REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2010
(Arising out of S.L.P. (Crl.) No. 6374 of 2010)
Sajjan Kumar .... Appellant (s)
Versus
Central Bureau of Investigation .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) Application for intervention is allowed.
2) Leave granted.
3) This appeal is directed against the order of the High
Court of Delhi at New Delhi dated 19.07.2010 whereby the
learned single Judge confirmed the order dated
15.05.2010 passed by the District Judge-VII/NE-cum-
Additional Sessions Judge, Karkardooma Courts, Delhi in
S.C. No. 26/10, RC SII 2005 S0024. By the said order,
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the Additional Sessions Judge has ordered the framing of
charges against the appellant for offences punishable
under Section 120B read with Sections 153A, 295, 302,
395, 427, 436, 339 and 505 of the Indian Penal Code
(hereinafter referred to as “IPC”) and for the offence under
Section 109 read with Sections 147, 148, 149, 153A, 295,
302, 395, 427, 435, 339 and 505 IPC, besides framing of a
separate charge for offence punishable under Section
153A IPC and rejected the application for discharge filed
by the appellant.
4) Brief Facts:-
(a) The present case arises out of 1984 anti-Sikh Riot
cases in which thousands of Sikhs were killed. Delhi
Police has made this case a part of FIR No. 416 of 1984
registered at Police Station Delhi Cantt. In this FIR, 24
complaints were investigated pertaining to more than 60
deaths in the area. As many as 5 charge-sheets were filed
by Delhi Police relating to 5 deaths which resulted in
acquittals. One supplementary charge-sheet about
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robbery, rioting etc. was also filed which also ended in
acquittal. The investigation pertaining to the death of
family members of Smt. Jagdish Kaur PW-1, was reopened
by the anti-Riot Cell of Delhi Police in the year 2002 and
after investigation, a Closure Report was filed in the Court
on 15/22.12.2005.
(b) After filing of the Closure Report in the present case,
on 31.07.2008, a Status Report was filed by the Delhi
Police before the Metropolitan Magistrate, Patiala House
Court, New Delhi. Pursuant to the recommendation of
Justice Nanavati Commission, the Government of India
entrusted the investigation to the Central Bureau of
Investigation (hereinafter referred to as “CBI”) on
24.10.2005. On receipt of the said communication, the
respondent-CBI registered a formal FIR on 22.11.2005.
The Closure Report was filed by Delhi Police on
15.12.2005/22.12.2005, when a case had already been
registered by the CBI on 22.11.2005 and the documents
had already been transferred to the respondent-CBI.
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(c) After fresh investigation, CBI filed charge-sheet
bearing No. 1/2010 in the present case on 13.01.2010.
After committal, charges were framed on 15.05.2010. At
the same time, the appellant has also filed a petition for
discharge raising various grounds in support of his claim.
Since he was not successful before the Special Court, he
filed a revision before the High Court and by the impugned
order dated 19.07.2010, after finding no merit in the case
of the appellant, the High Court dismissed his criminal
revision and directed the Trial Court for early completion
of the trial since the same is pending from 1984.
5) Heard Mr. U.U. Lalit, learned senior counsel for the
appellant, Mr. H.P. Rawal, learned Additional Solicitor
General for the respondent-CBI and Mr. Dushyant Dave,
learned senior counsel for the intervenor.
6) Submissions:
(a) After taking us through the charge-sheet dated
13.01.2010, statements of PW-1, PW-2 and PW-10, order
dated 15.05.2010 framing charges by the District Judge,
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Karkardooma Courts, Delhi and the impugned order of the
High Court dated 19.07.2010, Mr. Lalit, learned senior
counsel for the appellant submitted that i) the statement
of Jagdish Kaur is highly doubtful and later she made an
improvement, hence the same cannot be relied upon to
frame charge against the appellant; ii) reliance on the
evidence of Jagsher Singh PW-2, who gave a statement
after a gap of 25 years cannot be accepted; iii) the
statement of Nirprit Kaur PW-10 is also not acceptable
since the same was also made after a gap of 25 years of
the occurrence; iv) other witnesses who were examined in
support of the prosecution specifically admitted that they
did not see the appellant at the time of alleged commission
of offence; v) inasmuch as the charge has been framed
after 25 years of occurrence, proceeding against the
appellant, at this juncture, is violative of his constitutional
right under Article 21; vi) after filing of the closure report
by the Delhi Police, by following the procedure, the
present action of the CBI conducting further re-
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investigation and filing charge-sheet based on fresh and
improved materials is impermissible in law; vii) follow-up
action based on the recommendation of Justice Nanavati
Commission is also impermissible at this juncture; viii)
many remarks/observations made by the High Court are
uncalled for and based on conjectures and surmises and
also without there being any material on record. If those
observations are not deleted from the order of the High
Court, it would amount to directing the trial Judge to
convict the appellant without proper proof and evidence.
