ORDER
A.K. Dutta, J.
1. By the instant three Revisional Applications, being Nos. 1512,1513 and 1514 of 1989, under Section 401, read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), the two petitioners-accused (hereinafter referred to as accused) have prayed the Court for setting aside the orders dated 5-6-1989 passed by the Judicial Magistrate, First Class, Third Court, at Barrackpore, District 24 Parganas (North), in Case Nos. C-157, C-158 and C-159 of 1979 before him, and for quashing of the aforesaid three Criminal Proceedings on the grounds set forth therein.
2. The accused No. 1, J. Sengupta alias Jahar Sengupta and accused No. 2, Satya Gopal Saha, have been prosecuted in Case No. C-157 of 1979, as occupier and Manager respectively of Chloride India Limited, 91, New Chord Road, Post Office, Athpur, District 24 Parganas by the Complainant-Opposite Party No. 2 for having allegedly failed to display on 8-12-1978 at any conspicuous and convenient place at or near the main entrance of the aforesaid Factory a Notice of the periods of work for adults in the prescribed form in contravention of Sections 61 and 108 of the Factories Act, 1948, read with Rule 82 of the West Bengal Factories Rules, 1958, and thereby committing offence punishable under Section 92 of the Factories Act, 1948 (hereinafter referred to as Act).
In Case No. C-158 of 1979 the aforesaid two accused persons in their aforesaid capacities in respect of the aforesaid Factory have been prosecuted by the aforesaid complainant on the allegation that on the same very day, 8-12-1978, certain parts of the transmission machinery of the machines stated in the petition of complaint, which were in motion and in use, were not fenced by Safe Guard although they were neither in such position nor of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, in contravention of Section 21 of the aforesaid Act, and thereby committing offence punishable under Section 92 of the Act.
And, in Case No. C-159 of 1979 the (aforesaid two accused persons in their aforesaid capacities in respect of the aforesaid Factory have been prosecuted by the aforesaid complainant on the allegation that on the same day, 8-12-1978, six persons, named in the petition of complaint, who were found employed in lead process were not examined by the Certifying Surgeon at such interval as prescribed by Para 15 of the Schedule III to Rule 94 of the West Bengal Factories Rules of 1958, in contravention thereof, and thereby committing offence punishable under Section 92 of the aforesaid Act.
3. All the aforesaid offences are punishable with imprisonment up to two years or fine up to Rs. 2 lakhs. The learned Magistrate concerned had taken cognizance of the offences in the aforesaid three relevant Cases on 6-3-1979, but the same have not been disposed of as yet. 4. The petitioners have prayed the Court for quashing of the aforesaid relevant three Criminal Proceedings, pending since 1979, on the ground of delay in the trial thereof, infringing their right to speedy trial, as guaranteed by Article 21 of the Constitution of India.
5. It is in 1979 that the Hon’ble Supreme Court had declared in Hussainara Khatoon, that right to speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution of India. A series of decisions had since thereafter reaffirmed the said principle and there seems to have never been a dissenting note therefrom. A Division Bench of this Court in Ranjit Kumar Pal v. The State 1990 Cri LJ 643, had held about eleven years thereafter that the broad interpretation of the fundamental rights garanteed under Article 21 of the Constitution includes the right of an accused to have speedy trial, further observing therein that the prosecution cannot have the luxury of dragging a case in a court of law for years together. It had further been held therein that long delay in the disposal of criminal proceedings prejudicially affects the defence of an accused. Administration of justice requires that the accused is entitled to have as much protection as the prosecution is entitled to. A single Bench of the Bombay High Court in Shyam Lachmandas Ajwani v. State of Maharashtra 1991 Cri LJ 970, had as well held that inordinate delay and laches in the prosecution without any progress of a criminal proceedings amounts to harassment of the accused warranting interference under inherent powers of the Court. In another single Bench decision of the Bombay High Court in R. Mahadevan Iyer v. State of Maharashtra 1992 Cri LJ 1388, it had been held that criminal proceedings not completed even after lapse of 12 years heavily prejudiced the accused in his defence in respect of the incidents extremely old in point of time. It had been held therein that the High Court is justified in quashing prosecution exercising its powers under Section 482 of the Code if the right to speedy trial is violated. The Orissa High Court in the decision in Rabindranath Rout v. The State of Orissa 1992 Cri LJ 2309, had also quashed a criminal proceedings on the ground of delayed trial holding that the same constitutes denial of justice. In a Writ Petition, being No. 268 of 1987, and a few other Criminal Appeals, before a” Division Bench of