# RAJ DEO SHARMA v. THE STATE OF BIHAR

- **Citation:** [1999] Supp. 3 S.C.R. 124
- **Court:** Supreme Court of India
- **Decided:** 1999-09-22
- **Case number:** Criminal Miscellaneous Petition No. 2326 of 1999
- **Bench:** K.T. Thomas, M. Srinivasan, M.B. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-deo-sharma-v-the-state-of-bihar-16894
- **Pages:** 26

## Headnote

Constitution of India, 1950-Article 21-Right to speedy trial-Enforcement of-Delay in conduct of trial-Power of Court to close prosecution
evidence-Directions issued by Supreme Court in Rajdeo Sharma I cas~PetiC tion for clarification/modification of the said directions by C.B.l.-Held, no
outer time limit for conclusion of trial fu:ed-1he period provided for conclusion of prosecution evidence is not unexceptional-Following period can
be excluded from the period provided for completion of prosecution
evidence.~ (i) Period of pendency of appeal or revision filed against interim
D orders; (ii) period of absence of presiding officer in a trial court; (iii) three
months period if the office of public prosecutor falls vacant due to any reason
other than expiry of office; (iv) an additional period of one year for cases
pending on the date of main judgment; (v) the suspended period of main
judgment till the date of present judgment-Courts can invoke the powers
E under S.311 of the Code even after the prosecution case is closed in compliance with the direction in main judgment-Provisions of S.309 of Code to
be strictly followed by trial courtS--Criminal Procedure Code, 1973-ss.309
and 311.
In Rajdeo Sharma I case, this Court issued certain directions for
F effective enforcement of right to speedy trial floWing from Article 21 of
the Constitution. In the said judgment, the Court inter alia held for closing
of prosecution evidence on completion of 2 years in cases for offences
punishable with imprisonment for a period not exceeding 7 years and on
completion of 3 years in cases of offences punishable with imprisonment
for a period exceeding 7 years. The present petition was filed by Central
G Bureau of Investigation for clarification/modification of the said directions.
Disposing of the petition, the Court
H
HELD : PER THOMAS, !.
124
RAJ DEO SHARMAv. STATE
125
1. In Rajdeo Shanna I case, the Court has not fixed an outer time A
limit for conclusion of all criminal proceedings in a case. The whole idea
was to speed up the trial in criminal cases to prevent the prosecution
from becoming a persecution of the person arrayed in a criminal trial.
No trial can be allowed to prolong indefinitely due to the lethargy of the
prosecuting agency or the state machinery and that is the raison d'etre in
prescribing the time frame within which prosecution evidence must be
closed. [131-A; DJ
A.R. Antulay v. R.S. Nayak, [1992] 1 SCC 225 and Kartar Singh v.
State of Punjab, [1994J 3 SCC 569, followed.
Raj Deo Shanna I v. State of Bihar, [1998J 7 SCC 507, explained
and relied on.
2.1. The different periods suggested by this Court for closing prosecuB
c
tion evidence in different categories of cases are not unexceptional. The
judgment has clearly precluded that ifthe inability for completing prosecuD
tion evidence was attributable to the conduct of the accused, the Court is
not obliged to close the prosecution evidence at all. If the trial gets .
postponed on account of pendency of any appeal or revision filed against
any interim order even though there was no order of stay it is open to the
trial court to reckon that period also. [131-E; 132-C]
2.2. Absence of presiding officer in a trial court (either on account of
the physical disability or due to the delay in taking over the charge of the
· court is a valid cause which disables the prosecution from adducing
evidence. Consequently, such time can also be excluded by the court from
the period prescribed for completing prosecution evidence. [132-G; HJ
E
F
2.3. If the tenure of office of a particular person as public prosecutor
expires he shall continue to hold office and function as public prosecutor
until his successor takes charge from him. If the office of a public
prosecutor falls vacant on account of any other reason, a period of 3
months shall be excluded from the periods fixed under directions for ena- G
bling the State Government to appoint a public prosecutor to that office.
However, the State has to s

## Text

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A
RAJ DEO SHARMA
v.
THE STATE OF BIHAR
SEPTEMBER 22, 1999
B
(K.T. THOMAS, M. SRINIVASAN AND M.B. SHAH, JJ.]