(b) On the other hand, Mr. H.P. Rawal, learned
Additional Solicitor General appearing for the CBI
submitted that in view of categorical statement by the
victims before Justice Nanavati Commission and its
recommendation which was deliberated in the Parliament,
the Government of India took a decision to entrust
further/re-investigation in respect of 1984 anti-Sikh riots
through CBI. According to him, the present action by the
CBI and framing of charges against the appellant and
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others is in consonance with Sections 227 and 228 of the
Code of Criminal Procedure (hereinafter referred to as
“Cr.P.C.”). He also submitted that at the stage of framing
of the charges, the material on record has not to be
examined meticulously; a prima facie finding of sufficient
material showing grave suspicion is enough to frame a
charge. He pointed out that there is nothing illegal with
the order framing charge which was rightly affirmed by the
High Court. He further submitted that the High Court has
not exceeded in making observations and, in any event, it
would not affect the merits of the case.
(c) Mr. Dushyant Dave, learned senior counsel for the
intervenor, while reiterating the stand taken by the
learned Additional Solicitor General supported the order of
the District Judge framing charges as well as the order of
the High Court dismissing the criminal revision filed by
the appellant. He pointed out that it is not a case for
interference under Article 136 of the Constitution of India.
No prejudice would be caused to the appellant and he has
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to face the trial. He further contended that the delay
cannot be a ground for interference.
Relevant Provisions:
7) Before considering the claim of the parties, it is
useful to refer Sections 227 and 228 of the Cr.P.C. which
are reproduced below:
“227. Discharge.- If, upon consideration of the record of
the case and the documents submitted therewith, and
after hearing the submissions of the accused and the
prosecution in this behalf, the Judge considers that
there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his
reasons for so doing.
228. Framing of charge- (1) If, after such consideration
and hearing as aforesaid, the Judge is of opinion that
there is ground for presuming that the accused has
committed an offence which-
(a) is not exclusively triable by the Court of Session, he
may, frame a charge against the accused and, by order,
transfer the case for trial to the Chief Judicial
Magistrate or any other Judicial Magistrate of the first
class and direct the accused to appear before the Chief
Judicial Magistrate, or, as the case may be, the Judicial
Magistrate of the first class, on such date as he deems
fit, and thereupon such Magistrate shall try the offence
in accordance with the procedure for the trial of
warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in
writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b)
of sub-section (1), the charge shall be read and
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explained to the accused and the accused shall be
asked whether he pleads guilty of the offence charged or
claims to be tried.”
It is clear that the Judge concerned has to consider all the
records of the case, the documents placed, hear the
submission of the accused and the prosecution and if
there is “not sufficient ground” (Emphasis supplied) for
proceeding against the accused, he shall discharge the
accused by recording reasons. If after such consideration
and hearing, as mentioned in Section 227, if the Judge is
of the opinion that “there is ground for presuming”
(Emphasis supplied) that the accused has committed an
offence, he is free to direct the accused to appear and try
the offence in accordance with the procedure after framing
charge in writing against the accused.
Statements of PW-1, PW-2, PW-8 and PW-10
8) Mr. Lalit, learned senior counsel for the appellant
pointed out that the prosecution, for framing the
impugned charges, heavily relied on the statements of
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Jagdish Kaur, Jagsher Singh and Nirprit Kaur. He also
took us through their statements made at various stages
which are available in the paper-book. It is true that
Jagdish Kaur PW-1, in her statement under Section 161
Cr.P.C. dated 20.01.1985, did not mention the name of
the appellant. Even in the affidavit dated 07.09.1985,
filed before Justice Ranganath Misra Commission she has
not whispered a word about the role of the appellant.
According to him, for the first time i.e. in the year 2000,
after a gap of 15 years an affidavit was filed before Justice
Nanavati Commission, wherein she referred the name of
the appellant and his role along with certain local
Congress workers. According to Mr. Lalit, except the
above statement in the form of an affidavit before Justice
Nanavati Commission, she had not attributed anything
against the appellant in the categorical statements made
on 20.01.1985 as well as on 07.09.1985 before Justice
Ranganath Misra Commission.
