M. B. SHARMA, J. - (1.) THIS misc. petition under section 482, Cr. P. C. has been filed with a prayer that the trial of criminal case No. 208/87 Pending in the Court of A. C. J. M. No. 3, Jodhpur be quashed.
(2.) THE principal contention which has been advanced with the aforesaid prayer that the case is pending since the year 1976 and the trial has been delayed for no fault of the petitioner and the principal accused in the case, namely, Shoukilal has since died. THE facts are these :- An order for the purchase of Hindustan Tractor 50 and its accessories was placed by the P. W. D. (Project) with M/s Rajasthan Tractors, Bhagwati Bhawan, M. I. Road, Jaipur. In the aforesaid order parts of accessories or particular specification were to be supplied. It appears that there were some irregularities, inasmuch as the parts and accessories of the specifications were not supplied and some local parts and accessories were supplied and, therefore, a FIR was lodged under section 420, 469 IPC. Shoukilal was described as the partner of the firm Raj. Tractors and Badan Singh as its agent. After investigation a charge-sheet was filed against the both in the court or Addl. Chief Judicial Magistrate No. 1, Jodhpur on 10. 6. 76. The learned Magistrate framed charges under sec. 420, I. P. C. against Shouki Lal and under sec. 420 also against Badan Singh. The charges ware framed on August 16, 1976 though the charges do not bear any date. Heeralal, P. W. 1 was examined on February 26, 1977. His statement could not be completed because some record was not available. Ultimately, his statement could not be completed for one reason or the other. A perusal of the record shows that yet another witness Noor Mohd. P. W. 2 was examined on October 13, 1977 i. e. after incomplete statements of Heeralal on February 2, 1977. In other words, for more than 10 years and 6 months not a single witness was examined by the prosecution. A look at the calender of witnesses available with the charge-sheet will show that prosecution has cited as many as 15 witnesses, but statement of only one witness has been recorded and so far as statement of P. W. 1 is concerned, his statement is incomplete. The contention of the learned counsel is that continuance of a trial of a case under section 420, I. P. C. for a period of almost 13 years cannot be said to be a fair trial and it is in contravention of Article 21 of the Constitution of India. In support of his contention the learned counsel has relied upon a Division Bench decision of this court in K. K. Tiwari v. S. P. , CBI, Rajasthan (l ). In the aforesaid case after considering the various authorities cited before the Bench the Court said that in the ordinary circumstance, a callous inordinate prolonged delay of seven years or more which does not arise on account of fault of the accused or otherwise, not occasioned by any extra-ordinary or exceptional reason in investigation and trial for an offence other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Article 21. Though with due respect to the learned Bench who decided the aforesaid case, I have my own reservations, because in my opinion, in all cases it cannot be said that the delay of 7 years in investigation and trial would violate the constitutional guarantee of speedy public trial under Article 21 of the Constitution and it would depend on the facts of each case as to whether on the ground of only delay for which to some extent the accused may also be responsible and there may be cases where there may be hundreds of witnesses and the trial of the case is likely to take time, can it be said that the trial shall be violative of Art. 21 of the Constitution. In other words, it would depend on the facts, conduct of the accused, conduct of the prosecution and after considering all the circumstances the court would come to conclusion as to whether the trial has been delayed and is violative of Art. 21 and that only on this ground the trial should be quashed. In the instant case the occurrence relates to the year 1966. The prosecution took almost 10 years to investigate the charges. The prosecution cited a list of 15 witnesses. Out of 15 witnesses only one witness has been examined in the year 1977 and the other witness is yet to be examined completely. There is no material on record on the basis of which it can be said that the accused petitioner is responsible for this abnormal delay in the trial.
(3.) THE main accused Shoukilal died during trial of the case and the accused petitioner has been arrayed as accused on the ground that he was an agent for Shoukilal. To conclude, in my opinion in a case of 1966 in the year 1989. when the trial is not likely to be completed in immediate future, for the delay in the trial, in the facts and circumstances of the case, this case attracts Article 21 of the Constitution and the trial cannot be said to be a fair trial and cannot be said to be by an established procedure of law and I will quash the trial in this case. Consequently, the misc. petition is allowed. The trial of the petitioner in criminal regular case No. 208/76 pending in the court of Additional Chief Judicial Magistrate No. 3 Jodhpur is hereby quashed. .;