K.J. Vaidya, J.
1. This appeal by the State of Gujarat is directed against the impugned judgment and order dated 29-5-1995, rendered in Summary Case No. 11 of 1987, by the learned Special Judge, Rajkot, wherein on the respondent Patel Karsanbhai Madhabhai, Proprietor of K.M. Oil Industries, Gondal, coming to be tried for the alleged contravention of Clause 26(vi) of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981, which is an offence punishable under Sees. 3 and 7 of the Essential Commodities Act, 1955, was at the end of the trial ordered to be acquitted.
2. When this matter came up for admission on 27-3-1996, at the very outset taking serious note of quite an unjustifiable protracted trial this Court was constrained to pass the following order:
It appears that the alleged offence took place on 6-2-1984 and surprisingly the complaint came to be filed on 16-4-1987 !! and thereafter also the matter ultimately came to be decided by the Special Court on 29-5-1995 !! This questionable time-gap reflects sadly at all levels. Under the circumstances, the office is directed to issue a notice to the complainant Mr. M.G. Gajjar, who at the relevant time was serving as Dy. Mamlatdar, Gondal, to be immediately served by the Collector, Rajkot, wherever he is, to explain as to what action he took after filing of the complaint till its final disposal. The notice to be made returnable on 11-4-1996. Not only this but then the concerned learned Special Judge is also directed to explain the delay as to why the Criminal case of the year 1987 could not be disposed of till 29-5-1995 !! The learned Judge shall also state the circumstances which delayed the trial for as many as 8 years !!! The report should reach this Court on or before 11-4-1996. S.O. to 11-4-1996.
3. In response to the aforesaid notices, the office has placed in our hands the report dated 8-4-1996 submitted by Mr. C.A. Sejpal, learned Special Judge, Rajkot, which reads as under.
3.1. From 16-4-1987 to 23-3-1988, the case was pending for the service of notice and application for adjournment was received by the Court on 24-3-1988. The then Jt. District Judge framed charge on 24-3-1988, which was again pending till 19-3-1989 !! Why? No reason given by the reporting Judge. What the learned P.P. was doing during this time? Where the complainant was at the relevant time not minding his complaint, requesting the Court to conduct trial at the earliest?
3.2. It further appears that thereafter the case was pending for recording evidence in the Court of yet another learned Joint District Judge from 20-3-1989 to 22-12-1989. He ultimately recorded the evidence of the prosecution witness No. 1 on 22-12-1989. Thereafter once again the matter disappeared into the cold-storage till 4-11 -1990 in his Court. It is simply difficult to understand what happened to the office of the Special Court and the learned P.P. at that time also?
3.3. Thereafter it further appears that the case was transferred to the court of the learned Assistant Judge & Additional Sessions Judge. There also the case remained pending without any progress from 5-11-1990 to 19-7-1991 !!!
3.4. Thereafter this case was further transferred to yet one another Court of the learned District Judge for recording further evidence. There also the old story repeated and case remained without any progress from 20-1-1991 to 2-12-1991 !
3.5. Thereafter this case without making any further progress remained as it is from 3-12-1991 to 15-5-1993 in the Court of yet another learned Joint District Judge !! During this period the evidence was completed and the case was posted for further statement of the accused.
3.6. Thereafter this case was transferred to the Court of one another learned District Judge for further statement and argument, where it remained pending from 27-7-1993 to 28-12-1993 !!!
3.7. Thereafter the matter further bumped off to yet another learned Judge and there also without any progress it remained in cold-storage from 29-12-1993 to 26-6-1994. Thereafter upto transfer of the concerned Judge from Rajkot, the matter was transferred to one more learned Judge and the case was lying in his Court from 27-6-1994 to 18-12-1994 without any progress !!
3.8. Ultimately, one after the another transferee learned Judges it was Mr. C.A. Sejpal who issued notice to the accused, his Lawyer and the Public Prosecutor for further hearing of the case. According to Mr. Sejpal, that notice could not be served to the accused which was sent on 17-2-1995 till 15-4-1995. At that time, it was reported that the accused aged 87 years old was sick and bed-ridden was unable to attend the Court. Thereafter on 18-5-1995 the accused appeared before the Court and his further statement was recorded. Arguments were heard on 19-5-1995 and the matter was disposed of by judgment on 29-5-1995.
