JUDGMENT
Om Prakash, J.
1. This is an application under Article 226 of the Constitution of India filed on 17-4-1987 for quashing of petitioners’ prosecution.
2. On a written report by one Abdul Sattar, police registered Janjhargarh P.S. case No. 8(4)79 for affence under Section 324, I.P.C. against the petitioners. F.I.R. was received by the Chief Judicial Magistrate on 19-4-79. The petitioners surrendered before him on 24-4-79 and were granted bail. After investigation, charge-sheet was submitted on 14-7-79 and cognizance was taken on 17-7-79. Charges under Sections 324 and 323, I.P.C. were framed on 25-4-80.
3. The prosecution examined PW 1 on 28-11-81, PW 2 on 2-2-82, PW 3 on 3-3-82, PW 4 on 10-4-82, PW 5 on 25-8-82, PW 6 on 18-9-82 and PW 7 on 10-5-83. PW 6 was recalled for further examination on 5-1-84.
4. On 3-3-84, the prosecution made a prayer for framing of charge under Section 326 I.P.C. and such prayer was allowed, charge under Section 326 I.P.C. was framed against petitioner No. 1 Md. Suddique on 28-5-84. Thereafter, PW 8 was examined on 15-2-86.-Thereafter there was no progress in the case.
5. Sri Rama Kant Sharma, learned Counsel for the, petitioners, has argued that petitioners have been guaranteed a fundamental right of speedy trial under Article 21 of the Constitution of India and it has been violated for no fault of theirs in this case of petty nature. In this connection he has referred to decision of the Apex Court in the case of A.R. Antulay v. R.S. Naik (1992)(1) P LJR 41 : (1992) 1 BUR 1319 (SC).
6. In paragaraph-85 of Antulay’s case the Supreme Court laid down certain propositions in this regard. It has laid down that fair, just and reason* able 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. Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retiral. 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 ? Proceedings taken by either party in good faith, to vindicate thair rights and interest, as perceived by them, cannot be treated as deleying tactics nor can the time taken in pursuing such proceedings be counted towards delay.
7. While determining whether undue delay has occurred resulting in violation of Right to Speedy Trial one must have regard to all the attendant circumstances including nature of offences, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-what is called, the systemic delays. It is obligation of the State to ensure a speedy trial and state includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
8. Inordinate long delay may be taken presumptive proof of prejudice. The prosecution should not be allowed to become a persecution but when does the prosecution becomes persecution, again depends upon the facts of a given case.
9. Ultimately, the court has to balance and weigh the several relevant factors ‘balancing test’ or ‘balancing process’ and determine in each whether the right to speedy trial has been denied in a given case.
10. 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 id the circumstances of the case. It is neither advisable nor practicable to fix any time-limit for trial of offences.
11. In the instant case the petitioners do not appear to be responsible for the delay in conclusion of their trial. They appeared before the Chief Judicial Magistrate within a week of receipt of the F.I.R. by him as appears from the order-sheet of the court below (Anncxure-1). It does not show that the petitioners or any of them even absconded or discontinued to appear in Court either in person or through an Advocate for any period. On the other hand, order-sheet of the learned Judicial Magistrate shows that on many dates prosecution did not produce its witnesses. Some times it took years to produce a fresh witness. PW 7 Paras Nath Upadhyaya who was examined on 10-5-82, was recalled for further examination on 5-1-84. But even in such matter the prosecution took over 15 months to decide to further examine him and in actually examining him.
12. The case was instituted on 8-4-79 for a simple and petty offence punishable under Section 324 I.P.C. and the charge-sheet was submitted for the offences under Section 37.4 and 323 I. P. C In such cases of petty nature, the prosecution should have examined all its witnesses and closed its case in a much shorter period, But the present position is that practically all of the PWs, except, PW 8, are to be examined or to be further cross-examined as far as the added charge under Section 326 I.P.C. is concerned. Thus practically all the prosecution witnesses other than PW 8 are to be produced by the prosecution in the court below.
13. Having regard to the facts and attending circumstances of the case, I am of the opinion that such inordinate long delay is presumptive proof of prejudice caused to the petitioners for no fault of theirs, if the criminal proceedings against them are allowed to continue any more, it may turn to their persecution. The prosecution could produce 8 of its witnesses during a period of about seven years when the witnesses must have been more easily available. It may take longer time to produce them on account of death, disappearance or non-availability due to long lapse of time.
14. In view of the above, I am of the opinion that petitioners right to speedy trial flowing from Article 21 of the Constitution of India has been infringed and violated and it is a fit case in which charges framed against them under Sections 323, 324 and against one of them added charge under Section 326 I.P.C. must be quashed. I, therefore, quash the charges framed against the petitioners allowing their application under Article 226 of the Constitution of India.