E F F E C TI V E A N D S P E E D Y D I S P O S A L O F E C O N O MI C O F F E N C E S C AS ES
______ ___ _____ ____ _____ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____ _ Lecture Lecture de delivered ered H o n’bl n’ble Thiru Just Justice K. N.B A S H A, Judge, Judge, Hig h C o urt M a dras at at Ta mil mil N a d u State State Ju dic dicial A ca de m y d uring the the R Refre efresher sher C o urse for for Distr District Ju dges on 3 1.10.2009 .10.2009
___________________ ____________________________ __________________ __________________ __________________ _________
I. Introduction : Speedy trial and timely justice are integral parts of right to life guaranteed under Article 21 of the Constitution of India. India. That is why, the popular saying goes goes “ustice delayed is justice denied!. 2. The topic that is more often discussed at "arious le"els in seminars, wor#shops and meetings is the the delay and $ac#log $ac#log of cases in courts. courts. The outcome of such seminars, wor#shops and meetings ha"e actually changed the scenario which we ha"e witnessed in the recent past. %owe"er, it cannot $e stated that delay has $een completely eradicated in the Courts. &. There are se"eral factors factors which contri$ute contri$ute to the delay in courts. courts. 'et us deli$erate deli$erate on some of such causes for delay and try to find out the ways and means to a"oid delay. (. The %on)$ %on)$le le Ape* Ape* Court Court on se"era se"erall occasi occasion ons s has e*pres e*pressed sed its concer concern n in respect of delay caused in Courts and has also gone to the e*tent of saying that speedy trial is not only the right of the accused $ut of the "ictims of the crime also. +. The inordinate delay in conducting trial contri$utes to acuittal of guilty persons either $ecause the e"idence is lost or $ecause of lapse of time or due to other factors. -hate"er may $e the reason, it is justice that $ecomes casualty. . The %on)$le Ape* Court in Rang Bahadur Singh V. State of U.P. reported in AIR 2000 SC 1209 has 1209 has held as follows / “The time0tested rule is that acuittal of a guilty person should $e preferred preferred to con"ictio con"iction n of an innocent innocent person. nless the prosecution prosecution esta$lishes the guilt of the accused $eyond reasona$le dou$t a con"iction cannot cannot $e passed passed on the accus accused. ed. A crimin criminal al court court cannot cannot afford to depri"e li$erty of the appellants, lifelong li$erty, without ha"ing at least a reasona$le le"el of certainty that the appellants were the real culprits.! . In yet another decision in State of U.P. V. Ram Veer Singh and Another reported
in 200 !"# Su$reme 1"% the %on)$le Ape* Court has held as follows / 3&he go'den thread (hich run) through the (e* of admini)tration of +u)tice in crimina' ca)e) i) that if t(o ,ie() are $o))i*'e on the e,idence adduced in the ca)e- one $ointing to the gui't of the accu)ed and the other to hi) innocence- the ,ie( (hich i) fa,oura*'e to the accu)ed )hou'd *e ado$ted. The paramount consideration of the Court is to ensure that miscarriage of justice is pre"ented. A mi)carriage of +u)tice (hich ma ari)e from ac/uitta' of the gui't i) no 'e)) than from the con,iction of an innocent. 3 Therefore, it is needless to say that the right to speedy trial can $e regarded as reasona$le, fair and just. 4. The "ictims of crimes #noc# at the doors of justice with pain and anguish in their hearts with the fond hope of getting justice. In spite of the delay, which they e*perience, the confidence reposed $y them in the institution has not $een eroded in any manner. Therefore, it is imperati"e for the judiciary to rise up to the occasion to ensure speedy justice $y ta#ing effecti"e steps to a"oid delay. At the same time, it should not $e forgotten that the elements of judiciousness, fairness, euality and compassion cannot $e allowed to $e sacrificed $y rash disposal of cases. -e should remem$er that justice has to $e ensured 5 justice cannot $e hurried to $e $uried. -e ha"e to “decide! the cases and not just “dispose them of!.
6. The %on)$le Ape* Court in u))ainara hatoon !I# V. ome Secretar- State of Bihar reported in !190# 1 SCC 1 has held that, “7o procedure which does not ensure a reasona$ly uic# trial can $e regarded as )reasona$le, fair or just) and it would fall foul of Article 21. There can, therefore, $e no dou$t that speedy trial, and $y speedy trial we mean reasona$ly e*peditious trial is an integral and essential part of the fundamental right to life and li$erty enshrined in Article 21.!
18. The %on)$le Ape* Court has also o$ser"ed in
u))ainara hatoon !I# case
that, “It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial.!
11. The Constitution 9ench of the %on)$le Ape* Court in A.R.Antu'a V. R.S.3aa4 reported in :1992# 1 SCC 225 has held that the right to a speedy trial was a part of fair, just and reasona$le procedure implicit in Article 21 of t he Constitution.
