SIRAJUL & ORS.versusTHE STATE OF U.P. &ANR.

                    [2015] 6 S.C.R. 1021


                      SIRAJUL & ORS.

                              v.
                THE STATE OF U.P. &ANR.
             (Criminal Appeal No. 854 of 2011)                    B

                        JULY 6, 2015
[J. CHELAMESWAR AND ADARSH KUMAR GOEL,JJ.]

       Penal Code, 1860: s.307 - Cross cases uls.307 by           C
appellants and respondents in the year 1992 - Respondent
no. 2 convicted uls. 307134 - In complaint against appellant
u/s. 307, no action taken tiff 2005 - In 2005, respondent
no.2 filed an application for summoning progress report -         D
No order passed in that application - In 2008, respondent
no. 2 filed another application - Application disposed of in
 view of report of police that appellants were exonerated
during investigation - Respondent no. 2 filed instant
complaint alleging commission of offence u/s.307 by               E
appellant in 1992- Summoning order- High Court refused
to quash order of trial court on the ground that a/legation in
the complaint and preliminary evidence led in support thereof
made out a case of summoning - On appeal, Held: Mere
delay in completion of proceedings may not be by itself a         F
ground to quash proceedings where offences are serious,
but the Court having regard to the conduct of the parties,
nature of offence and the extent of delay in the facts and
circumstances of a given case can quash the proceedings -
In the present case, the complainant stood convicted in a         G
cross case - At least for 10 years after commencement of
the trial, he did not even bother to seek simultaneous trial of
the cross case - The step taken for the first time in the year
2005 should have been taken in the year 1995 itself when
the trial against respondent No.2 commenced - Having              H
                            1021
1022        SUPREME COURT REPORTS                   [2015] 6 S.C.R.


 A regard to the nature of allegations and entirety of
       circumstances, it will be unfair and unjust to permit
     · respondent No.2 to proceed with a complaint filed 16 years
       after the incident against the appellants - Limitation - Delay/
       /aches.
 B
           Allowing the appeal, the Court

         HELD: 1. While it is true that cases covered by
   statutory bar of limitation may be liable to be quashed
 c without any further enquiry, cases not covered by the
   statutory bar can be quashed on the ground of delay in
   filing of a criminal complaint in appropriate cases. In
   such cases, the question for consideration is whether
   there is violation of right of speedy trial which has been
 o held to be part of Article 21 of the Constitution having
   regard to the nature of offence, extent of delay, person
   responsible for delay and other attending circumstances.
   Mere delay in completion of proceedings may not be by
   itself a ground to quash proceedings where offences
 E are serious, but the Court having regard to the conduct
   of the parties, nature of offence and the extent of delay
   in the facts and circumstances of a given case, quash
   the proceedings in exercise of jurisdiction under Section
   482 Cr.P.C. in the interest of justice and to prevent abuse
 F of process of the Court. In the present case, conduct of
   the complainant-respondent no.2 can certainly be taken
   into account. Having regard to the nature of allegations
   and entirety of circumstances, it will be unfair and unjust
   to permit respondent No.2 to proceed with a complaint
 G filed 16 years after the incident against the
   appellants.[Paras 11, 17, 18] [1026-F-H; 1027-A; 1032-B-
   C, E-F]
        Japani Sahoo vs. Chandra Sekhar Mohanty. (2007) 7
 H      SCC 394:2007 (8) SCR 582; Vakil Prasad Singh vs.
    SIRAJUL & ORS. v. THE STATE OF U.P. &ANR.                  1023


  StateofBihar(2009)3SCC 355:           2009     (1)            A
  SCR 517; Ranjan Dwivedi vs. CBI (2012) 8 SCC
  495:2012 (7) SCR 329 Sajjan Kumar vs. CBI (2010) 9
  SCC 368: 2010 (11) SCR 669; NO/DA Entrepreneurs
  Assn. vs. NO/DA (2011) 6 sec 508: 2011 (8) SCR 25
  - referred to.                                                B

                     Case Law Reference
     2007 (8) SCR 582             referred to.   Para 9
     2009 (1) SCR 517             referred to.   Para 13        c
     2012 (7) SCR 329             referred to.   Para 14
     2010 (11) SCR 669            referred to.   Para 15
     2011 (8) SCR 25              referred to.   Para 16
    CRIMINAL APPELLATE JURISDICTION : Criminal                  D
Appeal No. 854 of 2011.

