# Surya Nath & another v. State of U.P. & another - **Citation:** (2011) 3 ILRA 1432 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2011-12-01 - **Case number:** Criminal Misc. Application No. 4479 of 2005 - **Bench:** Shri Kant Tripathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surya-nath-another-v-state-of-u-p-another-42071 - **Pages:** 4 ## Headnote Code of Criminal Procedure, Section 482Quashing of criminal proceeding-offence under section 419, 420,409 IPCallegation of bribery of Rs. 3000/-charge framed on 08.12.1997 during 8 years prosecution failed to produce witnessspeedy investigation and Trail-integral part of fundamental right to life and liberty-applicant can not be thrown at mercy of prosecution-fit case for quashing criminal proceeding. Held: Para 9 and 10 Therefore, the petitioner who is an accused of embezzlement of a meager amount of Rs. Three thousand relating to the occurrence of the year 1982, can not be kept waiting for the final decision of the case according to the mercy of the prosecution. His fundamental right to have speedy trial of his case seems to have violated by the State without any proper reason, therefore, I find sufficient merit in the petition. Keeping in view the aforesaid decisions of the Apex Court and the fact that the prosecution failed to examine any witness during the period of eight years and the trial remained pending without any progress and there does not appear to be any justification for the delay, I consider it proper in the interest of justice to quash the proceedings of the criminal case no. 2211 of 1993, State vs. Surya Nath Yadav and another, under sections 467, 468, 419, 420 and 409 IPC, police station Kotwali Deoria, district Deoria. Case law discussed: AIR 2008 SC 3077; AIR 2009 SC 1822 ## Text 1432 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 01.12.2011 BEFORE THE HON'BLE SHRI KANT TRIPATHI,J. Criminal Misc. Application No. 4479 of 2005 (U/S 482 Cr.P.C.) Surya Nath & another ...Petitioner Versus State of U.P. & another ...Respondents Counsel for the Petitioner: Sri Brij Nath Singh Sri Umesh Vats Counsel for the Respondents: Govt. Advocate Code of Criminal Procedure, Section 482Quashing of criminal proceeding-offence under section 419, 420,409 IPCallegation of bribery of Rs. 3000/-charge framed on 08.12.1997 during 8 years prosecution failed to produce witnessspeedy investigation and Trail-integral part of fundamental right to life and liberty-applicant can not be thrown at mercy of prosecution-fit case for quashing criminal proceeding. Held: Para 9 and 10 Therefore, the petitioner who is an accused of embezzlement of a meager amount of Rs. Three thousand relating to the occurrence of the year 1982, can not be kept waiting for the final decision of the case according to the mercy of the prosecution. His fundamental right to have speedy trial of his case seems to have violated by the State without any proper reason, therefore, I find sufficient merit in the petition. Keeping in view the aforesaid decisions of the Apex Court and the fact that the prosecution failed to examine any witness during the period of eight years and the trial remained pending without any progress and there does not appear to be any justification for the delay, I consider it proper in the interest of justice to quash the proceedings of the criminal case no. 2211 of 1993, State vs. Surya Nath Yadav and another, under sections 467, 468, 419, 420 and 409 IPC, police station Kotwali Deoria, district Deoria. Case law discussed: AIR 2008 SC 3077; AIR 2009 SC 1822 (Delivered by Hon'ble Shri Kant Tripathi,J. ) 1 . Heard the learned counsel for the petitioners and the learned AGA and perused the progress report dated 10.5.2011 submitted by the C.J.M. Deoria. 2. The learned counsel for the petitioners submitted that the criminal case is of the year 1993 and since then eighteen years have elapsed, even then the trial is pending for want of prosecution evidence. According to the progress report, the trial remained pending for several years for want of attendance of the accused persons. However, the charges were framed on 8.12.1997 and case remained pending for prosecution evidence for several years and the prosecution failed to examine any witness. The trial is lying stayed from 2005 under orders of this Court. 3. A copy of the order sheet of the concerned criminal case is on record, perusal whereof reveals that several dates had been fixed for prosecution evidence but the prosecution failed to produce any evidence during the period of eight years, i.e. from the year 1997 to 2005. 