Gulshan Kumar Khurana vs Kamlesh Kumari

Kanwaljit Singh Ahluwalia, J.—The petitioner, after obtaining a decree of divorce, had filed a complaint under Sections 499 and 500 IPC against his wife Kamlesh Kumari, on the ground that written statement filed in the petition for custody of child was defamatory and had lowered his reputation. On the complaint, so filed, the Court of Additional Chief Judicial Magistrate, Hisar, had summoned the wife/respondent to stand trial. She had filed an application for discharge but the same was dismissed. Thereafter, a notice of accusation dated 9.8.2001 (Annexure P4) was served upon the accused/respondent.

Aggrieved against the notice of accusation (Annexure P4) served upon her, the respondent filed a revision petition. The revision petition was accepted by the Court of Additional Sessions Judge, Hisar, vide its impugned judgment dated 2.9.2002 and the notice of accusation (Annexure P4) was set aside.

In the present revision petition, challenge is to the order dated 2.9.2002, passed by the Court of Additional Sessions Judge, Hisar, wherein the revision petition, preferred by the respondent, was accepted.

For setting aside the summoning order, the Court of Additional Sessions Judge, Hisar, had relied upon the circumstance that a decree of divorce was passed on the basis of compromise. Thereafter, a dispute arose regarding custody of the child and the petition u/s 26 of the Hindu Marriage Act, 1954, was filed. In the written statement, the wife had averred as under:

That the petitioner is a cruel and heartless person and is keeping one grown up divorcee woman named Anju with him continuously for a number of years and has concealed this fact from this Hon''ble Court. The said Anju is the real daughter of the sister of the petitioner whose matrimonial ties with her husband named Arun resident of Muzaffarnagar was got broken on the initiation and efforts of the petitioner. After the divorce the said Anju was kept at Hisar and was got posted in Mittal Gas Service and in nursing home of Dr. Popli and after year 1996, she was taken to Delhi by the petitioner and she is living in the company of the petitioner. The petitioner has spoiled the life of his own sister''s daughter and further the life of the respondent besides this he has helped the said Anju in spoiling the grown up child which was given birth by Anju.

The complainant/husband was employed as a Bank Manager in the Bank of Baroda at Delhi, whereas respondent/wife was serving as a Lecturer in Government Girls Senior Secondary School, Hisar. In the written statement, it was stated that Anju was the real daughter of the sister of petitioner, whose matrimonial ties with her husband named Arun, resident of Muzzafarnagar, soured at the instance of the petitioner/complainant. Thereafter, the complainant got her employed and since 1996 the said Anju was living with the complainant/husband. The revisional Court, after perusing the written statement, came to the conclusion that this in itself will not constitute an offence of defamation as it was nowhere stated that the husband was living in adultery.

I have perused the impugned order passed by the Additional Sessions Judge, Hisar.

Even for the sake of argument, it is assumed that the offence of defamation is made out. The written statement was filed in the year 1998 and a period of about 12 years is going to elapse. Maximum punishment awarded for the offence of defamation is two years. The husband and wife, who have been involved in the long drawn litigation, by now may have learnt their lessons. The right of speedy trial, as enshrined under Article 21 of the Constitution of India, vests in respondent-wife also.

A reference can be made to the judgment rendered by the Hon''ble Apex Court in Pankaj Kumar v. State of Maharashtra and Ors. 2008 (4) Recent Criminal Reports 890 wherein it has been observed as under:

The exposition of Article 21 in Hussainara Khatoon''s case (supra) was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., . Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay?; (iv) 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; (v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. 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 persecution, again depends upon the facts of a given case; (vi) ultimately, the court has to balance and weigh several relevant factors - ''balancing test'' or ''balancing process'' - and determine in each case whether the right to speedy trial has been denied; (vii) 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 and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial; (viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. 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; (ix) 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.

XXX XXX XXX XXX XXX XX

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.

In case, the present petition is accepted and the respondent/wife is put to trial, her right of speedy trial will be infringed.

Taking into view the parameters and guide-lines as noticed in Pankaj Kumar''s case (supra) and the various factors of this case noticed above, this Court is hesitant to interfere in the present revision petition and the same is hereby dismissed.