ORDER
Arunabha Barua, J.
1. This Criminal Revision is for the quashment of the proceedings of case No. G.R./2134 of 1984 wherein the petitioner/accused Balai Chandra Dutta has been facing the trial having been charged with the offence punishable under Section 420 of the IPC.
2. The facts leading to the case in question may be briefly stated thus.
3. The allegation of the de facto complainant that is, O.P. No. 2, Smt. Sabita Ghosh, is that the accused/petitioner dishonestly induced the de facto complainant on March 5, 1981, to part with a sum of Rs. 35,000/- on a false representation that the accused/petitioner would arrange a Mini Bus permit for the de facto complainant. Relying on the said representation, de facto complainant paid a sum of Rs. 35,000/- in three instalments to the accused/petitioner in cash at the sweet-meat shop of M/s. K.C. Das on Esplanade Row (East), Calcutta. It was alleged by the de facto complainant that a sum of Rs. 15,000/- was paid on March 27, 1981, a sum of Rs. 10,000/-was paid on April 10, 1981 and a sum of Rs. 10,000/-was paid on April 19, 1981. It was the further the allegation of the de facto complainant that in spite of repeated requests, the accused/petitioner neither returned the case nor arranged for a permit as assured and subsequently the accused/petitioner issued three cheques on different Banks on different dates but all the cheques were dishonoured by the Banks and thereby the accused/petitioner cheated the de facto complainant in respect of a sum of Rs. 35,000/-.
4. The FIR in the case was registered on July 5, 1984 and the accused/petitioner was arrested on November 22, 1984 and subsequently released on bail. Charge was framed against the accused under Section 420, IPC on December 16, 1987 and the first date of evidence was fixed on 9-3-88. Since then nine years had passed from the date of the alleged offence that the case could not make any substantial headway.
5. From 9-3-88 till 18-8-92 dates after dates were fixed for evidence by the Court for examination of the prosecution witnesses. As a matter fact, the de facto complainant that is P.W. 1, Smt. Sabita Ghosh, could only be examined in part during this long period of time. Despite issuance of warrant of arrest against this P.W. 1 her attendance for her further cross-examination could not be secured. Almost on all the dates fixed for evidence the accused person that is the petitioner kept on attending the Court only to see that the trial could not proceed because of non-examination of the prosecution witness.
6. On October 28, 1992 when the accused again attended the Court there was no witness present again and the accused/ petitioner filed a petition under Section 167(5)(iii) of the Code of Criminal Procedure with a prayer for stopping further trial of the accused and discharging him from the bail bond with immediate effect. By another petition dated 7-11-92 in continuation of the earlier one dated 28-10-92, the accused/ petitioner had pleaded that the inordinate delay in the trial was an infringement of his fundamental rights guaranteed under Article 21 of the Constitution of India and the accused again prayed that the trial of the case should be stopped immediately and he should be discharged. By an order dated 4-12-1992 the Learned Metropolitan Magistrate, 13th Court, Calcutta disposed of the said two applications by the petitioner/accused on the finding that the petitions had no merits and the petitions by the accused were accordingly rejected and the learned Magistrate directed the prosecution to bring P.W. 1 positively on the next date that is 31 -12-1992 which was fixed for further evidence.
7. According to the accused/petitioner 13 witnesses were to be examined as prosecution witnesses but even after expiry of about six years from the date of framing of the charge not even one prosecution witness had been finally examined simply because of the fact that the P.W. 1 that is the de facto complainant did not make herself available for further cross-examination in spite of warrant of arrest against her for her appearance so that she could be further cross-examined and the trial further proceeded with.
8. According to the accused/petitioner there has been an inordinate delay in the case to the prejudice of the accused and his right to speedy trial, which was his fundamental right guaranteed under Article 21 of the Constitution of India and which had since been upheld by different decisions of the Apex Court of the country has been violated. The petitioner/accused fervently maintains that there was no fault on his part in the process in which the delay was occasioned and no prosecution should be allowed to drag on for years together to the prejudice of the accused since there had been no compelling reasons for such delay on the part of the prosecution.
