JUDGMENT
Arunabha Barua, J.
1. This revisional application arises out of an order dated 3.1.2001 passed by the 3rd Court of Judicial Magistrate, Alipore in CGR 580 of 1987 under Section 448/380 of IPC whereby evidence of prosecution has been made to be closed after taking evidence of PW. 4 on 22.2.2001 arising out of Bhowanipur P.S. Case No. 84 dated. 26.2.1987.
2. Heard learned Advocates for both sides. Considered.
3. The matter relates to a criminal case under Section 448/380 IPC against the accused/opposite party Nos. 1-4 of the instant revisional application.
4. The trial of the case was underway and prosecution witnesses were being examined before the Court of the learned Magistrate.
5. On 20.12.1999 the accused persons in the said CGR 580 of 1987 under Section 448/380 IPC filed a petition before the Court of the learned Magistrate stating that charge under Section 448/380 IPC had been framed against the accused persons on 7.7.1989, but the prosecution had not been able to examine all witnesses and in the meantime 10 years had since elapsed after framing of the charge. It was further alleged by the accused persons in that petition that there was no fault on the part of the accused persons for delaying the trial, that in view of the decision of the Hon’ble Supreme Court for expeditious trial in Rajdeo Sharma’s case, the case was to be closed forthwith and it was prayed by the accused persons that the Court might be pleased to close the prosecution case and dispose of the case accordingly.
6. Written objection against that petition by the accused was filed by the de facto-complainant contending that the said application for closing the prosecution case at that stage was not maintainable, that there was several reasons why the evidence could not be completed, that the accused persons were themselves guilty of latches of their own, that if the prosecution evidence was closed at that stage the de facto-complainant was to suffer irreparable loss and injury and that if that was done, it was also to be highly prejudicial to their cause.
7. The learned Magistrate, 3rd Court, Alipore took up the petition dated 20.12.1999 for hearing on 3.1.2001 and having perused the petition and having heard the learned Advocates for both sides and having also considered the matter he had ordered that further evidence of the prosecution would be closed after cross-examination of PW. 4 and he then fix 22.2.2001 for cross-examination of PW.4.
8. It is against this order of the learned Magistrate dated 3.1.2001 that the present revisional applicants (de facto-complainants) are aggrieved and accordingly have assailed the said order of the learned Magistrate.
9. It has been argued by the learned Advocate for the applicants that the order passed by the learned Magistrate was illegal, that the Trial Court could not be directed to complete the trial or examination of the witnesses within any time bound limit, that serious prejudice has been caused to the applicants by the order of closure of the prosecution case only after cross-examination of PW. 4 when other material witnesses remain to be examined. In support of the contention recent judgment of the Supreme Court in the case of P. Ramachandra Rao v. State of Karnataka, 2002 Cr. LJ 2547, has been cited. The learned Advocate for the opposite parties (accused) has relied upon the judgment of the Supreme Court in Rajdeo Sharma, and also certain portions of the judgment of P. Ramachandra Rao, 2002 Cr. LJ 2547, to say that although the ratio in Rajdeo Sharma’s case is overruled, the time limits prescribed therein shall act as reminder to Courts seized of the matters to apply their minds to ascertain whether the trial has become inordinately delayed. It has been further argued that inordinate delay has been occasioned by the fact that charge was framed way beck in 1989 and to permit reopening of prosecution evidence would be oppressive and unwarranted. It is submitted that setting aside the impugned order of the learned Magistrate closing the prosecution evidence is in fact in the nature of reopening a case and relying on A. R. Antulay v. R. S. Nayak, 1992 SCC (Cri) 93, it has been submitted on behalf of the accused-opposite parties that because of the systematic delay which was unduly long, the learned Magistrate was justified to order closure of the prosecution case after the cross-examination of PW. 4.
10. To my mind, there is a great deal of substance in what the learned Advocate for the revisional applicants has streneously submitted. Before I embark upon a decision taking into account the factual situation in this case, it would be useful and pertinent to lay down the law as envisaged in the case of P. Ramachandra Rao v. State of Karnataka, 2002 Cr. LJ 2547. The Supreme Court has held as follows :
“In its zeal to protect the right to speedy trial of an accused, the Court cannot devise and almost enact bars of limitation beyond which trial shall not proceed and arm of law shall lose its hold though the legislature and the statutes have not chosen to do so. Bars of limitation judicially engrafted, are, no doubt, meant to provide a solution to the aforementioned problems. But a solution of this nature given rise to greater problems like scuttling a trial without adjudication, stultifying access to justice and giving easy exit from the portals of justice. Such general remedial measures cannot be said to be apt solutions. For two reasons held, such bars of limitation uncalled for and impermissible : first, because it tantamounts to impermissible legislation – an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A. R. Antulay’s case, and, therefore, run counter to the doctrine of precedents and their binding efficacy. Prescribing periods of limitation at the end of which the Trial Court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and, further making such directions applicable to all the cases in the present and for the future amounts to legislation, which, cannot be done by judicial directives and within the arena of the judicial law-making power available to Constitutional Courts, howsoever, liberally Court may interpret Article 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated, in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do. But it may not, like legislature, enact a provision akin to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973, (paras 24, 28).
