Dilawar v. the State of Haryana & Anr.

DILAWAR v. THE STATE OF HARYANA & ANR. (M.A. No. 267 of 2017 in SLP (Crl.) No. 657 of 2017) MAY 01, 2018 [ADARSH KUMAR GOEL AND INDU MALHOTRA, JJ.] Investigation: Speedy investigation – By impugned order, CBI was directed to conduct trial within six months – The case against the petitioner-accused was that he was leader of a mob which indulged in arson, loot and mischief of burning of house of cabinet minister – His bail applications were rejected by S essions Court and High Court – While rejecting bail application, Supreme Court directed that trial be conducted as far as possible withi n six months – In the instant application seeking modification of the said order, it was stated that CBI was conducting investigation an d took over only on January 6, 2016 and one and a half years have gone by and, there was voluminous task which was time consuming and t rial could not commence unless report under s.173 Cr.P.C is filed by CBI which would take long time – Disposing of the applic ation, the Court, Held: There is no indication as to what procee dings have been taken up by the CBI so far, and why more time will be required and how much more time will be required – No investigating ag ency can take unduly long time in completing investigati on – Speedy investigation is recognized as a part of fundamental right of fair procedure under Art.21 of the Constitution – Since accused has been in custody for more than two years and investigation is pen ding with the CBI for more than one and a half years, CBI must complet e investigation at the most within next two months so that trial can commence latest by July 10, 2018 and concluded by the end of the year – Since order declining bail was passed on 30 th January, 2017 and more than one year has gone by, it will be open to the pe titioner, if he is still in custody, to move a bail applicati on before the trial court in accordance with law – Constitution of India – Art.21. 655 Investigation: In number of case, investigations re main pending for unduly long time which is not conducive to administration of criminal justice – There is need for timelines for completing investigation and for having in-house ov ersight mechanism wherein accountability for adhering to la id down timelines can be fixed at a different levels in the hierar chy . Constitution of India – Art.21 – Speedy trial – There is imp licit right under Art.21 for speedy trial which in turn encompas ses speedy investigation, inquiry, appeal, revision and retrial – To determine whether undue delay has occurred, one must have regard to nat ure of offence, number of accused and witnesses, workload of the court and the investigating agency, systemic delays – In ordinate delay may be taken as presumptive proof of prejudice parti cularly when accused is in custody so that prosecution does not become persecution – Court has to balance and weigh severa l relevant factors – Though it is neither advisable nor feasib le to prescribe any mandatory outer time limit and the court may on ly examine effect of delay in every individual case on the anvil of Art. 21 of the Constitution, there is certainly a need for in-hous e mechanism to ensure that there is no undue delay in completing in vestigation – Delay/laches – Investigation. Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621 ; Hussainara Khatoon (I) v. Home Secy., State of Bihar (1980) 1 SCC 81 : [1979] 3 SCR 169 ; Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225 : [1991] 3 Suppl. SCR 325 ; P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578 – relied on. Investigation: Undue delay – Need for a mechanism to take remedial steps if there is undue delay in investigation – s .57 Cr.P.C. puts a bar on detention by a police officer beyond 24 hours excepting time necessary for the journey from the place of ar rest to the Magistrate’s court – s.167(1) Cr.P.C. provides that where investigation cannot be completed within 24 hours, the accused has to be produced before the Magistrate and further det ention of the accused has to be authorized by the Magistrate – It is well 657 established that authorization for such detention ha s to be given having regard to the progress in investigation – Even a Magis trate cannot authorise detention in police custody beyond 15 days – Afte r judicial custody for more than 90 days in serious cas es stipulated therein and 60 days in other cases, there is a pro vision for mandatory default bail requirement if there is delay in inve stigation beyond the said period – In summons case, if investigat ion is not concluded within six months, the same has to be sto pped unless continuation is found necessary – However, there is no express outer limit for investigation in other cases but delay in investigati on may affect reasonableness of procedure specially when a person is in custody and is unable to furnish bail – Hence the need to lay dow n timelines for completing investigation with a view to give effect to the mandate of Art. 21 of the Constitution – Certai n directions given to MHA – Code of Criminal Procedure, 1973 – ss.57, 167(1). Law Commission’s Report 14 th Report (1958) and 154 th Report (1996) – referred to. Case Law Reference [1978] 2 SCR 621 relied on Para 7 [1979] 3 SCR 169 relied on Para 7 [1991] 3 Suppl. SCR 325 relied on Para 7 (2002) 4 SCC 578 relied on Para 7 CRIMINAL APPELLATE JURISDICTION: M. A. No. 267 of 2017 in SLP (Crl.) No. 657 of 2017. From the Judgment and Order dated 02.12.2016 of the High Court of Punjab and Haryana at Chandigarh in CRM-M-No. 27 311 of 2016. Tushar Mehta, ASG, Ms. Vibha Dutta Makhija, Sr. Adv ., Ajay Sharma, T. A. Khan, Mukesh Kumar Maroria, Advs. f or the Appellant. DILAWAR v. THE STATE OF HARYANA & ANR. The following Order of the Court was passed : O R D E R 1. This application has been filed by CBI in a disposed of matter for modification of order of this Court dated 31 st January, 2017. 2, FIR No.118 dated 27 th February, 2016 was registered with the Police Station, Urban Estate, Rohtak alleging mob violence in ‘jat agitation’. The petitioner was one of the accused arrested on 20 th April, 2016 and was said to be in custody since then. The state police, afte r completing the investigation, filed chargesheet on 27 th May, 2016 before the Court. However, the investigation was thereafter tra nsferred, on 30 th September, 2016, to the CBI along with several other cases. Court proceedings were also transferred from regular courts to the CBI Court at Panchkula. The petitioner applied for bail before the Additional Sessions Judge, Rohtak which was dismissed on 12 th July, 2016. Though some of the co-accused were granted bail by the High Court, bail application of the petitioner was dismissed by the High Court on 2 nd December, 2016. The High Court observed that prima facie the petitioner appeared to be the leader of the mob which indulged in arson, loot and mischief of burning of the house of a Cabinet Minister. When the matter came u p before this Court against the order declining bail by the High Court, this Court while not granting bail directed that the trial be concluded as far as possible within six months. 