Tribikram Acharya & Another vs State Of Odisha & Another Vs

A.K. Mohapatra, J

The all important question that falls for consideration in this case is as to whether a prosecution of an accused be converted to his prosecution due to absolute non-cooperation by the informant and the prosecution witnesses. By filing the present Application under section 482 of the Criminal Procedure Code, 1973 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Petitioners seek to invoke the inherent jurisdiction of this Court to quash the order dated 24.01.2024 whereby charge was framed against the Petitioners in Bhubaneswar UPD Saheed Nagar P.S.Case No.92 of 2015 corresponding to C.T.Case No.903 of 2015 pending in the file of the learned J.M.F.C. (L.R.), Bhubaneswar.

The F.I.R. story, bereft of all unnecessary details, reveals that when the Petitioners went to the Police Station to register a F.I.R. against Opposite Party No.2-complainant, they came to learn that Opposite Party No.2 has already lodged a false and frivolous F.I.R. against them which was registered as Bhubaneswar UPD Saheed Nagar P.S.Case No.92 of 2015 which corresponds to C.T.Case No.903 of 2015 pending in the file of the learned J.M.F.C.(L.R.), Bhubaneswar under sections 448, 341, 323, 386, 506/34 of the Indian Penal Code. The F.I.R. further reveals that the Opposite Party No.2 was working as a System Administrator at Future Soft located in Bhubaneswar and the present Petitioners were employed as Faculty Members on contractual basis. The Petitioners had some discrepancies with the company with regard to payment of salary. Accordingly, on 01.03.2015 at around 2.30 P.M. the Petitioners along with other associates came to the complainant’s Office and demanded their due payment. It is further alleged that the Petitioners started abusing Opposite Party No.2 in obscene languages and that they had assaulted Opposite Party No.2 and snatched away his gold chain, gold ring, wallet – containing license and ATM card, mobile phone and cash etc. Accordingly, the F.I.R. in UPD P.S. case was registered and investigation started. On completion of investigation a charge sheet has also been filed against the accused persons.

The averments made in the present Application reveal that the allegations made in the F.I.R. are false, frivolous and fabricated. The F.I.R. has been lodged at the instance of Opposite Party No.2 only with an intention to harass the present Petitioners with an ulterior motive and a mala fide intention. The sole objective behind the registration of the F.I.R. is to somehow entangle the Petitioners in a criminal case so that they cannot demand their legitimate dues. The Petitioners have emphatically denied all allegations with regard to any such occurrence having taken place on the alleged date and time. It has been stated that they have been falsely implicated at the instance of Opposite Party No.2.

In course of investigation, the Investigating Officer visited the spot and recorded the statement of the complainant. Considering the gravity and truthfulness of the allegation, the Investigating Officer did not think it proper to arrest the accused persons. Hence, the accused persons were issued with a notice under Section 41-A of the Code of Criminal Procedure. The present application further reveals that although the matter was settled on compromise at the Police Station in presence of the Investigating Officer and the same was reduced into writing, however, the same was not taken note of by the Investigating Officer at the subsequent stage of investigation and the Investigating Officer has submitted Charge Sheet on 25.06.2015 under Sections 448,341, 323, 506/34 of the Indian Penal Code.

Learned J.M.F.C., Bhubaneswar on the basis of the Charge Sheet took cognizance of the offences on 02.02.2016 under the alleged sections. While this was the position, charge was framed on 24.01.2024 after a gap of seven years under sections 448, 341, 323, 506/34 of the Indian Penal Code.

Heard Ms.Pami Rath, learned senior counsel for the Petitioners as well as learned counsel for the State-Opposite Parties. Perused the Application as well as the materials placed on record for consideration by this Court.

Ms.Pami Rath, learned senior counsel appearing on behalf of the Petitioner at the outset contended that the story narrated by Opposite Party No.2 in the F.I.R. is absolutely baseless, vague and frivolous and not supported by any material on record. She further argued that on the basis of the allegations made in the F.I.R., no case is made out against the Petitioners under the alleged Sections. Ms.Rath, learned senior counsel further laying emphasis on the factual background of the case as well as the genesis of the present dispute, submitted that there was a difference of opinion between the Petitioners and Opposite Party No.2 with regard to non-payment of the remuneration of the Petitioners. However, such dispute was resolved at the Police Station and the same has been reduced into writing in presence of the I.I.C. of the concerned Police Station. In the aforesaid context, learned senior counsel for the Petitioner referred to the compromise petition which is a part of the Police record and has been filed along with the present Application. She further contended that despite such compromise, the Investigating Officer continued with the investigation and filed a Charge Sheet and on the basis of such Charge Sheet, trial is pending before the trial court.