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9) He also pointed out that even after submission of
Justice Nanavati Commission’s report and entrusting the
investigation to CBI, she made a statement before the CBI
officers at the initial stage by mentioning “that the mob
was being led by Congress leaders”. Only in later part of
her statement, she mentioned that “she learnt that Sajjan
Kumar, the Member of Parliament was conducting
meeting in the area”. She confirmed the statement in the
form of an affidavit dated 07.09.1985 filed before Justice
Ranganath Misra Commission as well as her deposition
with regard to the appellant before Justice Nanavati
Commission on 08.01.2002. No doubt, in the last part of
her statement, it was stated that in the year 1984-85, the
atmosphere was totally against the Sikh community and
under pressure she did not mention the name of Sajjan
Kumar. She also informed that she could not mention his
name for the safety of her children.
10) The other witness Jagsher Singh, first cousin of
Jagdish Kaur, in his statement recorded by the CBI on
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07.11.2007 i.e. after a gap of 23 years, mentioned the
name of the appellant and his threat to Sikhs as well as to
Hindus who had given shelter to Sikhs. According to Mr.
Lalit, this witness mentioned the name of the appellant for
the first time before the CBI nearly after 23 years of the
incident which, according to him, cannot be relied upon.
11) The other witness relied on by the prosecution in
support of framing of charges is Nirprit Kaur PW-10. It is
pointed out that she also made certain statements to the
CBI after a gap of 23 years and she did not mention the
name of the appellant except stating that one Balwan
Khokhar who is alleged to be a nephew of Sajjan Kumar,
came to her house for discussing employment for her
nephew as driver.
12) The other statement relied on by the prosecution in
support of framing of charges against the appellant is that
of Om Prakash PW-8. He narrated that during the
relevant time he had given shelter to a number of women
and children of Sikh community including Jagdish Kaur
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PW-1. Mr. Lalit pointed out that in his statement, he did
not even utter a word about the appellant but at the end
of his statement on being asked, stated that he knew Shri
Sajjan Kumar, Member of Parliament. However, he
further stated that he did not see him in that mob or even
in their area during the said period. In the last sentence,
he expressed that he had heard from the people in general
that Sajjan Kumar was also involved in the 1984 riots.
13) By pointing out the earlier statement of Jagdish Kaur
PW-1, recorded by the CBI, her affidavit before Justice
Nanavati Commission and the statement of Jagsher Singh
PW-2, Nirpreet Kaur PW-10 and Om Prakash PW-8 before
the CBI, Mr. Lalit submitted that there was no assertion
by anyone about the specific role of the appellant except
the bald statement and that too after 23 years. In such
circumstances, according to him, the materials relied on
by the prosecution are not sufficient to frame charges.
According to him, mere suspicion is not sufficient for
which he relied on the judgments of this Court in Union
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of India vs. Prafulla Kumar Samal and Another,
(1979) 3 SCC 4 and Dilawar Balu Kurane vs. State of
Maharashtra, (2002) 2 SCC 135.
14) In Prafulla Kumar Samal (supra), the scope of
Section 227 of the Cr.P.C. was considered. After adverting
to various decisions, this Court has enumerated the
following principles:
“(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made
out.
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible and
the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his
right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227
of the Code the Judge which under the present Code is
a senior and experienced court cannot act merely as a
Post Office or a mouthpiece of the prosecution, but has
to consider the broad probabilities of the case, the total
effect of the evidence and the documents produced
before the Court, any basic infirmities appearing in the
case and so on. This however does not mean that the
Judge should make a roving enquiry into the pros and
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cons of the matter and weigh the evidence as if he was
conducting a trial.”
15) In Dilawar Balu Kurane (supra), the principles
enunciated in Prafulla Kumar Samal (supra) have been
reiterated and it was held:
“12. Now the next question is whether a prima facie
case has been made out against the appellant. In
exercising powers under Section 227 of the Code of
Criminal Procedure, the settled position of law is that
the Judge while considering the question of framing the
charges under the said section has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out; where the
materials placed before the court disclose grave
suspicion against the accused which has not been
properly explained the court will be fully justified in
framing a charge and proceeding with the trial; by and
large if two views are equally possible and the Judge is
satisfied that the evidence produced before him while
giving rise to some suspicion but not grave suspicion
against the accused, he will be fully justified to
discharge the accused, and in exercising jurisdiction
under Section 227 of the Code of Criminal Procedure,
the Judge cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the court
but should not make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial (see Union of India v. Prafulla Kumar
Samal).