9. According to the petitioner/accused the impugned proceedings of the case No. G.R./2134 of 1984 pending before the Ld. Trial Court is an abuse of the process of law and hence, this revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure for quashment of the said criminal proceedings.
10. The facts of the case as stated above supported by the order sheets of the criminal proceedings in question undoubtedly betray a dismal scene and a frustrating scenario – thinking particularly of the petitioner/accused and the right of speedy justice which has since become a constitutional safeguard. The proverbial law’s delay is virtually eating into the vitals of our justice delivery system. And the case in hand might just be one of the many a sad instance.
11. Way back in December, 1987 this petitioner/accused was charged with having committed an offence of cheating punishable under Section 420, IPC on the allegation of the de facto complainant of the case, Smt. Sabita Ghosh, O.P. No. 2 (who is, incidentally, the prosecution witness No. 1 in the case) that the accused/petitioner dishonestly induced her on March 5, 1981 to part, with a sum of Rs. 35,000/- on a false representation that the accused would arrange a Mini Bus permit for her and relying upon this representation the de facto complainant paid a sum of Rs. 35,000/- in three instalments to the accused/petitioner in cash but thereafter in spite of repeated demands the accused/petitioner neither arranged for the Mini Bus permit nor had returned the cash. First date of evidence in the case was fixed on 9-3-1988 when the accused was present but the PW. 1, that is the de facto complainant was not present. To show how it all went with the trial thereafter to the dismay and detriment of the petitioner/accused, the facts are summed up, for the sake of convenience in a sort of a tabular form as under :-
Dates Orders
March 9, 1988 .. Accused on C.B. was present. No P.W. was present.
May 27, 1988 Accused was present. P.W. 1 (that is the de facto complainant) was
examined-inchief in full. Cross-examination deferred.
August 12, 1988 .. Magistrate was absent. Accused was present. Adjourned for
cross-examination of P.W. 1.
November 21, 1988 Accused was present. No P.W. was present
February 7, 1989 .. Accused was present. No P.W. was present.
May 16, 1989 Accused was present. No P.W. was present.
July 10, 1989 Accused was present. No P.W. was present.
Sept. 25, 1989 .. Accused was present. No P.W. was present.
Jan. 12, 1990 Magistrate was absent. Accused was present
March 2, 1990 .. Accused was present. No P.W. was present. Prosecution prays for
time which is allowed as last chance.
May 23, 1990 .. Accused was present. No P.Ws. were present. Prosecution prays for
W/A against Sabita (that is P.W. 1). Next date that 16-8-90 was
fixed for E/R of W/A for the evidence of P.W. 1 and other P.Ws.
again as a Last chance.
August 16, 1900 .. Accused was absent. No witness and E/R of W/A against P.W. 1 and
next date that is 22-9-90 was fixed for evidence as a further last
chance.
September 22, 1990 .. Accused was absent but represented under Section 317, Cr.P.C.
Witness Sabita Ghosh surrendered in Court and prayed for bail and
she was released on bail. She was not examined but was directed by
the Court that, she must, be present on the next date that, is
24-12-90.
December 24, 1990 .. Magistrate was absent. Accused was present. Case adjourned for
evidence to 8-3-91.
March 8, 1991 .. Accused was present. No P.W. was present. Adjourned for further
evidence to 25-4-91.
April 25, 1991 .. Accused was present. P.W. 1, Sabita Ghosh cross-examined in part.
Adjourned to 19-6-91 for further cross-examination of P.W. 1.
June 19, 1991 .. Accused was present. No. P.Ws. were present. The case was again
adjourned for Dates Orders cross-examination of P.W. 1 as a last
chance with a direction the prosecution must bring the witness.