     From the Judgment and Order dated 06.07.2009 in
Criminal Misc. Case No. 2428 of 2009 of the High Court of
Judicature of Allahabad, Lucknow Bench, Lucknow (U.P).
                                                                E
      M. Sufian Siddiqui, Rakesh Bhugra, M. Tabish Zia,Aftab
Ali Khan for the Appellants.

     Arunabh Chowdhury, Gainilung Panmei, Karma Dorjee,
Vaibhav Tomar, Anupam Lal Das for the Respondents.              F

       The Judgment of the Court was delivered by

      ADARSH KUMAR GOEL, J. 1. The appellants have
called in question the order dated 61h July, 2009 of the High G
Court of Judicature, Allahabad, Bench at Lucknow in Criminal
Miscellaneous Case No.2428 of 2009. Thereby, the High
Court declined to interfere with the order of summoning and
to quash the complaint dated 3rd May, 2008 registered as
Criminal Complaint Case No.1066 of 2008 under Section H
1024         SUPREME COURT REPORTS                  [2015] 6 S.C.R.


 A     307 of the Indian Penal Code, P.S. Atrauli, District Hardoi,
       pending in the Court of Judicial Magistrate-II, Hardoi.
       According to the appellants, the complaint and the
       proceedings were gross abuse of process of the Court having
       been filed after gross delay of 16 years after the incident.
 B
             2. The incident in question took place on 11th February,
       1992. In respect of the said incident, there were two cross
       cases being Crime Case No.37/92 under Section 307 IPC
       registered against the appellants, and Crime Case No.37A/
 C     92 under Section 307 IPC registered at the instance of the
       appellants at Police Station Atrauli, District Hardoi. The
       investigating Agency charge sheeted respondent No.2, which
       gave rise to Session Trial Case No. 760 of 1995. After trial,
       respondent No.2 and three others were convicted under
 D     Section 307/34 IPC and sentenced to undergo rigorous
       imprisonment for seven years and to pay a fine of Rs.5,000/
       - each vide judgment dated 23rd September, 2009 by
       Additional Sessions Judge/F.T.C.-1, Hardoi. However, an
       appeal against the said judgment is said to be pending.
 E     Respondent No.2, in his statement under Section 313 Cr.P.C.
       stated that he had also lodged a cross case. He also led
       defence evidence in support of the cross version. Having
       regard to the nature of injuries received on the side of the
 F     appellants and other evidente, version of the appellants was
       accepted and respondent No.2 and two others were
       convicted.

         3. What is significant and undisputed is the fact that
   though respondent No.2 had registered Crime Case No.37/
 G 92 on 11th February, 1992 against the appellants and no
   action was taken thereon, he kept quiettill 11th August, 2005.
   Meanwhile, respondent No.2 and other co-accused were
   charge sheeted on 21st January, 1993 and session trial
   commenced against them in the year 1995. It was only on
 H 11th August, 2005 that respondent No.2 filed an application
    SIRAJUL & ORS. v. THE STATE OF U.P. &ANR.                   1025
            [ADARSH KUMAR GOEL, J.]

for summoning progress report of Crime Case No. 37 /1992,        A
so that the cross case against the appellants could also be
tried along with the trial against respondent No.2.

     4. Case of respondent No.2 is that no order was passed
on the application but it was only on 1st February, 2008 that    B
respondent No.2 filed another application. There is nothing
to show if any other step was taken by respondent No.2
except on 11th August, 2005 and 1st February, 2008.