14. We have perused the records and we agree with the
above views expressed by the High Court. We find that
in the alleged trap no police agency was involved; the
FIR was lodged after seven days; no incriminating
articles were found in the possession of the accused and
statements of witnesses were recorded by the police
after ten months of the occurrence. We are, therefore, of
the opinion that not to speak of grave suspicion against
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the accused, in fact the prosecution has not been able
to throw any suspicion. We, therefore, hold that no
prima facie case was made against the appellant.”
16) It is clear that at the initial stage, if there is a strong
suspicion which leads the Court to think that there is
ground for presuming that the accused has committed an
offence, then it is not open to the court to say that there is
no sufficient ground for proceeding against the accused.
The presumption of the guilt of the accused which is to be
drawn at the initial stage is only for the purpose of
deciding prima facie whether the Court should proceed
with the trial or not. If the evidence which the prosecution
proposes to adduce prove the guilt of the accused even if
fully accepted before it is challenged in cross-examination
or rebutted by the defence evidence, if any, cannot show
that the accused committed the offence, then there will be
no sufficient ground for proceeding with the trial. A
Magistrate enquiring into a case under Section 209 of the
Cr.P.C. is not to act as a mere Post Office and has to come
to a conclusion whether the case before him is fit for
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commitment of the accused to the Court of Session. He is
entitled to sift and weigh the materials on record, but only
for seeing whether there is sufficient evidence for
commitment, and not whether there is sufficient evidence
for conviction. If there is no prima facie evidence or the
evidence is totally unworthy of credit, it is the duty of the
Magistrate to discharge the accused, on the other hand, if
there is some evidence on which the conviction may
reasonably be based, he must commit the case. It is also
clear that in exercising jurisdiction under Section 227 of
Cr.P.C., the Magistrate should not make a roving enquiry
into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.
17) Exercise of jurisdiction under Sections 227 & 228 of
Cr.P.C.
On consideration of the authorities about the scope of Section
227 and 228 of the Code, the following principles emerge:-
(i) The Judge while considering the question of framing the
charges under Section 227 of the Cr.P.C. has the undoubted
17
power to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out. The test to determine prima facie
case would depend upon the facts of each case.
ii) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained, the Court will be fully justified in framing a charge
and proceeding with the trial.
iii) The Court cannot act merely as a Post Office or a
mouthpiece of the prosecution but has to consider the broad
probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities
etc. However, at this stage, there cannot be a roving enquiry
into the pros and cons of the matter and weigh the evidence as
if he was conducting a trial.
iv) If on the basis of the material on record, the Court could
form an opinion that the accused might have committed
offence, it can frame the charge, though for conviction the
conclusion is required to be proved beyond reasonable doubt
that the accused has committed the offence.
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v) At the time of framing of the charges, the probative value
of the material on record cannot be gone into but before
framing a charge the Court must apply its judicial mind on the
material placed on record and must be satisfied that the
commission of offence by the accused was possible.
vi) At the stage of Sections 227 and 228, the Court is
required to evaluate the material and documents on record
with a view to find out if the facts emerging therefrom taken at
their face value discloses the existence of all the ingredients
constituting the alleged offence. For this limited purpose, sift
the evidence as it cannot be expected even at that initial stage
to accept all that the prosecution states as gospel truth even if
it is opposed to common sense or the broad probabilities of the
case.
vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage, he is not to see whether the trial will end in conviction or
acquittal.
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18) With the above principles, if we discuss the
statements of PW-1, PW-2, PW-10 as well as of PW-8, it
cannot be presumed that there is no case at all to proceed.