Constitution of India, 1950-Article 21-Right to speedy trial-Enforcement of-Delay in conduct of trial-Power of Court to close prosecution
evidence-Directions issued by Supreme Court in Rajdeo Sharma I cas~PetiC tion for clarification/modification of the said directions by C.B.l.-Held, no
outer time limit for conclusion of trial fu:ed-1he period provided for conclusion of prosecution evidence is not unexceptional-Following period can
be excluded from the period provided for completion of prosecution
evidence.~ (i) Period of pendency of appeal or revision filed against interim
D orders; (ii) period of absence of presiding officer in a trial court; (iii) three
months period if the office of public prosecutor falls vacant due to any reason
other than expiry of office; (iv) an additional period of one year for cases
pending on the date of main judgment; (v) the suspended period of main
judgment till the date of present judgment-Courts can invoke the powers
E under S.311 of the Code even after the prosecution case is closed in compliance with the direction in main judgment-Provisions of S.309 of Code to
be strictly followed by trial courtS--Criminal Procedure Code, 1973-ss.309
and 311.
In Rajdeo Sharma I case, this Court issued certain directions for
F effective enforcement of right to speedy trial floWing from Article 21 of
the Constitution. In the said judgment, the Court inter alia held for closing
of prosecution evidence on completion of 2 years in cases for offences
punishable with imprisonment for a period not exceeding 7 years and on
completion of 3 years in cases of offences punishable with imprisonment
for a period exceeding 7 years. The present petition was filed by Central
G Bureau of Investigation for clarification/modification of the said directions.
Disposing of the petition, the Court
H
HELD : PER THOMAS, !.
124
RAJ DEO SHARMAv. STATE
125
1. In Rajdeo Shanna I case, the Court has not fixed an outer time A
limit for conclusion of all criminal proceedings in a case. The whole idea
was to speed up the trial in criminal cases to prevent the prosecution
from becoming a persecution of the person arrayed in a criminal trial.
No trial can be allowed to prolong indefinitely due to the lethargy of the
prosecuting agency or the state machinery and that is the raison d'etre in
prescribing the time frame within which prosecution evidence must be
closed. [131-A; DJ
A.R. Antulay v. R.S. Nayak, [1992] 1 SCC 225 and Kartar Singh v.
State of Punjab, [1994J 3 SCC 569, followed.
Raj Deo Shanna I v. State of Bihar, [1998J 7 SCC 507, explained
and relied on.
2.1. The different periods suggested by this Court for closing prosecuB
c
tion evidence in different categories of cases are not unexceptional. The
judgment has clearly precluded that ifthe inability for completing prosecuD
tion evidence was attributable to the conduct of the accused, the Court is
not obliged to close the prosecution evidence at all. If the trial gets .
postponed on account of pendency of any appeal or revision filed against
any interim order even though there was no order of stay it is open to the
trial court to reckon that period also. [131-E; 132-C]
2.2. Absence of presiding officer in a trial court (either on account of
the physical disability or due to the delay in taking over the charge of the
· court is a valid cause which disables the prosecution from adducing
evidence. Consequently, such time can also be excluded by the court from
the period prescribed for completing prosecution evidence. [132-G; HJ
E
F
2.3. If the tenure of office of a particular person as public prosecutor
expires he shall continue to hold office and function as public prosecutor
until his successor takes charge from him. If the office of a public
prosecutor falls vacant on account of any other reason, a period of 3
months shall be excluded from the periods fixed under directions for ena- G
bling the State Government to appoint a public prosecutor to that office.
However, the State has to see that there is no unnecessary delay in appointing a public prosecutor to the existing vacancy. The State cannot take,
advantage of its own inaction. [133-A; Bl
2.4. An additional period of one year can be claimed by the prosecuH
126
SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.
A tion in respect of prosecutions which were pending on the date of judgment in Raj Dea Shanna I case and the court concerned would be free to
grant such extension if the court considers it necessary in the interest of
administration of criminal justice. The suspended period of main judgment till the date of present judgment shall also stand excluded from the
B afore-mentioned additional period of one year. [134-B; CJ
3. The power of the court as envisaged in S.311 of the Code of
Criminal Procedure has not been curtailed by this Court. Even if the
prosecution evidence is closed in compliance with the directions, in Raj
Dea Shanna I case it is still open to the prosecution to invoke the powers
C of the court under S.311 of the Code. If evidence of any witness appears
to the court to be essential to the just decision of the case, it is the duty
of the court to summon and examine or recall and re-examine any such
person. [132-D; EJ
4. The trial court cannot be allowed to flout the mandate of the
D Parliament envisaged under S. 309(1) of the Code unless the court has very ·'
cogent and strong reasons. No court has permission to adjourn examination of witnesses who are in attendance beyond the next working day. High
Court is requested to remind the trial judges through a circular of the
need to comply with S.309 of the Code in letter and spirit. The High Court
E concerned should take note of the conduct of any particular trial judge
who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as the law permits.