12. In that decision, the %on)$le Ape* Court has also held as follows/ “.. The fact that a speedy trial is also in pu$lic interest or that it ser"es the social interest also, does not ma#e it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as uic#ly as possi$le in the circumstances. ;ight to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of in"estigation, inuiry, trial, appeal, re"ision and re0trial. That is how, this Court has understood this right and there is no reason to ta#e a restricted "iew.! 1&. -e all agree that all the cases ha"e to $e disposed of e*peditiously. %owe"er, in the cases relating to the economic offences, not only few indi"iduals falls "ictims and suffer pecuniary loss, $ut such offences cause serious damage to the national economy. Therefore, there can $e no two opinions that the cases relating to economic offences ha"e to $e tried e*peditiously.
II. 6C7378IC 763C6S :
1(.
So0called highly ualified persons, $usiness
magnets, corporate persons, technical e*perts and pu$lic ser"ants freuently indulge in "arious types of economic crimes and f rauds.
1+. The following categories of cases come under acts of legislation classified as economic crimes / Sl. 7o. 1 2
&
<"asion of <*cise =uty
(
Boney 'aundering
+
'and ra$$ingD;eal
4 6 18 11 12
Acts of 'egislation Income Ta* Act
Customs Act, 162 C?@<?SA, 16(
Collectors of Customs
Central <*cise and Salt Act, 16(( @oreign <*change ;egulations Act, 16& IC
Collectors of Central <*cise =irectorate of
Transplantation of %uman oliceDC9I ?rgans Act, 166( Illicit =rug Traffic#ing 7=S Act, 164+ E 1644 7C9DoliceDC9I Corruption and 9ri$ery of re"ention of Corruption StateDAnti Corruption u$lic Ser"ants Act, 1644 9ureauDFigilance 9ureauDC9I 9an# @rauds IC oliceDC9I Insurance @rauds IC oliceDC9I ;ac#eteering in =irectorate eneral of @oreign Illegal @oreign Trade Act, 16( TradeDC9I Trade in %uman $ody parts
1& 1( 1+
1 1
;ac#eteering in false Tra"el assport Act, 1628DIC oliceDC9I =ocuments Credit Cards @raud IC oliceDC9I Copy ;ight Act, 16+ oliceDC9I Theft of Intellectual roperty :Amendments 164( E 166(> Copy ;ight Act, Computer CrimeDSoftware 16+DInformation oliceDC9I iracyDCy$er 'aw Technology Act, 2888 Company @rauds Companies Act, 16+DIC oliceDC9I :Contra$and> B;T, 164 1. The economic offences are also falling under the $road category of )cheating), )counterfeiting) and )criminal $reach of trust).
1.
&3PI Act : 14. =uring the year 166, complaints were poured $efore the Central Crime 9ranch, Chennai City, against the unincorporated financial institutions as they alleged to ha"e induced the pu$lic to deposit their hard0earned money $y offering attracti"e interest, collected huge amounts and defaulted in payment. Initially action was ta#en only for the alleged offence of cheating and fraud. Thereafter, the o"ernment of Tamil 7adu enacted the Tamil 7adu rotection of Interest of =epositors Act in the year 166. Tamil 7adu is the first state to enact such an act in the country. Thereafter, with a "iew to conduct speedy trial of such cases, a Special Court for T7I= Cases was constituted at Chennai. In the year 2884, Special Courts for T7I= Cases were also constituted at Badurai and Coim$atore and the cases pending on the file of the Chennai Court pertaining to these places were transferred to these Courts and renum$ered and as on date there are three Special Courts for T7I= Cases are functioning in the State. Se"eral other States, following the Tamil 7adu Act, enacted similar acts on the lines of the Tamil 7adu Act.
16. A separate wing, "iG.,
28. The
@urther action was dropped in (8 cases, ( cases ended in
con"iction, 16 cases ended in acuittal and ( cases were transferred to the local olice.
21.1. SA;I63& 6A&UR6S 7 &3PI AC& : :1> @ailure to return the depositDinterest H an offence also failure to render ser"ice for which deposit is made H Section +. :2> 18 years Imprisonment and ;s.1 la#h fine H Section +. :&> Section +A pro"ides for compounding the offence. :(> Attachment of moneyDproperty purchased out of deposits 5 if not sufficient power to attach other property of the companyDpromotersDdirectors etc., Section &. :+> 9orrower)s property lia$le to attachment H Section & :> roperties transferred other than for considerationDgood faith lia$le for attachment H Section 4 :> 79@Cs originally e*empted $rought within the am$it of T7I= Act, Section 2:&>. :4> =efinition of @inancial Institution is widened to include companies registered under the Indian Companies registered under the companies Act, Section 2:&>. :6> Competent Authority is empowered to attach E sell the properties and dis$urse the money to the depositors H Sections & and (.