However, we are conscious of the fact that the very same
witnesses did not whisper a word about the involvement of
the appellant at the earliest point of time. It is the
grievance of the appellant that the High Court did not take
into account that the complainant Jagdish Kaur PW-1 had
not named him in her first statement filed by way of an
affidavit dated 07.09.1985 before Justice Ranganath Misra
Commission nor did she named him in her subsequent
statements made before the Delhi Police (Riots Cell) and in
her deposition dated 08.01.2002 before Justice Nanavati
Commission except certain hearsay statement. It is the
stand of Jagdish Kaur PW-1, the prime prosecution
witness, that apart from her statement dated 03.11.1984,
she has not made any statement to Delhi Police at any
stage. However, it is also the claim of the C.B.I. that the
alleged statements of Jagdish Kaur PW-1, dated
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20.01.1985 and 31.12.1992 are doubtful. Likewise,
Nirprit Kaur PW-10, in her statement under Section 161
Cr.P.C., has denied having made any statement before the
Delhi Police. At the stage of framing of charge under
Section 228 of the Cr.P.C. or while considering the
discharge petition filed under Section 227, it is not for the
Magistrate or a Judge concerned to analyse all the
materials including pros and cons, reliability or
acceptability etc. It is at the trial, the Judge concerned
has to appreciate their evidentiary value, credibility or
otherwise of the statement, veracity of various documents
and free to take a decision one way or the other.
Investigation by the C.B.I.
19) Learned Additional Solicitor General has brought to
our notice the letter dated 24.10.2005 from Mr. K.P.
Singh, Special Secretary (H) to Mr. U.S. Mishra, Director,
Central Bureau of Investigation, North Block, New Delhi.
A perusal of the said letter shows that in reply to the
discussion held in the Lok Sabha on 10.08.2005 and the
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Rajya Sabha on 11.08.2005 on the report of Justice
Nanavati Commission of Inquiry into 1984 anti-Sikh riots,
the Prime Minister and the Home Minister had given an
assurance that wherever the Commission has named any
specific individuals as needing further examination or re-
opening of case the Government will take all possible
steps to do so within the ambit of law. The letter further
shows that based on the assurance on the floor of the
Parliament, the Government examined the report of
Justice Nanavati Commission, its recommendations
regarding investigation/re-investigation of the cases
against (a) Shri Dharam Das Shastri, (b) Shri Jagdish
Tytler, and (c) Shri Sajjan Kumar. The letter further
shows that the Government had decided that the work of
conducting further investigation/re-investigation against
the abovementioned persons as per the recommendations
of Justice Nanavati Commission should be entrusted to
the CBI. Pursuant to the said decision, Home Department
forwarded the relevant records connected with the cases
22
against the abovementioned persons. It also shows those
additional records/information required in connection
with investigation are to be obtained from the Delhi Police.
The materials placed by the CBI show that Justice
Nanavati Commission submitted its report on 09.02.2005,
its recommendations were discussed by the Lok Sabha on
10.08.2005 and the Rajya Sabha on 11.08.2005,
Government of India asked CBI to inquire those
recommendations on 24.10.2005 and the F.I.R. No. 416 of
1984 dated 04.11.1984 of Police Station, Delhi Cantt was
re-registered by the CBI as case RC-24(S)/2005-
SCU.I/CBI/SCR.I/New Delhi. Pursuant to the same, on
22.11.2005, investigation was taken up and it revealed
that the accused persons committed offences punishable
under Section 109 read with Sections 147, 148, 149,
153A, 295, 302, 396, 427, 436, 449, 505 and 201 IPC and
accordingly filed the charge-sheet. It is relevant to note
that no one including the appellant has not challenged
appointment of CBI to inquire into the recommendations
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made by Justice Nanavati Commission.
Status Report by Delhi Police
20) Mr. Lalit heavily relied on the status report of the
Delhi Police and consequential order of the Magistrate. By
pointing out the same, he contended that the CBI is not
justified in re-opening the case merely on the basis of
observations made by Justice Nanavati Commission. The
following conclusion in the status report dated 31.07.2008
filed by the Delhi Police was pressed into service.
“From the investigation and verification made so far
it was revealed that:-
(a) There is no eye-witness to support the
version of the complaint of Smt. Jagdish Kaur.
(b) The complaints and affidavits made by Smt.
Jagdish Kaur are having huge contradictions.
(i) In her first statement recorded by local
police during the investigation, she did not
name any person specifically and also
stated that she could not identify any one
among the mob.
(ii) She even did not name Shri Sajjan Kumar
in her statement recorded by the I.O. of the
Spl. Riot Cell after a gap of seven years.
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(iii) She suspected the involvement of one
Congress Leader Balwan Khokhar in these
riots but she had not seen him personally.
She was told by one Om Prakash who was
colleague of her husband, about the killing
of her husband and son.
(iv) In the statement recorded on 22.01.1993
under Section 161 Cr.P.C. during the
course of further investigation, the witness
Om Prakash stated that he had seen
nothing about the riots. Jagdish Kaur
stayed at his house from 01.11.1984 to
03.11.1984 but she did not mention the
name of any person who was indulged in
the killing of her husband and son.”
