AI Structured Summary
Not yet generated for this judgment
Judgment
S.M. Ali Mohamed, J.—This is a petition filed u/s 482, Code of Criminal Procedure to call for the records in SC No. 135 of 1991 on the
file of the First Additional Sessions Judge, Salem and quash the same.
It is alleged that on 6-12-1985 P.W.1 approver and accused 1 to 4 engaged into conspiracy and decided to waylay a lorry bearing Registration
No. TNJ 9916 belonging to Jayanthi Roadways and bearing an inscription, ''Palani Transport'' which was to transport textile worth about Rs.
12,00,000/- from Bangalore to Madras. The Lorry was driven by the first deceased Mani and the second deceased Perumal was the cleaner
thereof. The lorry left Bangalore at 5.00 P.M., and reached Madavalam Check-post at 7.00 P.M. On the directions of Dhadha, the approver, and
second accused, who was in ''Ayyappan Robes'' approached the driver Mani and asked him for six tickets to Madras agreeing to pay Rs. 20/-
each and on condition that the driver must not take any other passengers. The driver accepted to the request of the second accused it is alleged
that both the driver and cleaner were strangled to death it is alleged that the first deceased was murdered by Dhadha and the second deceased
was murdered by accused 2 and 3. Later on, it is alleged that the four accused and Dhadha burnt the body of the deceased. The case was tried by
the Sessions Judge, Dharmapuri at Krishnagiri in SC.25/1987 and as A.1 was absconding, his case was split up and the case against the other
accused was tried. The learned Sessions Judge found accused 1 to 4 guilty for various offences under Sections 120-B, 302 read with 34, I.P.C.
and sentenced each of them to death. The fourth accused was also found guilty of the offence u/s 411 I.P.C. and sentenced to undergo rigorous
imprisonment for one year. In Referred Trial No. 12 of 1987,a Division Bench of this Court on 22.6.1989 set aside the conviction and directed for
re-trial within four months. The judgment is reported in Thyagaraiah Thyagarajan v. State (1990 L.W.[Crl.] 326) . It is also admitted that the
records were transmitted by this Court to the trial court and on the way, they were lost.
It is contended by Mr. R. Sankarasubbu, learned Counsel for the Petitioners that the Petitioners were convicted u/s 302, I.P.C. read with
Section 120-B, I.P.C. and sentenced to death and the same was set aside by this Court on 22.6.1989 and directed a de novo trial within four
months. But the trial has not taken place. As such, the rights of the Petitioners for a speedy trial under Article 21 of the Constitution of India are
violated. He further submitted that there is no provision under the Code of Criminal Procedure or the Criminal Rules of Practice for reconstruction
of the records. As re-construction of records is not possible in the instant case and as the first and second Petitioners have undergone
imprisonment for eight years, there is no question of re-trial after a lapse of such long period. In support of the above contention, the learned
Counsel cited the ruling of the Supreme Court in H. Bhatoon v. Home Secretary, State of Bihar (A.I.R. 1979 S.C.1360) wherein the Supreme
Court has observed as follows:
Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to
note that in the United States, speedy trial is one of the constitutionally guaranteed rights.
We think that even under our Constitution, thought speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad
sweep and content of Article 21 as interpreted by the Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, ). We have held in
that case that Article 21 confers a fundamental right on very person not to be deprived of his life or liberty except in accordance with the
procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure
should be prescribed by law, but that the procedure should be, ''reasonable, fair and just.
He further cited the ruling of the Supreme Court reported in Kadra Pehadiya and Others Vs. State of Bihar, wherein the Supreme Court has
observed, as follows:
It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial. We had occasion in Hussainara
Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, to criticise this shocking state of affairs and we hoped that after the anguish
expressed and the severe strictures passed by us, the justice system in the State of Bihar would improve and no one shall be allowed to be
confined in Jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a Sessions trial, but we find
that the situation has remained unchanged and these four Petitioners, who entered the Jail as young lads of 12 or 13 have been languishing in jail for
over eight years for a crime which perhaps ultimately they may be found not to have committed. It is obvious that after so many years of
incarceration awaiting trial, either their spirit must be totally broken or they must be seeking with anger and resentment against the society. We fail
to understand why our justice system has become so dehumanised that lawyers and Judges do not feel a sense of revolt at caging people in Jail for
years without a trial it is difficult to comprehend how the Sessions Judge could have forgotten that he had called the Petitioners to the Court for
commencement of the trial on 30th August, 1977 and therefore done nothing in the matter. We pointed out in Hussainara Khatoon''s case that
speedy trial is a fundamental right of an accused implicit in Article 21 of the Constitution, but we notice that in the case of these four Petitioners, this
fundamental right has merely remained a paper promise and has been grossly violated.