Ms.Rath, learned senior Counsel on behalf of the Petitioners further submitted that the son of the present Petitioner No.1, namely, Pratik Acharya, aged about 10 years old boy is suffering from Duchenne Muscular Dystrophy (DMD), which is a genetic locomotor disability. Such disease is a progressive muscle disorder which affects every muscle of the body including heart and lungs which is fatal in nature. It is also contended that there is no cure for such disease in India. However, certain therapies which are recently approved by the US FDA for the treatment of DMD are arresting the progression of the disease. She further submitted that the son of Petitioner No.1 was once admitted at the reputed Montreal Children’s Hospital and undergoing treatment there. Recently, the Petitioner No.1 planned to take his son to Canada for further treatment as per the medical protocol, however he was shocked by the fact that the authorities rejected the visa application of Petitioner No.1 on the ground of adverse Police verification report due to pendency of the present case. In the aforesaid context, she also submitted that the son of Petitioner No.1, who is in critical condition battling with his life is unable to get the treatment which he requires treatment at Canada.

She further submitted that apart from the grounds indicated herein above, the present criminal proceeding is liable to be quashed on the ground that the same is being unnecessarily prolonged. In the said context, learned senior counsel for the Petitioners submitted that although the case is of the year 2015 and in the meantime, a decade has already elapsed, however, the trial has not commenced due to non-appearance of the witnesses including informant (Opposite Party No.2). He further contended that although summons/B.W./N.B.W. was issued against the witnesses, till now they have not responded and appeared before the trial court. By referring to such conduct of the witnesses including the informant, learned senior counsel for the Petitioners contended that the informant and the witnesses are no more interested in pursuing the present criminal case. She further submitted that despite the best effort by the Petitioners, they were unable to serve the notice on the informant and whereabouts of the informant are not known. Even the Police has not been able to trace out the informant and produce him before the trial court for recording of his evidence.

On the ground of delay, learned counsel for the Petitioners submitted that taking into consideration the gravity and seriousness of the allegations made in the F.I.R., the trial should have been concluded as expeditiously as possible. So far the present case is concerned, trial is pending almost over a decade and there is no likelihood of the trial being commenced in time in near future. Thus, it was alleged by the learned senior counsel appearing for the Petitioners that the delay in commencement of trial has caused serious prejudice to the Petitioners. So far Petitioner No.1 is concerned, the delay in commencement of trial has become a curse on the family of Petitioner No.1 as Petitioner No.1 is unable to provide better treatment to his ailing son and such negligence in treatment might endanger the life of the son of Petitioner No.1.

In the aforesaid factual backdrops, learned senior counsel for the Petitioners contended that termination of the criminal proceeding would be in the larger interest of justice and further continuance thereof would only be an abuse of process of law. Therefore, justice can be rendered to the Petitioners in the present case by quashing the F.I.R. as well as pending criminal proceedings against the Petitioners.

Learned Additional Standing Counsel for the State on the other hand objected to the prayer made in the present Application with regard to quashing of the F.I.R. as well as criminal proceeding. He further contended that for grant of relief as prayed for in the present Application, the Petitioners are required to satisfy the Court that the present criminal case falls within the seven parameters as laid down by the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. Such principle laid down by the Hon’ble Supreme Court is being scrupulously followed in the later judgments of the Hon’ble Supreme Court and by various High Courts of our country. Since the requirements under seven parameters of Bhajan Lal’s case (supra) has not been fulfilled, the present criminal case could be terminated against the Petitioners by quashing the entire criminal proceeding.

Learned Additional Standing Counsel for the State further contended that for delay in commencement of trial, the Prosecution cannot be held responsible. While demonstrating the steps that have been taken by the prosecution in the trial, learned Additional Standing Counsel submitted that after registration of the F.I.R., investigation was concluded expeditiously and subsequent Charge Sheet has been filed within the time prescribed in law. He further contended that in the meantime although Charge has been framed, however due to non-appearance of the witnesses including the informant, the trial has not progressed much. Learned counsel for the State further argued that although effective steps have been taken to ensure the attendance of the witnesses during trial before the trial court by issuing summons and arrest warrant against some of the witnesses, however, such efforts have gone in vain, as a result of which the trial has not substantially progressed. Learned counsel for the state further submitted that rejection of the visa application of the Petitioner No.1 cannot be attributed to the State or the Prosecution. Under the aforesaid ground, learned counsel for the State submitted that the application filed by the Petitioners is devoid of merit and the same is liable to be dismissed.

