Court No. - 44
Case :- APPLICATION U/S 482 No. - 22827 of 2014
Applicant :- Ganesh Kumar Shukla
Opposite Party :- State Of U.P.
Counsel for Applicant :- Namit Kumar Sharma
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Rajeev Misra,J.
Heard Mr. Namit Kumar Sharma learned counsel for the applicants and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the entire proceedings of Case No. 5914/2012 (Old No. 1650/2010), (State vs Ganesh Shankar and others) pending in the Court of Metropolitan Magistrate, Court No. 9, Kanpur Nagar, in respect of Case Crime No. 32/2001 under section 409 IPC, P.S. Vidhanu, District Kanpur Nagar.
The present application came up for admission on 07.07.2014 and this Court passed the following interim order:-
"Learned AGA appearing for the State prays for and is granted ten days' time to file counter affidavit.
Learned counsel for the applicant is granted one week thereafter to file rejoinder affidavit.
List this matter on 30.7.2014."
Pursuant to the order dated 07.07.2014, a counter affidavit has been filed on behalf of the learned A.G.A. to which the applicants have filed a rejoinder affidavit, which are on record.
The matter was heard on 10.8.2018 and this Court upon perusal of the record and after hearing the counsel for the applicants passed the following order:-
"Rejoinder affidavit filed on behalf of the applicant today in Court is taken on record.
After some arguments, learned counsel for the applicant submits that the issue involved in the present application can better be ascertain from the perusal of the current order sheet of the State case giving rise to the present application under Section 482 Cr.P.C. It is thus prayed that the matter may be taken up again on 24.08.2018.
Prayer made for is bonafide. Accordingly, the same is allowed.
Put up this case on 24.08.2018 as unlisted by which time learned counsel for the applicant shall file a supplementary affidavit annexing alingwith the same the complete certified copy of the order-sheet of the State case pending before the court below."
In compliance of the aforesaid order dated 10.8.2018, the learned counsel for the applicants has filed a supplementary affidavit today in Court bringing on record the complete order sheet of the above mentioned State case.
According to the learned counsel for the applicants, an F.I.R. dated 13.02.2001 was lodged by the opposite party No. 2, which was registered as Case Crime No. 32/2001 under section 409 IPC, P.S. Vidhanu, District Kanpur Nagar. After the lodging of the aforesaid F.I.R., the concerned police started the investigation of the aforesaid Case Crime Number in terms of Chapter 12 Cr. P. C. and ultimately upon the conclusion of the investigation submitted a charge sheet dated 09.08.2001 before the Court concerned. The applicant was charge sheeted under section 409 IPC. Upon the submission of the aforesaid charge sheet, cognizance was taken by the Court below, vide cognizance taking order dated 22.9.2001. Consequently, State Case No. 871 of 2006 (State vs. Ganesh Shankar and others) under section 409 IPC, P.S. Vidhanu, District Kanpur Naqar, came into existence. In the aforesaid State case, after completing the formalities as contemplated under sections 207 to 211 Cr. P. C., the Court concerned, vide order dated 17.8.2006 framed the charges against the applicants. Therefore, now the case was at the stage of the prosecution evidence.
Learned counsel for the applicants submits that right from 2006, the first informant did not appear before the Court below to support the charge by adducing himself in evidence. Referring to the order sheet of the above mentioned State case, he submits that bailable and thereafter non-bailable warrants were issued by the Court to secure his presence in the above mentioned State case. Inspite of the above, the first informant could neither be produced nor he appeared before the Court below. However, before giving his statement in the State Case referred to above, the complainant is reported to have died as recorded in the order dated 14.3.2013 passed by the Court below. Another witness namely Mohd. Umar was summoned by the Court below, who is also a named witness in the charge sheet dated 09.08.2001. However, his evidence also could not be recorded. In the charge sheet dated 09.08.2001 submitted by the Investigating Officer, there are 10 named witnesses, but till date, the testimony of not even a single witness has been recorded by the Court below. Apart from the above, the first informant has already died in the year 2013.