[133-F; G; HJ
F
PER SRINIVASAN, J. (CONCURRING)
1. In the judgment in the main appeal, the court has not fixed any
time limit for the conclusion of trial. As such, the court has only laid down
guidelines for closing the prosecution in certain circumstances. There is a
difference between fixing a time limit for the disposal of a trial and fixing
G time limit for the prosecution to complete its evidence. A perusal of the
guidelines contained in the mam judgment· would themselves show that
there is no hard and fast rule applicable to every case, irrespective of facts
and circumstances thereof. If the delay is not due to any fault of the.
, ,.,.
prosecution, it is open to the prosecution to place the relevant facts before
H the court and seek further time for producing its evidence. Thus, the
RAJ DEO SHARMAv. STATE [THOMAS, J.]
127
judgment in the appeal cannot be.understood as punishing the prosecution A
and preventing the same from adducing evidence even when it is not
responsible for the delay. [136-A; B; C; DJ
A.R. Antulay v. R.S. Nayak, [1992] 1 SCC 225, followed.
Raj Deo Shanna Iv. State of Bihar, (1998) 7 SCC 507, explained and
relied on.
Ganesh Narain Hegde v. S. Bangarappa & Ors., [1995] 4 SCC 41;
Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, [1980] 1
B
sec 81, referred to.
c
2. The present petition is filed only for directions/modifications/
clarification of the directions of this Court in Raj Deo Shanna I case.
This is not a petition for review of the judgment in the main appeal. This
Bench is not sitting in appeal over the judgment in the main appeal. The
petitioner herein was not a party as such in the appeal. There is no reason D
/
for this Bench to consider whether the directions contained in the judgment in the main appeal are against law in the sense that they run counter
to the earlier judgments of this Court rendered by Constitution Benches.
It is not ·open to this Bench to canvass the legality or correctness of the
directions contained in the main judgment. The only prayer by the E
1
petitioner is to clarify the main judgment, in order that the Subordinate
Courts understand the directions contained therein in the proper perspec·
tive and carry out the same in letter and spirit. [134-F; 135-A-B]
3. The operation ·of a judgment rendered by the court cannot be
held in abeyance indefinitely when there is no appeal or review against F
the same.
PER SHAH, J. (DISSENTING)
1.1. It would not be just and proper to close the prosecution evidence
solely on the ground of delay in conducting the trial. Delay only due to G
congestion of court calender, unavailability of judges and on occasions
non-availability of counsel for either party or any other circumstances
beyond the control of prosecution cannot be a ground for closure of
prosecution evidence. Further, prescribing time limit would be against the
decision rendered by the Constitution Bench of this Court in A.R. Antu.lay H
128
SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.
A and Kartar Singh cases. Thus,.the directions issued in Raj Deo Shanna 1
case requires' to be kept in abeyance and appropriate directions need to
be issued to the State Governments and Registrars of the High Courts
to come up with specific plans for the setting up of additional courts/special courts to cope up with the pending work load. [138-C; 140-B; 148-F]
B
A.R. Antulay v. R.S. Nayak, [1992] 1 SCC 225; Kartar Singh v. State
c
of Punjab, [1994] 3 sec 569, followed.
Raj Deo Shaima Iv. State of Bihar, [1998] 7 SCC 507, referred to.
1.2. It is true that ideal situation may be where criminal cases are
tried within six months from the date of institution, and appeals are
disposed of within a period of one year from the date of filing. For
achieving this ideal situation, if there is lack of infrastructure and procedural delays for various reasons, then it would not be justifiable to
acquit the accused after lapse of a particular time if prosecution has failed
D to examine all witnesses. In view of the directions prescribing time limit
to close prosecution evidence, an accused against whom serious charges
are levelled would get acquitted solely on the ground of delay in trial.
Delay in trial may not always be unfair to the accused and on occasions
he takes advantage of such delays. If closing of prosecution due to delay
E is continued to be permitted, it would affect the smooth functioning of
the· Society in accordance with law and finally the Constitution. If the
victims are left without any remedy, they would resort to take revenge by
unlawful means resulting in further increase in the crimes and criminals.
People at large in the Society would also feel unsafe and insecure and
their confidence in judicial system would be shaken. Law would lose its
F deterrent effect on the criminals. [145-E; F; G]
State of Maharashtra v. Champa Lal Punjaji Shah, AIR (1981) SC
1675, referred to.
G
2. Figures of pending criminal cases are easily available. Disposal
criterion is known. Applying the said disposal criterion, it would be
apparent that work load of various courts is so heavy in number of courts
that with the present strength of judges who are required to deal with
criminal cases, it would be almost impossible for them to dispose of the
cases within the prescribed time. It is true that in such a situation without
H any further delay or without having exercise of appointing committee or
I
~·
I
r
'
...
