factual position

which the respondents, in their counter affidavit, did not

dispute. The complaint was filed on 13.1.1992 and process

was issued against the four accused arrayed therein. First

respondent thereafter moved the Sessions Court in revision

by challenging the order by which the magistrate took

cognizance of the offence. Despite the legal position

casting burden of proof on the person who is found in

possession of railway property, the Sessions Judge had

quashed the criminal proceedings on 29.5.1992. The State

thereupon moved the High Court in challenge of the said

order of the Sessions Judge. On 1.4.1994, the High Court

overturned the said order of the Sessions Court.

The next stage should have commenced in the trial

court soon after the receipt of the records from the High

Court, but on account of the absence of one or the other

accused the case remained in limbo till 14.10.1996 by which

time alone all the accused made their appearance before the

magistrate. The trial court adopted the procedure

prescribed in Chapter XIX of the Code of Criminal Procedure

(for short the Code) for trial of warrant cases

instituted otherwise than on police report. The trial

magistrate collected preliminary evidence envisaged in

Section 244 of the Code and then the case was posted for

framing charge. On 5.1.1998, the accused filed a petition

for discharging them. That petition was dismissed by the

trial court on 10.2.1998. It was against the said order of

the magistrate that the respondents moved the High Court

and learned single Judge passed the impugned order.

An order of discharge of the accused after collecting

the evidence envisaged in Section 244 of the Code can be

passed only when the magistrate considers, for reasons to

be recorded, that no case against the accused has been made

out which, if unrebutted, would warrant his conviction.

This is the legislative edict of Section 245 of the Code.

The only other exception to the said precept is that it is

open to the magistrate to discharge the accused at any

previous stage of the case if for reasons to be recorded

by such magistrate, he considers the charge to be

groundless. The magistrate had no reason to discharge the

accused at that stage as he felt that there is evidence to

frame the charge he could not but dismiss the plea for a

discharge. The High Court did not consider the case from

the angle provided in Section 245 of the Code. As extracted

above, the High Court was persuaded to discharge the

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accused only on the ground that the case was pending for

the last seven years.

The ideal situation is to have criminal proceedings

completed swiftly. But the ideal is far from practical

attainment due to a variety of reasons. If one has to

abide by the ideal alone, then any period of delay is

enough to axe down the criminal proceedings. In Seeta

Hemchandra Shashittal vs. State of Maharashtra {2001 (4)

SCC 525} this Court made the following observations:

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.

In considering the question whether delay alone is

sufficient to quash pending criminal proceedings the

seriousness of the offence involved is not to be

overlooked. This aspect has been highlighted in the

aforecited decision after extracting the observations made

by the Constitution Bench in A.R. Antuley vs. R.S. Naik

{1992 (1) SCC 225}. In the present case, the offence

charged against the respondents is Section 3 of the RPUP

Act. That offence is punishable with imprisonment for a

term which may extend to five years and in the absence of

special and adequate reasons to be mentioned in the

judgment such imprisonment shall not be less than one year.

If it is found that the accused had committed the second or

a subsequent offence such minimum term of imprisonment

shall be two years. We point out this aspect to show that

the offence now pitted against the respondents is serious

in nature.

Learned counsel for the respondents invited our

attention to the decision of this Court in Rajiv Gupta vs.

State of H.P. {2000 (1) SCC 68}. In paragraph 7 of the

said judgment learned Judges pointed out that if the trial

of a case for an offence punishable with imprisonment up to

three years has been pending for more than two years

without commencing the trial the criminal court is required

to discharge and acquit the accused. As indicated by this

Court in Common Cause vs. Union of India {1996 (6) SCC

775}, it is apparent that the said decision has no

application to the facts of this case.

In the present case, cause of the delay is mostly due

to the accused either because they challenged the various

orders passed or because they were not present in the court

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and hence proceedings could not be continued on many

occasions. Causes attributable to the prosecution or even

to the court are comparably much less as to permit the

accused to take advantage of the delay in registering

progress of the proceedings.

We, therefore, set aside the impugned order and direct

the trial court to proceed with the case and complete the

prosecution evidence within six months from the date on

which the accused would appear before the trial court. We

make it clear that if the accused is instrumental in

causing the delay, then so much of the period would be

debited from the time frame fixed by us above.

This appeal is allowed in the above terms.