the Supreme Court, it was further urged on behalf of the accused that a time limit should be fixed for concluding all criminal proceedings as without such a time limit, the guarantee of right to speedy trial would remain a mere platitude. The Division Bench was of the opinion that the said contention raised a very important constitutional question which is likely to arise more often in many cases and that the decision on the question would have far-reaching consequences in a large number of criminal cases pending in Courts all over the country. The Bench had accordingly directed the cases to be placed before a Constitution Bench. The Constitution Bench of the Supreme Court in Abdul Rehman Antulay v. R.S. Nayak had held “Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.” The Court had further observed that “the provisions of the Code of Criminal Procedure provide for an early investigation and for a speedy and fair trial. If only the provisions of the Code are followed in their letter and spirit, there would be little room for any grievance. The fact, however, remains unpleasant, as it is, that in many cases, these provisions are honoured more in breach. Be that as it may, it is sufficient to say that the Constitutional Guarantee of speedy i trial emanating from Article 21 is properly reflected in the provisions of the Code”. Their Lordships in the aforesaid decision had issued certain guidelines in regard to speedy trial in terms thereof, some of which are set out below:
(1) One cannot ignore the fact, that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, “delay is a known defence tactic”. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever: reasons also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is-who is responsible for the delay?
(2) 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 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 fads of a given case.
(3) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification onto the shoulders of the prosecution. In every case of complaint of denial of Right to speedy trial, it is primarily for the prosecution to 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. The Supreme Court of U.S.A. too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor it can be said that non-fixing of any such outer limit ineffectuates the guarantee of Right to speedy trial.
(4) Ordinarily speaking, where the Court comes to the 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. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the Court to make such other appropriate order — including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded — as may be deemed just and equitable in the circumstances of the case.
6. Keeping the aforesaid guidelines in mind let us turn to the facts of the relevant three cases before us to consider whether the delay in the trial of the same would justify their quashing.
7. The relevant case records would indicate that the learned Magistrate having issued summons against the accused upon taking cognizance of the alleged offences on 6-3-1979, they had filed petitions on 12-7-1979 under Section 205 of the Code praying for exemption from personal attendance, which were rejected by him (the learned Magistrate) by his orders dated 5-8-1979. On Revisional Applications being preferred by the accused thereagainst, being Criminal Revision Case Nos. 1702 to 1704 of 1979, this Court by order dated 21-5-1980 had directed the learned Magistrate to allow the two accused persons to be represented (under Section 205 of the Code) in all the three relevant cases and not to insist upon their personal presence unless it is absolutely necessary to comply with the Statutory Provisions of law. The case record was received by the learned Magistrate on 7-10-1980. From 11-12-1980 to 28-7-1981 the two accused had been represented by their Lawyer in terms of the aforesaid order of this Court on the different dates fixed. On 20-10-1981, the learned Advocate representing the two accused persons (under Section 205) had been examined by the learned Magistrate under Section 251 of the Code, and the particulars of the offences had been explained to him, who had pleaded not guilty (on behalf of the accused persons) and claimed to be tried. The relevant cases had thereupon been fixed for evidence on 2-2-1982.
On 2-2-1982, both the accused persons were represented by their learned Advocate and one Prosecution Witness (for short P. W.) was present. But the hearing of the relevant case had to be adjourned on adjournment petitions filed on behalf of the accused persons. The hearing of the cases had been adjourned to 25-5-1982.
On 25-5-1982, the accused were represented by their learned Advocate, and two P.Ws. were also present. But due to the absence of the Presiding Officer of the Court on leave the hearing of the cases had to be adjourned to 9-11-1982.
On 9-11-1982, the accused were represented by their learned Advocate and two P.Ws. were present. It was “submitted by the defence that the learned Senior Advocate was out of station and the defence was unable to conduct the case”. On the submission so made the hearing of the cases had to be adjourned to 17-2-1983.