RAJDEO SHARMAv. STATE
129
committees for finding out how many judges are required, on ad-hoc basis, A
the strength of judges who can deal with the criminal cases is required
to be increased. Further, until there is radical simplification and streamlining of Criminal Procedure Code as well as the method of investigation
of crimes, it would not be just and reasonable to close the prosecution
evidence solely on the ground of delay in trial. [145-H; 146-A-B]
Supreme Court Legal Aid Committee Representing Under Trial
Prisoners v. Union of India, [1994] 6 SCC 731; Re : Special Courts Bill,
1976, [1979] 1 SCC 380; Ganesh Narain Hegde v. S. Bangarappa & Ors.,
[1995] 4 SCC 41; Hussainara Khatoon & Ors. v. Home Secretary, State of
B
Bihar, [1980] 1 SCC 81, referred to.
C
3. If the provisions of the Criminal Procedure Code, particularly,
Section 309 are strictly adhered to, delay in trial could be reduced to some
extent. That may be done by the concerned Judge with active cooperation
of the prosecuting agency. At present, the said provision is observed in
breach. Once the criminal trial begins, trial court should see that wit· D
nesses are examined continuously in the said case and it should continue
from day-to-day until the witnesses in attendance are examined. In any
case; for adjourning the matter, reasons should be recorded. If practice
of allotting certain sessions cases to a particular Judge for trial and
disposal is adopted, it would fasten responsibility with the said Judge to
dispose it of within the stipulated time. It is also true that under Section
311 of the Criminal Procedure Code, the co.frt has ample power to examine witnesses who appear to the court to be essential for the just
decision of the case, but this may further delay proceedings as accused
is bound to oppose such exercise of power. [148-C; D; E; F]
CRIMINAL APPELLATE JURISDICTION : Criminal Miscellaneous Petition No. 2326 of 1999.
IN
Criminal Appeal No. 1045 of 1998.
From the Judgment and Order dated 7.12.95 of the Patna High Court
· jn Crl.W.J.C. No. 809 of 1995.
E
F
G
Gopal Subramaniam, (Atul Sreedharan) for M/s. K.L. Mehta & Co. H
130
SUPREME COURT RE;:>ORTS [1999] SUPP. 3 S.C.R.
A for the Petitioner/ Appellant.
B
Kumar Rajesh Singh for B.B. Singh for the Respondent.
Altaf Ahmad, Additional Solicitor General, P. Parmeswaran, A.D.N.
Rao, Ashok Bhan for Cenral Bureau of Investigation, Government of India.
The following Judgments/Order of the Court were delivered :
THOMAS, J. On the facts and circumstances of the case, no notice
to any person is necessary in this application ..
C
In the main appeal, a three Judge Bench of this Court to which two
of us were parties, has issued certain directions for effective enforcement
of the right to speedy trial flowing from Article 21 of the Constitution of
India (as recognised by a five Judge Bench of this Court in A.R. Antulay
v. R.S. Nayak, [1992] 1 SCC 225. Relevant amoog such directions for the
D present purpose, are the following :
Direction No. (i) : In cases where the trial is for an offence
punishable with imprisonment for a period not exceeding seven
years, whether the accused is in jail or not, the court shall close
prosecution evidence on completion of a period of two years from
E
the date of recording the plea of the accused on the charges framed
whether prosecution has examined-all the witnesses or not, within
the said period aQ the court can proceed to the next step provided
by law for the trial of the case.
F
G
H
Direction No. (iii) : If the offence under trial is punishable with
imprisonment for a period exceeding 7 years, whether the accused
is in jail or not, the court shall close prosecution evidence on
completion of three years from the date of recording the plea of
the accused on the charge framed, whether the prosecution has
examined all the witnesses or not within the said period and the
court can proceed to the next step provided by law for the trial of
the case, unless for very exceptional reasons to be recorded and in
the interest of justice the court considers it necessary to grant further
time to the prosecution to adduce evidence beyond the aforesaid time
limit.
The present petition is filed by the Central Bureau of Investigation
i
.(
<
I
--
RAJ DEO SHARMA v. STATE [THOMAS, J.)
131
(CBI for short) for clarification (and also for some modification) of the
above directions, by stating (1) that the said directions are only prospective
and (2) that the time taken by the court on account of its inability to carry
on day-to-day trial due to pressure of work ')'ill be excluded. We wish to
reiterate that we have not fixed an outer time limit for conclusion of all
criminal proceedings in a case. Nor did we go counter to the decisions of
the Constitution Benches of this Court inA.R. Antulay v. R.S. Nayak, f 1992]
1 SCC 225 and Kartar Singh v. State of Punjab, (1994] 3. SCC 569. In
paragraphs 12 to 14 of our judgment we have considered the ratio in the
afore-cited decisions and by keeping track with the observations therein we
made the endeavour to achieve to the possible extent the noble ideal of
"speedy trial" which has been held repeatedly by this Court to be an
incidence of Article 21 of the Constitution.