It is seen from the report that taking note of lot of
contradictions in the statement of Jagdish Kaur PW-1
before the Commissions and before different investigating
officers and after getting legal opinion from the Public
Prosecutor, closure report was prepared and filed before
the Metropolitan Magistrate, Patiala House Courts, New
Delhi on 31.07.2008. It is further seen that before
25
accepting the closure report, the Magistrate issued
summons to the complainant i.e, Smt. Jagdish Kaur
number of times and the same were duly served upon her
by the officers of the Special Riot Cell but she did not
appear before the Court. In view of the same, the
Magistrate, on going through the report and after hearing
the submissions and after noting that the matter under
consideration is being further investigated by the CBI and
the investigation is still pending and after finding that no
definite opinion can be given in respect of the closure
report, without passing any order closed the matter giving
liberty to the prosecution to move appropriate motion as
and when required.
21) Mr. Lalit, learned senior counsel, by placing copy of
the final report under Section 173 Cr.P.C. by Delhi Police
as well as endorsement therein including the date on
which the said report was filed before the Court,
submitted that the action taken by Delhi Police cannot be
faulted with. In other words, according to him, till the
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entrustment of further investigation by the CBI, Delhi
Police was free to proceed further and there is no error in
the action taken by the Delhi Police. In view of the order
dated 31.07.2008 of the Magistrate, declining to give
definite opinion on the closure report since the same was
under further investigation by CBI, we are of the view that
no further probe/enquiry on this aspect is required.
Delay
22) Learned senior counsel appearing for the appellant
further submitted that because of the long delay, the
continuation of the prosecution and framing of charges
merely on the basis of certain statements made after a gap
of 23 years cannot be accepted and according to him, it
would go against the protection provided under Article 21
of the Constitution. Mr. Lalit heavily relied on para 20 of
the decision of this Court in Vakil Prasad Singh vs.
State of Bihar, (2009) 3 SCC 355 which reads as under:
“20. For the sake of brevity, we do not propose to
reproduce all the said propositions and it would suffice
27
to note the gist thereof. These are: (A.R. Antulay case,
SCC pp. 270-73, para 86)
(i) fair, just and reasonable procedure implicit in Article
21 of the Constitution creates a right in the accused to
be tried speedily;
(ii) right to speedy trial flowing from Article 21
encompasses all the stages, namely, the stage of
investigation, inquiry, trial, appeal, revision and retrial;
(iii) in every case, where the speedy trial is alleged to
have been infringed, the first question to be put and
answered is — who is responsible for the delay?;
(iv) 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 offence, number of
accused and witnesses, the workload of the court
concerned, prevailing local conditions and so on–what
is called, the systemic delays;
(v) 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 the 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 facts of a
given case;
(vi) ultimately, the court has to balance and weigh
several relevant factors–`balancing test’ or `balancing
process’–and determine in each case whether the right
to speedy trial has been denied;
(vii) ordinarily speaking, where the court comes to a
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 and having regard to the nature of offence
and other circumstances when the court feels that
quashing of proceedings cannot be in the interest of
justice, it is open to the court to make appropriate
orders, including fixing the period for completion of
trial;
(viii) it is neither advisable nor feasible to prescribe any
outer time-limit for conclusion of all criminal
proceedings. In every case of complaint of denial of right
to speedy trial, it is primarily for the prosecution to
28
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;
(ix) an objection based on denial of right to speedy trial
and for relief on that account, should first be addressed
to the High Court. Even if the High Court entertains
such a plea, ordinarily it should not stay the
proceedings, except in a case of grave and exceptional
nature. Such proceedings in the High Court must,
however, be disposed of on a priority basis.”
After adverting to various decisions including Abdul
Rehman Antulay and Ors. vs. R.S. Nayak & Anr., this
Court further held:
“24. It is, therefore, well settled that the right to speedy
trial in all criminal persecutions (sic prosecutions) is an
inalienable right under Article 21 of the Constitution.
This right is applicable not only to the actual
proceedings in court but also includes within its sweep
the preceding police investigations as well. The right to
speedy trial extends equally to all criminal prosecutions
and is not confined to any particular category of cases.
In every case, where the right to speedy trial is alleged
to have been infringed, the court has to perform the
balancing act upon taking into consideration all the
attendant circumstances, enumerated above, and
determine in each case whether the right to speedy trial
has been denied in a given case.
