# Madan Mohan Saxena v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2023) 2 ILRA 1131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-19
- **Case number:** Application u/s 482 No. 23675 of 2022
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madan-mohan-saxena-v-state-of-u-p-ors-opp-parties-49705
- **Pages:** 7

## Headnote

Act,2005
-
Sections
39/49
B-Allegation
of
theft-
charge sheet submitted-summons issuedApplicant regularly appeared-dates fixed for
framing
of
charges-without
framing
of
charges-dates started being fixed for evidence
till 2018-then again dates fixed for framing of
charges-original FIR was summoned-since last
18 years neither charges framed nor FIR
placed on records-right of speedy trial is a
fundamental
right-inordinate
delayproceedings quashed.

Application allowed. (E-9)

List of Cases cited:

## Text

2 All. Madan Mohan Saxena Vs. State of U.P. & Ors.
1131
that stage. This is so because the formation
of belief by the Assessing Officer is within
the realm of subjective satisfaction (see
ITO v. Selected Dalurband Coal Co. Pvt.
Ltd. (1996) 217 ITR 597 (SC); Raymond
Woollen Mills Ltd. v. ITO (1999) (236)
ITR 34 (SC)."

39. The present case cannot be said to
be a case of change of opinion for the
reason that there is no finding recorded in
the earlier assessment order passed under
Section 153A of the Act, which was set
aside on technical ground of non approval
of the competent authority in terms of
Section 153D of the Act.

40. For the reasons mentioned above,
we do not find any merit in the present
petition.
The
same
is,
accordingly,
dismissed.
----------
(2023) 2 ILRA 1131
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application u/s 482 No. 23675 of 2022

Madan Mohan Saxena ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Bhanu Bhushan Jauhari, Sri Rishi Bhushan
Jauhari

Counsel for the Opp. Parties:
G.A., Sri Mukesh Kumar Singh

Speedy
Trial-Electricity
Act,2005
-
Sections
39/49
B-Allegation
of
theft-
charge sheet submitted-summons issuedApplicant regularly appeared-dates fixed for
framing
of
charges-without
framing
of
charges-dates started being fixed for evidence
till 2018-then again dates fixed for framing of
charges-original FIR was summoned-since last
18 years neither charges framed nor FIR
placed on records-right of speedy trial is a
fundamental
right-inordinate
delayproceedings quashed.

Application allowed. (E-9)

List of Cases cited:

1. Bihar St. Electricity Board & anr. Vs Nand
Kishore Tamakhuwala, (1986) 2 SCC 414

2. Commissioner of Income Tax Madras Vs
Shivakami Company Pvt. Ltd., 1986 (2) SCC 418

3. Vakil Prasad Singh Vs St. of Bihar, (2009) 3
SCC 355

4. Mahendra Singh & ors. Vs St. of U.P. & anr.,
2020 (9) ADJ 15

5. Mahipal & anr. Vs St. of U.P., 2020 (9) ADJ 16

6. Dr. Meraj Ali & anr. Vs St. of U.P. & anr.,
Application U/S 482 Cr.P.C. No. 11924 of 2022

7. Hussainara Khatoon & ors. Vs Home
Secretary St. of Bihar AIR 1979 SC 1360

8. Abdul Rehman Antulay Vs R.S. Naik (1992) 1
SCC 225

9. P. Ramachandra Rao Vs St. of Karn. (2002) 4
SCC 578

10. Vakil Prasad Singh Vs St. of Bihar (2009) 3
SCC 355

11. Pankaj Kumar Vs St. of Mah. & anr. (2008)
16 SCC 117

(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri B.B. Jauhari, learned
counsel for the applicant, Sri Mukesh
Kumar Singh, learned counsel for the U.P.
Power Corporation (opposite party no.3)
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
and Sri Ravi Kant Kushwaha, learned AGA
for the State.

2. By way of present application,
applicant made a prayer to quash the
charge-sheet no. 404 of 2003 dated
01.12.2003 arising out of Case Crime No.
376 of 2003 and proceedings of Case No.
5276 of 2004, under Section 39/49B
Electricity Act, Police Station Sadar Bazar,
District Shahjahanpur pending in the court
of ACJM-I Shahjahanpur.

3. The FIR of the present case was
lodged against the applicant on 15.10.2003
under Section 39/49 Electricity Act at
Police
Station
Sadar
Bazar,
District
Shahjahanpur vide Case Crime No. 376 of
2003.