21.2. SA;I63& 6A&UR6S 7 &6 A8636 &3PI Act- 199 : T7I= Act, 166 was amended on 18.11.288&. :1> In Section 2:2> of the act H =eposit includes deposits of money in installments and also for any ser"ice. :2> nder Section 2:&> H @inancial esta$lishment / A company registered under Companies Act H 16+ :Central Act 01 of 16+> is also included 5 :&> nder Section & H attachment of properties / roperties of the $orrowers can also $e attached. :(> nder Section +A H Compounding of offences is amended “Competent Authority can compound the offences $efore the institution of the prosecution or after institution of the prosecution.!
21.<. C78P6&63& AU&7RI&= : The Additional Commissioner of 'and Administration was the only Competent Authority until Septem$er 288(. As per .?.7o.18(6D288(, %omeDCourts II A, dated 2.84.288( the =;?s of the districts ha"e $een notified as the Competent Authorities.
21.%. C78P6&63& AU&7RI&= 7R A&&AC863& PR7C663I>S : Competent Authority in T7I= Cases is the custodian for the attachment proceedings, ta#es possession of the Ad0interim attached properties.
et a$solute
attachment order and distri$ute the amount realiGed eually to the depositors after the sale of roperty.
21.5. Act 3o.1 of 200 : Certain amendments were $rought into force in Sections ( and of the T7I= Act.
21.. The constitutional "alidity of T7I= Act was upheld $y %on)$le Br.ustice .Sathasi"am :as he then was> in a case in &hiru 8uruga inance V. State of &ami' 3adu reported in 2000 !II# C&C "09. It was again challenged in "iew of the order passed $y the @ull $ench of 9om$ay %igh Court declaring the “Baharastra rotection of Interests of =epositors :in financial Act, 1666 #nown as BI= :@<> Act> as untra "irus. The @ull $ench of Badras %igh Court again upheld the constitutional "alidity of the T7I= Act on 82.8&.288 in Baga,ath- S. V. State of &ami' 3adu reported in 200 !2# C&C 20.
21.. The spirit $ehind the T7I= Act is settlement. This is self contained, $ecause the offence under T7I= Act is compounda$le. This is also indicated in the @ull 9ench decision of our %igh Court cited supra. The point is what shall $e his attitude toward T7I= Act and how shall he approach the cases under it In this conte*t it is necessary to #onw the anatomy of the $usiness.
A person or a group of persons ha"e a Consolidated right under Article 16:1>:g> to engage in any profession or $usiness of his choice. Therefore, when a group of persons commences a financial $usiness the legal way, there is nothing fundamentally wrong a$out it. There are at least three categories of financial esta$lishments that come $efore T7I= Court. :i> Those who actually intend to cheat. :ii> Those who messed up their $usiness with lac# of $usiness e*pertise as indicated a$o"e :iii> 'astly, thoroughly innocent group whose $usiness comes to a halt $ecause of wrong depositors) perception. This happens where there is a run on their financial esta$lishments $ecause some other financial esta$lishment has cheated.
21.4. As on date, there are 12 calender cases are pending on the file of the Special Court, T7I= Act Cases, Badurai. There are case pending right from the year 2881 and one oldest case is pending right from the year 2888.
22. 'and ra$$ing Cases are increasing alarmingly day0$y0day on the $asis of forging and fa$ricating false documents in respect of the properties. In "iew of such menace, a separate wing was also created for in"estigating the land gra$$ing offences in the Central Crime -ing, namely, 'and ra$$ing -ing.
2<. 6C7378IC 763C6S IVISI73 :
The Import0e*port frauds 5 :2> 9an#ing frauds 5 :&> Insurance frauds 5 :(> @oreign e*change frauds 5 :+> Smuggling of narcotics and psychotropic su$stances 5 :> @orgery of tra"el documents, identity papers, and o"erseas jo$ rac#ets. :> Counterfeit currency and fa#e o"ernment stampsDpapers 5 :4> Cy$er Crimes 5 :6> Fiolations of Intellectual roperty ;ights, audio and "ideo piracy, software piracy, etc.
2%. C*er Crime In,e)tigation Ce'' : A Cy$er Crime In"estigation Cell :CCIC> has $een constituted in C9I in the year 1666.
25. I3SURA3C6 C;AI8 RAU CAS6S : Insurance claim fraud cases were also increasing and as a result, this Court in a decision in 3ationa' In)urance Co. ;td.- Coim*atore V. .3anda*a'an reported in 2005 !2# ;a( ?ee4' %<9 felt the necessity of constituting one central agency for dealing with the $ogus insurance claim cases with a "iew to stop such a serious menace defeating the "ery o$ject of the $eneficial legislation.
