Amrinder Singh Kang vs The State of Punjab

Jai Singh, J.—Through this petition u/s 482 of the Code of Criminal Procedure the petitioner seeks quashment of FIR No. 89 registered against him at Police Station Mohali, district Ropar, on 24-11-1988 for the offences punishable u/s 5(2) read with Section 5(1)(i) of the Prevention of Corruption Act, 1947, inter alia on the ground of delay in completion of investigation as well as on the ground that he was earlier exonerated in a regular enquiry by the Vigilance Department, but the investigator had not taken into account certain entries of loans procured by the petitioner from his father, father-in-law and brother-in-law for construction of the house and Shop-cum-Office.

In brief, the facts of the case are that the petitioner was appointed as Deputy Secretary on ad hoc basis in the Punjab School Education Board in May, 1977. The service of the petitioner was regularised later on and he was confirmed as Deputy Secretary (Production) in February, 1978. He was made incharge of the Publication Branch. Earlier, majority of the printing work was being got done from private press at Jalandhar, but on account of the petitioner having rationalised the printing programme, the private pressmen felt offend, Mr. Jagdish Gupta Printer has levelled baseless allegations against him. On these allegations, preliminary enquiry was conducted by the Crime Investigation Department, but the petitioner was never questioned. Subsequently, a regular enquiry No. 4/83 (District Ropar) was initiated against the petitioner on 28-2-1983 for amassing wealth disproportionate to his income during the period from May, 1977 to March 31, 1983. The petitioner learnt of this enquiry on March 14, 1983 when the enquiry officer inspected the records in the office and recorded statements of various officials, concerned with the printing work. Thereafter the enquiry pertaining to procedural lapses and financial irregularities was dropped at the initial stage. However, the enquiry qua the disproportionate assets of the petitioner and construction of residential house No. 2196, Sector 38C, Chandigarh, and a partly constructed shop-cum-office in the name of his wife in Sector 37C, Chandigarh, continued uptil March, 1985, by different inquiry officers and ultimately to the knowledge of the petitioner it was concluded that the income of the petitioner from all known sources was Rs. 5,88,386.13 and the total expenditure incurred by him on the construction of the residential house and the shop-cum-office was Rs. 5,77,376.45. As such the enquiry officer found that income of the petitioner exceed by Rs. 7,000/- to his assets and recommended dropping of the enquiry. This report of the enquiry officer was also approved by the Audit and Legal Wings of the Vigilance Department. The case was then sent to the Government for dropping the same some time in the year 1985, but the press lobby again pressurised the Government not to drop the case and it was sent back to the Vigilance Department for some querries. Ultimately, Sh. Bhagwan Dass, Deputy Superintendent of Police, contacted the petitioner in June, 1986 and thereafter the petitioner heard nothing for about two years when another Inspector Shri Lok Ram contacted the petitioner and informed him that Rs. 30,000/- spent by the petitioner''s father during the construction of the house as well as another sum of Rs. 10,000/-spent by his father on the construction of the shop-cum-office could not be taken into account. Another sum of Rs. 10,000/- given by the brother-in-law of the petitioner was not allowed by them despite the fact that this amount was credited to the petitioner''s account. The supply of bricks worth Rs. 11,850/- by the father-in-law of the petitioner was also not admitted. The petitioner also alleged that an amount of Rs. 1,29,375/- was added to the petitioner''s expenditure on the shop-cum-office by ignoring the factum that at the time of auction of the shop-cum-office, petitioner''s wife had only paid Rs. 43,125/- towards its first instalment and on her failure to pay the remaining amount, the site was resumed. Thereafter the petitioner in November, 1988, learnt that a case has been registered against him on 25-11-1988 for amassing disproportionate assets vide FIR, the English translation of which, reproduced in para 7 of the petition, reads as under:--

Written report received from Sh. Gurdial Singh, Inspector, Vigilance Department, Punjab through Shri Kuldeep Singh, Constable No. 36/650, C.A. Vigilance Bureau Punjab, Chandigarh. The subject-matter of which is as under:--