Therefore, the dictum in A. R. Antulay’s case, , is correct and still holds the field. The propositions emerging from Acticle 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay’s case, adequately take care of right to speedy trial. Court upholds and re-affirm the said propositions. The guidelines laid down in A. R. Antulay’s case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I) 1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cr. LJ 2380, Raj Deo Sharma and Rajdeo Sharma , ould not have been so prescribed or drawn. The Criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Rajdeo Sharma cases (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A. R. Antulay’s case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves the treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused. The Criminal Courts should exercise their available powers, such as those under sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent Trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr. PC and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. This is an appropriate occasion to remind the Union of India and the State Governments of their Constitutional obligation to strengthen the judiciary – quantitatively and qualitatively – by providing requisite funds, manpower and infrastructure.
Rajdeo Sharma v. State of Bihar, ; Rajdeo Sharma v. State of Bihar, ; Common Cause v. Union of India, 1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cr. LJ 2380 ; Common Cause v. Union of India, , overruled. (Para 30)
Further , Court in instant case does not make a departure from the law as to speedy trial and speedy conclusion of criminal proceedings of whatever nature and at whichever stage before any authority or the Court. It is the Constitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the Preamble of the Constitution as also from the Directive Principles of State Policy. It is high time that the Union of India and the various States realise their Constitutional obligation and do something concrete in the direction of strengthening the justice delivery system. Court further clarifies that this judgment should not be read as an interpretation of those Articles of the Constitution and laying down, defining or limiting the scope of the powers exercisable thereunder by Supreme Court. This decision shall not be a ground for reopening a case or proceeding by setting aside any such acquittal or discharge as is based on the authority of Common Cause’, 1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cr. LJ 2380 and and ‘Raj Deo Sharma’, cases and which has already achieved finality and reopen the trial against the accused therein, (paras 35, 36, 37)
Doraiswamy Raju, J.
Even Supreme Court in A R, Antulay’s case has chosen to decline the request for fixation of any period of time limit for trial of offences not on any total want or lack of jurisdiction in Supreme Court, ‘but for the reason that it is neither advisable nor practicable’ to fix any such time limit and that the non-fixation does not ineffectuate the guarantee of right to speedy trial. This Court should never venture to disown its own jurisdiction on any area or in respect of any matter or over any one authority or person, when the Constitution is found to be at stake and the Fundamental Rights of citizens/ persons are under fire, to restore them to their position and uphold the Constitution and the Rule of Law – for which this Court has been established and constituted with the primacy and necessary powers, authority and jurisdiction, both express and implied. This Court, is the ultimate repository of all judicial powers at national level by virtue of its being the Summit Court at the pyramidal height of Administration of Justice in the country and as the upholder and final interpreter of the Constitution of India and defender of the fundamentals of ‘Rule of Law’. It is not only difficult but impossible to foresee and enumerate all possible situations arising to provide in advance solutions with any hard and fast rules of universal application for all times to come. It is well known that where there is right, there should be a remedy. In what exceptional cases, not normally visualised or anticipated by law, what type of an extraordinary remedy must be devised or designed to solve the issue arising would invariably depend upon the gravity of the solution, nature of violation and efficacy as well as utility of the existing machinery and the imperative need or necessity to find a solution even outside the ordinary framework or avenue of remedies to avert any resultant damage beyond repair or redemption to any person, (paras 40, 41)”
11. So much has been said and agitated by the accused-opposite parties for the delay in causing hardship and injustice because of the long delay in examining the prosecution witnesses and consequently the conclusion of the trial. But in doing this exercise the other side of the coin has not been taken notice of- that the petitioners, that is the de facto – complainants, had also a grave cause of concern and injury. Because, despite initiation of a criminal proceeding alleging crime against the society at large and attempt to establish the same has been foiled by non-examination of prosecution witnesses. Delay in a criminal proceeding is unfortunately inherent in our criminal justice system and laches of the parties apart, procedural hiccups also contribute to cases being delayed.
12. Moreover, as has been said in P. Ramachandra Rao v. State of Karnataka, 2002 Cr. LJ 2547, in our anxiety to protect the right of speedy trial of an accused, scuttling a trial without adjudication, stultifying access to justice and giving easy exit from the portals of justice is unwarranted.
13. Besides this, as I find it, the impugned order of the learned Magistrate dated 3.1.2001 suffers from grave infirmity. No reason whatsoever was given why the learned Magistrate wanted the evidence of the prosecution to be closed after cross-examination of PW. 4. Witnesses still remained to be examined and except for convincing and adequate reason the Court could not and should not have stultified access to justice in the manner he did. An order such as this, without reasons, was virtually no order at all and the same can in no way be sustained.
14. The result is this revisional application is allowed and the impugned order dated 3.1.2001 passed by the Judicial Magistrate, 3rd Court, Alipore, is hereby set aside. The learned Court below is hereby directed to proceed with the trial giving opportunity to the prosecution not only to cross-examine the PW. 4 but also give other evidence in accordance with law and after considering the evidence of the prosecution and the defence, if any, and after completion of other legal formalities shall conclude the trial and pass judgment and order in accordance with law. The learned Court below is directed to conclude the case within a period of three months from the date of receipt of this order.
15. Urgent xerox certified copy of this order, if applied for, be given to the parties.