4. The picture which emerges from the above report of Mr. Sejpal is very sad, shocking and disappointing as prima facie at no stage either any of the learned P.P. or for that purpose even any learned Judges before whom the case appeared for hearing had the required guts and will to proceed with this matter, and finally dispose off the same ! What was to be done in this matter? Only three to four witnesses to be examined, recording statement of accused and hearing some arguments !! Hardly a matter of a day or two ! Such simple things to be attended to and yet the trial got protracted for as many as 8 long years III This is indeed too embarrassing a situation for any learned Judge to face and answer ! We should not forget that under Article 21 of the Constitution of India each one of us are accountable and answerable to the people for unjustifiable delay in disposing of the case !! It is indeed too difficult to understand as to what all concerned were doing all this time!! With all restraints at our command, we will not like to hasten to jump to the conclusion that in this case also the proverb, viz., 'law governs the poor and the rich governs the law' is applicable ! No we cannot say so because there is no material before social welfare legislation has been successful enough in keeping his trial and the resultant punishment at safe distance !!
6. In this case two panch witnesses have not been examined. This was quite obvious because of the passage of time in between the date of the offence and belated trial ! May be accused had managed to keep them at distance by seeing that the process is not served or they have left the town or village and accordingly, not available on the address given in case if not died. In all belated protracted trials, this is likely to happen with the most of the witnesses. This prima facie goes to show how the respondent who is the proprietor of K.M. Oil Industries appears to have been immensely benefitted because of the protracted trial for eight long years ! One cannot be oblivious to the fact, more particularly the learned Judges and Magistrates that every protracted trial reacts to the greatest prejudice both to the undertrial accused and more particularly to the prosecution, as it gradually day-by-day weaken its case to the extent even resulting into unjust acquittal of the accused ! The delay in trial undoubtedly causes great hardship and inconvenience to the undertrial accused (if not released on bail) and his family members but at the same time, more than that it is also absolutely unfair, unjust and prejudicial rather a curse to the prosecution, more particularly to the society also in whose favour such white collar offenders are required to be weeded out at the earliest ! The most obvious reason is the ultimate success or failure of the prosecution case depends upon in first place the immediate recording of evidence of witnesses before the Court and in the second place the quality of evidence given by the prosecution witness. The little error here or there while giving evidence before the Court, is likely to get discarded evidence of the witness as doubtful, resulting into the benefit of doubt to the accused, at times getting away with cheap acquittal ! In this view of the matter, timely examination of the prosecution witness is of the utmost and great importance. Now, if the trials are protracted for unjustifiably longer period then in that case it is likely to prejudice the prosecution because with the passage of time, some prosecution witness may (i) die and/or become sick and infirm and/or (ii) go abroad and/or (iii) go to other State and or (iv) change their respective residential places and therefore, not available at their given old addresses, and as a result not available for examination before the Court. Not only that but (v) witnesses also become recalcitrant and reluctant to attend Court because of the repeated frustrating experience of adjournments and strikes and/or (vi) for whatever reason become hostile may be because of persuasion on some sympathetic ground towards the accused personally and or his family member or sometimes by threat or promise or inducement by or at the instance of the accused persons and/or (vii) suffer from sharpness or loss of memory and as a result fail in giving out the exact version before the Court. It is for all these standard and practical reasons that every Court, every Public Prosecutor is required to constantly bear in mind all these unquestionable possibilities with a view to have a fair trial to the prosecution and delayed justice does not defeat justice itself.