4. It was the duty of the prosecution to produce relevant evidence on the dates 3 All] Surya Nath and another V. State of U.P. and another 1433 fixed by the Magistrate but the prosecution had been quite negligent in not cooperating with the trial and also not in examining the witnesses, though about eight years were granted to the prosecution to examine its witnesses. No criminal case can be permitted to be kept pending with no progress for indefinite period at the mercy of the prosecution and the valuable right of speedy trial of the accused can not be allowed to be taken away by the State. 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 1434 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 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. 9. Therefore, the petitioner who is an accused of embezzlement of a meager amount of Rs. Three thousand relating to the occurrence of the year 1982, can not be kept waiting for the final decision of the case according to the mercy of the prosecution. His fundamental right to have speedy trial of his case seems to have violated by the State without any proper reason, therefore, I find sufficient merit in the petition. 10. Keeping in view the aforesaid decisions of the Apex Court and the fact that the prosecution failed to examine any witness during the period of eight years and the trial remained pending without any progress and there does not appear to be any justification for the delay, I consider it proper in the interest of justice to quash the proceedings of the criminal case no. 2211 of 1993, State vs. Surya Nath Yadav and another, under sections 467, 468, 419, 420 and 409 IPC, police station Kotwali Deoria, district Deoria. 11. The petition is accordingly allowed. The proceedings of the aforesaid criminal case are quashed. --------- 3 All] Dildar and others V. The State of U.P. 1435 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 08.12.2011 BEFORE THE HON'BLE SUDHIR KUMAR SAXENA,J. U/S 482/378/407 No. - 5430 of 2011 Dildar and others ...Petitioner Versus The State of U.P. ...Respondents Counsel for the Petitioner: Sri B.Q Siddiqui Counsel for the Respondents: Govt. Advocate Code of Criminal Procedure-Section 309 and 311-witness are guest of court-like eye and ears of justice-if witness appear before court-proceeding should not be adjourned except for unfair reasons-but engagement of accused counsel in another court or engagement of new counsel-can not be ground for adjournment-order passed by Trail Court-justified-considering inadequate amount towards money to the witnessrecommendation made for necessary amendment in Cr.P.C. itself diet Held: Para 12 and 17 Once witness is in attendance they should not be returned unexamined, keeping in view the provisions of Section 309 Cr.P.C. as amended. Section 309 Cr.P.C. permits adjournments for special reasons. Section 309(2) Cr.P.C., excludes certain reasons like engagement of counsel in other Courts etc. A joint reading of Section 309(1) and Section 309(2) Cr.P.C would show that the intention of legislature is unambiguous i.e. once witness comes to court he should be examined. If adjournment is necessary, then case can be adjourned to next day but that too for special reasons like sudden violence, incapability of witness on account of illness etc. Witnesses are guest of the court as they are assisting the court in reaching at the correct conclusion, therefore, they are entitled to be treated with respect as they are eyes and ears of the justice. Their stature is above the other stake holders and reluctance of the witness to depose in the court amounts to failure in dispensation of justice. This has to be checked and it is high time High Court looked into this malady and identified the problems faced by them and made their job hassle-free. Case law discussed: State of U.P. Vs. Shambhu Nath Singh and Ors. made in Appeal (Criminal) No. 392 of 2001; {1999(7) SCC 604} (Delivered by Hon'ble S.K. Saxena,J. ) Heard learned counsel for the petitioners and learned AGA. 1. The petitioners through this petition have challenged the order dated 30-11-2011 whereby application for recalling prosecution witnesses Balak Ram and Surendra Pal has been rejected. 2. It appears that the petitioners are accused under Section 302 and 201 IPC. On 11.11.2010, prosecution examined Balak Ram and Surendra Pal who had identified the skeleton as well as the clothes belonging to the deceased. It is mentioned in the order sheet that opportunity for cross-examination has been given but none came to crossexamine, consequently, cross-examination was closed. On 30.11.2011, petitioners/accused moved application for recalling the above witness as for some reason they could not be cross-examined. This application has been rejected by the trial court vide order dated 30.11.2011. This very order has been impugned herein.