and contended that the right of speedy trial is guaranteed under Article 21 of the Constitution of India and in the instant case as there is an
inordinate delay, the said fundamental right has been violated and therefore the trial in S.C. 135/91 before the Sessions Court namely, Ist
Additional Sessions Judge, Salem has to be quashed by this Court u/s 482 of the Criminal
The learned Counsel referred to various provisions of the Code of Criminal Procedure and the Criminal Rules of Practice and submitted that
there is no specific provision for reconstruction of the records, and referred to the Division Bench ruling of this Court in Sornam v. State of Tamil
Nadu, Inspector of Police, Thuckalay, Kanyakumari District (1989) T.L.N.J. (Criminal) 206) wherein David Annousamy, J. has observed as
follows:
The moot question that arises for consideration is as to whether it is legally permissible to dispose of the appeal on merits on perusal of the
available part of records. The answer to the question appears to be an ""emphatic No'' on the face of the express and explicit provision contained in
Sections 385(2) and 386 Crl. P.C. The procedure as contemplated under the aforesaid sections of the Code of Criminal Procedure makes it
obligatory for the Court to peruse the records and hear the parties before deciding the appeal.
As adverted to earlier, the Part II records of the case were destroyed and there is no possibility to reconstruct the records. The materials available
on records, namely charge plea of the accused, examination of the accused before the Sessions Court and the exhibits are not sufficient for the
disposal of the appeal on merits. In such a circumstance, applying the ratio of the aforesaid decisions, the appeal has to be allowed, keeping in
mind that the incident had taken place on 28.2.82 almost six years before.
He also referred to a ruling of the Supreme Court in Abdul Rehman Antulay v. R.S. Nayar (1992 Supreme Court Cases (Criminal) 93) wherein
the Supreme Court has referred to the Privy Council ruling in the following manner.
We may now notice the decision of this Court in Raghubir Singh and Others Vs. State of Bihar, . In this case. Simarnjit Singh Mann and few others
applied to this Court for bail and also for quashing the proceedings Pending against them before the Special Judge on the ground of violation of
right to speedy trial. It was urged that the said right of the Petitioners was being frustrated by the tactics adopted by prosecution whose only object
was to somehow keep the Petitioners in prison. it was also argued that there was no material whatsoever to frame charges under Sections 121-A
and 124-A. Chinnappa Reddy, J., affirmed that right to speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed
by Article 21 of the Constitution. After examining the decisions of the United States Supreme Court in Struck v. United States (37 L ED 2 d 56)
and while ie Mae Barker v. V. John Wingo (33 L ED 2d 101) and also the Privy Council in Bell v. Director of Public Prosecution, Jamanica
(1985) 2 ALL ER 585) the learned Judge posed the following relevant questions; (SCC pp 491/92, para 9).
Several questions arise for consideration. Was there delay? How long was the delay? Was the delay inevitable having regard to the nature of the
case, the sparse availability of legal services and other relevant circumstances? was the delay unreasonable? was any part of the delay caused by
the willfulness or the negligence of the prosecuting agency? Was any part of the delay caused by the tactics of the defence? Was the delay due to
causes beyond the control of the prosecuting and defending agencies? Did the accused have the ability and the opportunity to assert his right to a
speedy trial? Was there a likelihood of the accused being prejudiced in his defence? Irrespective of any livelihood of prejudice in the conduct of his
defence, was the very length of the delay sufficiently prejudicial to the accused? Some of these factors have been identified in Barker v. Wingo (33
L Ed 2d 101) . A host of other questions may arise which we may not be able to readily visualise just now. The question whether the right to a
speedy trial which forms part of the fundamental right to life and liberty guaranteed by Article 21 has been infringed is ultimately a question of
fairness in the administration of criminal justice even as ''acting fairly'' is of the essence of the principles of natural justice (in re K.(H) (an infant)
(1967) 1 All ER 226 : (1967) 2 QB 617) and a ''fair and reasonable procedure'' is what is contemplated by the expression ''procedure established
by law'' in Article 21 Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, .
In this case, the Privy Council emphasised the necessity of taking notice of the delays inherent in a particular system. The Privy Council was dealing
with a case from Jamaica. The Court of Appeals of Jamaica held that having regard to the circumstances obtaining in that country, a delay of 32
months cannot be said to infringe the constitutional right of an accused to speedy trial. The Privy Council observed that this opinion of the Jamaican
court, which must be deemed to be acquainted with the conditions in that country, must be accepted. But, inasmuch as it was a case of re-trial, the
Privy Council held that the said delay must be held to have infringed the said right. The Board emphasised that a re-trial must be held with greater
speed and that the delay which may be ignored in the case of trial may not be ignored in the case of re-trial.
The learned Counsel submitted that in the instance case there is an inordinate delay in the trial of the case and as the records are lost in
transmission, there is no question of reconstruction of the records and in view of the above ground also the proceedings in the trial Court have to
be quashed.
