- (1.) This Criminal Revisional application is directed against the order No. 40 dated 31.5.99 passed by Sri S. Bhattacharjee, Judge 1 st Special Court, Alipur, 24-parganas (N) in Special Court case No. 7 of 95 whereby he rejected the petition of Sri Jyotish Ch. Baidya the accused, praying for closure of the prosecution evidence in view of the decision in Rajdeo Sharma's case (Raj Deo Sharma v. State of Bihar,1998 4 AllLR 6 The accused of the abovementioned case Jyotish Baidya filed the said petition dated 9.12.98 before the said Court on the ground that more than two years had expired since the date 10.1.96 on which charge was framed against him under Section 420, I.P.C. and Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 and hence in view of the mandatory dictates of the Apex Court in the aforementioned case of Raj Deo Sharma learned Special Judge had no alternative but to close the prosecution evidence at the stage at which it was then pending and to proceed with the trial in accordance with law to dispose of the same. The said petition of the accused petitioner was opposed by the prosecution (Central Bureau of investigation) on the ground, inter alia, that Raj Deo Sarma's case, [1998(4) All India Criminal Law Reporter 6 (SC)] was not attracted to the facts and circumstances of this case. After hearing the contentions of both the sides and giving consideration to the points argued by them the learned Special Judge came to the finding that the principles enunciated in Raj Deo Sharma's case, [1998(4) All India Criminal Law Reporter 6 (SC)] were not applicable. In this instant case before him and the closing of the prosecution evidence as prayed for by the defence would not be justified in the circumstances and he was, therefore, not inclined to allow the petition. Being aggrieved by the findings of the Court below the accused petitioner has preferred the present Revisional Application under Section 401 read with Section 482, Cr.P.C. challenging the impugned order as illegal and improper and particularly being in violation of the mandatory directions of the Apex Court in Raj Deo Sharma's case, [1998(4) All India Criminal Law Reporter 6 (SC)].
(2.) It has been contended by Mr. Biplab Mitra, the learned Advocate for the petitioner that the maximum punishment being prescribed for an offence under which the accused stood charged, namely, Section 420, I.P.C. and along with the offence under Section 7 of the Prevention of Corruption Act does not exceed seven years and according to the ratio of the decision of the Hon'ble Supreme Court in Raj Deo Sharma's case 1998 C Cr. LR (SC) 385 : [1998(4) All India Criminal Law Reporter 6 (SC)] the trial Court is under obligation to close the prosecution evidence of completion of a period of two years from the date of framing of charge that is, 10.1.96 and accordingly the prosecution evidence in this case should have come to a close by 9.1.98. Accordingly to Mr. Mitra as many as twenty-one dates were fixed by the Court for the purpose of evidence during the period after the charge was framed till the filing of the petition by the accused dated 9.12.98 and it would appear from the records that of this twenty-one dates fourteen adjournments were taken at the instance of the prosecution while the defence took adjournments only on three occasions (on one occasion jointly with the prosecution) and the hearing was adjourned twice due to the absence of the Presding Officer on leave or due to organisation of Bangla Bandh. Mr. Mitra contends that as per the ratio of the abovementioned judgment of the Apex Court where the Court comes to the conclusion that right to speedy trial of an accused has been infringed, the charges or the order of the conviction, as the case may be, shall be quashed and in view of such observation of the Apex Court, the Court below ought to have found that in this case in view of the delay for which the prosecution was mainly responsible. The prosecution was not entitled to get any further chance to adduce its evidence and the prosecution ought to have been taken as closed and thereafter on the basis of the materials collected the trial Court ought to have proceeded to dispose of the case in accordance with law. But the Court having not followed that Courts violated the directions passed by Hon'ble Supreme Court in its decision in the Raj Deo Sharma's case, [1998(4) All India Criminal Law Reporter 6 (SC)] and therefore, the impugned order has been illegal and perverse and liable to be set aside.
(3.) As against this, the contention of Mr. Debabrata Roy, the learned Advocate for the O.P. has been that the decision in Raj Deo Sharma's case, [1998(4) All India Criminal Law Reporter 6 (SC)] will not be applicable to the present case on account of a number of reasons. In the first place, according to him the observation of the Apex Court in para 12 of the said judgment to the following effect should be carefully considered : "While determining whether undue delay has occurred (resulting the violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including the nature of the offence, number of accused and witnesses, the workload of the Court concerned, prevailing local conditions and so on what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one". Mr Roy contends that in our case it would be seen that due to the various circumstances and conditions prevailing the delay which occurred was not the result of any lapse on the part of the prosecution and rather it took place due to reasons which were beyond the control of the prosecution and in order to cover such cases, the Apex Court made a specific observation in the said case to the effect that quashment of the charges or conviction of the accused was not the only course open to the Court in the event it found that the right to speedy trial of an accused has been infringed and the nature of the offence and the circumstances in such a case being such that quashing of proceedings might not be in the interest of justice and therefore, it would be open to the Court to pass any other appropriate order befitting the exigency. Secondly, Mr. Roy contends, the causes which prompted the prosecution to seek adjournment on same dates of hearing cannot be treated as ordinary circumstances but should be regarded as exceptional and extraordinary and will come under the purview of the exception clause which Their Lordships in the said judgment have provided in its paragraph 16. It has been made clear in this paragraph before Their Lordships that the directions given in this judgment would be in addition to and without prejudice to the directions issued by this Court in "Common Cause" v. Union of India,1996 4 SC 701 Mr. Roy further contends that in this judgment of Common Causes case it was made clear by the Apex Court that the directions issued would not apply to cases of offences involving corruption misappropriation of public fund, cheating etc., whether under the I.P.C., Prevention of Corruption Act or any other statute and from the joint reading of this mandate of the two judgments of the Apex Court it becomes clear that the direction in Raj Deo Sharma's case, [1998(4) All India Criminal Law Reporter 6 (SC)] would not be applicable in respect of offences under the Prevention of Corruption Act.;