July 6, 1991 Accused was present. P.W. 1 was not available and the case was
again adjourned till 30-8-91 for further cross-examination of P.W.1.
August 30, 1991 .. No work due to cease work by Id. advocates. December 11, P.W. 1
cross-examin 1991 ed in part and 4-1-92 was fixed for further
cross-examination of P.W. 1 and further evidence, if any.
January 4, 1992 .. Accused was present but no P.Ws. were present and W/A was again
issued against P.W. 1 fixing 29-1-92.
January 29, 1992 .. Accused was present. One P.W. namely Bijoy Chatterjee was present
but P.W. 1 Sabita Ghosh did not turn up. P.W. 2 Bijoy was examined,
cross- examined and discharged. 29-2-92 was fixed for further
evidence, if any, and for E/R witness P.W. 1 with a further order
of issuance of strong tagid (sic) through S.P., Jalpaiguri.
February 29, 1992 Accused was absent by petition. No E/R for P.W. 1 and no P.Ws. were
present.
March 28, 1992 .. Accused was present. No E/R. of W/W. Further adjourned. May 25,
1992 Accused was present. No E/R. of W/W. Case further adjourned.
July 7, 1992 Accused was present. No. P.Ws. and the case Dates Orders was again
adjourned to 17-8-92, 18-8-92.
August 18, 1992 .. Magistrate was absent. Accused was present. P.W. 1 was absent and
the case was again adjourned to 28-10-92 for further evidence.
October 28, 1992 .. Accused was present. Prosecution prayed for an adjournment when
the accused filed a petition under Section 167(5)(iii), Cr.P.C.
For stopping further trial of the case and discharging the accused
and 7-11-92 was fixed for hearing this petition of the defence and
objection by the prosecution, if any.
November 7, 1992 Accused was present and filed another petition in continuation of
the earlier one dt. 28-10-92 for his discharge as his right to
speedy trial under Article 21 of the Constitution had been infringed.
The said applications of the accused dated 28-10-92 and 7-11-92 were rejected by the Ld. Magistrate by his Order dated 4-12-92.
12. So days passed on to months and months leisurely rolled by to years with the accused helplessly and haplessly waiting to see the criminal case against him inching its way for years together with no prospect of its reaching finality in any near future. Obviously, for no apparent fault of his own his anxiety mounted and anguish multiplied.
13. The prosecution fumbled and repeatedly failed to get on with the trial by securing the attendance of the witness, that is the P.W. 1, with the result that there was hardly any progress with the trial of the case for months and years together for no adequate reasons.
14. There has since been quite a number of important decisions of this Court, other High Courts and the Hon’ble Supreme Court.And all these will only buttress the stance of the petitioner/accused. Let me state some of them as follows. Some of them again, however, are submitted by the ld. advocate for the petitioner/accused and these are :-
AIR 1986 Patna 324 : 1986 Cri LJ 1771 (FB), 1991 C Cr LR (Cal) 365, 1992 (2) Cal LT (HC) 295, 1993 (1) Cal LT HC 59.
15. In a Full Bench decision of the Patna High Court in Madheshwardhari Singh v. State of Bihar, AIR 1986 Patna 324 : 1986 Cri LJ 1771 (FB) it was held that in all criminal prosecutions the right to a speedy trial is now an inalienable fundamental right of the citizen under Article 21 of the Constitution, that right to speedy public trial is available in all criminal prosecutions irrespective of the nature of the offence involved.
16. It was held in the case of Arun Kr. Ghosh v. State of W.B. 1991 C Cr LR (Cal) 365 (also by a Division Bench of this Court in 1990 Cri LJ 643, Ranjit Kumar Pal v. The State) thus : “Administration of justice requires that the accused is entitled to have as such protection as the prosecution is entitled to. Waste of time affects the defence case and the witnesses which the accused may choose to examine may be suffering from physical inability during the trial. In that event of the trial being dragged on for years together the judicial view is in favour of dropping the proceeding irrespective of the nature of the case. The mental torture and anxiety suffered by an accused for a long length of time is to be treated as sufficient punishment inflicted on him.
