In this article we talk about the delay in filing of chargesheet by the Prosecution and the Right of an accused for a Speedy Trial
Section 468 in The Code Of Criminal Procedure, 1973
468. Bar to taking cognizance after lapse of the period of limitation.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only
(1. Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974 ), s. 2 end Sch.)
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.
(3) 1 For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]
This is how the section reads. From a bare reading of the section it is abundantly clear that while incorporating this section the Legislator had in mind that there needs to be some safeguards in place when the rights of an accused are concerned. Without this section the situation would be that Courts would be taking cognizance of complaints/chargesheets after a long lapse of time. The effect of such long lapse would be that by the time the case came up for trial a lot of evidence would either be lost or would be unaccesible for various reasons. Further the whole idea that an accused has a right to speedy trial would be lost. Time and again the Honble Apex Court has stressed that “right to a speedy trial” was an inalienable right of an accused. There are numerous Judgments to the point. The leading one being Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar,(1979 AIR 1360, 1979 SCR (3) 169). In thisit was held
“ Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” So also Article 3 of the European Convention on Human Rights provides that:
“every one arrested or detained-shall be entitled to trial within a reasonable time or to release pending trial.”
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. 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 and 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 procedure prescribed by law for depriving a person of his liberty cannot be ‘reasonable, fair or just’ unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonable quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article.”
This was later followed in many other cases and still remains relevant. The reasons for a speedy trial and not having a speedy disposal and its affects on an accused were enumerated and culled out in the matter of Raj Deo SharmaVs. State of Bihar(___________) wherein the Honble Bench referred to the celebrated judgment of AR Antulay Vs. RS Nail (1988 AIR 1531, 1988 SCR Supl. (1) 1).Though these are by no means exhaustive as rightly pointed out by the Honble Apex Court but these do talk about the basics.
“ In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are :-
1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the 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 quilt 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 re-trial. 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 period of remand and pre-conviction 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 non-availability of witnesses or otherwise.”
So, filing of the chargesheet in time and the taking of cognizance as per the terms of the above quoted section is of paramount importance.
But, in some cases the chargesheet is not filed in time and what happens then. Will it be discarded and the accused discharged. The answer is an emphatic NO. Here comes into play Section 473 Cr.P.C.
This states :
“473. Extension of period of limitation in certain cases.
Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.”
So we see the Legislator has included a safeguard in the system, but this safeguard is meant for genuine cases where the delay was unintentional and explainable. The Honble Magistrate will first have to satisfy himself that the delay was genuine and properly explained then only will the Honble Magistrate proceed to take cognizance of a case. It cannot be done vice a versa where the cognizance is taken first and then the delay condoned. If it is not done so then the cognizance taken will be illegal as held by Bombay High Court in Khalid Akhtar Abdul Latif Ahemi Vs. State Of Maharashtra 2010 ALL MR (Cri) 2574amongst other case laws. The delay has to be condoned only if a proper application is moved laying out and explaining the reasons for such delay. All the while keeping in mind the rights of an accused. In the Case of Sanjay Nirupam Vs. State of Maharashtra in Crl.W.P 868/2015 the Honble High Court Bombay ( Nagpur Bench ) quoted the Honble Supreme Court Judgment in the matter of Srinivas Pal Vs. UT of Arunachal Pradesh 1988 RLR 464.
“Similarly, the Apex Court in the case of Srinivas Pal Versus Union Territory of Arunachal Pradesh (now State), reported in AIR 1988 SC 1729, was dealing with a case, i.e. an offence of rash and negligent driving causing death of one and injury to some person. In the WP 868/15 9 Judgment said case, cognizance of Sections 279, 304-A and 338 of the I.P.C. was taken after a lapse of about 9½ years. Considering the said sections involved in the case, the Apex Court observed that the period of limitation for taking cognizance of the said offence would be three years in view of Sections 468 of the Cr.P.C. and further observed as under:
“The offence is of rash and negligent driving. It is, as such, neither a grave and heinous offence nor an offence against the community as such, though all criminal offences are crimes against society. Having regard to the nature of offence there is enormous delay in proceeding with the criminal prosecution, i.e. 9½ years for a trial for rash and negligent driving is too long a time. Quick justice is a sine qua non of Article 21 of the Constitution. Keeping a person in suspended animation for 9 ½ years without any cause at all cannot be with the spirit of the procedure established by law. Thus, the trial would be vitiated and it could not be saved by invoking Regn. 32 of Assam Frontier (Administration of Justice) Regulation (1945) on ground that the provisions of Criminal P.C. do not apply to State of Arunachal Pradesh. Regn. 32 of the said Regulation should be guided by the spirit of the Code and it will be proper to throw out a complaint if there was inordinate or undue delay, which was not explained.”
So a lot needs to be considered by the Honble Court before taking cognizance especially where the filing of the chargesheet has been delayed. Many times the delay in filing of chargesheet is caused by the acts of the complainant in such situations the A legal Latin maxim ‘Commodum ex injuria sua nemo habere debet’ (No party can take undue advantage of his own wrong) is applicable. The same has been reiterated by the Honble Supreme Court and the Honble High Courts in numerous judgments. In Kusheshwar Prasad Singh vs State Of Bihar & Ors on 19 March, 2007 the Honble Supreme Court has observed :
“In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani & Another v. Narmada Bala Sasmal & Another, AIR 1961 SC 1353, wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim ‘Commodum ex injuria sua nemo habere debet‘ (No party can take undue advantage of his own wrong)………..
…………It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrong doer ought not to be permitted to make a profit out of his own wrong”. In view of the findings recorded by us hereinabove, we would have allowed the appeal in its entirety.”
So we see that it all depends from case to case the applicability of the Section 473 Cr.P.C.