4.
 As
per
allegation
applicant
committed
theft
of
electricity.
After
registration of the FIR, investigation was
commenced and after investigation chargesheet was submitted against the applicant on
01.12.2003. After submission of chargesheet, court concerned on 22.01.2004 took
the cognizance and issued summons to the
applicant. Applicant appeared before the
court
concerned
through
counsel
on
20.02.2006 and applicant was regularly
appearing through counsel and on 06.08.2009
date was fixed 07.10.2009 for framing of
charges and dates were being fixed for
framing of charges till 30.08.2013 and on
30.08.2013 without framing of charges dates
were started being fixed for evidence and
since 30.08.2013 dates were continuously
being fixed for prosecution evidence till
13.12.2018 and on 14.01.2019 date was fixed
20.02.2019 for framing of charges and
original FIR was summoned and thereafter
since 20.02.2019 dates are continuously
being fixed for framing of charges and
summoning of original FIR. Therefore, it
appears that for last about more than 18 years
neither charges could be framed in the
present matter nor original FIR could be
placed on record.

5. Learned counsel for the applicant
submits that he is challenging the proceeding
of the present case pending against the
applicant on the sole ground that proceeding
is pending for last about 18 years and
although FIR of the present case was lodged
in the year 2003 and charge-sheet was
submitted in December, 2003 and cognizance
was taken in February, 2004 but even till date
even charges could not be framed and even
original FIR is not on record.

6. He submits that right of speedy trial
is a fundamental right of an accused as well
as of complainant guaranteed under Article
21 of the Constitution of India and for last
about 18 years applicant is facing agony of
criminal trial without any fault and
proceeding of the present matter is pending
for last about two decades. He next submits
that according to Article 21 of the
Constitution of India no person shall be
deprived of his life or personal liberty
except according to procedure established
by law and such procedure should be
reasonable, fair and just and inordinate
delay of 18 years in completion of trial
cannot be said to be reasonable, fair and
just. He further submits, right of speedy
trial is, therefore, a fundamental right
which has been infringed in the present
case. He placed reliance on the following
judgements:-

(i) (1986) 2 SCC 414 Bihar State
Electricity Board and another Vs. Nand
Kishore Tamakhuwala

(ii) 1986 (2) SCC 418 Commissioner
of Income Tax Madras Vs. Shivakami
Company Private Limited
2 All. Madan Mohan Saxena Vs. State of U.P. & Ors.
1133

(iii) (2009) 3 SCC 355 Vakil Prasad
Singh Vs. State of Bihar

(iv) 2020 (9) ADJ 15 Mahendra Singh
and others Vs. State of U.P. and another

(v) 2020 (9) ADJ 16 Mahipal and
another Vs. State of U.P.

(vi) Application U/S 482 Cr.P.C. No.
11924 of 2022 Dr. Meraj Ali and another
Vs. State of U.P. and another

7. Per contra, learned AGA for the
State and learned counsel for the U.P.
Power Corporation (opposite party no.3)
although opposed the prayer and submits
that it would not be desirable to quash the
entire proceeding pending against the
applicant on the basis of delay in trial but
they could not dispute the fact that
applicant is facing agony of criminal trial
under Section 39/49B Electricity Act since
the year 2004 i.e. for last about 18 years
and till date not even charges could be
framed and original FIR is also not on
record. Both the counsels further could not
dispute the fact that there is no fault of
applicant and he is regularly appearing
before the court concerned either in person
or through his counsel.

8. I have heard both the parties and
perused the record of the case.

9. The instant application has been
pressed on the sole ground that applicant is
facing agony of criminal trial for last about
18 years i.e. since the year 2004 and even
after 18 years proceeding could not be
concluded. Admittedly, the trial of the
present case is pending against the
applicant since the year 2004 and more
than 18 years have been passed but till date
not even charges could be framed and from
the order-sheet, it appears that applicant is
regularly attending the court either in
person or through his counsel, therefore,
from the record it reflects that delay in trial
cannot be attributed to the applicant.

10. The right of speedy trial is a
fundamental right enshrined under Article
21 of the Constitution of India. The Apex
Court in the case of Hussainara Khatoon
and others Vs. Home Secretary State of
Bihar AIR 1979 SC 1360 has observed
that speedy trial is an integral part of
fundamental right to life and liberty and
observed as:-

"5. .........No procedure which does not
ensure a reasonably quick trial can be
regarded as 'reasonable, fair or just' and it
would fall foul of Article 21. There can,
therefore, be no doubt that speedy trial, and
by speedy trial we mean reasonably
expeditious trial, is an integral and
essential part of the fundamental right to
life and liberty enshrined in Article 21."

11. Therefore, in the case of
Hussainara Khatoon (supra) the Apex Court
very clearly observed that violation of right
of speedy trial is the violation of
fundamental right guaranteed under Article
21 of the Constitution of India.

