Allahabad High Court: In an application filed under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) to quash the charge-sheet for the offences under Section 39 read with 49-B of Electricity Act, 2003, Sameer Jain, J. said that an unexplained inordinate delay of 18 years should be termed as oppressive and unwarranted, thus, held that the fundamental right to speedy trial of applicant has been violated. Further, said that the continuance of the criminal proceedings pending against the applicant is unwarranted, therefore, to secure the ends of justice, quashed the pending proceeding
In the case at hand, the accused was charged with theft of electricity.
The applicant submitted that the proceeding is pending from last 18 years and although First Information Report (‘FIR’) of the present case was lodged in the year 2003 and charge-sheet was submitted in December 2003 and cognizance was taken in February 2004, but even till date even charges could not be framed, and even original FIR is not on record.
The Court said that the trial of the present case is pending against the applicant since the year 2004 and more than 18 years have been passed, but till date not even charges could be framed and from the order-sheet, it appears that applicant is regularly attending the Court either in person or through his counsel, therefore, from the record it reflects that delay in trial cannot be attributed to the applicant.
Placing reliance on Hussainara Khatoon (III) v. Home Secy., State of Bihar, (1980) 1 SCC 93 the Court said that the violation of right of speedy trial is the violation of fundamental right guaranteed under Article 21 of the Constitution of India.
The Court took note of Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225, wherein it was observed that although each and every delay does not necessarily prejudice the accused, inordinate long delay may be taken as presumptive proof of prejudice and prosecution should not be allowed to become a persecution. If the court arrived at the conclusion that the right of speedy trial of the accused has been infringed, then the proceeding pending against him shall be quashed. This law was approved in 7-Judge Bench judgment in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578.
Thus, the Court reiterated that it is evident that right to speedy trial of an accused is a fundamental right enshrined under Article 21 of the Constitution of India and if Court finds that it has been violated then proceeding pending against the applicant should be quashed, but only after considering following factors:-
Whether delay can be attributed to the accused himself
Nature of offence
Whether quashing is in the interest of justice.
Whether inordinate delay can be termed as oppressive and unwarranted
The Court said that from the perusal of the record it appears that the inordinate delay in completion of the trial cannot be attributed to the accused as the order-sheet suggests that he is regularly attending the court either in person or through his counsel and trial of the case relates to Section 39 read with Section 49-B of Electricity Act, 2003 which cannot be said to be a heinous crime and trial of the same is pending since the year 2004 i.e., for the last 18 years and prosecution failed to provide any exceptional circumstance to condone such an inordinate delay. Thus, the Court quashed the criminal proceedings against the applicant.
[Madan Mohan Saxena v. State of UP, Application under section 482 No. – 23675 of 2022, decided on 19-01-2023]
Advocates who appeared in this case :
Counsel for Applicant:- Advocate Bhanu Bhushan Jauhari, Advocate Rishi Bhushan Jauhari;
Counsel for Opposite Party:- Government Advocate Mukesh Kumar Sing.
*Apoorva Goel, Editorial Assistant has reported this brief.