Apex Court in the case of Hussainara Khatoon and others v. Home Secretary State of Bihar

Applicant :- Smt. Anuradha Pandey Opposite Party :- State Of U.P. And 7 Others Counsel for Applicant :- Manoj Kumar Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Shri Manoj Kumar, learned counsel for the applicant and Sri P.P. Tiwari, learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to direct the Special Judge (Gangster Act), Gorakhpur to decide the Gangster Trial No.17 of 2013 (State v. Mukund Singh and others) arising out of Case Crime No.259 of 2012, under Sections 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, Police Station Sahjanawa, District Gorakhpur, expeditiously within stipulated period.

3. This matter was heard on 18.02.2025, the order dated 18.02.2025 is being quoted as under:- "1. Heard Sri Manan Chaubey, Advocate holding brief of Sri Manoj Kumar, learned counsel for applicant, Sri P.P. Tiwari, learned AGA for the State and Sri Satyavan Shahi, learned counsel for opposite party nos.2 to 8.

2. The present application u/s 482 Cr.P.C. has been filed for seeking a direction to Special Judge (Gangster Act), Gorakhpur to decide the Gangster Trial No.17 of 2013 (State vs. Mukund Singh and others) arising out of Case Crime No.259 of 2012, u/s 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, P.S. Sahjanawa, District Gorakhpur expeditiously within a time frame.

3. From perusal of record, it appears that this Court considering the fact that it is a triple murder case, directed the court below to adopt all coercive measure for securing attendance of the witnesses and conclude the trial within a period of six months with further direction to Special Judge (Gangster Act), Gorakhpur to submit his explanation as to why the trial has not been expedited and decided despite specific orders passed by this Court. Order dated 18.07.2019 is being quoted as under:- "Heard learned counsel for the applicant and learned A.G.A. The present application u/s 482 Cr.P.C. has been filed for seeking a direction to Special Judge (Gangster Act), Gorakhpur to decide the Gangster Trial No. 17 of 2013 (State vs. Mukund Singh and others) arising out of Case Crime no. 259 of 2012, u/s 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, P.S. Sahjanawa, District Gorakhpur expeditiously within a time frame. Learned counsel for the applicant submitted that the applicant is the informant of S.T. No. 17 of 2013. In this case three family members of the applicant has been done to death by the accused and trial against them is pending since 2013. It is stated that all witnesses of fact has been examined by 6.1.2017 and despite specific order passed by this Court in Crl. Misc. Bail Application no. 24659 of 2013 dated 10.2.2014 that trial be expedited and concluded within a period of one year strictly in accordance with law and thereafter, on the application moved by the applicant for expediting the trial this Court in Crl. Misc. Application no. 4426 of 2017 vide order dated 10.2.2017 again directed the court to expedite the trial expeditiously. It is stated that after 6.1.2017 trial is pending as it is, as the formal witnesses are not appearing and the accused are seeking adjournments for lingering on the trial. From the ordersheets, it appears that though the Court has issued bailable warrants against some of the formal witnesses and also sent requisition for execution of the same to S.S.P. yet the formal witnesses had not appeared for their evidence in the trial due to which, it is held up for the past two and half years. Be that as it may, it is a triple murder case, the Special Judge (Gangster Act) Gorakhpur is hereby directed to adopt all coercive measure for securing attendance of the witnesses and conclude the trial within a period of six months from the date of production of certified copy of the order. Learned Special Judge (Gangster Act) Gorakhpur is also directed to submit his explanation as to why trial has not been expedited and decided despite aforesaid specific orders passed by this Court as for as back in the year 2014 and 2017, within four weeks. List this case on 21.8.2019."

4. Despite aforesaid order, the explanation was not submitted by the concerned court and the trial could not be concluded. In pursuance of order dated 04.02.2025 of this Court, learned Additional District and Sessions Judge, Court No.6, Gorakhpur has submitted its report dated 17.02.2025 mentioning therein that he had joined the court concerned since 30.09.2024. It is further mentioned that despite issuance of summons by this Court, prosecution could not produce witnesses, so the trial has not been concluded and now the statement of P.W.-7 is being recorded. It is further submitted that in the aforesaid report, due to the laxity shown by the prosecution, the witnesses could not be produced on date fixed, so the trial is delayed.

5. Learned counsel for applicant has submitted that all the remaining witnesses are formal witnesses, being Investigating Officer and other police officials. The report also shows that the trial of this case is pending since 2013.

6. It is very surprising that despite repeated order of this Court passed in 2014, 2017 and on 18.7.2019, trial could not be concluded for the reason that presence of formal witnesses could not be ensured before this Court.

7. Though, the trial of this case is pending even before the enforcement of B.N.S.S., therefore, it could proceed only as per the provision of Criminal Procedure Code. There was a provision in the Criminal Procedure Code that formal witnesses could be produced and examined through video conferencing.