25. Where the court comes to the conclusion that the
right to speedy trial of an accused has been infringed,
the charges or the conviction, as the case may be, may
be quashed unless the court feels that having regard to
the nature of offence and other relevant circumstances,
quashing of proceedings may not be in the interest of
justice. In such a situation, it is open to the court to
make an appropriate order as it may deem just and
equitable including fixation of time-frame for conclusion
of trial.”
29
Considering the factual position therein, namely, alleged
demand of a sum of Rs.1,000/- as illegal gratification for
release of payment for the civil work executed by a
contractor, a charge was laid against Assistant Engineer
in the Bihar State Electricity Board and taking note of
considerable length of delay and insufficient materials,
based on the above principles, ultimately the Court after
finding that further continuance of criminal proceedings
pending against the appellant therein is unwarranted and
quashed the same. Though the principles enunciated in
the said decision have to be adhered to, considering the
factual position being an extraordinary one, the ultimate
decision quashing the criminal proceedings cannot be
applied straightaway.
23) In P. Vijayan vs. State of Kerala and Another,
(2010) 2 SCC 398, this Court while considering scope of
Section 227 of Crl.P.C. upheld the order dismissing the
petition filed for discharge and permitted the prosecution
to proceed further even after 28 years. In that case, from
30
1970 till 1998, there was no allegation that the encounter
was a fake and only in the year 1998 reports appeared in
various newspapers in Kerala that the killing of Varghese
in the year 1970 was in a fake encounter and that senior
police officers were involved in the said fake encounter.
Pursuant to the said news reports, several writ petitions
were filed by various individuals and organisations before
the High Court of Kerala with a prayer that the
investigation may be transferred to the Central Bureau of
Investigation (CBI). In the said writ petition, Constable
Ramachandran Nair filed a counter affidavit dated
11.01.1999 in which he made a confession that he had
shot Naxalite Varghese on the instruction of the then
Deputy Superintendent of Police (DSP), Lakshmana. He
also stated that the appellant was present when the
incident occurred. By order dated 27.01.1999, learned
Single Judge of the High Court of Kerala passed an order
directing CBI to register an FIR on the facts disclosed in
the counter affidavit filed by Constable Ramachandran
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Nair. Accordingly, CBI registered an FIR on 3-3-1999 in
which Constable Ramachandran Nair was named as
Accused 1, Mr Lakshmana was named as Accused 2 and
Mr. P. Vijayan, the appellant, was named as Accused 3 for
an offence under Section 302 IPC read with Section 34
IPC. After investigation, CBI filed a charge-sheet before the
Special Judge (CBI), Ernakulam on 11.12.2002 wherein
all the abovementioned persons were named as A-1 to A-3
respectively for an offence under Sections 302 and 34 IPC.
The appellant – P. Vijayan filed a petition under Section
227 of the Code on 17.05.2007 for discharge on various
grounds including on the ground of delay. The trial Judge,
by order dated 08.06.2007, dismissed the said petition
and passed an order for framing charge for offences under
Sections 302 and 34 IPC. Aggrieved by the aforesaid
order, the appellant – Vijayan filed Criminal Revision
Petition No. 2455 of 2007 before the High Court of Kerala.
By an order dated 04.07.2007, learned Single Judge of the
High Court dismissed his criminal revision petition. The
32
said order was challenged by Mr. P. Vijayan before this
Court. Taking note of all the ingredients in Section 227 of
the Criminal Procedure Code and the materials placed by
the prosecution and the reasons assigned by the trial
Judge for dismissing the discharge petition filed under
Section 227, this Court confirmed the order of the trial
Judge as well as the order of the High Court. Though,
there was a considerable lapse of time from the alleged
occurrence and the further investigation by CBI inasmuch
as adequate material was shown, the Court permitted the
prosecution to proceed further.
24) Though delay is also a relevant factor and every
accused is entitled to speedy justice in view of Article 21 of
the Constitution, ultimately it depends upon various
factors/reasons and materials placed by the prosecution.
Though Mr. Lalit heavily relied on paragraph 20 of the
decision of this Court in Vakil Prasad Singh’s case
(supra), the learned Additional Solicitor General, by
drawing our attention to the subsequent paragraphs i.e.,
33
21, 23, 24, 27 and 29 pointed out that the principles
enunciated in A.R.Antulay’s case (supra) are only
illustrative and merely because of long delay the case of
the prosecution cannot be closed.