With regard to the reconstruction of the documents, the learned Counsel cited the following ruling in Sita Ram and Ors. v. State, 1981 CriLJ 65
(Allahabad High Court):
In the present case the incident took place on 23-8-1981. The Appellants were convicted by the Sessions Court by an order dated 18-11-74.
The appeal has been pending in this Court for about six years. We are informed that copies of the First Information Report and statements of
witnesses recorded u/s 161, Code of Criminal Procedure have been weeded out and are not available. All attempts to reconstruct the records
have proved futile. In such a situation, it is not permissible for us to affirm the order of conviction of the Appellants, since in the absence of the
record we cannot possibly feel satisfied that the Appellants have been rightly convicted. Due to lapse of time and non-availability of papers like
First Information Report, statements u/s 161, Cr.P.C., etc., we do not consider it either just or expedient to order retrial of the case.
and submitted that upon the facts and circumstances of the case, it is not possible for reconstruction of the records as they have been lost in transit.
Therefore, the trial now pending before the Sessions Court at Salem has to be quashed by this Court.
On the other hand, Mr. Sriramulu, learned Public Prosecutor at the outset submitted that there is no delay on the part of prosecution and the
prosecution is ready to continue the trial and the delay is mainly due to the fact that the accused have been filing various petitions before the Court
and obtaining stay of the trial of the case and therefore, the Petitioners themselves are partly responsible for the delay. In this connection, the
learned Public Prosecutor cited the ruling of the Supreme Court reported in Mangilal Vyas v. State of Rajasthan (199 1 SCC Crl. 231) wherein a
delay of 25 years has not been considered as a long delay. He also referred to the Constitution Bench Ruling reported on Abdul Rehman Antulay
Vs. R.S. Nayak and another etc. etc., and in particular paragraph 54 and pointed out that whether there is inordinate delay will depend upon the
facts and circumstances of a particular case. In the instant case it was submitted that the delay is due to the fact that the Petitioners have been filing
various petitions before this Court and obtaining stay of the proceedings, and the learned Public Prosecutor also pointed out that a fresh H.C.P.
1738 of 94 has been filed by accused No. 3 and the same is pending before this Court. The learned Public Prosecutor submitted that the
contention of the learned Counsel for the Petitioners that the relevant records cannot be reconstructed as they have been lost in transit will not
apply to the facts and circumstances of this case, where a retrial has been ordered by this Court. In this connection, the learned Public Prosecutor
referred to the Full Bench judgment of this Court reported in Marakkarutti and Ors. v. T.P.M. Veeran Kutty and Ors. (18 MLJ 637 (F.B.))
wherein this Court observed that there is inherent power in every court to reconstruct its own records. In this connection, the Full Bench has
observed as follows:
One can safely start with the proposition that there is inherent power in every Court to reconstruct its own records, and I think it follows that there
is inherent power in the Appellate Court to reconstruct the records of the Court from which an appeal lies to it. This power has been recognised in
England and in America, which follows the English Common Law, and also in this Country. The English case that is quoted on the subject is
Douglass v. Yallop (2 Barrows 722 : 97 E.R. 532). The matter was more fully discussed in an American case, Mc Lendon v. Jones (42 Am. D.C.
640), a judgment of the Court of Alabama which quoted and followed Douglass v. Wallop and a case which had been decided by the Supreme
Court of New York : and that case points out, ""cases must frequently have occurred in which, by accident, the records of Courts of Justice have
been destroyed or lost, and it would seen strange if the Common Law had provided no adequate means by which the injuries growing out of such
accident could be averted or remedied, ""and then goes on to discuss the methods by which the remedy should be provided. I give attention to it
because it states the matter more fully than the other reported cases. In this country the matter came before the Calcutta High Court in 1867 in
Babu Guru Dayai Singh v. Durbaree Lal Tewaree (1867) 7. W.R. 18) , a judgment of Sir Barnes Peacock, C.J. and Jackson, J. In that case
records had been lost in transit from the first court to the second : the second court acted on some documents purporting to be office copies which
the High Court held were not regularly proved or admitted. The court held that there were two alternative courses open, to direct the lower
appellate court to receive such secondary evidence of the contents of original records as may be forthcoming, or to order an entirely new trial.... It
may be that, in reconstructing the record, the court will have to go very near to rehearing, but the court will always have to apply its mind to
ascertain not what the rights of the parties were, but what the destroyed record of the suit was and on that record, when reconstructed, it will have
to act on the ordinary principles of which it would have acted if the original record had been before it, It will be for the Judge to whom the
application is made to decide how the reconstruction of the record is to be attempted.
and submitted that inherent power is in every court to reconstruct its own records. He pointed out that in the instant case the court is not concerned
with the appeal for reconstruction of the records of the trial court, but with regard to a de novo trial and the question of reconstruction of records
of the court does not arise at all. Therefore, the contention of the learned Counsel for the Petitioner that in the instant case as the records of the trial
court were lost in transit, the trial before the Sessions Court have to be quashed by this Court is misconceived. As this Court in Referred Trial No.