The @irst 9ench of this Court in 3ationa' In)urance Com$an ;imited V. irector >enera' of Po'ice @ 2 other) reported in 200"2;.?. 1"- considering that crores of rupees of pu$lic money is in"ol"ed and larger pu$lic interest is at sta#e in "iew of the false and $ogus insurance claims thought it fit to entrust t he in"estigation to the C9I and in "iew of the said decision and in "iew of the in"estigation was ta#en o"er $y the C9I, 488 Botor Accident Claim etitions were withdrawn $efore the Tri$unals and the claims of compensation to the tune of ;s.188D0 crores ha"e $een withdrawn.
2". Con)titution of S$ecia' Court for CBI Ca)e) :
There are three Special Courts constituted for C9I Cases at Channai, one at Badurai and another one at Coim$atore. They are, rincipal Special udge for C9I Cases, Chennai, :ii> Additional Special udge for C9I Cases, Chennai :IJ Court>, :iii> Additional Special Court
for C9I Cases, Chennai, :i"> II Additional Special Court for C9I Cases, Badurai, and :"> II Additional Special Court for C9I Cases, Coim$atore.
There is also a proposal for
constitution of three more C9I Special Court, two at Chennai and one at Trichy.
As on &8.86.2886, the pendency of cases $efore the C9I Courts as hereunder / =istrict Chennai Badurai Coim$atore
Court 7o.1 ( (4
Court 7o.2 +4 .. ..
Court 7o.& 1(8 .. ..
I Additiona' S$ecia' Court for CBI Ca)e) Statement showing the Calender Cases for the month of u' 2009 C.C.7o. 12D166 124D166 +6D2888 1D288& 14D288& 24D288& D288+ 22D288+ 14D288 D2884 14D2884
7o.of witnesses <*amined E 2 witnesses 1 witness 1 witness & witnesses ( witnesses & witnesses 2 witnesses 1 witness + witnesses 1 witness 1 witness
=ate 0 6..86 0 6..86 0 28..86 0 1+..86 H 1(..86, 2(..86 0 1..86 0 ..86, 1(..86 0 2(..86 0 21..86 0 21..86 0 6..86
Total 7o.of pages :'etter @ont SiGe 12> ( 2 ( 18 6 ( 2 2
Statement showing the Calender Cases for the month of Augu)t 2009 C.C.7o.
7o.of witnesses <*amined E
Total 7o.of pages :'etter
2&D166 12D166 +D2881
=ate 1 witness 0 +.4.86 1 witness 0 &.4.86 + witnesses H 18.4.86, 16.4.86,
@ont SiGe 12> 1 18 1+
1D288& 14D288& 2D288& 24D288& &+D288( &D288 1D288 14D288
24.4.86 1 witness 0 11.4.86 1 witness H 2.4.86 2 witnesses 0 2.4.86 1 witness 0 .4.86 2 witnesses 0 &1.4.86 1 witness 0 .4.86 + witnesses 0 16.4.86 18 witnesses H (.4.86, +.4.86,
2 & + 2 1 6 24
2D288 6D288 11D288 &D2884 D2884 28D2884 &D2884
22.4.86 & witnesses H 11.4.86 2 witnesses H 1(.4.86 ( witnesses H 14.4.86 1 witness H 21.4.86 1 witness H 11.4.86 1 witness H 1.4.86 1 witness H 1(.4.86
6 4 4 2 2 2
Statement showing the Calender Cases pending for the month of u' and Augu)t 2009 @or the month of uly 2886 @or the month of August 2886 Total No. of pending cases upto August Total 7o. of Total 7o. of Total 7o. of Total 7o. of 2009 witnesses witnesses pages pages e*amined e*amined ++ 2( + (& 128 Statement showing the particulars of total pending cases, num$er of witnesses e*amined with date along with case particulars on the file of the I Additiona' S$ecia' Court for CBI Ca)e)- Chennai for the month of u' and Augu)t 2009.
Sl. 7o. 1
C.C.7o. 22D6
7o.of witnesses e*amined .-
2
4D6
..
&
4(D6
..
( +
61D6 16D6
.. - 1, - 14
22+D6
- 4
28D64
- 11
4
&&D64
-&8, &1
&2
42D81
-.1 - 1 - 14, 16 - 16
-28 -21
&&
1D2882
-22 -2& -2( -2+ ..
