- (1.) O. P. Garg, J. Heard Dr. R. G. Padia. learned Counsel for the applicants and learned A. G. A.
(2.) IN this application under Section 482, Cr. P. C. it is prayed that the criminal proceedings pending against the applicants in case crime No. 64/65-86 under Section 302, I. P. C. read with Section 25 of the Arms Act and the order dated 26-4-1997 passed by Addl. Superintendent of Police, Crime Branch, Crime Department, Gorakhpur-respondent No. 1 be quashed/stayed. Learned Counsel for the applicants urged that the incidents had taken place on 7-4-1986 and now from the letter dated 26-4-1997 of Addl. Superintendent of Police, Crime Branch, it is revealed that since the requisite sanction under Section 197, Cr. P. C. has been accorded by the Stale Government the accused applicants be arrested so that investigation of the case may be finalised. One Ram Prasad alias Vahira Mallah, resident of Purani Tedhi, P. S. Chowk, District Gorakhpur was alleged to have been murdered on 7-4-1986 by the police officials of Police Station Purendrapur, District Gorakhpur. A report was lodged by Smt. Phoolmation 16-4-1986, wife of the deceased in pursuance thereof a case Crime No. 64/1986 under Section 302, I. P. C. was registered at Police Station Cantt. Tehasil Sadar, District Gorakhpur.
(3.) THE learned Counsel for the applicants urged that the contents of the sanction granted by the State Government have not been made known to the applicants have been denied the opportunity of challenging its validity or otherwise and, therefore, it is necessary to bring on record the order of sanction passed by the Government. THE case is still under investigation. THE question of validity or otherwise of the sanction is not germane and cannot be sifted at this stage. As matter of fact, sanction is required to be taken into consideration at the stage when after the submission of the charge sheet, cognizance is to be taken by the concerned Court and not before. THE controversy concerning the validity of sanction accorded under Section 197, Cr. P. C. is premature. The next ground canvassed by the learned Counsel for the applicants is that now more than a decade has elapsed since the incident had taken place and consequently the fundamental right to have speedy trail, which includes investigation of the case also, of the applicants as implicit in Article 21 of the Constitution of India, stands violated and, therefore, it is an eminently suited case in which inherent powers be invoked to quash the F. I. R. or to stay the proceedings. In support of his contention, the learned Counsel for the applicants placed reliance on A. I. R. 1990 S. C. 1266 - State of Andhra Pradesh v. P. V. Pavitram in which the order quashing F. I. R. passed by High Court was upheld by the Supreme Court. I have perused the said ruling and find that it does not apply on all fours to the facts of the present case. It is true that the High Court had quashed the F. I. R. in the said case on the ground that there was inordinate delay in the investigation of the case. The accused of that case was charged of the offence punishable under Section 5 (2) read with Section 5 (1) (e) of the Prevention of Corruption Act. By the time the matter came up before the Supreme Court, the accused had retired from service. The Supreme Court, however, had observed in the said case that no general and wide proposition of law can be formulated that whenever there is inordinate delay on the part of the investigating agency in completing the investigation, such delay, ipso facto, would provide ground for quashing the F. I. R. or the proceedings arising therefrom. A reference was also made to 1986 (4) S. C. C. 481 - Raghuvir Singh and others v. State of Bihar, wherein Hon'ble Supreme Court observed as follows:- "the constitutional position is new well settled that the right to a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by Article 21 of the Constitution: vide (i) Hussainara Khatoon v. State of Bihar (1979) 3 SCR 169 = (1980 1 SCC-81 = 1980 SCC (Cri) 23; AIR 1979 SC-1360 (per Bhagwati and Koshal, JJ), Kadra Pahadiya (ii) v. State of Bihar (AIR 1982 SC 1167 = (1983 2 SCC 104 = 903 SCC (Cri) (361) (per Bhagwati and Eradi, JJ) and State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC-601 = 1981 SCC (Cri) 762 (per Chinnapa Reddy, Sen and Baharul Islam, JJ.) In foreign jurisdictions also, where the right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been held in appropriate cases sufficient to quash a conviction or to stop further proceedings: Strunk v. United Stales (37 L Ed. 2nd 56 ) and Barkar v. Wingo, 407 US 514 = 33 L Ed 2d 101) two cases decided by the United State Supreme Court and Boll v. Director of Public Prosecutions, Jamaica (1985 2 All ER 585, a case from Jaonaica decided by the Privy Council. Several questions arise for consideration. Was there delay? How long was the delay? Was the delay inevitable having regard to the nature of the case, the sparse availability of legal services and other relevant circumstances? Was the delay unreasonable? Was any part of the delay caused by the wilfulness or the negligence of the prosecuting agency? Was any part of the delay caused by the tactics of the defence? Was the delay due to causes beyond the control of the prosecuting and defending ageroes? Did the accused have the ability and the opportunity to assert his right to a speedy trial? Was there a likelihood of the accused being prejudiced in his defence? Irrespective of any likelihood of prejudice in the conduct of his defence, was the very length of the delay sufficiently prejudicial to the accused? Some of these factors have been identified in Barker v. Wingo. A host of other questions may arise which may not be able to readily visualise just now. The question whether the right to a speedy trial which form part of the fundamental right to life and liberty guaranteed by Article 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as 'acting fairly' is of the essence of the principle of natural justice (In re K. (H) an infant) (1967 1 All ER 226 = (1967) 2 QB 617) and a 'fair and reasonable procedure' is what is contemplated by the expression 'procedure established by law' in Article 21 (Maneka Gandhi v. Union of India (1978) 1 SCC-248 ). " In A. I. R. 1992 S. C.- 1701 : 1992 JIC 218 (SC) - A. R. Antulay v. R. S. Nayak it was observed by Hon'ble Supreme Court that the provisions of the Code of Criminal Procedure provides for an early investigation and for a speedy and fair trial and the constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of the Code. After scanning the facts of the case, it was further observed by Hon'ble Supreme Court that it is not possible in the very nature of things and present day circumstances to draw a time-limit beyond which a criminal proceeding will not be allowed to go. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable-broadly speaking. According to the Supreme Court, it it is a minor offence not being an economic offence and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated in the aforesaid case.;