The whole idea was to speed up the trial in criminal cases to prevent
A
B
c
the prosecution from becoming a persecution of the person arrayed in a
criminal trial. No trial can be allowed to prolong indefinitely due to the
lethargy of the prosecuting agency or the State machinery and that is the
D
raison d'etre in prescribing the time frame within which prosecution
evidence must be closed.
It may be remembered that even the different periods suggested by
this Court for closing prosecution evidence in different categories of cases . E
are not unexceptional as could be noted from the two exceptions provided
therein. They are :
"(iv) But if the inability for completing the prosecution evidence
within the aforesaid petiod is attributable to the conduct of the
accused in protracting the trial, no court is obliged to close the
F
prosecution evidence within the aforesaid period in any of the
cases covered by clauses (i) to (iii).
(v) Where the trial has been stayed by orders of the court or by
operation of law, such time during which the stay was in force shall
be excluded from the aforesaid period for closing the prosecution G
evidence. The above directions will be in addition to and without
prejudice to the directions issued by this Court in "Common Cause"
A Registered Society v. Union of India, [1996] 4 SCC 33 as modified
by the same Bench through the order reported in 'Common Cause'
A Registered Society v. Union of India, (1996] 6 SCC 775."
H
132
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A
We are inclined to state by way of clarification that the discretion of
the courts in granting further time (exercisable "for very exceptional
reasons to be recorded and in the interest of justice" as for Direction No.
(iii) above) can be imported in respect of Direction No. (i) as well.
According to the CBI a procrastinating accused might take adB vantage of the said excluding provision "by filing appeal or revision against
interim orders and it would indirectly delay the trial without obtaining any
stay orders from superior courts."
There is no scope for any such apprehension because the judgment
C has clearly provided that if the inability for completing prosecution
evidence was attributable to the conduct of the accused, the court is not
obliged to close the prosecution evidence at all. If the trial gets postponed
on account of pendency of any appeal or revision filed against any interim
order even though there was no order of stay it is open to the trial court
to reckon that period also within the ambit of clause (iv) extracted above.
D
We may observe that the power of the court as envisaged in Section
311 of the Code of Criminal Procedure has not been curtailed by this
Court. Neither in the decision of the five Judge Bench in A.R. Antulay's
case nor in Kartar Singh's case such power has been restricted for achieving
E speedy trial. In other words, even if the prosecution evidence is closed in
compliance with the directions contained in the main judgment it is still
open to the prosecution to invoke the powers of the court under Section
311 of the Code. We make it clear that if evidence of any witness appears to
the court to be essential to the just decision of the case it is the duty of the
court to summon and examine or recall an"'d re-examine any such person.
F
Shri Altaf Ahmad, learned Additional Solicitor General tried to
impress upon us that due to systemic causes the prosecutor would be
disabled from completing evidence in a trial and hence that time must also
be permitted to be discounted. Without concretising which kinds of sysG temic causes would disable the prosecution from promptly adducing
evidence, we are not inclined to permit the prosecutor to take advantage
on any such vague premises. However, we have noticed that absence of
presiding officer in a trial court (either on account of the physical disability
or due to the delay in taking over the charge of the court) is a valid cause
which disables the prosecution from adducing evidence. So we are of the
H view that such time can also be excluded by the court from the period
\
RAJ DEO SHARMA v. STATE [THOMAS, J.)
133
which we have prescribed in the judgment for completing prosecution A
evidence.
Another period which Shri Altaf Ahmad, learned Additional
Solicitor General pointed out as causing delay is, when a public prosecutor
demits office due to any eventuality there would arise some interval for his
successor to take charge. He pleaded that the said interregnum should also
be excluded'"' from the aforesaid periods. It is the look out of the Stati: to
see that there is no unnecessary delay in appointing a public prosecutor to
the existing vacancy. The State cannot take advantage of its own inaction.
Nonetheless, to avoid any possible dislocation of the trial on account of any
such eventuality we make it clear that if the· tenure of office of a particular
person as public prosecutor expires he shall continue to hold office and
function as public prosecutor until his successor takes charge from him. If ·
the office of a public prosecutor falls vacant on account of any other
reason, a period of 3 months shall be excluded from the periods fixed under
direction No. (i) and (iii) for enabling the State Government to appoint a
public prosecutor to that office.
Section 309(1) of the Code enjoins on every trial court to continue
examination of witnesses from day-to-day until the witnesses in attendance
have been completed. The sub-section reads thus :
"In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of
witnesses has once begun, the same shall be continued from day
to day until all the. witnesses in attendance have been examined,
unless the court finds the adjournment of the same beyond the
following day to be necessary for reasons to be recorded."