At this stage, learned counsel for the applicant invited the attention of this Court to the judgement rendered in he case of Surya Nath and another Vs. State of U.P. and another, in Criminal Misc. Application No. 4479 of 2005, wherein this Court in almost similar circumstances quashed the proceedings of the State Case also under section 409 IPC on the ground of delayed trial. Reliance was placed by the Court upon the judgement of the Apex Court in the case of Pankaj Kumar vs. State of Maharashtra and others, reported in AIR 2008 SC 3077 and Vakil Prasad Singh vs. State of Bihar, reported in AIR 2009 SC 1822. The following has been observed by the Court in paragraph Nos. 5, 6, 7 and 8 of the judgement referred to above:-
"5. The Apex Court had occasion to consider the question of expeditious disposal of criminal cases and has emphasized the need of speedy investigations and criminal trials and has held that speedy investigations and trial are integral part of the fundamental right to life and liberty contained in Article 21 of the Constitution of India. Some of the decisions are as follows:
(1) Pankaj Kumar vs. State of Maharashtra & others, AIR 2008 SC 3077,
(2) Vakil Prasad Singh vs. State of Bihar, AIR 2009 SC 1822.
6. In the case of Pankaj Kumar (supra) the Apex Court reiterated the aforesaid principles and held in para 17 as follows:
17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions 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 persecutions 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. 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 for conclusion of trial.
7. In the case of Vakil Prasad Singh (supra), the Apex Court while reiterating the aforesaid principles, propounded the following principles:
"24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions 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. 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."
8. The present case needs to be examined in the backdrop of the aforesaid principles. The occurrence is of the year 1982 and the charge sheet was filed in the year 1993, therefore, the investigating agency took about eleven years to finalise the investigation. The matter remained pending for charge for about four years in the court of the Magistrate. Ultimately the charge was framed on 8.12.1997 and the prosecution failed to examine any witness up to 13.5.2005 being the date of the stay order passed by this Court, therefore,the prosecution was granted about eight years to adduce evidence but it failed to examine any witness nor assigned any reason as to why witnesses were not examined during the aforesaid period of about eight years. These facts are evident from the progress report dated 10.5.2011 submitted by the Chief Judicial Magistrate, Deoria. The State (Respondent no.1) has, in the counter affidavit, stated that the complainant Mumtaz Ahmad had come in the year 2004 in the court but his mere presence in the court cannot be treated to be one of the grounds to hold that the prosecution was vigilant in examining its witnesses. I am failing to understand as to why the complainant Mumtaz Ahmad was not examined specially when he was present in the court, therefore, the prosecution has not been able to express any plausible explanation for not examining any prosecution witness during the aforesaid period of about eight years. As such the entire delay after framing of the charge occurred due to laches on the part of the prosecution."
Learned A.G.A. could not point out any such fact on the basis of which, the ratio laid down in the aforesaid judgement is not applicable in the facts and circumstances of the present case. Therefore, there is no hesitation in concluding that the dispute involved in the present criminal misc. application stands squarely covered by a judgement of this Court in the case of Surya Nath and another (supra).
In the case in hand, this Court also finds that the right of the applicant as guaranteed under Article 21 of the Constitution of India i.e. right to speedy trial stands infringed inasmuch as even after expiry of a period of 18 years from the date of the submission of the charge sheet and cognizance having been taken upon the same, the trial has not concluded. The order sheet of the State Case squarely reflects that in no manner, the applicant herein was responsible in delaying the proceedings of the trial. The prosecution has miserably failed to adduce the witnesses sought to be produced in support of the charge alleged against the applicant.
For all the reasons given herein above, the present application succeeds and is allowed. Consequently, the proceedings of State Case No. 5914/2012 (Old No. 1650/2010), (State vs Ganesh Shankar and others), pending in the Court of Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar, are hereby quashed.
Order Date :- 24.8.2018 HSM