&(
2D2882
-s.2,&,(
&+
D2882
-s. and
&
4D2882
- 21
=uration of time ta#en E ages 18.84.2886 :>
;emar#s
- e*amined 5 <*..188+ mar#ed .. 79- pending against A& .. Crl.A.7os.466 E 688D81 disposed of $y %on)$le Supreme court for framing of charges .. 79- pending &1.4.86 :12>:> -14 e*amined 5 <*..&( mar#ed 1..86, 26..86, 2.4.86 - 4 e*amined :1+> <*..18 mar#ed 2..86 :> Issue summoning to remaining witnesses 6..86, 16..86 :12> -.&1 e*amined 1..86, 2(..86, 18.4.86, <*..21& mar#ed 14.4.86 :1+> 1+..86, 1..86 :6> As per order of the 1..86:> %on)$le Supreme Court 28..86 :4>, :11> trial is conducting day to 21..86, +.4.86 to .4.86, day $asis .-s.24 18.4.86, 11.4.86 and e*amined <*.s.(4 1(.4.86 :28> mar#ed 21.4.86 :4> 2&..86, 2(..86, 24..86, 26..86, &8..86, 21..86, &.4.86 (.4.86 :1(> (.4.86 :2(> 16.4.86 :4> 2.4.86 :> .. Split up case from CC.&D66 79- pending 11.84.86 :1>:4>:1&> -s.1+ e*amined <*.s.1+ mar#ed 26..86 :4> -s.2+ e*amined, <*.s.24 mar#ed 4..86, &.4.86 :11> .-.21 e*amined, <*.s.(4( mar#ed
&
11D82
&4
1D82
- 1+ - 1 =- 1 =- 2
(..86, ..86 :1&> 2.6.86 :> 28.8.86 :4> 28.84.86:>
-s.11 e*amined, <*..2( mar#ed -s.& and =-s.& e*amined. <*.s.264 and <*.=s.2 mar#ed 0 for arguments
Statement regarding pending Criminal Cases of the file of rincipal Special udge for C9I CasesDFIII Additional City Ci"il Court, Chennai 0 18( with district of jurisdiction
Sl. 7o.
Calendar Case 7o.
1
62D6
2
1D64
&
4D66
(
D2888
+
+D2888
6D81
2D81
4
+D82
6
1+D82
=istrict of
?ffence uDs Act
urisdiction
Ds.1289 rDw (28 IC E Sec.+:2>
Chennai rDw +:1>:d> of C Act, 16(6 Ds.1289 rDw (28, (4 and (1 IC E Sec.1&:2> rDw 1&:1>:d> of C Chennai Act, 1644 Ds.1289 rDw (28 IC E Sec.1&:2> Chennai rDw 1&:1>:d> of C Act, 1644 Ds.1289 rDw (28 IC E Sec.1&:2> Chennai rDw 1&:1>:d> of C Act, 1644 Chennai Ds.1289 rDw (28 IC E Sec.+:2> rDw +:1>:d> of C Act, 16( Sec.1&:2> rDw 1&:1>:d> of C Act A1 E A20Chennai and 186 IC, 1&:2> rDw 1&:1>:d> A&0Thanja"ur C Act Ds.(82, (A IC E Sec.1&:2> rDw Chennai 1&:1>:d> of C Act, 1644 79- ending, 0 do0 Chennai Ds.1289 IC rDw E Sec.1&:1>:d> Chennai of C Act, 1644 Ds.1289 rDw (28 IC E Sec.1&:2> Chennai rDw 1&:1>:d> of C Act
18 18D8&
Statement showing the particulars of Kear0war pendency of cases under the re"ention of Corruption Act pending as on &8.6.86 of Princi$a' S$ecia' udgeD) Court for CBI Ca)e)8adurai 0000 Total 7o. of pending cases as on &8.86.2886 L ( Kear0war statement 1664 2881 288( 1 1 11 M 'ess than years L (( 5 years old cases L 2
288+ (
288
288 4
2884 11
2886 &
Total ( M
oldest case is C.C.7o.2D64, in which 1&4 witnesses ha"e $een e*amined.
Statement showing the category0wise of re"ention of Corruption Act of Princi$a' S$ecia' udge for CBI Ca)e)- 8adurai- as on &8.86.2886
9an# @raud Cases
=ispropor tionate Trap Assets Cases Cases D2881 1D288 1D2884 12D288 18D2884 4D2884 11D2884 6D2884 2D2886
1D288+ 2D288+ D288+ 4D288M 8(D288 D288M 84D288 86D288 &D288M 1&D288 1D288 8(D2884 8+D2884 8D2884 8D2884 8&D2886 1" %
5
@alse Crematio Insuranc assport Bedi0 n Shed 'IC fraud e fraud fraud clam fraud cases case cases cases cases D288( 2D1664 D288+ 12D2884 D288 D288( 6D288MM 4D288( &D2884MM
@alse Insuranc e Cases 18D288( 11D288( 12D288( 1&D288( 1(D288( 1+D288( 1D288( 1D288( 2D288 &D288 18D288 1D2886
12
<
1
1
1
<
M 7on09aila$le -arrant pending against accused persons. MM 7on0appearance of accused persons :Split up from CC 7o.(D288>
2(. ;A38AR 6CISI73S I3 R6SP6C& 7 SP66= &RAI; A3 &6 >UI6;I36S 7R SP66= ISP7SA; 7 CAS6S :
The %on)$le Ape* Court in A.R.Antu'aD) ca)e !1992# 1 SCC 225 has gi"en the guidelines for e*peditious disposal of cases as hereunder / “4. In "iew of the a$o"e discussion, the following propositions emerge, meant to ser"e as guidelines. -e must forewarn that these propositions are not e*hausti"e. It is difficult to foresee all situations. 7or is it possi$le to lay down any hard and fast rules. These propositions are /
1. @air, just and reasona$le procedure implicit in Article 21 of the Constitution creates a right in the accused to $e tried speedily. ;ight to speedy trial is the right of the accused. The fact that a speedy trial is also in pu$lic interest or that it ser"es the societal interest also, does not ma#e it any0the0
less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as uic#ly as possi$le in the circumstances.
