Judgment & Order (Cav)

1. Heard Mr. H. A. Laskar, learned counsel for the petition. Also heard Mr. K. Baishya, learned Additional Public Prosecutor for this case.

2. The instant revision has been filed invoking the powers under Section 438 BNSS, assailing the order dated 9-12-2024 passed by J. M. F. C. Hailakandi in GR Case No. 978 of 2020 (PRC No. 888 of 2020) - whereby the petition filed by the accused petitioner under Section 256 Cr.P.C. for closing the case and acquitting him was rejected.

3. The accused sought the said relief relying upon a decision of the Hon’ble Supreme Court rendered in the case of Raj Deo Sharma v. State of Bihar, reported in 1998 (7) SCC 507. In that judgment, it was stated that for offences punishable with imprisonment not exceeding 7 years, if the prosecution evidence is not completed within a period 2 years from the date of recording the plea of the accused or charges framed, the court shall close the prosecution evidence. However, the learned Magistrate did not allow the prayer of the petitioner holding that the concerned case was a warrant case and that Section 256 Cr.P.C. was not applicable.

4. Placing reliance on the principle laid down in Raj Deo Sharma (supra) the learned counsel for the petitioner submits that in terms of this law, the Magistrate was required to close the prosecution evidence and acquit the petitioner. But as the same was not done, therefore, the impugned order is bad in law and requires to be interfered with.

5. On the other hand, the learned Additional Public Prosecutor submits that the case pending before the Learned Court below being a warrant case, the Learned JMFC was right in refusing to invoke the powers under Section 256 Cr.P.C. Before proceeding further, the contents of Section 256 Cr.P.C. may be reproduced herein below:

                   ”Section 256 of the Code of Criminal Procedure (CrPC), 1973, empowers a Magistrate to acquit an accused if the complainant fails to appear on the date appointed for appearance in a summons case. This provision protects the accused from unnecessary delays, but is not mandatory—the court may adjourn the hearing instead.”

6. Further, the relevant para 16 of Raj Deo Sharma (supra) may also be reproduced herein.

                   “16.After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution bench in Antulay's case (supra) with the following directions:-

                   (i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the court can proceed to the next step provided by law for the trial of the case.

                   (ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit.

                   (iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosection has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time limit.

                   (iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by clauses (i) to (iii).

                   (v) Where the trial has been stayed by orders of court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in "Common Cause" Vs. Union of India (1996)(4) SCC 33) as modified by the same bench through the order reported in "Common Cause" a registered Society Vs. Union of India (1996) (6) SCC 775).”

7. The learned Additional Public Prosecutor submitting a decision of the Hon’ble Supreme Court rendered in the case of P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC, 578 - submits that the proposition of law laid down in Raj Deo Sharma (supra) and a few other cases were referred to a larger Bench and in P. Ramachandra Rao (supra) the Constitution Bench of the Hon’ble Supreme Court overruled those decisions and held inter alia that for cases where the prosecution evidence is not complete after two years, the court is not mandated to close prosecution evidence and that such time limits for completion of prosecution evidence and trial would not be there.

8. It is submitted by the Prosecution that in the context of the law laid down by the Constitution Bench overruling the decision of Raj Deo Sharma (supra) - there would be no merit in this Revision Petition.

9. I have carefully perused the law laid down in P. Ramachandra Rao (supra) The relevant para may be reproduced herein below:

                   “27. Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Article 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate direction may issue, including laying down of time-limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violared, in a given case of set of cases, depending on facts brought to the notice of the court. This is permissible for a the judiciary to do. But it may not, like the legislature, enact a provision akın to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973.

                   28. The other reason why the bars of limitation enacted in Common Cause (IP, Common Cause (11) and Raj Deo Sharma (1) and Raj Deo Sharma (II) cannot be sustained is that these decisions, though two or b three-Judge Bench decisions, run counter to that extent to the dictum of the Constitution Bench in A.R Antuday case and therefore cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well-settled principle of precedents which has crystallised into a rule of law is that a Bench of lesser strength is bound by the view expressed by a Bench of larger strength and cannot take a view in departure or in conflict e therefrom. We have in the earlier part of this judgment extracted and reproduced passages from A.R. Antulay case. The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal proceeding or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix any time-limit for trial of offences d Having placed on record the exposition of law as to right to speedy trial flowing from Article 21 of the Constitution, this Court held that it was necessary to leave the rule as elastic and not to fix it in the frame of defined and rigid rules. It must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A.R. Antulay In Kartar Singh case the Constitution Bench while recognising the principle that the denial of an accused's right of speedy f trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state.