We cannot permit the trial court to flout the said mandate of the
Parliament unless the court has very cogent and strong reasons. No court
has permission to adjourn examination of witnesses who are in attendance
beyond the next working day.
B
c
D
E
F
We request every High Court to remind the trial judges through a G
circular of the need to comply with Section 309 of the Code in letter and
spirit. We also request the High Court concerned to take note of the
conduct of any particular trial judge who violates the above legislative
mandate and to adopt such administrative action against the delinquent
judicial officer as the law permits.
H
134
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A
Shri Altaf Ahmad, learned Additional Solicitor General submitted
that unless directions No. (i) and (iii) are made prospective from the date
of judgment in Rajdeo Sharma prosecution in many pending cases would
be jeopardised. He pointed out that on the date of the said judgment the
period concerned stood expired in many cases. We have bestowed our
B consideration on the said submission and we find force in it. Possibility of
miscarriage of justice resugin_g therefrom must be averted. We are, therefore, inclined to include a rider that an additional period of one year can
be claimed by the prosecution in respect of prosecutions which were
pending on the date of judgment in the main appeal, and the court
concerned would be free to grant such extension if the court considers it
C necessary in the interest of administration of criminal justice. As we
suspended the operation of the judgment from 14.5.1999 till today the said
time of suspension will stand excluded from the aforementioned additional
period of one year.
D
Criminal Miscellanceous Petition is disposed of in the above terms.
SRINIVASAN, J.: When I read the draft judgment prepared by my
learned brother Justice K.T. Thomas, I respectfully endorsed my agreement with the same as I found it to be in accordance with law and justice.
But now, I have received the draft judgment from my learned brother
E Justice M. B. Shah. After going through the same, I am of the opinion that
it is necessary for me to express my views by a separate order. I make it
clear at the outset that I am entirely in agreement with the view expre5sed
by Justice Thomas and I am unable to persuade myself to agree with Justice
Shah.
F
2. The present pet1t10n is filed only for directions/modifications/ .
clarification of the directions of this Court dated 8.10.98 in Criminal
Appeal No.1045 of 1998 (vide para 1 of the petition). This is not a petition
for review of the judgment in the main appeal. It is also needless to say
that this Bench is not sitting in appeal over the judgment in the main
appeal. The petitioner herein was not a party as such in the appeal. The
G Superintendent of Police, CBI, Patna was impleaded as second respondent
in the petition for Special Leave to Appeal (Criminal Appeal No.1177 of
1996) by Court order dated 9 .9 .96 and on grant of leave, the appeal was
numbered as Criminal Appeal No.1045of1998. In the course of arguments,
learned Additional Solicitor General appearing for the petitioner expressly
H stated that he was only seeking a clarification of the judgment in the main
. -
-.
..
RAJ DEO SHARMAv. STATE [SRINIVASAN, J.]
135
appeal, as according to him, the subordinate courts are under a wrong
A
impression that the directions contained in the said judgment give no
option to them but to close the evidence r f the prosecution whenever the
periods mentioned in the guidelines are completed. Thus, there is no
occasion for this Bench to consider whether the directions contained in the
judgment in the main appeal are against law in the sense that they run
counter to the earlier judgments of this Court rendered by Constitution
Benches. In my humble opinion, it is not open to this Bench to canvass the
legality or correctness of the directions contained in the main judgment.
B
The only prayer by the petitioner is to clarify the main judgment, in order
that the Subordinate Courts understand the directions contained therein in
the proper perspective and carry out the same in letter and spirit.
c
3. It is needless to point out that for more than two decades, this
Court has been 'repeatedly emphasising the right of an accused to speedy
trial and giving appropriate directions to the State and the subordinate
judiciary with a view to reduce the delay in the disposal of criminal matters.
The Constitution Bench in Antulay's case [1992] 1 SCC 225 thought fit to D
lay down certain guidelines. The Court said :
"In view of the above discussion, the following propositions
emerge, meant to serve as guidelines. We must forewarn that the
propositions are not exhaustive. It is difficult to foresee all situaE
tions. Nor is it possible to lay down any hard and fast rules."
While stating that it is neither advisable nor practicable to fix any
time limit for trial of offences, the Court took care to say in proposition
No. 9 as follows :
·
"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
F
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, G
it is open to the court to make such other appropriate orderincluding an order to conclude the trial within a fv:ed 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)
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SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.