2. ;ight to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of in"estigation, inuiry, trial, appeal, re"ision and retrial. That is how, this Court has understood this right and there is no reason to ta#e a restricted "iew.
&. The concerns underlying the ;ight to speedy trial from the point of "iew of the accused are / :a> the period of remand and pre0con"iction detention should $e as short as possi$le. In other words, the accused should not $e su$jected to unnecessary or unduly long incarceration prior to his con"iction5 :$> the worry, an*iety, e*pense and distur$ance to his "ocation and peace, resulting from an unduly prolonged in"estigation, inuiry or trial should $e minimal5 and :c> undue delay may well result in impairment of the a$ility of the accused to defend himself, whether on account of death, disappearance or non0 a"aila$ility of witnesses or otherwise.
(. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, 3delay is a #nown defence tactic3. Since the $urden of pro"ing the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. 7on0a"aila$ility of witnesses, disappearance of e"idence $y lapse of time really wor# against the interest of the prosecution. ?f course, there may $e cases where the prosecution, for whate"er reason, also delays the proceedings.
Therefore, in e"ery case, where the ;ight to speedy trial is
alleged to ha"e $een infringed, the first uestion to $e put and answered is0 who is responsi$le for the delay roceedings ta#en $y either party in good faith, to "indicate their rights and interest, as percei"ed $y them, cannot $e treated as delaying tactics nor can the time ta#en in pursuing such proceedings $e counted towards delay. It goes without saying that fri"olous proceedings or proceedings ta#en merely for delaying the day of rec#oning cannot $e treated as proceedings ta#en in good faith. The mere fact that an applicationDpetition is admitted and an order of stay granted $y a superior court is $y itself no proof that the proceeding is not a fri"olous. Fery often these stays o$tained on e*0parte representation.
+. -hile determining whether undue delay has occurred :resulting in "iolation of ;ight to Speedy Trial> one must ha"e regard to all the attendant circumstances, including nature of offence, num$er of accused and witnesses, the wor#0load of the court concerned, pre"ailing local conditions and so on0 what is called, the systemic delays. It is true that it is the o$ligation of the State to ensure a speedy trial and State includes judiciary as well, $ut a realistic and practical approach should $e adopted in such matters instead of a pedantic one.
.
4. ltimately, the court has to $alance and weigh the se"eral rele"ant factors0)$alancing test) or )$alancing process)0and determine in each case whether the right to speedy trial has $een denied in a gi"en case. 6. ?rdinarily spea#ing, where the court comes to the conclusion that ;ight to speedy trial of an accused has $een infringed the charges or the con"iction, as the case may $e, shall $e uashed. 9ut this is not the only course open. The nature of the offence and other circumstances in a gi"en case may $e such that uashing of proceedings may not $e in the interest of justice. In such
a case, it is open to the court to ma#e such other appropriate order0including an order to conclude the trial within a fi*ed time where the trial is not concluded or reducing the sentence where the trial has concluded0as may $e deemed just and euita$le in the circumstances of the case. 18. It is neither ad"isa$le nor practica$le to fi* any time0limit for trial of offences. Any such rule is $ound to $e ualified one. Such rule cannot also $e e"ol"ed merely to shift the $urden of pro"ing justification on to the shoulders of the prosecution. In e"ery case of complaint of denial of ;ight to speedy trial, it is primarily for the prosecution to justify and e*plain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a gi"en case $efore pronouncing upon the complaint. The Supreme Court of .S.A. too as repeatedly refused to fi* any such outer time limit inspite of the Si*th Amendment. 7or do we thin# that not fi*ing any such outer limit in effectuates the guarantee of ;ight to speedy trial.
2+. Thereafter, the Constitution 9ench of the %on)$le Ape* Court in P.Ramachandra Rao V. State of arnata4a reported in !2002# % SCC 5 has held that the directions prescri$ing such time0limit $y 2 or &0udge 9enches of Supreme Court in two common causes cases, "iG., Common Cau)e I !199"# % SCC <<- Common Cau)e II !199"# " SCC 5 and two ;aj =eo Sharma cases "iG., Ra+ eo Sharma I !199# SCC 50 and Ra+ eo Sharma II !1999# SCC "0% run counter to the Constitution 9ench decision in A.R.Antu'aD) ca)e !1992# 1 SCC 225 .
