Maheswar Mohanty vs State of Orissa

M.M. Das, J.—These two Criminal Misc. Case have been filed by one Maheswar Mohanty who is admittedly an elected Member of the Legislative Assembly from Puri Constituency and at present being elected as the Speaker, is functioning as such. The prayer made in both the Criminal Misc. Cases is for quashing the connected criminal cases instituted against the petitioner and others in relation to an alleged occurrence of the year 1984 being registered as G.R. Case Nos. 1487 and 1488 of 1984 pending before the learned S.D.J.M., Bhubaneswar.

The facts of the case reveal that the student action committee gave a call to have a mass rally in the Parade Ground on 3.8.1982. For that purpose, an application was made for permission to take out the procession of five thousand students from new railway station to lower P.M.G. Crossing via Master Canteen-Raj Mahal Bus Stand at Bhubaneswar and the I.I.C. of Capital Police Station issued the said permission/licence imposing certain restrictions therein. The procession consisting of about 300 students started from Vani Vihar and were joined by a gathering of 400 persons near the Master Canteen. Allegation is made that in course of the said procession, the leaders gave fiery speeches instigating the public to resort to violence and attack the police. Order u/s 144 Cr.P.C. was promulgated for the area in front of the State Secretariat. With a view to violate the said order u/s 144 Cr.P.C. the mob constituting the procession tried to forcibly enter into the prohibited area for which around 180 students were arrested. The members of the mob pelted stones towards the police at the instigation of some of the students'' leader. Some of the police officers and others also sustained injuries. As the situation became uncontrollable, the Additional District Magistrate, Bhubaneswar declared the mob as unlawful and subsequently, ordered to fire tear gas cells and thereafter for lathi charge. A Section of the mob under the leadership of one Damodar Rout, M.L.A. entered inside the campus of ''Congress Bhawan'' and resorted to various criminal acts, such as attempting to put fire to an Ambassador Car, blocking of the road etc. For the incident, the l.l.C. of Kharavela Police station, Bhubaneswar lodged an information in the said Police Station on the basis of which Kharavela P.S. Case No. 146(10)/84 dated 3.8.1984 was initiated. Similarly, a report was lodged by one Shri Lalatendu Mohapatra in the Capital Police Station, Bhubaneswar with regard to the Incident which took place in and near the ''Congress Bhawan'' by the same mob. On the basis of the said report, Capital P.S. Case No. 346 (2)/84 dated 3.8.1984 was initiated.

Capital PS. Case No. 346 (2)/84 was registered as G.R. Case No. 1487/84 and Kharavela P.S. Case No. 146(10)/84 was registered as G.R. Case No. 1488/84 in the Court of the S.D.J.M., Bhubaneswar. In both the cases, some of the political activists were arrested and produced before the learned S.D.J.M., Bhubaneswar on 4.8.1984 and subsequently they were released on bail. The said criminal cases were registered under Sections 147/148/149/151/152/435/332/333/336/427/506 I.P.C. read with Section 7 of the Criminal Law Amendment Act.

It appears that ultimately, charge sheet was submitted against various accused persons including the petitioner in both the aforesaid G.R. Cases on 30.1.1985 and 22.4.1986 respectively under the above sections of the Penal Code. As none of the accused persons attended the Court subsequently on the various dates to which the said G.R. cases were fixed, till 28.6.1998, the records were placed before the Lok Adalat on 28.6.1998, the following order was passed by the learned S.D.J.M., Bhubaneswar in both the cases;

The record is put up before Lok Adalat. N.B.W. issued against the accused is not yet executed. This is a year old case. There is remote chance of apprehension of the accused in near future. Hence issue Process under Sections 82 and 83 Cr.P.C. and place the record in dormant file.

However, it appears that pursuant to the above order, no steps were taken as per the provision of Sections 82 and 83 of the Cr.P.C. and the records were treated to be dormant.

From the records of the learned S.D.J.M. in both the aforementioned cases, it appears that on the eve of election for electing the Speaker of the Orissa Legislative Assembly, on 15.4.2004, one Shri Uma Ballava Rath filed applications in both the cases through his Advocate to advance the date of the cases and to put up the case records praying for taking appropriate steps for arrest of the petitioner who was stated to be available at Puri on that day. The learned S.D.J.M. called for the records from the dormant file and acting upon the information given in the petitions filed by said Shri Uma Ballava Rath, issued fresh N.B.W. against the petitioner only directing the Superintendent of Police, Puri to arrest the accused forthwith and to produce him before the Court. It was further directed to execute the warrant in course of the said day. On 20.4.2004, applications u/s 205 Cr.P.C. were filed on behalf of the petitioner in both the cases with a prayer to dispense with personal attendance of the petitioner, which were rejected by the learned S.D.J.M. Being aggrieved, the petitioner approached this Court in Criminal Revision Nos. 292 and 293 of 2004 against the order disallowing the applications u/s 205 Cr.P.C. and rejecting the prayer for recalling the N.B.W. and this Court by order dated 21.5.2004 passed in the aforesaid revisions directed stay of execution of the N.B.W. issued against the petitioner.