7. Turning to an unjustifiably protracted trial of the instant case, the basic questions that arise for consideration are three-fold. In the first instance, what indeed the complainant who filed the complaint in this matter was doing all these years? Was it not his duty also as a statutory functionary to take care of his complaint and contact the learned P.P. in charge of the case and inquire as to why the trial was not proceeding and why the evidence was not recorded and also for that purpose if the need be to personally submit an application to the learned Judge to expedite the trial by volunteering to enter the witness box to give evidence and also keep other witnesses present before the Court for examination on the day so fixed? In this regard, the possible say of the complainant that since the case was already before the Court, thereafter everything was left to the learned Public Prosecutor in charge of the case, is not wholly justifiable. The reason is there was a gross delay in disposal of the case, where it was the duty of the complainant or his successor in office to inquire and take necessary steps for the early disposal of the case ! Similarly, in the second instance, apart the complainant, was it also not the duty of the concerned learned P.P. in charge of the case as well to see that the trial involving examination of only three to four witnesses was expeditiously disposed of? Should not the learned P.P. have felt guilty for not drawing the attention of the Court to examine the witnesses and put an end to the trial? Was it not his further duty to see that the witnesses who were the public servants were kept present on due date at any cost before the Court? Was he not supposed to know that the respondent was a rich man having the Oil Industry committed an offence under the Essential Commodities Act would stand to benefit because of the protracted trial frustrating the legislative will, concern evinced in the Act itself to the greatest prejudice of the society? In the third instance, were not the concerned Judges as well at the relevant time from whose Board from time to time the case went on adjourning, jumping on and on like a ping-pong ball from table to table and Judge to Judge, had any duty worth the name to expeditiously attend and dispose off the trial consisting of only three to four witnesses respectfully minding the constitutional mandate of speedy justice enshrined in Article 21 of the Constitution of India? Did they ever, even think with such sort of lethargic functioning of the Administration of Justice, what face indeed are we to show to the public as an accountable, impartial, efficient and transparent society-oriented Administration of Justice? These are some of the basic questions which we shall have to answer to the public before any finger of accusation is levelled against and to the extent that Judiciary is also now-a-days no way better than the bureaucracy where red-tappism is routine beaten path and non-accountability a celebrated tradition !! It appears from the report of the learned Judge Mr. Sejpal that from 16-4-1987 till 28-3-1988 the case was pending for service of notice and application for adjournment was received by the Court. Was it not a duty of the concerned Court at the relevant point of time to see that the services were effectively effected, if necessary by calling the complainant himself before the Court, handing over the notice to be personally served upon the respondent? Every proceedings before the Court must reflect judicial initiative, involvement, resourcefulness, concern which can be packed up in one word, namely, the 'judicial activism', the moving spirit of justice! In fact, the Judge without judicial activism can perhaps be described as a flower without colour and fragrance and vehicle without fuel and wheels which is unavoidably must for any Court to be known as the Court of justice, substantial justice and the speedy justice ! To frame charge or issues, issue summons, warrants or even non-bailable warrants, record evidence, hear arguments and decide the cases by writing down judgments are not the only avenues where constant and unflickerred lamp of the judicial awareness must stand enlightened and manifest itself. The source of this judicial activism is the crusading spirit of the concerned Judge/Magistrate in delivering the substantial and speedy justice which we would like to term it as 'Judicial Crusadism '. In fact, over and above all the aforesaid things all the cases before the Court are also required to be attended at the earliest best should also be the matter of 'Personal concern, worry and anxiety of the every Judge.' It is true that these days looking to the acute pressure of judicial work and other administrative burdens, perhaps for Judges to have this concern though not impossible is sometimes little difficult but none-the-less not that difficult to monitor such things if he/she with little tact and imagination at command things are intelligently deviced by necessary sense of Court management where a particular officer of the Court by name is entrusted with the particular work including to draw the attention of the learned Judge on a particular day of week fixed for taking the stock of the situation slipping gradually out of control ! The intelligent way of Court management with little commonsense application, spearheaded by the judicial activism would quite easily simplify things to project the concerned learned Judge as the most efficient and asset Judge.