2. The %on)$le Ape* Court in P.Ramachandra Rao case held as hereunder / “Thus, it is neither ad"isa$le, nor feasi$le, nor judicially permissi$le to draw or prescri$e an outer limit for conclusion of all criminal proceedings. The time0limits or $ars of limitation prescri$ed in se"eral directions made in Common Cause I, ;aj =eo Sharma I and ;aj =eo Sharma II could not ha"e $een so prescri$ed or drawn and are not good law.!
2. It was also held in that decision that, “Secondly, while deleting the directions made respecti"ely $y two0and three udge 9enches of the Supreme Court in the cases under reference, no departure has $een made from the law as to speedy trial and speedy conclusion of criminal proceedings of whate"er nature and at whiche"er stage $efore any authority or the Court.!
28. Se"eral cases coming to our notice while hearing appeals, petitions
and miscellaneous petitions :such as for $ail and uashing of proceedings> re"eal, apart from inadeuate judge strength, other factors contri$uting to the delay at the trial.
enerally spea#ing, these are/ :i> a$sence of, or delay
in appointment of, pu$lic prosecutors proportionate with the num$er of courtsDcases5 :ii> a$sence of or $elated ser"ice of summons and warrants on the accusedDwitnesses5 :iii> non0production of undertrial prisoners in the Court5 :i"> presiding udges proceeding on lea"e, though the cases are fi*ed for trial5 :"> stri#es $y mem$ers of
9ar5 and :"i> counsel engaged $y the accused
suddenly declining to appear or see#ing an adjournment for personal reasons or personal incon"enience. .... @or non0ser"ice of summonsDorders and non0 production of undertrial prisoners, the usual reasons assigned are shortage of police personnel and police people $eing $usy in FI duties or law and order duties. These can hardly $e "alid reasons for not ma#ing the reuisite police personnel a"aila$le for assisting the Courts in e*pediting the trial.
The
mem$ers of the 9ar shall also ha"e to realiGe and remind themsel"es of their professional o$ligation NN legal and ethical, that ha"ing accepted a $rief for an accused they ha"e no justification to decline or a"oid appearing at the trial when the case is ta#en up for hearing $y the Court. A''
the)e
factor)
demon)trate that the goa' of )$eed +u)tice can *e achie,ed * a com*ined and re)u'toriented co''ecti,e thin4ing and action on the $art of the ;egi)'ature- the udiciar- the 6Eecuti,e and re$re)entati,e *odie) of mem*er) of Bar. 21. .... The Criminal rocedure Code, as it stands, incorporates a few pro"isions to which resort can $e had for protecting the interest of the accused and sa"ing him from unreasona$le proli*ity or la*ity at the trial amounting to oppression. Section &86, dealing with power to postpone or adjourn proceedings, pro"ides generally for e"ery inuiry or trial, $eing proceeded with as e*peditiously as possi$le, and in particular, when the e*amination of witnesses has once $egun, the same to $e continued from day to day until all the witnesses in attendance ha"e $een e*amined, unless the Court finds the adjournment of the same $eyond the following day to $e necessary for reasons to $e recorded. <*planation02 to Section &86 confers power on the Court to impose costs to $e paid $y the prosecution or the accused, in appropriate cases, and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely e*ercised $y the Courts. Section 2+4, in Chapter JJ of Cr..C., on Trial of Summons0cases, empowers the Bagistrate trying summons cases instituted otherwise than upon complaint, for reasons to $e recorded $y him, to stop the proceedings at any stage without pronouncing any judgment and where such
stoppage of proceedings is made after the e"idence of the principal witnesses has $een recorded, to pronounce a judgment of acuittal, and in any other case, release the accused, ha"ing effect of discharge. This pro"ision is almost ne"er used $y the Courts.
In appropriate cases, inherent power of the %igh
Court, under Section (42 can $e in"o#ed to ma#e such orders, as may $e necessary, to gi"e effect to any order under the Code of Criminal rocedure or to pre"ent a$use of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously e*ercised, can ta#e care of almost all the situations where interference $y the %igh Court $ecomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inuiry or proceedings.