A
4. Thus, the Constitution Bench had in Antulay's case itself _ -;
contemplated an order to conclude the trial within a fixed time in
appropriate cases. In fact, in the _judgment in the main appeal in the
present case, the Court has not fixed any time limit for the conclusion of
trial. As such, the Court has only laid down guidelines for closing the
B prosecution in certain circumstances. There is a difference between fixing
a time limit for the disposal of a trial and fixing time limit for the
prosecution to complete its evidence. A perusal of the guidelines contained
in the main judgment would themselves show that there is no hard and fast
rule applicable to every case, irrespective of facts and circumstances
C thereof. If the delay is not due to any fault of the prosecution, it is open
to the prosecution to place the relevant facts before the court and seek
-<
further time for producing its evidence. It is clear from the last part of
clause 3 in paragraph 16 of the judgment. Even though, there is no express
exception similar to that in clause 1 in paragraph 16, the same position will
obtain. The judgment in the appeal cannot be understood as punishing the
D prosecution and preventing the same from adducing evidence even when
it is not responsible for the delay.
5. It is necessary to place on record certain facts brought to the
notice of the Court when the main appeal was heard. In the State of Bihar
E alone, several· cases were pending for more than 25 years. A report submitted by the Special Judge, CBI Court in December 1996 pointed out that
in one case which was pending from 1982, the prosecution had cited as
many as 40 witnesses, but had examined only 3 witnesses up to 1996; the
last of them was examined on 3.9.93. The report also pointed out that
F thereafter, the prosecution had taken 36 adjournments to examine the
remaining wit_nesses, but had not produced even one of them. There were
hundreds of such cases and if this Court is going to look on helplessly by
merely reiterating that right to speedy trial is a fundamental right enshrined
in Article 21 of the Constitution of India, but no time limit could be fixed
for conclusion of trials, the problem will remain unsolved for ever. It is
G stated by my learned brother Justice Shah that the accused would get
undeserving benefit by the time limit prescribed in the judgment in the
main appeal a_nd it may result in doing injustice to the society. It is also
observed by him that "all the beneficiaries of the large scale frauds, all the
employees who have misappropriated large sum of money from the public
H exchequer or private employer or accused who are tried for corruption
.
.
;~
'
RAJ DEO SHARMAv. STATE [SRINIVASAN, J.]
137
cases would get undeserving benefit at the system of implementation of A
law." With respect, I am unable to agree. In fact, Justice Shah has himself
quoted, a passage m the judgment m Ganesh Narain Hegde v. S.
Bangarappa & Ors., (1995] 4 SCC 41. In that passage it is pointed out that
when the case reaches the stage of trial after all the interruptions by the
higher courts, the time would have taken its own toll, the witnesses are won
over, evidence disappears and the prosecution loses interest. It is unnecesB
sary to point out that when. the prosecution delays the production of its
witnesses, the failing human memory of such witnesses could be certainly
advantageous to the accused and .even in such cases, there will be a failure
of the system. The problem is one of basic human rights of persons
languishing in prison for years together which in several cases exceed the
maximum period of punishment prescribed for the offences alleged to have
been committed by them even before the trial is concluded. Even if the
accused are not in prisori, they would be suffering from immense mental
agony as if a dagger is hanging over their heads. Can they be compensated
. if they are found to be innocent at the end of the trial?
. 6. As pointed out in A11/:U/ay's case, the court has to balance and
weigh the several relevant factors and determine in each case whether the
right to speedy trial has been denied in the given case. It is only to enable
c
D
the Subordinate Courts to apply the right balancing test or balancing
process, the guidelines have been given in the judgment in the main appeal. · E
7. The judgment has also taken care to mention that the directions
given therein are only to supplement the propositions laid down by the
Constitution Bench in Antulay's case and also in addition to and without
prejudice to th~ directions. issued by this. Court in "Common Cause" case
F
[1996] 4 sec 33 and [1996) 6 sec 775.
8. I am unable to appreciate how the operation of a judgment
rendered by the court can be held in abeyance indefinitely when there is
no appeal or review against the same. Prayer 'a' in the petition is unsustainable and it cannot be countenanced by this Bench .. As regards prayer G
'e', directions were being given by this Court again and again ever since
Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, [1980] 1
SCC 81 to the State Governments and it is mandatory duty of all the State
Governments to take appropriate steps to comply with such directions. If
the State Governments a~e interested in the proper administration of H'
138
SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
A justice, they should fulfill their constitutional obligations, a's repeatedly
pointed out by this Court in its earlier judgments.
9. In the result, the only clarifications which are required to be made
are found in the order of Justice Thomas and I express my concurrence
with the same, Neither prayer 'a' nor prayer 'e' can be granted as stated
B by my brother Justice Shah,
SHAH, J. I am having the advantage of going through the judgment
rendered by my learned Brother K.T Thomas, J. With all respect and
humility, I consider that the directions given in Raj Dea Shanna v. State of
C Bihar, [1998] 7 SCC 507 require to be kept in abeyance and appropriate
directions as prayed for in prayer ( e) of the Criminal Miscellaneous
Petition require to be granted.