Mr. Mishra, learned Counsel for the petitioner submitted that the case being instituted about twenty-two years back and it being apparent that the said cases were registered against the petitioner and others, who were some of the leaders of the opposition party on the date of occurrence and further, the case having lost its importance by efflux of time, it is a fit case where both the criminal cases should be quashed. In support of his above contention, Mr. Mishra placing strong reliance on the decisions in the cases of Abdul Rehman Antulay etc. etc. v. R. S. Nayak and Anr. AIR 1991 S.C. 1701 and P. Ramachandra Rao Vs. State of Karnataka, submitted that in the facts and circumstances of the case, both the aforementioned criminal cases are liable to be quashed by applying the principles laid down in the aforementioned decisions of the Apex Court.

It appears from the records of the Court below that applications were also moved in both the cases by the prosecution u/s 321 Cr.P.C. with a prayer to withdraw the cases on the grounds stated in the said applications. However, the learned S.D.J.M. rejected the applications in both the cases by his order dated 7.11.2005 on the ground that the alleged offences as mentioned in the charge sheet are grievous in nature.

Mr. P.K. Mohanty, learned Addl. Government Advocate appearing for the State also submitted that when applications were filed u/s 321 Cr.P.C. for withdrawal of the prosecution, the learned S.D.J.M. was not correct in rejecting the said applications on the ground that the cases involve offences of grievous nature.

I am not inclined to enter into the question as to whether the orders rejecting the applications u/s 321 Cr.P.C. filed by the prosecution in both the cases are legal and tenable as the said orders have not been challenged by any of the parties.

In the case of Abdul Rehman Antulay (supra), a Constitution Bench of the Supreme Court laid down eleven propositions with regard to speedy trial of a case on holding that Article 21 of the Constitution creates a right in an accused to be tried speedily. While propounding the propositions which a Court should take into consideration in coming to a conclusion as to whether such right guaranteed under Article 21 of the Constitution has been violated or not, the Supreme Court held that these propositions are not exhaustive as it is difficult to foresee all situation nor is it possible to lay down any hard and fast rules to that effect.

In the case of P. Ramachandra Rao (supra), a larger Bench consisting of seven Hon''ble Judges of the Supreme Court, on a reference being made on the question as to whether the decisions rendered by the Supreme Court in the cases of Common Cause A Registered Society through its Director Vs. Union of India (UOI) and Others, , Common Cause, A Registered Society Vs. Union of India (UOI) and Others, ; Raj Deo Sharma Vs. The State of Bihar, and Raj Deo Sharma Vs. The State of Bihar, would apply to prosecution under the Prevention of Corruption Act and other economic offences, by a Bench of three Judges, while upholding the propositions propounded in the case of Abdul Rehman Antulay (supra) in paragraph 29 of the said decision held as follows:

For all the foregoing reasons, we are of the opinion that in Common Cause case (1) (as modified in Common Cause (II) and Raj Deo Sharma (I) and (II) the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:

(1) The dictum in A.R. Antulay case is correct and still holds the field.

(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions.

(3) The guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made.

(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (1), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused.

(5) The criminal Courts should exercise their available powers, such as those under Sections 309, 311, and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court u/s 482 Cr.P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions.

(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure.We, hope and trust that the Governments shall act.

We answer the question posed in the orders of reference dated 19.9.2000 and 26.4.2001 in the above said terms.

Applying the law as laid down by the Supreme Court in the case of Abdul Rehman Antulay (supra) and in the case of P. Ramachandra Rao (supra) to the facts of the present case, it is amply clear that delay in disposal of the criminal cases against the petitioner and others was basically due to non-execution of the N.B.W. issued against the allegedly absconding accused persons even though in the interregnum many of them admittedly were elected representatives of the people from various constituencies of the State in the Legislative Assembly and, as a matter of fact, some of them, have also rendered their services as Cabinet or State Ministers between the period from 1984 till the case was sent to dormant file on 28.6.1998. It also appears that the said non-execution of the N.B.W. issued against the accused persons by the Court below was due to inaction on the part of the executive to procure the presence of the accused persons by arresting and producing them in the Court to face the trial. The theory propounded in the case of Abdul Rehman Antulay (supra) that each and every delay does not necessarily prejudice the accused but some delays may indeed work to his advantage arid that inordinately long delay may be taken as presumptive proof of prejudice and the prosecution should not be allowed to become a persecution, squarely applies to the facts of the present cases.

This being a case where the criminal cases were registered relating to Occurrences which occurred twenty-two years back, in my considered opinion, no fruitful purpose will be served in keeping the said criminal cases pending, and, more so, when the prosecution itself wanted to withdraw the prosecution against the accused persons by filing applications u/s 321, Cr.P.C. though the said applications have been rejected by the learned Court below.

In view of the above, the G.R. Case Nos. 1487 of 1984 and 1488 of 1984 pending before the Court of S.D.J.M., Bhubaneswar are quashed and the Criminal Misc. Cases are allowed.