      5. Application filed on 1st February, 2008 was disposed C
of on 20th February, 2008 in view of the report of the police
that the appellants were exonerated during investigation and
the report was filed before the Court. On 3rd May, 2008,
respondent No.2 filed the impugned complaint alleging that
the appellants had committed offence under Section 307 o
IPC on 11th February, 1992. The said complaint led to
summoning of the appellants vide order dated 3rd June, 2009
which was impugned before the High Court. The High Court
dismissed the petition filed by the appellants for quashing
on the ground that allegation in the complaint and preliminary E
evidence led in support thereof made out a case for
summoning and thus no case for quashing was made       ' out.

     6. We have heard learned counsel for the parties and
perused the record.                                              F

     7. While issuing notice on 23'd November, 2009 further
proceeding in Criminal Case No.1066 of 2008 pending in
the Court of Judicial Magistrate-II, Hardoi was stayed and
the said order has been operative till date.                G

      8. Main contention raised on behalf of the appellants is
that the impugned complaint has been filed 16 years after
the incident and for 13 and a half years after the incident,
respondent No2 did not persue the matter. It is thus H
submitted that since the complainant kept quiet for 13 years
1026          SUPREME COURT REPORTS                [2015) 6 S.C.R.


 A     after the incident and the complaint has been filed after 16
       years, respondent No.2 having been convicted in the cross
       case, the prosecution of the appellants at this stage will be
       unfair and futile.

 B       9. On the other hand, respondent No.2-complainant
   submitted that bar of limitation does not apply beyond the
   statutory bar under Section 468 Cr.P.C. A crime never dies.
   A criminal offence is a wrong against the society even though
   committed against an individual and thus the prosecution
 C cannot be thrown out merely on the ground of delay. In
   support of this submission, reliance has been placed in
   Japani Sahoo vs. Chandra Sekhar Mohantv'.

         10. In response to this stand of the complainant, learned
 o counsel for the accused submitted that even if it is assumed
   that the appellants had caused the injury in question, the
   nature of injury, in the circumstances can at best fall under
   Section 324 IPC in which case bar under Section 468 Cr.P.C.
   is applicable. In any case, even cases not covered by
 E statutory bar of limitation could be held to be liable to be
   quashed on the ground of violation of right of speedy trial
   under Article 21 of the Constitution.

         11. We have given due consideration to the rival
 F submissions. The question whether the proceedings in
   criminal cases not covered by Section 468 Cr.P.C. could be
   quashed on the ground of delay has been gone into in several
   decisions. While it is true that cases covered by statutory
   bar of limitation may be liable to be quashed without any
 G further enquiry, cases not covered by the statutory bar can
   be quashed on the ground of delay in filing of a criminal
   complaint in appropriate cases. In such cases, the question
   for consideration is whether there is violation of right of
   speedy trial which has been held to be part of Article 21 of
 H the C_onstitution having regard to the nature of offence, extent
       ' (2007) 7 sec 394
         SIRAJUL & ORS. v. THE STATE OF U.P. & ANR.                 1027
                 [ADARSH KUMAR GOEL, J.]

of delay, person responsible for delay and other attending A
circumstances. In this regard, observations in judgments of
this Court may be referred to.

          12. In Japani Sahoo (supra), it was observed :
                                                                     8
       "16. At the same time, however, ground reality also
      cannot be ignored. Mere delay may not bar the right of
      the "Crown" in prosecuting "criminals''. But it also cannot
      be overlooked that no person can be kept under
      continuous apprehension that he can be prosecuted              c
      at "any time" for "any crime" irrespective of the nature
      or seriousness of the offence. "People will have no
      peace of mind if there is no period of limitation even for
      petty offences. "
                                                                     D
    13. In Vakil Prasad Singh vs. State of Bihar2, it was
observed:

      "18. Time and again this Court has emphasised the
      need for speedy investigations and trial as both are
      mandated by the letter and spirit of the provisions of         E
      CrPC [in particular, Sections 197, 173, 309, 437(6) and
      468, etc.] and the constitutional protection enshnned
      in Article 21 of the Constitution. Inspired by the broad
      sweep and content of Article 21 as interpreted by a
                                                                     F
      seven-Judge Bench of this Court in Maneka Gandhi v.
      Union of India [(1978) 1 SCC 248] and in Hussainara
      Khatoon (1) v. State of Bihar [(1980) 1 SCC 81] this
      Court had observed that Article 21 confers a
      fundamental right on every person not to be deprived           G
      of his life or liberty except according to procedure
      established by law; that such procedure is not some
      semblance of a procedure but the procedure should
      be "reasonable, fair and just"; and therefrom flows,
      without doubt, the right to speedy trial. It was also          H
2
    (2009) 3   sec 355
1028      SUPREME COURT REPORTS                   [2015] 6 S.C.R.


 A     observed that: [Hussainara Khatoon (1) case, SCC p.
       89, para 5].

       "5. .. . No procedure which does not ensure a
       reasonably quick trial can be regarded as 'reasonable,
 B     fair or just' and it would fall foul of Article 21."

       The Court clarified that speedy trial means reasonably
       expeditious trial which is an integral and essential parl
       of the fundamental right to life and liberly enshrined in
 c     Arlicle 21.

       19. The exposition ofArlicle 21 in Hussainara Khatoon
       (1) case was exhaustively considered afresh by the
       Constitution Bench in Abdul Rehman Antulay v. R. S.
       Nayak {(1992) 1 SCC 225]. Referring to a number of
 D
       decisions of this Courl 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
 E     propositions with a note of caution that these were not
       exhaustive and were meant only to serve as guidelines.

       xxxxxx
       22. Speaking for the majority in P Ramachandra Rao
 F     [(2002) 4 SCC 578, R.C. Lahoti, J. (as His Lordship
       then was) while affirming that the dictum in A. R. Antulay
       case as correct and the one which still holds the field
       and the propositions emerging from Article 21 of the
       Constitution and expounding the right to speedy trial
 G     laid down as guidelines in the said case adequately
       take care of the right to speedy trial, it was held that:

       (P Ramachandra case, SCC p. 603, para 29)

 H     "(3) ... guidelines laid down in A.R. Antulay case are
  SIRAJUL & ORS. v. THE STATE OF U.P. & ANR.                  1029
          [ADARSH KUMAR GOEL, J.]

not exhaustive but only illustrative. They are not             A
intended to operate as hard-and-fast rules or to be
applied {as] a straitjacket formula. Their applicability
would depend on the fact situation of each case [as]
[i]t is difficult to foresee all situations and no
generalisation can be made."                                   B

23. It has also been held that: (P. Ramachandra case,
sec p. 603, para 29)
"(4) It is neither advisable, nor feasible, nor judicially     c
permissible to draw or prescribe an outer limit for
conclusion of all criminal proceedings."

Nonetheless,

"(5) [t]he criminal courls should exercise their available     D
powers, such as those under Sections 309, 311 and
258 CrPC to effectuate the right to speedy trial. . .. In
appropriate cases. ;urisdiction of the High Courl under
Section 482 CrPC and Arlie/es 226 and 227 of the
Constitution can be invoked seeking appropriate relief         E
or suitable directions·,.·~

                                      (emphasis added)

The outer limits or power of limitation expounded in           F
the aforenoted judgments were held to be not in
consonance with the legislative intent.

24. It is, therefore, well settled that the right to speedy
trial in all criminal persecutions (sic prosecutions) is an    G
inalienable right under Arlicle 21 of the Constitution.
This right is applicable not only to the actual
proceedings in courl but also includes within its sweep
the preceding police investigations as well. The right
to speedy trial extends equally to all criminal                H
1030          SUPREME COURT REPORTS                      [2015] 6 S.C.R.


 A         prosecutions 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,
 B         enumerated above, and determine in each case
           whether the right to speedy trial has been denied in a
           given case."