It has come to know through Chief Officer, P. S. Mohali, district Ropar, and through reliable sources that Shri Amrinder Singh Kang, Deputy Secretary (Production), Punjab School Education Board, was employed in the Board from 18-5-1977 to 31- 3-1983. This has also become known that he had collected a good fortune and property through corruption which is more than his known sources of income. During this period his income from all known sources is Rs. 5,22,536.13 whereas he had spent Rs. 7,06,751.43 himself or through his wife for the purchase of property, construction thereon, and besides purchased a car and scooter and also paid interest on the loans received by him and his wife. His wife has also purchased a share in the printing press -at Parwanoo. During this period Shri Amrinder Singh Kang, Deputy Secretary (Production) Punjab School Education Board, Mohali, has spent on the above noted property and for his households Rs. 7,06,751.45. As such he has over spent a sum of Rs. 1,84,215.32 from his income and as such committed crime u/s 5(2), 47 read with Section 5(1)(i) of the Prevention of Corruption Act. As a case be registered against Shri Amrinder Singh Kang, Deputy Secretary under the above noted section and copy of the F.I.R. be sent to me and I shall myself enquire into the same. This letter sent through C. Kuldip Singh, No. 36/ 650, C.A. Vigilance Department, Punjab. Sd/- Gurdial Singh, Inspector, Vigilance Department, Punjab, Chandigarh, 24-11-1988 at 11.00 a.m.

The petitioner contends that registration of the case after expiry of 5l/2 years of the check-period and non-conclusion of the investigation till the date of filling this petition had resulted in debarring the petitioner of his right to speedy trial available to a citizen under Article 21 of the Constitution of India. It was also averred on merits of the case that the above-referred loans taken by the petitioner from his father, brother-in-law and father-in-law have wrongly been brushed aside by the investigator.

In the return filed by Shri P. S. Bedi, Joint Secretary Vigilance, Punjab, on behalf of the respondents, it is maintained that the investigation of this case is still pending and the same cannot be interfered with at this stage. It was further highlighted that this Court is not in a position to appraise evidence. It was, however, admitted that the Vigilance Bureau had conducted regular enquiry regarding the disproportionate assets of the petitioner to his known sources of income between the period from 18-5-1977 to 31-3-1983, but maintained that the enquiry officer has found the petitioner having amassed wealth disproportionate to his known sources of income. It was further maintained that on receipt of the report of the Vigilance Bureau, the Government examined it in detail and found that unexplained assets of the petitioner are worth Rs. 1,84,215.32. Thereafter, it was decided with the approval, of the competent authority to register a criminal case. The allegation of the petitioner that the press lobby has pressurised the Government to register the case was refuted. On the other hand, it was maintained that the case was registered on the basis of genuine evidence collected by the enquiry officer. It was further maintained that under the law, there is no limitation bar against the prosecution of the offender under the provisions of the Prevention of Corruption Act.

I have heard the learned Counsel for the parties and have perused the records.

Admittedly, the investigation of the case was still in progress when this petition for quashment of the same was filed by the petitioner on 23-4-1990. Thereafter, Justice S. S. Grewal, J. of this Court has stayed; further proceedings vide order dated 24-4-1990. In extra-ordinary jurisdiction for quashment of the F.I.R., this Court u/s 482 of the Code of Criminal Procedure, is not competent to appraise the evidence collected by the investigating agency especially when the investigation is still in progress. Consequently, there is no force in the contention of the learned Counsel for the petitioner, Mr. Paramjit Singh Patwalia, that the enquiry officer has wrongly excluded certain loans raised by the petitioner from his father, father-in-law and brother-in-law.