12. The exposition of Article 21 of the
Constitution of India in the case of
Hussainara
Khatoon
(supra)
was
exhaustively considered by the Constitution
Bench of the Apex Court in the case of
Abdul Rehman Antulay Vs. R.S. Naik
(1992) 1 SCC 225. Referring to number of
decisions of the Apex Court and American
Precedent of the VIth amendment of their
Constitution making the right to a speedy
trial a constitutional guarantee the Apex
Court formulated as many as 11 proposals
with a note of caution that these were not
exhaustive and were meant only to serve as
guidelines. These are:-
1134 INDIAN LAW REPORTS ALLAHABAD SERIES

"1.
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.

2. Right to Speedy Trial flowing from
Article 21 encompasses all the stages,
namely the stage of investigation, inquiry,
trial, appeal, revision and re-trial. That is
how, this Court has understood this right
and there is no reason to take a restricted
view.

3. The concerns underlying the Right
to speedy trial from the point of view of the
accused are :

(a) the period of remand and preconviction detention should be as short as
possible. In other words, the accused
should not be subjected to unnecessary or
unduly long incarceration prior to his
conviction;

(b) the worry, anxiety, expense and
disturbance to his vocation and peace,
resulting
from
an
unduly
prolonged
investigation, inquiry or trial should be
minimal; and

(c) undue delay may well result in
impairment of the ability of the accused to
defend himself, whether on account of
death, disappearance or non- availability
of witnesses or otherwise.
4. At the same time, 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 reason,
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? Proceedings
taken by either party in good faith, to
vindicate their rights and interest, as
perceived by them, cannot be treated as
delaying tactics nor can the time taken in
pursuing such proceedings be counted
towards delay. It goes without saying that
frivolous proceedings or proceedings taken
merely for delaying the day of reckoning
cannot be treated as proceedings taken in
good faith. The mere fact that an
application/petition is admitted and an
order of stay granted by a superior court is
by itself no proof that the proceeding is not
a frivolous. Very often these stays obtained
on ex-parte representation.

5. 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 work-load of the
court
concerned,
prevailing
local
conditions and so on-what is called, the
systemic delays. It is true that it is the
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.

6. Each and every delay does not
necessarily prejudice the accused. Some
delays may indeed work to his advantage.
As has been observed by Powell, J. in
Barker "it cannot be said how long a delay
is loo long in a system where justice is
2 All. Madan Mohan Saxena Vs. State of U.P. & Ors.
1135
supposed to be swift but deliberate". The
same idea has been stated by White, J. in
U.S. v. Ewell in the following words :

'..... the sixth amendment right to a
speedy trial is necessarily relative, is
consistent with delays, and has orderly
expedition, rather than more speed, as its
essential ingredients; and whether delay in
completing a prosecution amounts to an
un-constitutional deprivation of rights
depends upon all the circumstances.

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
prosecution, again depends upon the facts
of a given case.

 (Emphasis supplied)

7. We cannot recognize or give effect
to, what is called the 'demand' rule. An
accused cannot try himself; he is tried by
the court at the behest of the prosecution.
Hence, an accussed's plea of denial of
speedy trial cannot be defeated by saying
that the accused did at no time demand a
speedy trial. If in a given case, he did make
such a demand and yet he was not tried
speedily, it would be a plus point in his
favour, but the mere non- asking for a
speedy trial cannot be put against the
accused. Even in U.S.A., the relevance of
demand rule has been substantially watered
down in Barker and other succeeding
cases.

8. Ultimately, the court has to balance
and weigh the several relevant factors-
'balancing test' or 'balancing process'-and
determine in each case whether the right to
speedy trial has been denied in a given
case.

9. 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.

(Emphasis supplied)

10. 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 on to 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 as
repeatedly refused to fix any such outer time
limit in spite of the Sixth Amendment. Nor do
we think that not fixing any such outer limit in
effectuates the guarantee of Right to speedy
trial.

11. 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 High Court must, however,
be disposed of on a priority basis."

13. The Constitution Bench in case of
Abdul Rehman Antulay (supra) thus
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
observed that although each and every
delay does not necessarily prejudiced the
accused but inordinate long delay may be
taken as presumptive proof of prejudice
and prosecution should not be allowed to
become a persecution and if court arrived at
the conclusion that right of speedy trial of
the accused has been infringed then
proceeding pending against him shall be
quashed.