17. In Mohanlal Khandewal v. The State, 1993 (1) Cal LT (HC) 59, a Single Bench of this Court held – while the accused persons were produced in Court on January, 1976, not even one witness has been examined in full and that, too, in spite of a direction given by this Court in 1982 to end the trial expeditiously on taking the evidence. The situation has not improved in spite of the said direction and the matter remains in the same condition although ten years have elapsed. Prejudice is inherent in such delay and it must be held that the accused petitioner’s right to speedy trial has been infringed by such delay requiring quashing of the proceedings.
18. A Division Bench of this Court in the case of Sri Amarendra Nath Dutta v. State of West Bengal, 1992(2) Cal LT (HC) 295 had held Right to speedy trial has not been expressly concerned as a fundamental right in our Constitution. But it has now been settled beyond doubt by a series or decision of our Apex Court that the same right is fully covered by an comprised in Article 21 of the Constitution guaranteeing non-deprivation of life and liberty save according to procedure established by law…. It is not the number of years that matters, what really matters is the principle and rationale behind the delay. No prosecution should be allowed to drag on for years to the prejudice of the accused unless the prosecuting agency satisfies the Court that there were compelling reasons for such delay which could be helped.
19. The Supreme Court in Hussainara Khatun v. Home Secretary, State of Bihar, , held as follows (at page 1365 of AIR) :-
There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right of life and liberty enshrined in Article 21.
20. The Supreme Court yet again in Srinivas Pal v. Union Territory of Arunachal Pradesh reported in 1988 Cr LJ 1803 : observed (at page 1806, of Cri LJ) :-
Quick justice is a sine qua non of Article 21 of 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 procedure established by law. In the 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 no further.
21. Lastly, we may part with a very pertinent observation of the Constitutional Bench of the Supreme Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 Cri LJ 3139 (at page 3175 of Cri LJ) :
The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely the stage of investigation, equiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality can be averted…of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the Court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors (1) length of delay is the justification for the delay (3) the accused’s assertion of his right to speedy trial and (4) prejudice caused to the accused by such delay. However, the fact of the delay (1) dependent on the circumstances of each case because reasons of delay will very, such as delay in investigation on account of the widespread ramification of crimes and its designed network either nationally or internationally the deliberate absence of witness or witnesses, crowded dockets on the file of the Court etc.
22. The learned Advocate for the petitioner-accused having relied upon the case laws has strenuously submitted that just for examination of only one witness, P.W. 1, the de facto complainant in part it had already taken more than 4 years and it still remained only an early part of the trial with 12 more witnesses yet to be examined, that warrant of arrest was issued twice to secure the attendance of P.W. 1 by the prosecution, that there was no knowing when P.W. 1 will again “appear, if at all, that so far as the accused was concerned, there was no fault on his part since he appeares almost all days the trial was fixed for evidence, that despite “last chance” being given by the Court more than once the prosecution miserably failed to proceed with trial by bringing their witnesses, that the inordinately long delay without any reasonable explanation for the same at all by the prosecution has made the accused sick with anxiety and mental torment, that he has been miserably deprived of his fundamental right to speedy trial and that, therefore, the Criminal proceeding against him must now have to be quashed. The submission, it looks, is true to substance and unhesitatingly acceptable.
23. The State-opposite party has precious little for any resistance whatsoever.
24. Thus, in the conspectus of the facts and circumstances of the case and in view of the specific pronouncements of law on the lines as discussed above, I find that the instant revisional application must, succeed.
25. Accordingly, the revision is allowed and the criminal proceedings against the accused-petitioner in question being case No. G.R./2134 of 1984 pending before the Learned Metropolitan Magistrate, 13th Court, Calcutta, is hereby quashed.
26. Let a copy of this order be sent to the learned Court below at once.