The Central Bureau of Investigation has filed this Petition for directions/modification/clarification of the directions issued by the three Judges
D Bench of this Court on 8.10.1998 in Raj Dea Shanna v. State of Bihar, [1998]
7 sec 507. In the said application, following prayers are made requesting
the Court to :
E
F
G
H
(a)
"Order holding in abeyance the operation of the Judgment/Order dated 8.10.1998 of this Hon'ble Court in Criminal
Appeal No. 1045 of 1998;
(b)
Clarify that the Judgment/Order dated 8.10.1998 in Criminal
Appeal No. 1045/98, would only have prospective effect;
(c)
(d)
(e)
Clarify that the time taken by the courts on account of their
inability to carry on day-to-day trial on account of pressure
of work will be excluded;
Clarify that the exceptions made in Para 4 of the 1st Common
Cause Judgment reported in [1996] 4 SCC 33 and Para III of
2nd Common Cause Judgment reported in (1996] 6 sec 775,
would still continue;
Issue directions to the State Governments and Registrars of
the High Court to come up with specific plans for the setting
up of additional Courts/Special Courts (permanent/ad-hoc)
to cope up with the pending work load."
RAJ DEO SHARMA v. STATE [SHAH, J.]
139
In Raj Dea Sharma's case after considering the various decisions, the A
Court inter alia directed in paragraph 17 as under :
"(i) In cases where the trial is for an offence punishable with
imprisonment for a period not exceeding seven years, whether the
accused is in jail or not, the court shall close the prosecution
evidence on completion of a period of two years from the date of
recording the plea of the accused on the charges framed whether
the prosecution has examined all the witnesses or not within the
said period and the Court can proceed to the next step provided
by law for the trial of the case.
(ii) ........
(iii) If the offence under trial is punishable with imprisonment for
a period exceeding 7 years, whether the accused is in jail or not,
B
c
the Court shall close the prosecution evidence on completion of
three years from the date of recording the plea of the accused on D
the charge framed, whether the prosecution has examined all the
witnesses or not within the said period and the court can proceed
to the next step provided by law for the trial of the case, unless
for very exceptional reasons to be recorded and in the interest of
justice the court considers it necessary to grant further time to the
E
prosecution to adduce evidence beyond the aforesaid time-limit.
(iv) and (v) .... ".
It is true that ideal situation may be where criminal cases are tried
within six months from the date of. institution, and appeals are disposed of F
within a period of one year from the date of filing. For achieving this ideal
situation, if there is lack of infrastructure and procedural delays for various
reasons, then what is required to be done? In such a situation, would it be
justifiable to acquit the accused after lapse of a particular time if prosecution has failed to examine all witnesses? And, whether the appeal could be G
dismissed if the appellate authority fails to decide the same within a
particular time? To do so, in my view, would not be just and fair for the
society and the victims affected by the crimes.
The aforestated directions issued in the case virtually prescribes time
limit to close the prosecution evidence in cases where the offence is
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SUPREME COURT REPORTS (1999) SUPP. 3 S.C.R ..
A punishable with imprisonment for a period not exceeding seven. years or
for a period exceeding seven years. In view of these directions the accused
may get acquittal on the ground of delay without considering the fact that
in number of cases delay might be because of large number of cases
pending before the court and insufficient strength of judges to cope up with
B the workload. Delay only due to congestion of court calendar, unavailability
of Judges and on occasions non-availability of counsel for either party or
any other circumstances beyond the control of prosecution cannot be a
ground for closure of prosecution evidence.
It is true that speedy trial in civil or criminal case is a must. It is of
C much more importance in criminal cases as it has its own effect for the law
and order situation in the society. To achieve that objective, there are
various provisions in the Criminal Procedure Code including Section 309.
It is also true that this Court has emphasized in a series of decisions that
Articles 14, 19 and 21 sustain and nourish each other and any law depriving
D a person of personal liberty must prescribe a procedure which is just, fair
and reasonable, that is, a procedure which promotes speedy trial. However,
this laudable objective of speedy trial is frustrated for various reasons.
Since number of courts constituted to try various offences under the Indian
Penal Code and other Acts are not sufficient and appointment of Judges
to man these courts are delayed; cases have piled up. Therefore, to protect
E the rights of under trial prisoners a scheme was evolved by this Court in
Supreme Court Legal Aid Committee Representing Under Trial Pn'soners v.
Union of India, (1994] 6 SCC 731 for releasing them on bail after lapse of
a particular time.
F
Because of the direction in the said judgment after a lapse of a
particular time, under trial prisoners are not kept in jail, still the question
remains of their trial.