               14. In Ranjan Dwivedi vs. CB/3, declining to quash
 C     proceedings even after 37 years of delay in completion of
       trial, it was observed :

           "23. The length of the delay is not suffir.ient in itself to
           warrant a finding that the accused was deprived of the
 D         right to a speedy trial. Rather, it is only one of the factors
           to be considered, and must be weighed against other
           factors. Moreover, among factors to be considered in
           determining whether the right to speedy trial of the
           accused is violated, the length of delay is least
 E         conclusive. While there is authority that even very
           lengthy delays do not give rise to a per se conclusion
           of violation of constitutional rights, there is also authority
           that long enough delay could constitute per se violation
           of the right to speedy trial. In our considered view, the
 F         delay tolerated varies with the complexity of the case,
           the manner of proof as well as the gravity of the alleged
           crime. This, again, depends on case-to-case basis.
           There cannot be universal rule in this regard. It is a
           balancing process while determining as to whether the
 G         accused's right to speedy trial has been violated or not.
           The length of delay in and itself, is not a weighty factor."

            15. In Saiian Kumar vs. CB/4, even after 23 years of
       delay in completion of tnal. proceedings were not quashed
 H
       ' (2012) a sec 495
       4
         (201 o) s sec 368
     SIRAJUL & ORS. v. THE STATE OF U.P. &ANR.                  1031
             [ADARSH KUMAR GOEL, J.]

and it was observed:                                             A

 . "39. In the case on hand, though delay may be a
   relevant ground, in the light of the materials which are
   available before the Court through CBI, without testing
   the same at the trial, the proceedings cannot be              B
   quashed merely on the ground of delay. As stated
   earlier, those materials have to be tested in the context
   of prejudice to the accused only at the trial."

      16. In NOIDAEntrepreneursAssn. vs. NOIDA 5 , even          c
delay of 17-18 years was held not to be adequate to stop
criminal proceedings having regard to the gravity of offence,
it was observed :

   "21. Thus, it is evident that question of delay in
                                                                 D
   launching criminal prosecution may be a circumstance
   to be taken into consideration in arriving at a final
   decision, but it cannot itself be a ground for dismissing
   the complaint. More so, the issue of limitation has to
   be examined in the light of the gravity of the charge.        E
   xxxx
   42. In view of the above, we are of the considered
   opinion that these a/legations being of a very serious
   nature and as alleged, Respondent 4 had passed                F
   orders in colourable exercise of power favouring himself
   and certain contractors, require investigation. Thus, in
   view of the above, we direct CBI to have preliminary
   enquiry and in case the a/legations are found having
   some substance warranting further proceeding with             G
   criminal prosecution, may proceed in accordance with
   law. It may be pertinent to mention that any observation
   made herein against Respondent 4 would be treated
   necessary to decide the present controversy. CBI shall
                                                                 H
'c2011) e sec sos
1032          SUPREME COURT REPORTS               (2015) 6 S.C.R.


 A        investigate the matter without being influenced by any
          observation made in this judgment."

         17. It is thus clear from the above observations that
   mere delay in completion of proceedings may not be by itself
 B a ground to quash proceedings where offences are serious,
   but the Court having regard to the conduct of the parties,
   nature of offence and the extent of delay in the facts and
   circumstances of a given case, quash the proceedings in
   exercise of jurisdiction under Section 482 Cr.P.C. in the
 C interest of justice and to prevent abuse of process of the
   Court.

         18. In the present case. conduct of the complainant
  can certainly be taken into account. Admittedly, the
D complainant stood convicted in a cross case. At least for
  ten years after commencement of the trial, the complainant
  did not even bother to seek simultaneous trial of the cross
  case, the step which was taken for the first time in the year
  2005 which could certainly have been taken in the year
E 1995 itself when the trial against respondent No.2
  commenced. Having regard to the nature of allegations and
  entirety of circumstances, it will be unfair and unjust to permit
  respondent No.2 to proceed with a complaint filed 16 years
  after the incident against the appellants
F
        19. We accordingly, allow this appeal set aside the
  impugned order and quash the proceedings in Criminal
  Complaint Case No.1066 of 2008 pending in the Court of
  Judicial Magistrate-II, Hardoi.
G
       Devika Gujral                                 Appeal allowed.