14. The issue has again came up
before seven judges Constitution Bench of
the Apex Court in the case of P.
Ramachandra
Rao
Vs.
State
of
Karnataka (2002) 4 SCC 578. The seven
judges Bench of the Apex Court in the case
of P. Ramachandra Rao (supra) approved
the law laid down by the Constitution
Bench in case of Abdul Rehman Antulay
(supra) and stated that guidelines laid down
in Abdul Rehman Antulay (supra) are not
exhaustive but only illustrative and their
applicability would taken upon facts of
each case. The seven judges Constitution
Bench in the case of P. Ramachandra Rao
(supra) observed that in appropriate cases
jurisdiction of the High Court under
Section 482 Cr.P.C. and Article 226 and
227 of the Constitution of India can be
invoked seeking appropriate relief or
suitable direction and observed as:-

"28. It must be left to the judicious
discretion of the court seized of an
individual case to find out from the totality
of circumstances of a given case if the
quantum of time consumed upto a given
point of time amounted to violation
ofArticle 21, and if so, then to terminate the
particular proceedings, and if not, then to
proceed ahead. The test is whether the
proceedings or trial has remained pending
for such a length of time that the inordinate
delay can legitimately be called oppressive
and unwarranted, as suggested in A.R.
Antulay. In Kartar Singh's case the
Constitution Bench while recognising the
principle that the denial of an accused's
right of speedy trial may result in a
decision to dismiss the indictment or in
reversing of a conviction."

15. Therefore, from the dictum of the
Apex Court in the case of Hussainara
Khatoon (supra), Abdul Rehman Antulay
(supra) and P. Ramachandra Rao (supra), it
is evident that right of speedy trial is a
fundamental right and its violation causes
prejudice even to the accused person.

16. The Apex Court in the case of
Vakil Prasad Singh Vs. State of Bihar
(2009) 3 SCC 355 (relied by the applicant)
after discussing the earlier judgments of the
Apex Court including the judgments of
Hussainara
Khatoon
(supra),
Abdul
Rehman
Antulay
(supra)
and
P.
Ramachandra Rao (supra) observed that if
the Court comes to the conclusion that right
to speedy trial of the 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 the proceedings may not be in
the interest of justice.

17. In the case of Pankaj Kumar Vs.
State of Maharashtra and another (2008)
16 SCC 117, the Apex Court observed that
the prosecution has failed to show any
exceptional circumstance, which could
possibly be taken into consideration for
condoning the prolongation of the trial and
on the basis of inordinate delay of over
eight years quashed the proceedings
pending against the accused after observing
that his constitutional right to speedy trial
has been denied.
2 All. Sonu Kumar Gupta Vs. State of U.P. & Anr.
1137

18. Therefore, from the discussion
made above, it is evident that right to
speedy trial of an accused is a fundamental
right enshrined under Article 21 of the
Constitution of India and if Court finds that
it has been violated then proceeding
pending against the applicant should be
quashed
but
only
after
considering
following factors:-

(i) whether delay can be attributed to
the accused himself

(ii) nature of offence

(iii) whether quashing is in the interest
of justice.

(iv) whether inordinate delay can be
termed as oppressive and unwarranted.

19. In case at hand, from the perusal
of the record it appears that the inordinate
delay in completion of the trial cannot be
attributed to the accused applicant as ordersheet suggests that he is regularly attending
the court either in person or through his
counsel and trial of the case relates to
Section 39/49B of Electricity Act, which
cannot be said to be a heinous crime and
trial of the same is pending since the year
2004 i.e. for last about 18 years and
prosecution
failed
to
provide
any
exceptional circumstance to condone such
inordinate delay. Therefore, unexplained
inordinate delay of 18 years should be
termed as oppressive and unwarranted.
Therefore,
under
the
facts
and
circumstances of the case, I am of the view
that fundamental right to speedy trial of
applicant has been violated.

20. From the discussion made above,
this Court is of the view that further
continuance of the criminal proceedings
pending
against
the
applicant
is
unwarranted, therefore, to secure the ends
of justice proceeding pending against the
applicant in the present matter is hereby
quashed.

21. The instant application stands
allowed.
----------
(2023) 2 ILRA 1137
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE MRS. SADHNA RANI
(THAKUR), J

Application u/s 482 No. 9911 of 2022

Sonu Kumar Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Alok Kumar

Counsel for the Opp. Parties:
G.A.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic Substances Act , 1985Sections 52-A, 53, 60 & 63- Code of Criminal
Procedure, 1973-Sections 451 & 457-Release
Application of the vehicle impugned-FIR against 6
named accused-four accused persons caught in
the three wheeler vehicle of the Applicant with
certain bottles of cough syrup without any bill and
voucher-Applicant not apprehended on the spot -
he is the owner of the vehicle with all valid
documents-falsely
implicated-vehicles
to
be
confiscated only after the accused is convicted or
acquitted or discharged-after trial has been
completed-Provisions of Cr.P.C. shall apply -no
provision debarring the release of vehicle seized
during trial-temporary release of the vehicle seized
provided
u/s
451
Cr.P.C.-vehicle
is
parked
unattended
-it
will
deteriorate
as
parked
unattended since last more than 1 year and 10
months-if not given interim custody- the sun and
rain would damage it-Applicant not charge sheeted
yet-Vehicle to be released in favour of the
Applicant.