STATE OF MAHARASHTRA Vs. CHAMPALAL PUNJAJI SHAH

JUDGEMENT

(1.) It is one of the sad and distressing features of our criminal justice system that an accused person, resolutely minded to delay the day of reckoning, may quite conveniently and comfortably do so, if he can but afford the cost involved, by journeying back and forth, between the Court of first instance and the superior Courts, at frequent interlocutory stages. Applications abound to quash investigations, complaints and charges on all imaginable grounds, depending on the ingenuity of client and counsel. Not-in-frequently, so soon as a Court takes cognizance of a case requiring sanction or consent to prosecute, the sanction or consent is questioned as improperly accorded, so soon as a witness is examined or a document produced, the evidence is challenged as illegally received and many of them are taken up to the High Court and some of them reach this Court too on the theory that 'it goes to the root of the matter. There are always petitions alleging 'assuming the entire prosecution case to be true, no offence is made out', And, inevitably proceedings are stayed and trials delayed. Delay is a known defence tactic. With the passage of time, witnesses cease to be available and memories cease to be fresh. Vanishing witnesses and fading memories render the onus on the prosecution even more burdensome and make a welter weight task a heavy weight one. Sure, we do not mean to suggest that the responsibility for delaying criminal trials is always to be laid at the door of the rich and the reluctant accused. We are not unmindful of the delays caused by the tardiness and tactics of the prosecuting agencies. We know of trials which are overdelayed because of the indifference and somnolence or the deliberate inactivity of the prosecuting agencies. Poverty-struck, dumb accused persons, too feeble to protest, languish in prisons for months and years on and awaiting trial because of the insensibility of the prosecuting agencies. The first Hussainara case (Hussainara Khatoon v. Home Secretary, State of Bihar, Govt. of Bihar, Patna, (1979) 3 SCR 169 at p. 179, 180: (AIR 1979 SC 1360 at p., 1365)) was one like that. Sometimes when the evidence is of a weak character and a conviction is not a probable result, the prosecuting agencies adopt delaying tactics to keep the accused persons in incarceration as long as possible and to barass them. This is a well known tactic in most conspiracy cases. Again, an accused person may be seriously jeopardised in the conduct of his defence with the passage of time. Witnesses for the defence may become unavailable and their memories too may fade like those of the witnesses for the prosecution. In Such situations, in appropriate cases, we may readily infer an infringement of the right to life and liberty guaranteed by Article 21 of the Constitution. Denial of a speedy trial may with or without proof of something more lead to an inevitable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial. A fair trial implies a speedy trial. In Hussainara Khatoon v. State of Bihar, (1969) 3 SCR 169: (AIR 1979 SC 1360) this Court said (at p. 179) (of SCR): (at p. 1365 of AIR) :

(2.) What is the remedy if a trial is unduly delayed in the United States, where the right to a speedy trial is a constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence. But in deciding the question whether there has been a denial of the right to a speedy trial, the Court is entitled to take into consideration whether the defendant himself was responsible for a part of the delay and whether he was prejudiced in the preparation of his defence by reason of the delay. The Court is also entitled to take into consideration whether the delay was unintentional, caused by over-crowding of the Court's Docket or under-staffing of the Prosecutors. Strunk v. United States (1973) 37 Law Ed 2d 56 is an instructive case on this point. As pointed out in the first Hussainara case (AIR 1979 SC 1360), the right to a speedy trial is not an expressly guaranteed constitutional right in India but is implicit in the right to a fair trial which has been held to be part of the right to life and liberty guaranteed by Article 21 of the Constitution. While a speedy trial is an implied ingredient of a fair trial, the converse is not necessarily true. A delayed trial is not necessarily an unfair trial. The delay may be occasioned by the tactic or conduct of the accused himself. The delay may have caused no prejudice whatsoever to the accused. 'The question whether a conviction should be quashed on the ground of delayed trial depends upon the facts and circumstances of the case. If the accused is found to have been prejudiced in the conduct of his defence and it could be said that the accused had thus been denied an adequate opportunity to defend himself, the conviction would certainly have to go. But it nothing is shown and there are no circumstances entitling the Court to raise a presumption that the accused had been prejudiced there will be no justification to quash the conviction on the ground of delayed trial only.

(3.) In the present case, in the beginning, three persons, Champalal Punjaji Shah, Poonam Chand and Mohan Lal were charged by the learned Additional Chief Presidency Magistrate 8th Court, Esplanade, Bombay, with offences under Section 120B of the Penal Code read with Section 135 of the Customs Act and Rule 126P (2) (ii) and (iv) of the Defence of India, Rules, 1962, R. 135 (a) and (b) and (i) of the Customs Act and R. 126P (2) (ii) and Rule 126P (2) (iv) of the Defence of India Rules. After some evidence had been led by the prosecution, the Public Prosecutor filed an application before the learned Magistrate requesting permission to withdraw from the prosecution against accused No. 2, Poonam Chand. Permission was granted and thereafter Poonam Chand was examined by the prosecution as their witness. After some vicissitudes, necessitated by the respondent Champalal Punjabi Shah taking the matter to the higher courts, the trial finally concluded and by a judgment dated December 13, 1971 the learned Magistrate acquitted Mohan Lal, accused No. 3 but convicted accused No. 1. Champalal Punjaji Shah under various heads of the charge and sentenced him to suffer imprisonment for various terms ranging from two years to four years and to the payment of fine of Rs. 10,000/- on each of different counts. The substantive sentences of imprisonment were directed to run concurrently. On appeal, the respondent was acquitted by the High Court. The State of Maharashtra has filed the present appeal against the judgment of the High Court of Bombay after obtaining special leave from this court under Article 136 of the Constitution.