The question then arises -- whether delay of 51/2 years in registration of the case on 24-11-1988 or thereafter the delay in concluding the investigation had resulted in depriving the petitioner of his fundamental right to speedy trial and justice guaranteed under Article 21 of the Constitution of India. The Full Bench of the Patna High Court in Madheshwardhari Singh and Another Vs. State of Bihar, after relying upon the judgments of the apex Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, as well as in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , observed in para 12 of the judgment as under:--

Coming nearer home, it would seem that the right to a speedy public trial as a constitutional guarantee is of a somewhat recent origin in our country. However, by now it is so well settled by precedential mandate of the Final Court itself that the right to a speedy public trial is a part and parcel of the constitutional guarantee under Article 21, that it would be wasteful and unnecessary to examine the issue on principle afresh. In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, which was yet one of the series of cases from our own State, arising from the heart rending delays in the context of under trials, Bhagwati, J. (as he then was), after in terms quoting the Sixth Amendment to the American Constitution and also Art. 3 of the European Convention on Human Rights, observed as under:--

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 Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, . We have held in that case that Art. 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 ''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 reasonably quick trial can be regarded as ''reasonable, fair or just'' and it would fall foul of Art. 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 21.

In the succeeding case of the series Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, it was again reiterated as under :--

Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of ''reasonable, fair and , just'' procedure guaranteed by Art. 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial of the accused.

In Para 27 -of the judgment, the Full Bench further held that the right to speedy public, trial is applicable not only to the actual, proceedings in Court but includes within sweep the preceding police investigation in criminal prosecution a well. Thereafter, the Full Bench in para 49 of the judgment after relying upon the observation of the Final Court in S. Guin and Others Vs. Grindlays Bank Ltd., concluded in para 50 of the judgment that although the outer limit for concluding of the original trial in offences other than the capital ones is seven years and the said finding must not be misunderstood or misconstrued to mean that a delay of less than seven years would not in ; any case amount to prejudice. The sharp note of caution was sounded by Justice S. S. Sandhawalia, then Chief Justice of the Patna High Court, in para 50 of the judgment as under:--

A sharp note of caution must be sounded. The aforesaid finding must not be misunderstood or misconstrued to mean that a delay of less than seven years would not in any case ; amount to prejudice. Indeed, what is sought to be laid down is the extreme outer limit whereafter grave prejudice to the accused must be presumed and the infraction of the constitutional right would be plainly established. Really, I am somewhat hesitant in spelling out even the aforesaid outer time limit which, perhaps, errs on the side of strictitude. But since we are following binding precedent, the same has to be unreasonably accepted. Nor is it sought to be laid down that in a lesser period than even years an accused person would not be able to establish circumstances pointing to the patent prejudice which may entitle him to invoke the guarantee of speedy public trial under Article 21. This is a question which can be properly considered and adjudicated where it may expressly arise.

The above-referred view of the Full Bench of the Patna High Court for outer limit being seven years delay in trial of the offences not punishable with death or imprisonment for life would cause prejudice to the accused was modified by the apex Court in Ram Lal Singh and others Vs. State of Haryana, by observing as under :--

But then speedy trial or other expressions conveying the said concept are necessarily relative in nature. One may ask speedy means, how speedy? How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind. For example, take the very case is which Ranjan Dwivedi (Petitioner in writ petition No. 268 of 1987) is the accused. 151 witnesses have been examined by the prosecution over a period of five years. Examination of some of the witnesses runs into more than 100 typed pages each. The oral evidence adduced by the prosecution so far runs into, we are told, 4,000 pages. Even though, it was proposed to go on with the case five days of a week and week after week, it was not possible for various reasons viz., nonavailability of the counsel, non-availability of the accused, interlocutory proceedings and other systemic delays. A murder case may be a simple one involving say dozen witnesses which can be concluded in a week while another case may involve a large number of witnesses, and may take several weeks. Some offences by their very nature e.g., conspiracy, cases, cases of misappropriation, embezzlement, fraud, forgery sedition, acquisition of disproportionate assets by public servants,; cases of corruption against high public servants and high public officials take longer time for investigation and trial. Then again, the work-load in each Court, district, region and State varies. This fact is too well-known to merit illustration at our hands. In many places, requisite number of courts are not available. In some places, frequent strikes by members of the Bar interferes with the work schedules. In short, it is not possible in the very nature of things and present day circumstances to draw a time limit beyond which a criminal proceedings will not be allowed to go. Even in the U.S.A. the Supreme Court has refused to draw such a line. Except for the Patna F.B. decision under appeal, no other decision of any High Court in this country taking such a view has been brought to our notice. Nor, to our knowledge, in United Kingdom. Wherever a complaint of infringement of right to speedy trial is made the Court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period. In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays to cannot be treated as unjustifiably broadly speaking. Of course, if it is a minor offence not being an economic offences and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter. For all the above reasons, we are of the opinion that it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. It is not necessary to do so effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory.