25) Mr. Dave, learned senior counsel appearing for the
intervenor has pointed out that in criminal justice “a
crime never dies” for which he relied on the decision of
this Court in Japani Sahoo vs. Chandra Sekhar
Mohanty, (2007) 7 SCC 394. In para-14, C.K. Thakker, J.
speaking for the Bench has observed:
“It is settled law that a criminal offence is considered as
a wrong against the State and the society even though it
has been committed against an individual. Normally, in
serious offences, prosecution is launched by the State
and a court of law has no power to throw away
prosecution solely on the ground of delay.”
In the case on hand, though delay may be a relevant
ground, in the light of the materials which are available
before the Court through CBI, without testing the same at
the trial, the proceedings cannot be quashed merely on
the ground of delay. As stated earlier, those materials
34
have to be tested in the context of prejudice to the accused
only at the trial.
Observations by the High Court
26) Coming to the last submission about the various
observations made by the High Court, Mr. Lalit pointed
out that the observations/reference/conclusion in
paragraphs 64, 65, 69, 70, 72, 73 and 50 are not
warranted. According to him, to arrive such conclusion
the prosecution has not placed relevant material. Even
otherwise, according to him, if the same are allowed to
stand, the trial Judge has no other option but to convict
the appellant which would be against all canons of justice.
He further submitted that even if it is clarified that those
observations are to be confined for the disposal of the
appeal filed against framing of charges and dismissal of
discharge petition and need not be relied on at the time of
the trial, undoubtedly, it would affect the mind of the trial
Judge to take independent conclusion for which he relied
on a judgment of this Court in Common Cause, A
35
Registered Society vs. Union of India & Ors. (1999) 6
SCC 667. He pressed into service paragraph 177 which
reads as under:
“177. Mr Gopal Subramaniam contended that the Court has
itself taken care to say that CBI in the matter of investigation,
would not be influenced by any observation made in the
judgment and that it would independently hold the
investigation into the offence of criminal breach of trust or any
other offence. To this, there is a vehement reply from Mr
Parasaran and we think he is right. It is contended by him that
this Court having recorded a finding that the petitioner on being
appointed as a Minister in the Central Cabinet, held a trust on
behalf of the people and further that he cannot be permitted to
commit breach of the trust reposed in him by the people and
still further that the petitioner had deliberately acted in a wholly
arbitrary and unjust manner and that the allotments made by
him were wholly mala fide and for extraneous consideration, the
direction to CBI not to be influenced by any observations made
by this Court in the judgment, is in the nature of palliative. CBI
has been directed to register a case against the petitioner in
respect of the allegations dealt with and findings reached by
this Court in the judgment under review. Once the findings are
directed to be treated as part of the first information report, the
further direction that CBI shall not be influenced by any
observations made by this Court or the findings recorded by it,
is a mere lullaby.”
On the other hand, learned Additional Solicitor General
highlighted that these observations by the High Court are
based on the materials placed and, in any event, it would
not affect the interest of the appellant in the ultimate trial.
In view of the apprehension raised by the learned senior
counsel for the appellant, we also verified the relevant
36
paragraphs. In the light of the fact that it is for the trial
Judge to evaluate all the materials including the
evidentiary value of the witnesses of the prosecution such
as Jagdish Kaur PW-1, Jagsher Singh PW-2, Nirpit Kaur
PW-10 and Om Prakash PW-8, alleged contradictory
statements, delay and the conduct of the Delhi Police in
filing Status Report and on the basis of further
investigation by the CBI, we clarify that all those
observations of the High Court would not affect the
ultimate analysis and final verdict of the trial Judge.
Conclusion:
27) In the light of the above discussion, we are of the
view that it cannot be concluded that framing of charges
against the appellant by the trial Judge is either bad in
law or abuse of process of law or without any material.
However, we clarify that de hors to those comments,
observations and explanations emanating from the
judgment of the learned single Judge, which we referred
in para 26, the trial Judge is free to analyse, appreciate,
37
evaluate and arrive at a proper conclusion based on the
materials being placed by prosecution as well as the
defence. Inasmuch as the trial relates to the incident of
the year 1984, we direct the trial Judge to take sincere
efforts for completion of the case as early as possible for
which the prosecution and accused must render all
assistance. Interim order granted on 13.08.2010 is
vacated. With the above observation and direction, the
appeal is disposed of.
……………………………………J.
(P. SATHASIVAM)
……………………………………J.
(ANIL R. DAVE)
NEW DELHI;
SEPTEMBER 20, 2010.
38