It is the settled position of law that inordinate delay in conclusion of the investigation, enquiry and trial alone shall not be a ground to quash the criminal proceeding. However, in certain exceptional circumstances, where such delay caused prejudice to the accused, this Court can very well exercise its jurisdiction to curtail the prolonged criminal trial in the event such inordinate delay in the trial causes serious prejudice to the accused. In this context, it is needless to mention here that every citizen of this country has been guaranteed by the makers of our Constitution a right to speedy trial. Such right to speedy trial flows directly from Article 21 of the Constitution. Right to speedy trial which can be linked to Article 21 has been interpreted by the Hon’ble Supreme Court in many of its judgments. At this juncture, this Court would like to refer to some of the judgments of the Hon’ble Supreme Court i.e. in Hussainara Khatoon (1) v. Home Secy, State of Bihar, reported in (1980) 1 SCC 81, Abdul Rehman Antulay v. R.S.Nayak, reported in (1992) 1 SCC 225 and Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248.

The Hon’ble Supreme Court of India in a later judgment in Motilal Saraf v. State of J.K. and another reported in (2006) 10 Supreme Court Cases 560 while taking note of the aforesaid judgments has held that the right to speedy trial is implicit in the spectrum of Article 21 of the Constitution. Speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 and the law must ensure “reasonable, just and fair” procedure which has a creative connotation. In paragraph-46 of the judgment it has also been observed that right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted.

Likewise, it has also been observed by the Hon’ble Supreme Court in Motilal Saraf’s case (supra) that the constitutional guarantee enshrined in Article-21 is for the protection of both the accused and the society. It has also been observed that such right to speedy trial has also been recognized in United States by virtue of a constitutional amendment while incorporating such a valuable right in the constitution, no time limit has been fixed for concluding the criminal trial. Therefore, it depends on the facts and circumstances of each case. As such no general guidelines can be fixed by the Court and that every case is to be examined on its own facts and circumstances.

While examining the case of the Petitioners, this Court observes that the allegations are not of serious nature and the same cannot be construed by any stretch of imagination as a crime against the society. Moreover, the genesis of the dispute indicates that the Petitioners had gone to Opposite Party No.2 to claim their legitimate dues as they were teaching in that institute. Therefore, this Court is of the view that the present case is to be considered on the basis of the facts and circumstances involved in the case at hand. No straight-jacket formula can be laid down by any Court on this earth with regard to the time limit within which the trial has to be concluded.

Moreover, the concept of delay in conclusion of the investigation and trial is also dependent on various factors including the gravity and seriousness of the offence as well as the prolongation of the trial that causes prejudice to the accused persons. In other words, while protecting the fundamental right of the accused with regard to speedy trial as guaranteed under Article 21 of the Constitution of India, this Court cannot just brush aside the gravity of the prejudice that is likely to be caused to the accused persons due to delay in conducting the trial. Keeping in view the aforesaid principle, it can very well be said that in some cases, a decade’s time can be termed as inordinate delay and in some cases several decades may not be sufficient to come to a conclusion that there was an inordinate delay in conclusion of the investigation or trial which would affect the right of the accused as guaranteed under Article 21 of the Constitution of India.

A similar view has already been taken by the Hon’ble Supreme Court in Pankaj Kumar v. State of Maharashtra and others reported in (2008) 16 Supreme Court Cases 117. In the said case, the Hon’ble Supreme court while dealing with a case under the Prevention of Corruption Act and by taking note of the fact that the Prosecution has failed to show any exceptional circumstances, which could possibly be taken into consideration for condoning the prolongation of investigation and the trial. The Hon’ble Court has come to hold that the accused-appellant has been denied his valuable constitutional right to speedy and expeditious trial and accordingly the proceeding was quashed.