8. No doubt the delay in disposal of the instant case is quite gross ! No excuses are ordinarily permissible !! However, at the same time, we take it that either because of some inadvertency, or lack of proper monitoring or absence of proper Court management, the case went on playing the game of hide and seek ! Now, with a view to see that some such things do not get repeated in future, it would be quite desirable for all the leaned Judges of the State in the first instance to take overall stock of the situation regarding pending final hearing matters classifying them into (i) Civil, (ii) Criminal, (iii) Misc. Application. In the second instance to earmark those matters which deserve top most priority in the process; in the third instance prepare provisional Boards accordingly, in the fourth instance proceed ahead fixing some days for old matters, in the fifth instance prepare the Board in such a way that learned Advocates and parties get atleast 15 days advance notice, in the sixth instance if there are additional Judges priority-wise matters be exclusively listed continuously, till the time Board is exhausted. These are some of the illustrations how the problem of arrears and in particular old cases could be adequately within the reasonable time dealt with ! What we mean is, there should be a personal application to the problem and there should be an advance efficient planning as to how effectively and expeditiously cases can be disposed off. This planning habit should be generated in the subordinate judiciary also. For this purpose, the District and Sessions Judges must call a meeting of all subordinate Courts at regular interval of at least six months to take the fresh stock of the situation. Without this plan-culture or say work-culture of Court management no Judge or Magistrate will be able to successfully take himself out of the embarrassing situation of cries all round of delayed justice demanding speedy justice. Accordingly, falling in line with Court management it would be equally highly desirable for all the learned Judges of the State to maintain the Special Reminder Register giving out an instantaneous bird-eye indication at a glance showing (i) Month and year of case thereby to know how old the case is? (ii) How many witnesses to be examined with a view to have an idea as to how much time the trial would take? (iii) Whether witness(es) is served? If not, (iv) What are the reasons for non-service? (v) What fresh steps are to be taken? (vi) Regarding this every week, office objection Board to be prepared showing why the case is not ready for the hearing so that the concerned Judge can give suitable directions and pass appropriate order? (vi) Not only that but the definite responsibility be fixed on the Office Superintendent to periodically bring to the notice of the learned Judges what are the old cases; what needs to be done for its earlier disposal and obtain suitable orders in this regard, (vii) In the event of the Office Superintendent failing in his accountability, departmental action be taken against him. This sort of Court management and departmental vigilance is the must without which the overall credibility of the Administration of Justice will always be at the cross-road, putting the concerned Judge in quite awkward self-pitying position !
9. In the instant case, whatever has happened has happened. Run away water cannot be brought back !! But henceforth, it shall be the duty of each and every Judge and the Magistrate to see that the cases do not go out of sight and out of mind. Something can be said in defence of the learned Judge, viz., that subordinate staff owed a duty to the Court to see that trial takes place and disposed off at the earliest, but there is nothing in defence of the learned P.P. who was in charge of the case and we prima facie feel that he has failed in his duty. It is for the concerned D.S.P. and the District Magistrate of the area and Secretary, Legal Department to consider how to control and regulate irresponsible Public Prosecutors conducting cases before the Court by periodical surprise checks, and swift departmental action in event of serious remissness evinced against the concerned Public Prosecutor. In case if the Public Prosecutor in charge of the case is found to be inefficient for want of adequate staff the ultimate responsibility is of the concerned head of the department under whom he is working.
10. The heart-burn expressed above is nothing but the anxiety and concern for the people for whom in the first instance the Essential Commodities Act has been enacted, in the second instance the Administration of Justice exists and in the third instance, the Constitution in its Article 21 has promised people of speedy justice. To safeguard all these three, the High Court as a Constitutional functionary must exert and do its best. The grave concern which we have voiced above is nothing but the displeasure of the consumers of justice themselves echoed in this judgment. The gross delay of eight years which has taken place in the instant case ought not to have taken place. Anyway we hope and trust that such a thing shall not happen in future and if it happens, but for some reasonable explanation it would be indeed too difficult all concern to face the situation and consequences following therefrom !!
11. Leave granted. Appeal admitted. Bailable warrant in the sum of Rs. 5,000/ - with the surety of like amount.
Then Registry is directed to circulate a copy of this judgment to (i) all Courts of the State, and (ii) the Director, Judicial Academy, Gujarat State, Ahmedabad, for information and necessary follow-up action, (iii) Secretary, Legal Department, Gandhinagar, for issuing circulars to all public servants who are the complainants in some case under the Special Acts.