8. Apex Court in the case of Hussainara Khatoon and others Vs. Home Secretary State of Bihar, 1980 (1) SCC 98, has observed that speedy trial is an essential ingredients of 'reasonable, fair and just' procedure guaranteed by Article 21 of the Constitution of India and also observed that State is obliged to provide speedy trial. It is the collective responsibility of the Court as well as prosecution which also includes police department to ensure the presence of witnesses, so that the trial of heinous cases could be concluded expeditiously, as it clearly reflects from the report of the concerned court that delay in trial is due to laxity on the part of the prosecution.

9. In view of above fact, The Principal Secretary (Law) is directed to look into issue, why the prosecution has failed to ensure the presence of formal witnesses in the Gangster Trial No.17 of 2013 (State vs. Mukund Singh and others) arising out of Case Crime No.259 of 2012, u/s 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, P.S. Sahjanawa, District Gorakhpur.

10. S.S.P., Gorakhpur is further directed to file his personal affidavit explaining the reason why the presence of formal witnesses could not be ensured in the aforesaid case despite issuance of summons and warrant against the accused.

11. Put up this case on 10.03.2025.

12. Registrar (Compliance) is directed to communicate this order to Principal Secretary (Law), Government of U.P. and S.S.P., Gorakhpur for compliance and necessary action."

4. In pursuance of the aforementioned order dated 18.02.2025, S.S.P., Gorakhpur has filed his personal affidavit mentioning therein that he has directed to conduct inquiry to find out responsible persons, who are negligent in ensuring the presence of the former witnesses before the Court. It is further mentioned in the affidavit that total 24 formal witnesses have to be examined, but only two persons, namely, PW-6 and PW-7 have been examined. He will personally ensure that all the formal witnesses will be appeared before the Court below either physically or with the permission of the Court through video conferencing.

5. Present application is disposed of with direction to the court below to conclude the proceedings of Gangster Trial No.17 of 2013 (State v. Mukund Singh and others) arising out of Case Crime No.259 of 2012, under Sections 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, Police Station Sahjanawa, District Gorakhpur, as expeditiously as possible, without giving any unnecessary adjournment to either of the parties.

6. It is further provided that if any police witness despite service of notice failed to appear before the court below, then the Court below will issue letter to concerned District Police chief to stop the salary of that police witness with direction that till he appears before the Court for recording his statement, his salary shall not be released. Order Date :- 10.3.2025 A.N. Mishra AMARNATH MISHRA High Court of Judicature at Allahabad

Applicant :- Smt. Anuradha Pandey Opposite Party :- State Of U.P. And 7 Others Counsel for Applicant :- Manoj Kumar Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Shri Manoj Kumar, learned counsel for the applicant and Sri P.P. Tiwari, learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to direct the Special Judge (Gangster Act), Gorakhpur to decide the Gangster Trial No.17 of 2013 (State v. Mukund Singh and others) arising out of Case Crime No.259 of 2012, under Sections 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, Police Station Sahjanawa, District Gorakhpur, expeditiously within stipulated period.

3. This matter was heard on 18.02.2025, the order dated 18.02.2025 is being quoted as under:- "1. Heard Sri Manan Chaubey, Advocate holding brief of Sri Manoj Kumar, learned counsel for applicant, Sri P.P. Tiwari, learned AGA for the State and Sri Satyavan Shahi, learned counsel for opposite party nos.2 to 8.

2. The present application u/s 482 Cr.P.C. has been filed for seeking a direction to Special Judge (Gangster Act), Gorakhpur to decide the Gangster Trial No.17 of 2013 (State vs. Mukund Singh and others) arising out of Case Crime No.259 of 2012, u/s 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, P.S. Sahjanawa, District Gorakhpur expeditiously within a time frame.

3. From perusal of record, it appears that this Court considering the fact that it is a triple murder case, directed the court below to adopt all coercive measure for securing attendance of the witnesses and conclude the trial within a period of six months with further direction to Special Judge (Gangster Act), Gorakhpur to submit his explanation as to why the trial has not been expedited and decided despite specific orders passed by this Court. Order dated 18.07.2019 is being quoted as under:- "Heard learned counsel for the applicant and learned A.G.A. The present application u/s 482 Cr.P.C. has been filed for seeking a direction to Special Judge (Gangster Act), Gorakhpur to decide the Gangster Trial No. 17 of 2013 (State vs. Mukund Singh and others) arising out of Case Crime no. 259 of 2012, u/s 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, P.S. Sahjanawa, District Gorakhpur expeditiously within a time frame. Learned counsel for the applicant submitted that the applicant is the informant of S.T. No. 17 of 2013. In this case three family members of the applicant has been done to death by the accused and trial against them is pending since 2013. It is stated that all witnesses of fact has been examined by 6.1.2017 and despite specific order passed by this Court in Crl. Misc. Bail Application no. 24659 of 2013 dated 10.2.2014 that trial be expedited and concluded within a period of one year strictly in accordance with law and thereafter, on the application moved by the applicant for expediting the trial this Court in Crl. Misc. Application no. 4426 of 2017 vide order dated 10.2.2017 again directed the court to expedite the trial expeditiously. It is stated that after 6.1.2017 trial is pending as it is, as the formal witnesses are not appearing and the accused are seeking adjournments for lingering on the trial. From the ordersheets, it appears that though the Court has issued bailable warrants against some of the formal witnesses and also sent requisition for execution of the same to S.S.P. yet the formal witnesses had not appeared for their evidence in the trial due to which, it is held up for the past two and half years. Be that as it may, it is a triple murder case, the Special Judge (Gangster Act) Gorakhpur is hereby directed to adopt all coercive measure for securing attendance of the witnesses and conclude the trial within a period of six months from the date of production of certified copy of the order. Learned Special Judge (Gangster Act) Gorakhpur is also directed to submit his explanation as to why trial has not been expedited and decided despite aforesaid specific orders passed by this Court as for as back in the year 2014 and 2017, within four weeks. List this case on 21.8.2019."