On 17-2-1983, both the accused were hearing had to be adjourned to 24-4-1984 as such. On 24-4-1984, the accused were represented by their Lawyer, and one P.W. was also present. But the P.W. present had not been examined by the prosecution due to the absence of the accused. The hearing of the cases was adjourned to 7-8-1984. On 7-8-1984, the accused were represented by their Lawyer, but the accused No. 2 did not appear in terms of the aforesaid orders dated 17-2-1983. No P.W. was either present. The further hearing of the cases had been adjourned to 16-1-1985. On 16-1-1985, both the accused were absent by petition and no P.W. was either present. The hearing of the cases had to be adjourned to 11-2-1985 as such. Since 11-6-1985 to 26-10-1987 the relevant cases could not be taken up for further hearing as the Presiding Magistrate of the Court had been transferred and the Court was lying vacant. The accused had been represented by their learned Advocate on the different dates the relevant cases had been fixed from time to time, in the meanwhile. On 25-1-1988, both the accused were represented by their learned Advocate, and on prayer by the prosecution in the absence of any P.W., further hearing of the cases was adjourned to 8-4-1988. On 8-4-1988, the accused were represented by their Lawyer, but in the absence of the Presiding Magistrate on leave and in the absence of any P.W. the hearing of the cases had been adjourned to 15-6-1988. On that date, as well the Presiding Officer was on leave and the hearing of the cases had again been adjourned to 11-10-1988.
On 11-10-1988, the accused were represented by their Lawyer and one P.W. was present. But the witness could not be examined due to the absence of the accused. The relevant case records would further indicate that petitions were filed on behalf of the accused praying for time stating therein that the accused were represented by their learned Advocate. Two: P.Ws. were also present. The evidence of the P.W. 1 was recorded in part. At that stage the Prosecution had prayed for adjournment of the hearing for identification of the accused persons submitting that unless they are identified the Prosecution case would be seriously prejudiced. From the orders dated 17-2-1983 passed by the learned Magistrate it would clearly appear that the learned Magistrate was of opinion that identification of both the accused persons was not so much important, but since one of the accused persons was present at the time of occurrence and had refused to talk to the complainant, his identification was necessary in the interest of justice. He had, accordingly, directed the accused No. 2, S.G. Saha, to appear before the Court on the next date for further evidence.
The petitioners-accused do not appear to have been aggrieved by the aforesaid orders (dated 17-2-1983) passed by the learned Magistrate directing the aforesaid accused No. 2, S.G. Saha, to appear before the Court for further evidence on 29-6-1983. Per contra, on the next adjourned date (on 29-6-1983) when one P.W. was present, even though both the accused were represented by their Lawyer, petitions for adjournment were filed on their behalf on the ground that they were unable to attend the Court (on that day) due to some unavoidable circumstances, giving the clearest and conclusive indication that they had accepted and submitted to the aforesaid orders of the learned Magistrate dated 17-2-1983 directing the accused No. 2, S.G. Saha, to appear before the Court in terms thereof for further evidence. On the petitions for adjournment so filed on behalf of the accused, the relevant cases had been adjourned to 13-12-1983 for evidence in presence of the accused (No. 2, S.G. Saha) in terms of the said orders.
On 13-12-1983, the accused were represented by their learned Advocate, and two P.Ws. were also present. But the P.Ws. could not be examined on that date as the learned Defence Counsel was engaged in other Court. The absent on that date as they were busy with some urgent piece of business, clearly indicating that they were fully aware that further evidence in the relevant cases could not be recorded in the absence of the accused No. 2 in view of the aforesaid orders dated 17-2-1983. The hearing of the relevant cases was thus adjourned to 17-2-1984 on the adjournment petitions filed on behalf of the accused.
On the adjourned date.on 17-2-1984, the accused did neither appear before the Court and were represented by their learned Advocate under Section 205 of the Code. One P.W. was present on that date who could not be examined due to the absence of the accused, in the aforesaid circumstances. Adjournment petitions were thus filed on behalf of the accused stating therein that they were out of station for some urgent piece of business, undertaking to produce them (accused) on the next date positively knowing fully well that further evidence in the relevant cases could not be recorded in the absence of the accused No. 2, S.G. Saha, in view of the aforeaid orders, dated 17-2-1983. On the adjournment petitions so filed on behalf of the accused, further hearing of the relevant cases had been adjourned to 5-6-1989.