Since this Court is required to consider the delay in conclusion of the trial and to assess the right of the accused of speedy trial as guaranteed under the Constitution in the light of the exposition of Article-21 by the Hon’ble Supreme Court in the Constitutional Bench judgment in the case of Abdul Rehman Antulay v. R.S.Nayak reported in (1992) 1 SCC 225, this Court is of the considered view that objective of providing a fair trial would be defeated by undue prolongation of trial, that too due to non-cooperation by informant and P.Ws. In the aforesaid constitutional bench judgment of the Hon’ble Supreme Court has laid down certain guidelines, some of which have been extracted herein below:

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 the nature of offence, the 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 the 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 facts – “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 the 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 the High Court must, however, be disposed of on a priority basis.

(The aforesaid principles have been quoted from Paragraph-18 of Pankaj Kumar’s case (supra)).

By applying the principle laid down by the Constitutional Bench in Abdul Rehman Antulay’s case (supra), this Court observes that one of the principle provides that where the Court comes to the conclusion that right to speedy trial of an accused has been infringed, the charges may be quashed. Although that is not the only course open and having regard to the nature of offence and circumstance where the Court feels that quashing of the proceeding cannot be in the interest of justice, it is open to the Court to make appropriate orders thereby expediting the trial. Applying such principle to the case of the Petitioners, this Court is of the considered view that definitely the Petitioners are prejudiced by the delay caused in the commencement of the trial.

The question that falls for consideration now is that whether the accused-Petitioners were deprived of a fair trial ? It is true that no time limit has been fixed for conclusion of a trial, neither the same could be fixed by this Court. However, considering the gravity, seriousness and nature of the allegations made in the F.I.R. this Court can presume a reasonable time frame required to conclude such trial. Moreso, in the facts and circumstances of each case. In the aid context this Court would like to refers to the judgment of the Hon’ble Apex Court in State of Andhra Pradesh vs. P.V.Pavithran reported in (1990) 2 Supreme Court Cases 340. Page-9 of the judgment extracted herein below:

“ 9. The determination of the question whether the accused has been deprived of a fair trial on account of delayed or protracted investigation would also, therefore, depend on various factors including whether such delay was unreasonably long or caused deliberately or intentionally to hamper the defence of the accused or whether such delay was inevitable in the nature of things or whether it was due to the dilatory tactics adopted by the accused. The court, in addition, has to consider whether such delay on the part of the investigating agency has caused grave prejudice or disadvantage to the accused.”

It is also a matter of record that the delay is solely attributable to the non-appearance of the witnesses from the side of the prosecution including the informant, as has been indicated in the preceding paragraphs, the arrest warrant issued against the witnesses including the informant have not been executed as of now. Thus, there is no doubt in the mind of the Court that serious prejudice has been caused to the Petitioners particularly keeping in view the prejudice caused to the Petitioner No.1 and his family, which is irreparable in nature. In the aforesaid factual background, this Court, while balancing the peculiar circumstances in the present case against the right of the Petitioners’ to speedy trial, the inevitable conclusion would be that the further continuance of the proceeding would cause serious prejudice to the Petitioners. Moreover, this Court cannot pass any other appropriate order other than quashing the charge, as in such eventuality also, there is no possibility of the trial being commenced and concluded expeditiously, especially in view of the fact that the prosecution witnesses are not traceable and they are not being produced before the court despite issuance of arrest warrant.

In the ultimate analysis of the aforesaid factual background, further taking into consideration the settled legal position as well as the mandate of the Hon’ble Supreme Court in the Constitutional Bench judgment in Abdul Rehman Antulay’s case (supra), this Court considers it to be a rare and exceptional case where the Court should exercise its inherent jurisdiction to curtail the criminal proceeding to protect the fundamental right of the accused persons as guaranteed under Article 21 of the Constitution of India. Moreover, considering the gravity of the allegation made in the F.I.R. vis-a-vis the mental torture and harassment that the Petitioners have undergone, this court is of the view that they have already been punished without trial having commenced in the meantime. In such view of the matter, this Court is of the view that the present case is a rare and exceptional case where the criminal proceeding should be quashed in the larger interest of justice and to protect the right of speedy trial of the accused persons as guaranteed under Article 21 of the Constitution of India. Accordingly, while allowing the present Application, the F.I.R., Charge Sheet, order framing charge as well the criminal proceeding in Bhubaneswar UPD Saheed Nagar P.S. Case No.92 of 2015 corresponding to C.T.Case No.903 of 2015 pending in the court of the learned J.M.F.C.(L.R.), Bhubaneswar are hereby quashed.

Accordingly, the CRLMC Application is allowed, however, no order as to cost.

.......………………………………..