3. In the present application it is stated that CBI is co nducting investigation and has taken over only on 6 th October, 2016. There is voluminous task which is time consuming. Thus, trial cannot commence unless report under Section 173 Cr.P.C. filed by the CBI which will take long time. 4. From the above narration of facts, it is clear that eve n if CBI commenced investigation on 6 th October, 2016, one and a half years have already gone by. There is no indication as to what procee dings have been taken by the CBI so far and why more time will be required and how much more time will be required. No investigating agency can take unduly long time in completing investigation. Speedy investigation is recognized as a part of fundamental right of fair procedure under Article 21 of the Constitution. 659 5. Accordingly, when the matter came up for hearing on the last date, learned ASG sought time to assist the Court as to whet her there should be timelines for completing investigation. In the prese nt case, since accused has been in custody for more than two years and investigation is pending with the CBI for more than one and a half years, we are of the view that CBI must complete investigation at the most within next two months so that trial can commence latest b y July 10, 2018 and concluded by the end of the year. Since order declining bail was passed on 30 th January, 2017 and more than one year has gone by, it will be open to the petitioner, if he is still in cus tody, to move a bail application before the trial court in accordance with law. This application will stand disposed of accordingly except for consideration of the issue indicated hereafter. 6. We have come across number of cases where investigat ions remain pending for unduly long time which is not co nducive to administration of criminal justice. There is, thus, clear need for timelines for completing investigation and for having in-house oversight mechanism wherein accountability for adhering to laid down timelines can be fixed at a different levels in the hierarchy. 7. It is not necessary to refer to all the decisions of this Court articulating the mandate of the Constitution that there is im plicit right under Article 21 for speedy trial which in turn encompasses spee dy investigation, inquiry, appeal, revision and retrial. To determine whether undue delay has occurred, one must have regard to nature of offence, number of accused and witnesses, workload of the co urt and the investigating agency, systemic delays. Inordinate delay may be taken as presumptive proof of prejudice particularly when accused is in custody so that prosecution does not become persecution. Court has to balanc e and weigh several relevant factors. Though it is neither advi sable nor feasible to prescribe any mandatory outer time limit and the court may only examine effect of delay in every individual case on the anvil of Article 21 of the Constitution, there is certainly a need for i n-house mechanism to ensure that there is no undue delay in completing investigation. This obligation flows from the law laid down by this Court inter-alia in Maneka Gandhi versus Union of India 1, Hussainara Khatoon (I) versus Home Secy., State of Bihar 2, Abdul Rehman 1 (1978) 1 SCC 248 2 (1980) 1 SCC 81 DILAWAR v. THE STATE OF HARYANA & ANR. Antulay versus R.S. Nayak 3 and P. Ramachandra Rao versus State of Karnataka 4. 8. There is undoubted need for a mechanism to take remedial steps if there is undue delay in investigation. Section 57 Cr.P.C. puts a bar on detention by a police officer beyond 24 hours excepting time necessary for the journey from the place of arrest to the Magistrate’s court. Section 167(1) Cr.P .C. provides that where investigation cannot be completed within 24 hours, the accused has to be produced be fore the Magistrate and further detention of the accused has to be authorized by the Magistrate. It is well established that authoriz ation for such detention has to be given having regard to the progress in investigation. Even a Magistrate cannot authorise detention in police custody beyond 15 days. After judicial custody for more than 90 days in serious c ases stipulated therein and 60 days in other cases, there is a provi sion for mandatory default bail requirement if there is delay in invest igation beyond the said period. In summons case, if investigation is not concluded within six months, the same has to be stopped unless continuatio n is found necessary 5. However, there is no express outer limit for investigation in other cases but delay in investigat ion may affect reasonableness of procedure specially when a person is in custody and is unable to furnish bail. Hence the need to lay down timelines for completing investigation with a view to give effect t o the mandate of Article 21 of the Constitution. This aspect has also been d iscussed in the Law Commission’s Report including the 14 th report (1958) and 154 th Report (1996) as noticed by this Court 6. . 9. In view of the above, we implead Union of India as a party . We have asked learned ASG to represent the Union of India. We direct the Ministry of Home Affairs to have inter action on the subject with all the Central and State investigating agencies on or before May 31, 2018 either on video conferencing or in person. The points emerging from the inter action may be recorded and examined by an appropriate committee which may constituted for the purpose. The said committee may give its report latest by June 30, 2018. We direct the MHA to place on rec ord among other data, the figures of all pending investigations beyond one 3 (1992) 1 SCC 225 4 (2002) 4 SCC 578 5 167(5) Cr.P.C. 6 Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67, paras 30 and 31. 661 year and action plan to complete them in a proposed time fra me. With regard to State agencies also such information may be c ollected and furnished by the MHA. Put up the matter for further consideration on 3 rd July, 2018. Devika Gujral Application disposed of. DILAWAR v. THE STATE OF HARYANA & ANR.