But on 5-6-1989 petitions were filed on behalf of the accused praying for pleading guilty, along with petitions praying for time for pleading guilty. The learned Magistrate had rejected the prayers of the accused on the ground that they had not pleaded guilty at the time of their examination under Section 251 of the Code, and it was not the stage for them to plead guilty. He had, accordingly, fixed the relevant cases for further evidence on 8-9-1989 directing the accused to be present on the date fixed.
8. Being aggrieved by the orders so passed by the learned Magistrate on 5-6-1989, the accused-petitioners have filed the instant three Revisional Applications for setting aside the aforesaid orders, and for quashing of the relevant proceedings. But in view of the foregoing discussions and for the reasons stated by the learned Magistrate the aforesaid impugned orders dated 5-6-1989 could not be held to suffer from any incorrectness, illegality or impropriety calling for interference by this Court in Revision. The accused-petitioners having once pleaded not guilty to the alleged offences through their learned Advocate (being represented by him under Section 205 of the Code), while examined under Section 251 of the Code, could not clearly be allowed to plead guilty thereto so long as the relevant orders dated 20-10-1981 passed in the matters stand. Should such belated prayer on behalf of the accused for pleading guilty have been allowed, the aforesaid orders dated 20-10-1981 (whereby the learned Magistrate had recorded their pleas of not guilty, claiming to be tried would have stood varied modified as a matter of course, which it was incompetent for the learned Magistrate to do in view of the clear provisions of Section 362 of the Code. The impugned orders dated 5-6-1989 could not be set aside as such.
9. As regards the question of delay, there has indeed been quite some delay in the trial of the relevant cases. If cases of this nature, involving imprisonment for a miximum term of two years or maximum fine of Rs. 2 lakhs take such a long time for trial, I wonder how longer time might be taken by a Magistrate in trying cases involving graver offences, to the prejudice of all concerned, and to the detriment of the administration of criminal justice ! But despite such inordinate delay (since 6-3-1979) in the trial of the relevant cases I would not feel inclined to quash the relevant proceedings as the accused themselves appear to have largely contributed to the delay in the trial (of the relevant cases) in the manner indicated above.
10. Apart from the stay of the relevant proceedings for a little more than four months during 1979 and 1980 in view of the stay order passed by this Court in the earlier criminal Revision cases, the relevant proceedings had remained stayed in view of the stay granted by this Court on 28-8-1989 in the instant Revisional Applications after the passing of the impugned order dated 5-6-1989 by the learned Magistrate. The relevant cases had thus thus remained stayed for a little less than five years in view of the Stay Orders passed by this Court. The Court of the learned Magistrate had remained vacant for more than two years; from 11-6-1985 to 25-1-1988. And, during the remaining period, the accused, being represented by their learned Advocate under Section 205 of the Code, had been examined under Section 251 of the Code on 20-10-1981, and PW 1 had been examined in part on 17-2-1983. The hearing of the cases had to be adjourned at the instance of the accused, in their absence, in the absence of their learned Advocate and Senior learned Advocate, and or on adjournment petitions filed on their behalf on a number of occasions, on 2-2-1982, 9-11-1982, 26-6-1983, 13-12-1983, 24-4-1984, 7-8-1984, 16-1-1985, 8-4-1987, 11-10-1988 and 17-2-1989. As already indicated above, on 17-2-1983 two PWs were present and the evidence of the PW 1 was recorded by the learned Magistrate in part. On prayer by the prosecution the learned Magistrate had adjourned the cases for further evidence directing the petitioner-accused No. 2, S. G. Saha, to appear on the next date for the purpose of identification since he was allegedly present at the time of occurrence and had refused to talk to the complainant, whose identification was considered necessary in the interest of justice. The petitioneraccused do not appear to have been aggrieved by the said orders. On the contrary, they had themselves sought for adjournment of the hearing in view of their absence on a number of dates; and undertaking was also given to the Court on their behalf to produce them before the Court on the hearing date, as already indicated above. The PWs present could not be examined on a number of dates, as indicated above, in the absence of the aforesaid accused No. 2, S. G. Saha, who was directed to be present in terms of the aforesaid order of the learned Magistrate dated 17-2-1988. The accused, secure in the knowledge that further evidence in the relevant cases could not be recorded in the absence of the accused No. 2, S. G. Saha, appear to have pointedly failed, neglected and ignored to present him on the different dates when the PWs present could not be examined in his absence. When the aforesaid orders