In State of Andhra Pradesh Vs. P.V. Pavithran, , the apex Court at page 1268 again dealt with the inordinate delay on the part of the investigating agency in completing the investigation by holding that although a lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceedings to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis yet all the same there are offences of heavy magnitude such as diabolical crimes of conspiracy or clandestine crimes committed by members of the under world with their tentacles spread over various parts of the country or even abroad. Therefore, in the very nature of such offences, it takes considerable time for unearthing the crimes and bringing the culprits to book. Thus, it is not possible to formulate inflexible guidelines or rigid principles of uniform application for speedy investigation or to stipulate any arbitrary period of limitation within which investigation in a criminal case should be completed. Thus, it depends on the facts and circumstances of each case to infer whether such inordinate delay is a ground of quash the F.I.R.

In the case in hand, the check-period for amassing wealth or disproportionate assets to the income of the petitioner is from 18-5-1977 to 31-3-1983, i.e. the period from which the petitioner took over as Deputy Secretary of the Punjab School Education Board initially on ad hoc basis and thereafter on regular basis. Obviously, such like acts of amassing disproportionate assets are done by the defaulter under secretive circumstances and come to light only if some body from the department concerned or other person having dealing with such official brings these facts to the notice of the concerned authority. In the case in hand, as per the petitioner''s own case the Vigilance Department enquiry was started against him on 28-2-1983. Thereafter the S.D.O. (Vigilance) assessed the value of the house and shop-cum-office besides scrutinising the details of the bank statements of the petitioner and his wife. This process continued uptill March, 1985. Ultimately, the enquiry officer submitted his report to the State Government regarding the disproportionate assets of the petitioner being Rs. 7,000/- only, but the Government being not satisfied with this report, entrusted the enquiry to Sh. Bhagwan Dass, D.S.P., who contacted the petitioner in June, 1987. Thereafter, the enquiry was entrusted to Shri Lok Ram Inspector (Vigilance) and ultimately on his report the Government accorded sanction for registration of the case for the above-referred offences against the petitioner. Thus, i under the circumstances of the case, the delay in registration of the case on 24-11-1988 against the petitioner for amassing disproportionate assets pertaining to the period from May, 18, 77 to March 31, 1983, cannot be said to be that belated which will result in prejudice to him in setting up his defence, especially when the case rests upon the documentary evidence. The investigation under the Code of Criminal Procedure started against the petitioner after registration of the case on 24-11-1988. Thereafter, the petitioner approached this Court in these proceedings and the learned single Judge stayed proceedings in the matter on 24-4-1990. Consequently, it cannot be said that there was inordinate delay in concluding the investigation also " because due to the above order of this Court, further investigation has already been stayed. Under these circumstances, the observations of the apex Court in State of Punjab Vs. Kailash Nath, , are of no help to the petitioner in the case in hand because in that case on facts it was found that the enquiry was initiated against Mr. Kailash Nath about three years after his retirement and about six years after the accrual of the cause of action.

The observations of the learned single Judge of this Court in Amar Nath v. State of Punjab 1988 (2) CLR 419 regarding the delay of 7''/� years in concluding the investigation had resulted in denial of right to speedy trial, are also not applicable to the facts of the Case in hand as there is no inordinate delay in the investigation of the present case after its registration.

For the reasons recorded above, no case is made out for quashing the FIR or resultant proceedings therefrom. The investigating agency is, however, directed to conclude the investigation and submit the challan, if need be, within a period of six months from the receipt of the copy of this order. A copy of this order be sent to the State Government through the Chief Secretary, Punjab, for compliance in this regard. -The petition stands disposed of accordingly.