In appropriate cases, the %igh Courts ha"e e*ercised their
jurisdiction under Section (42 of Cr..C. for uashing of first information report and in"estigation, and terminating criminal proceedings if the case of a$use of process of law was clearly made out. Such power can certainly $e e*ercised on a case $eing made out of $reach of fundamental right conferred $y Article 21 of the Constitution. 26. .... :+>
The Criminal Courts should e*ercise their a"aila$le
powers, such as those under Sections &86, &11 and 2+4 of Code of Criminal rocedure to effectuate the right to speedy trial. A (atchfu' and di'igent tria' +udge can $ro,e to *e *etter $rotector of )uch right than an guide'ine). In appropriate cases jurisdiction of %igh Court under Section (42 of Cr..C. And Articles 22 and 22 of Constitution can $e in"o#ed see#ing appropriate relief or suita$le directions. 2. Rea)on) for de'a in conducting tria' :
:1> @reuent adjournments of cases on unreasona$le grounds 5 :2> 7on0co0operation of accused $y a$senting freuently and changing the counsel often with a "iew to protract the proceedings5 :&> @iling of unnecessary discharge petitions $efore the trial Court and uashing petitions $efore the %igh Court there$y hampering the progress of the trial. At this juncture, I would li#e to ma#e a mention a$out one case where the %igh Court dismissed the petition under Section (42 Cr..C. filed $y one of the accused for uashing the entire proceeding. The said case relates to false insurance claim. After the ela$orate order of dismissal passed $y the %igh Court the accused again, on
certain grounds,
mo"ed the trial Court with a petition see#ing to drop the proceedings, that too after e*amination of 11 witnesses. The trial Court dropped the proceedings against one of the accused on the ground of non0compliance of Section 16+ Cr..C. Against the
said order, a re"ision is pending on the file of the %igh Court. Therefore, I cannot go into the merits of the case and the findings of the learned trial udge for dropping the proceeding against one of the accused 5 :(> 7on0production of witnesses $y the prosecution 5 There are cases pending for decades on the ground of non0a"aila$ility of witnesses 5 :cases are pending right from the year 164 $efore the learned Additional Chief Betropolitan Bagistrate, <.?.I, Chennai, on the ground of non0production of witnesses> 5 :+> A$sence of in"estigating officer for the trial on one ground or the other 5 :> Insufficient strength of prosecutors for conducting trial in economic offences cases. @or e*ample, re"ention of Corruption Act Cases are managed $y one u$lic rosecutor in more than one =istrict which results in delay in conducting the trial 5 :> <*amination of immaterial witnesses is yet another cause for the delay 5 :4> @reuent $oycotts $y the mem$ers of the legal fraternity 5 :6> ndue and une*plained delay caused at the in"estigation stage 5 :18>=isproportionate distri$ution of cases to the courts.
29. Sugge)tion) for )$eed di)$o)a' :
:1> @reuent adjournments on unreasona$le grounds should $e a"oided and the trial Court should insist the rosecutor as well as the defence counsel to a"oid unnecessary adjournments. :2> The Court should ensure that the prosecution produce the material witnesses without any delay and such witnesses e*amined, as f ar as possi$le, on a day0to0day $asis5 :&> The rosecutor should $e impressed upon to dispense with the e*amination of unnecessary and immaterial witnesses e*cept to e*amine some witnesses to corro$orate the other witnesses who ha"e already spo#en to a$out the prosecution "ersion 5 :(> The Courts should see that the police ta#e effecti"e steps to ser"e the summons to the witnesses 5 :+> If there is no response of from the accused to summons, the trial Court should issue non0$aila$le warrant and such warrants should $e e*ecuted $y ta#ing effecti"e steps without any undue delay 5 :> There should $e eual distri$ution of cases to all the special Court for C9I Cases. At Chenai, there are three Courts for C9I Cases and the third Court, "iG., The JI Additional Special Court for C9I Cases was constituted at the reuest of the C9I to try Indian 9an# scam case, $ut the cases relating to all financial institutions transferred to JI Additional Special Court for C9I Cases resulting in huge pendency in that Court. :> The trial Courts should freuently e*ercise its power $y in"o#ing Section &86 Cr..C.
for e*peditious disposal of economic offences cases. :4> The economic offences cases shall $e conducted, as far as possi$le, on a day0to0day $asis, and certain cases ha"e already $een tried as per the directions of the Supreme Court and %igh Court 5 :6> The in"estigation officers shall e*pedite the in"estigation as e*peditiously as possi$le and to file the final reports at the earliest5 :18>Bediation and Conciliation and other Alternati"e =ispute ;edressel :A=;> should $e adopted where"er it is possi$le. :11>The offence under Section T7I= Act is compounda$le one and the paramount interest of the depositors has to $e considered for getting $ac# their hard earned money $y ta#ing effecti"e steps to $ring the attached properties for sale and distri$ution of sale proceeds. In respect of other offences also where"er the offence is compounda$le including the offence of Cheating, the Court should gi"e suggestion for compounding the offence $y gi"ing reasona$le time 5 :12>-hene"er summons or warrants issued to the police for compliance, it should $e ensured that there is a report from the police either regarding the ser"ice of summons or non0ser"ing the summons. :1&>@reuent meetings of police officials and the udges should $e conducted to ta#e a sur"ey of the progress of ser"ice of summons, e*ecution of warrants and trials. The a$o"e suggestions are only illustrati"e and not e*hausti"e.
&8. @inally, I would li#e to conclude that whate"er may $e the guidelines gi"en and the steps ta#en $y the Court, unless and until there is an effecti"e co0operation and coordination $etween the 9ench, 9ar and the prosecution, we cannot achie"e the goal of rendering speedy justice $y speedy disposal of the economic offences cases. MMMMMMM