12 of 1987 has directed a de novo trial where in evidence has to be recorded in a fresh trial, the contentions of the learned Counsel for the
Petitioners have no basis. Only the documents relating to the investigation have to be furnished to the accused before the trial. it is submitted by the
Public Prosecutor that the said documents available with the investigation agency have been furnished to the accused, which is denied by the
learned Counsel for the Petitioner.
I have carefully considered the respective contentions of the learned Counsel for the Petitioners and the learned Public Prosecutor. In the instant
case, the Division Bench of this Court in Referred trial No. 12 of 1987 has set aside the conviction of the accused and has directed for a de rovo
trial. It is an admitted case that the records of the original trial were lost in transit. Mr. Sankarasubbu, learned Counsel for the Petitioners
vehemently contended that unless these records are reconstructed prejudice will be caused to the Petitioners and since the records cannot be
reconstructed, this Court in the ends of justice should quash the proceedings. I am unable to accept the contention of the learned Counsel for the
Petitioners. As pointed by the full Bench ruling of this Court, Supra every court has got inherent power to reconstruct its own records and in case
of appeal, the appellate court or the trial court can reconstruct the records and on the basis of the records, the appeal can be disposed of. In case,
it is not possible to reconstruct the records in such cases the Full Bench has given two alternatives namely (1) to direct the lower appellate court to
receive such secondary evidence of the contents of original records as may be forth warning, or (2) to order an entirely new trial. In the instant
case, on the basis of the records of the original trial, the Division Bench of this Court has set aside the judgment and the conviction and ordered for
a de novo trial. Therefore, there is no question of once again reconstruction of records of the trial court, as fresh evidence have to be let in by the
prosecution for proving the case beyond all reasonable doubt. There is force in the contentions of Mr. Sriramulu, learned Public Prosecutor to the
effect that the contentions of the learned Counsel for the Petitioners are misconceived upon the facts and circumstances of the present case. The
present case does not deal with any appeal for reconstruction of documents of trial Court. But, it deals with a de novo trial. So the question of
reconstruction of the documents of trial Court does not arise at all. However, the accused are entitled to get the documents relied on by the
prosecution. The learned Public Prosecutor has submitted that copies of documents have been furnished to the accused, which is denied by the
learned Counsel for the Petitioners. In any event, copies shall be furnished to the respective accused before the trial of the case. With regard to the
contention that the right for speedy trial under Article 21 of the Constitution has been denied to the Petitioner and as such the trial before the
Sessions Court has to be quashed, I am unable to accept the contention of the learned Counsel for the Petitioner upon the facts and circumstances
of the case. The Constitution Bench of the Supreme Court in An-tulay''s case (1992) (Crl.) SCC 93 has made it clear whether there is a delay or
not will depend upon the facts and circumstances of the case. Upon the facts and circumstances of this case, the delay is due to the fact that the
Division Bench of this Court set aside the judgment convicting the. Petitioners and order for a de novo trial. The de novo trial itself was delayed as
the records of trial court were lost in transit. Further, part of the delay is due to the fact that different accused have been filing various petitions
before this Court which resulted in stay of trial. In view of the same, there has been delay. Taking into consideration the peculiar facts and
circumstances of this case, the delay has been explained by the prosecution.
The learned Counsel for the Petitioners further submitted that in any event, the Petitioners are entitled to be enlarged on. bail because of their
detention for more than 8 years and in this connection he cited the decision of Supreme Court reported in Supreme Court Supreme Court Legal
Aid Committee Representing Undertrial Prisoners Vs. Union of India (UOI) and Others, ), wherein the Supreme Court considering delay in trial of
cases for offences under Narcotics Drugs and Psychotropic Substances Act, 1985, has observed as follows:
As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been
delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial
would also not be in consonance with the right guaranteed by Article 21, Of course, some amount of deprivation of personal liberty cannot be
avoided in such cases, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It
is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided
for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be
telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. What then is
the remedy? The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned Counsel for the
Petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternatively,
he contended that such a persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released
on bail on such terms as this Court considers appropriate to impose. This suggestion commends to us.
However, no bail application is pending before this Court, and as and when any bail application filed by the accused, this contention may be urged.
In view of the above, there are no merits in this case and the petition is dismissed.
The Registrar, High Court is directed to return the original records of the case duly sealed, to the trial Court after taking adequate steps for
safe transit through special messenger in person before 24th January, 1995. The trial Court is directed to take up the trial of the case from 15th
February 1995 and dispose of the same expeditiously. Petition is ordered accordingly.