TaxTMI 
TaxTMI 
2015 (4) TMI 1312
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....and validity of the order dated 20th August 2014 passed by the Additional Chief Metropolitan Magistrate, Court No.22, Ahmedabad, below Exhibit 23 in Criminal Case No.2106 of 1994 by which the learned Judge rejected the application filed by the applicant for discharge. 4. The facts giving rise to this application are as under: 5. The applicant aged 70 was serving as a head clerk in the Direct Payment Branch in the Office of the District Education Officer Ahmedabad. On 15th June 1993, a First Information Report was lodged by the respondent No.2., in his capacity as the District Education Officer against the applicant herein and other coaccused for the offence alleged to have been committed between 25th October 1990 and 2nd of August 1991. The First Information Report being C.R. No.I293 of 1993 was lodged for the offence punishable under Sections 409, 420, 465 read with Section 114 of the Indian Penal Code. 6. It is the case of the prosecution that a coaccused running a school availed of payment towards salary of the staff and maintenance for the period between 1.7.1986 and 31.3.1989 twice in collusion with the other accused. It is the case of the prosecution that the school ....
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.... herein is concerned, on the ground of violation of Article 21 of the Constitution of India. Mr. Mehta submits that if the Court is not inclined to quash the prosecution on the ground of violation of Article 21 of the Constitution, then the applicant deserves to be discharged as there is no case worth the name to frame charge against the applicant. 12. This application has been vehemently opposed by Mr.L.B. Dabhi, the learned APP appearing for the State. He submits that having regard to the nature of the offence, which is criminal misappropriation by a public servant, the prosecution should not be quashed solely on the ground that the trial has not commenced till this date. Mr. Dabhi pointed out that there is a prima facie, case against the applicant herein so far as his involvement in the alleged offence is concerned. He, therefore, prays that there being no merit in this application, the same be rejected. 13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the prosecution should be dropped against the applicant herein on the ground that his right to have ....
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....sed No.1 was not present hence, exemption application was given by his Advocate and it was granted and fixed the next dated on 16/09/2014 for Framing of Charge. A photo copy of Exemption report for your Honou'r kind perusal. On 15/09/2014, Accused No.3 advocate has given for application for Adjournment because of they want to challenge the order passed by this court for Discharge application on 20/08/2014 to the Hon'ble High Court of Gujarat and it was granted hence the matter is adjourn on 30/09/2014. A photo copy of Exemption report for your kind perusal. On 30/09/2014, an application was given on behalf of Accused No.3 for bring some certified copies and it was not make by this court office, hence, the adjournment application was granted and the matter was fixed on 07/11/2014. A photo copy of Exemption report for your Honou'r kind perusal. On 07/11/2014, Accused No.1 is present in this Court and Accused No.3 and 4 was not present, hence, exemption application was given on behalf of Accused No.3 and 4 and on that day they have mentioned in this adjournment application that they have filed a petition in the Hon'ble High Court of Gujarat a....
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....r further care. 19. I am told that since 2009, the health of the applicant has deteriorated to a considerable extent and as on today he is aged 70 years. Till this date, the trial Court has not been able to frame charge. I could have directed the trial Court to proceed further with the trial expeditiously and finish it of within a stipulated period of time, but it appears that despite many such orders being passed in the past in different matters the Courts have not be able to complete the trials. Nothing has been pointed out by the State that the delay has occurred on account of any delaying tactics adopted by the applicant herein. 20. The Supreme Court in the case of State through CBI Vs. Dr.Narayan Waman Nerukar and another reported in (2002) 7 SCC 6 has observed as under: "6. "Recently a 7Judges Bench of this Court in P. Ramachandra Rao vs. State of Karnataka held as under:(SCC pp.58788, para 1) "No person shall be deprived of his life or his personal liberty except according to procedure established by law declares Article 21 of the Constitution. 'Life and liberty', the words employed in shaping Article 21, by the founding fathers of the Constit....
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....pects. It is neither advisable nor feasible, nor judicially permissible or draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in the aforesaid four cases could not have been so prescribed or drawn and, therefore, are not good law. Criminal courts are not obliged to terminate trial of criminal proceedings merely on account of lapse of time, as prescribed by the directions made in the aforesaid cases. 8. As was observed in P. Ramchandra Rao's case (supra), at the most periods of time prescribed in those decisions can be taken by the Courts in seisin of the trial or proceedings to act as reminder when they may be persuaded to apply to their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration several relevant factors as pointed in A.R. Antulay's case (supra) 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 be treated by any court as a bar to further trial or proceedings and as mandatorily obliging....
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....ould not be regarded as reasonable, fair or just and that the right of an accused to speedy trial rather 'a reasonably expeditious trial' is imbibed in Article 21 of the Constitution of India. In paragraph 5 thereunder, it was held thus : " We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India (AIR 1978 SC 597). We have held in that case that article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously p....
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....harged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. In Abdul Rehman Antulay's case (AIR 1992 SC 1701) (supra), a Constitution Bench of the Hon'ble Supreme Court held that right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in S. 309, Cr. P. C. and that the said right comprehends all stages viz., investigation, inquiry, trial, appeal, revision and retrial. In paragraph 81, it was held :" 81. Article 21 declares that no person shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The main procedural law in this country is th....
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....eedy trial is also in public interest or that it serves that social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the right to speedy trial from the point of view of the accused are : (a) the priod of remand and preconviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or nonavai....
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....trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere nonasking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially w....
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....edy trial. In paragraph 29 in P. Ramachandra Rao's case (supra), the Hon'ble Supreme Court upheld and reaffirmed the propositions laid down in the matter of speedy trial in Abdul Rehman Autulay's case (AIR 1992 SC 1701) (supra). It was held thus : " The propositions emerging from Article 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." In paragraph 29(5) thereunder, it was held :" The criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482, Cr. P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. " (Emphasis added) 24. In Pankaj Kumar's case (AIR 2008 SC 3077) (supra), the Hon'ble Supreme Court even considered the que....