                   92. Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices 9 and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors (1) length of delay. (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay"

                   29. For the foregoing reasons, we are of the opinion that in Common Cause case (I) 3 (as modified in Common Cause (11) and Raj Deo Sharma (I) 1 and (H) 2 the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:

                   (1) The dictum in A.R. Antulay case is correct and still holds the field.

                   (2) The propositions emerging from Auricle 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions:

                   (3) The guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made

                   (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in theseveral directions made in Common Cause (I) 3 Raj Deo Sharma ( D 1 and Raj Deo Sharma (U) 2 could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse time, as prescribed by the directions made in Common Cause case (I) 3 Raj Deo Sharma case (I) 1 and (H) 2 At the most the periods of time prescribed in those decisions can taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay cases and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused.

                   (5) The criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Crimina Procedure to effectuate the right to speedy trial. A watchful and diligen trial Judge can prove to be a better protector of such right than an guidelines. In appropriate cases, jurisdiction of the High Court unde Section 482 CrPC and Articles 226 and 227 of the Constitution can b invoked seeking appropriate relief or suitable directions.

                   (6) This is an appropriate occasion to remind the Union of India an the State Governments of their constitutional obligation to strengthen judiciary- quantitatively and qualitatively- by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.

                   36. The declaration of law made by the Constitution Bench of five learned Judges of this Court in the decision reported in A.R. Antulay cases still holds the field and its binding force and authority has not been undermined or whittled down or altered in any manner by any other decision of a larger Bench. Consequently, the Benches of lesser number of constitution of Judges which dealt with the cases reported in 'Common Cause' A Regd. Society v. Union of India³, 'Common Cause A Regd. Society v. Union of India, Raj Deo Sharma v. State of Bihar and Raj Deo Sharma (11) v. State of Bihar could not have laid down any principles in derogation of the ratio laid down in A.R. Antulay cases either by way of elaboration, expansion, clarification or in the process of trying to distinguish the same with reference to either the nature of causes considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted. Even where necessities or justification, if any, were found therefor, there could not have been scope for such liberties being taken to transgress the doctrine of binding precedents, which has come to stay firmly in our method of administration of justice and what is permissible even under such circumstances being only to have had the matter referred to for 9 reconsideration by a larger Bench of this Court and not to deviate by any other means. This solitary reason would suffice by itself to overrule the above decisions, the correctness of which stands referred to for consideration by this Bench. All the more so, when there is no reason to doubt the correctness of the decision in A.R. Antulay cases and this Bench concurs with the principles laid down therein.”

10. Thus, I find that the contention of the petitioner about closing the Prosecution evidence invoking Raj Deo Sharma (supra) is not tenable as the said proposition of law laid down in Raj Deo Sharma (supra) has been overruled in P. Ramachandra Rao (supra).

11. Further, I also find that section 256 Cr.P.C. pertains to closing of the case and acquitting the accused, in the event of the complainant not appearing and the said principles are also applicable to a case where the absence of the complainant is due to his death. Even within those under section 256 Cr.P.C, the Magistrate is given discretion not to close the case, if he is of the opinion that the presence of the complainant is not essential or that he can be represented by a pleader.

12. In any case, section 256 Cr.P.C. is applicable to summons cases and therefore, the opinion of the learned JMFC - that the concerned case being a warrant case, the provisions of Section 256 Cr.P.C. will not be applicable – is correct.

13. Thus, in terms of P. Ramachandra Rao (supra) the prosecution evidence was not required to be closed by the learned trial court and also the provisions of Section 256 Cr.P.C. were also not applicable to the said case as the same was a warrant case.

14. Therefore, the present Criminal Revision is devoid of merits and is accordingly dismissed.

15. Before parting, it may be mentioned herein that the learned trial court may make an effort to expeditiously complete the trial, preferably within a period of 6 (six) months.

16. The instant criminal revision stands disposed of on the aforesaid terms.