of the learned Magistrate dated 17-2-1983 had not been challenged and/or set aside by any higher forum, and remain very much in force, binding upon the accused, to which they themselves had submitted, it is futile to now consider as to whether the learned Magistrate was justified in insisting on the presence of the accused No. 2, S. G. Saha, for further hearing of the cases, as he did. True it is, this Court by the order dated 17-3-1980 in the Criminal Revision Case Nos. 1702 to 1704 of 1979 had directed the learned Magistrate to allow the petitioner-accused to be represented under Section 205 of the Code in all the three relevant cases, and not to insist their personal presence unless it is absolutely essential to comply with the Statutory provisions of law. But the learned Magistrate by his aforesaid order dated 17-2-1983 had considered it necessary in the interest of justice to direct the accused No. 2, S. G. Saha, to appear before the Court for further evidence for the purpose of identification for the reasons recorded in his aforesaid order dated 17-2-1983. The said orders not having been challenged by the petitioner-accused at any point of time and not having been set aside by any competent forum, must clearly stand, which are very much binding upon the accused concerned. The accused No. 2, S.G. Saha, having subsequently failed to appear before the Court on the different dates the relevant cases had been fixed for hearing, prevented the Court below to record the evidence of the witnesses present (on different dates) and thereby contributed handsomely to the delay in the trial of the relevant cases. Wisdom appears to have dawned upon them too late in the day to seek for quashing of the relevant proceedings on the ground of dealy, having themselves largely contributed to the delay, in the facts and circumstances indicated above. The belated prayed by them on 5-6-1989 before the Court below to plead guilty after having once pleaded not guilty to the alleged offences while examined under Section 251 of the Code on 20-10-1981 and the filing of the instant Revisional Applications against the impugned orders of rejection dated 5-6-1989 appear to be yet another devise to delay the proceedings.
11. It would be pertinent to this context to refer to the following recent observations of the Supreme Court in Santosh De v. Archna Guha :
The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory order is challenged in the superior courts and the superior courts, we are pained to say, are falling prey to stratagems. We expect the superior courts to resist all such attempts. Unless a grave illegality is committed, the superior courts should not interfere. They should allow the court which is seized of the matter to go on with it. There is always an appellate court to correct the errors. One should keep in mind the principle behind Section 465 Cr.P.C. Any and every irregularity or infraction of procedural provision cannot constitute a ground for interference by a superior court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage itself. Such frequent interference by superior courts at the interlocatory stages tends to defeat the ends of justice instead to serving those ends. It should not be that it man with enough means is able to keep the law at bay. That would mean the failure of the very system.
12. Upon the premises above, even though the nature of the alleged offences do not justify such inordinate delay in the trial of the relevant cases, the facts and circumstances thereof, amply and appallingly indicated above, seem to me to be such that quashing of the, relevant proceedings would not be in the interest of justice. 13. In the result, the Revisional Applications must clearly fail. The three Revisional Applications be, accordingly, dismissed. 14. Let the relevant Lower Court records, called for, be sent down to the Court below forthwith. In view of the delay already occasioned in the trial of the relevant cases, the learned Magistrate is directed to proceed with the trial with utmost expedition and dispose of the same within a period of four months from the date of communication of this order to him. He shall proceed with the further hearing of the cases from the stage the same had reached before the filing of these Revisional Applications. The petitioner-accused No. 2, S.G. Saha, must appear before the Court below during further hearing/evidence of the relevant cases for the purpose of his identification in terms of the aforesaid relevant orders dated 17-2-1983 passed by the learned Magistrate. Should he fail to appear before the Court, it would be open to the learned Magistrate to compel his attendance before the Court by issuing process against him according to law. The personal presence of the petitioner-accused No. 1 J. Sengupta alias Jahar Sengupta shall not, however, be insisted. If the learned Magistrate finds it difficult to dispose of the three relevant cases within the aforesaid period for reasons beyond control, it would be open to him (Magistrate) to seek for extension of the period for disposal of the cases from this Court, should such occasion arise. 15. This Judgment and Order governs of the three Criminal Revision Case Nos. 1512, 1513 and 1514 of 1989.