4. Despite aforesaid order, the explanation was not submitted by the concerned court and the trial could not be concluded. In pursuance of order dated 04.02.2025 of this Court, learned Additional District and Sessions Judge, Court No.6, Gorakhpur has submitted its report dated 17.02.2025 mentioning therein that he had joined the court concerned since 30.09.2024. It is further mentioned that despite issuance of summons by this Court, prosecution could not produce witnesses, so the trial has not been concluded and now the statement of P.W.-7 is being recorded. It is further submitted that in the aforesaid report, due to the laxity shown by the prosecution, the witnesses could not be produced on date fixed, so the trial is delayed.

5. Learned counsel for applicant has submitted that all the remaining witnesses are formal witnesses, being Investigating Officer and other police officials. The report also shows that the trial of this case is pending since 2013.

6. It is very surprising that despite repeated order of this Court passed in 2014, 2017 and on 18.7.2019, trial could not be concluded for the reason that presence of formal witnesses could not be ensured before this Court.

7. Though, the trial of this case is pending even before the enforcement of B.N.S.S., therefore, it could proceed only as per the provision of Criminal Procedure Code. There was a provision in the Criminal Procedure Code that formal witnesses could be produced and examined through video conferencing.

8. Apex Court in the case of Hussainara Khatoon and others Vs. Home Secretary State of Bihar, 1980 (1) SCC 98, has observed that speedy trial is an essential ingredients of 'reasonable, fair and just' procedure guaranteed by Article 21 of the Constitution of India and also observed that State is obliged to provide speedy trial. It is the collective responsibility of the Court as well as prosecution which also includes police department to ensure the presence of witnesses, so that the trial of heinous cases could be concluded expeditiously, as it clearly reflects from the report of the concerned court that delay in trial is due to laxity on the part of the prosecution.

9. In view of above fact, The Principal Secretary (Law) is directed to look into issue, why the prosecution has failed to ensure the presence of formal witnesses in the Gangster Trial No.17 of 2013 (State vs. Mukund Singh and others) arising out of Case Crime No.259 of 2012, u/s 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, P.S. Sahjanawa, District Gorakhpur.

10. S.S.P., Gorakhpur is further directed to file his personal affidavit explaining the reason why the presence of formal witnesses could not be ensured in the aforesaid case despite issuance of summons and warrant against the accused.

11. Put up this case on 10.03.2025.

12. Registrar (Compliance) is directed to communicate this order to Principal Secretary (Law), Government of U.P. and S.S.P., Gorakhpur for compliance and necessary action."

4. In pursuance of the aforementioned order dated 18.02.2025, S.S.P., Gorakhpur has filed his personal affidavit mentioning therein that he has directed to conduct inquiry to find out responsible persons, who are negligent in ensuring the presence of the former witnesses before the Court. It is further mentioned in the affidavit that total 24 formal witnesses have to be examined, but only two persons, namely, PW-6 and PW-7 have been examined. He will personally ensure that all the formal witnesses will be appeared before the Court below either physically or with the permission of the Court through video conferencing.

5. Present application is disposed of with direction to the court below to conclude the proceedings of Gangster Trial No.17 of 2013 (State v. Mukund Singh and others) arising out of Case Crime No.259 of 2012, under Sections 147, 148, 149, 302, 307, 34, 452 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, Police Station Sahjanawa, District Gorakhpur, as expeditiously as possible, without giving any unnecessary adjournment to either of the parties.

6. It is further provided that if any police witness despite service of notice failed to appear before the court below, then the Court below will issue letter to concerned District Police chief to stop the salary of that police witness with direction that till he appears before the Court for recording his statement, his salary shall not be released. Order Date :- 10.3.2025 A.N. Mishra AMARNATH MISHRA High Court of Judicature at Allahabad