Braj Kishore Jaiswal vs The State of Bihar

S.K. Homchaudhuri, J.—The Petitioner has approached this Court in this writ petition for quashing the proceedings pending against him in Special Case No. 8 of 1983 in the Court of learned Special Judge, Dhanbad arising out of Vigilance Case No. 23/1983 dated 2.12.1983 under Sections 120B, 420, 468, 471 and 477 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947.

Vigilance Case No. 20/1983 was registered on 2.12.1983 on the basis of the First Information Report filed by Tribhuwan Nath Pandey Deputy S.P Cabinet (Vigi lance), Hazaribagh. Thereafter Special Case No. 8 of 1983 was registered in the Court of Special Judge, Dhanbad, a copy of the First Information Report has been annexed to this petition as Annexure 1 and the allegations in the F.I.R. are as follows:

I am to state that Sri Awatar Singh, Sri Ram Padarath Singh and Sri Izaharul Haque while functioning as Executive Officer Junior Engineer and Store keeper respectively of Hazaribagh Municipality during the period 1980 entered into criminal conspiracy with Sri Dharm Narain Agrawalla Proprietor and Sri Sheo Kumar Parikh Sales Manager of M/s National Tar Product 1, Dr. M. Ishaque Road, Calcutta and Others cheated the Municipality on the basis of forged and fabricated papers/documents and falsified the Municipal accounts. Besides, the Government Officials misused their official position and obtained undue pecuniary benefits by corrupt and illegal means for themselves and for others and thereby caused a pecuniary loss of Rs. 2,71,116/-to the State exchequer.

That the Hazaribagh Municipality was in need of Bitumen for the purpose of the repairs of Urban Roads. Accordingly the Bitumen was to be supplied.

That the order for supply of Bitumen to the tune of 150 M.T. was irregularly , and dishonestly placed on M/s National Tar Product, Calcutta.

That there are only two routes through which the vehicles can come to Hazaribagh from Calcutta. On these routes there were commercial check posts, where the entries of the loaded vehicles were to be checked and entered in their Registers.

That a cheque vide S.B.I. Hazaribagh Cheque No. 954489 dated 3.5.1980 for Rs. 3,42,750/- was issued in favour of the Firm prior to the issuance of the supply order. This cheque was received by Sri S.K. Parikh, Sales Manager of the firm who encashed the same in the form of Bank draft.

The stock Register of Bitumen of Hazaribagh Municipality envisaged the receipt of Bitumen as under:

Date of receipts Challan no. and date Weight and Dramm Truck No.

15.6.80 9414 D/ 4.6.80 161.8 (64 Dram) BHA 8511

- 9418 D/ 9.6.80 156.5 (48 Dram) BHW 8097

8.7.80 9806 D/6.7.80 161.8 (64 Dram) BRV 2380

The above table shows the receipt of Bitumen less than what was mentioned in the relating challans.

In addition to the above, the accused persons had fraudulently and dishonestly shown the receipt of Bitumen in 518 Dram Weighing 1283.8 in the stock register on the basis of forged and fabricated challans which did not bear the seal of any of the commercial check posts nor there was any entries of the concerned vehicles in the registers of the check posts. The details of these challans are as under:

Date of receipts Challan no. and date Weight and Dramm Truck No.

21.7.80 (1) Challan no. 9817 Dt/19.7.80 66 Dram BHX 7610

21.7.80 (2) Challan no. 9818 Dt/19.7.80 66 Dram BRV 2380

20.8.80 (3) " 9416 Dt/20.8.80 64 Dram WMK 584

20.8.80 (4) "9413 Dt/20.8.80 64 Dram UMK 17

20.8.80 (5) " 9819 Dt/20.8.80 66 Dram WBI 3782

4.9.80 (6) " 9831 Dt/2.9.80 64 Dram WMA 33

5.12.80 (7) " 9905 Dt/24.12.80 64 Dram WMK. 7377

27.12.80 (8) " 9904 Dt/24.12.80 64 Dram WMK 1919

As such the accused persons made false entries of the receipt of Bitumen without supply of the Bitumen for which the payment has already been made.

The aforesaid facts reveal commission of an offence u/s 120B/420/468/471/ 477A, I.P.C. and 5(2) R/W 5(1) (d) of the P.C. Act, 1947 by the aforesaid accused persons.

I, therefore, request that a case may kindly be registered under the above sections against the above noted accused persons for investigation.

It appears that the five accused persons were named in the F.I.R. and the Petitioner was not one of them. The Petitioner was added as. co-accused in the case subsequently on the basis of application made by the prosecution in the year 1985. After the case was registered against the Petitioner, the Petitioner was enlarged on bail. Charge sheet in the case was filed for the first time on 26.11.1990. Thereafter first supplementary charge sheet and second supplementary charge sheet were filed on 31.7.1991 and 2.9.1992 respectively. The charges were not framed against the Petitioner and Other accused persons till the time of approaching this Court in this petition.

During the trial in the year 1987 the Petitioner having failed to appear before the Court, his bail was cancelled and warrant of arrest was issued. The Petitioner''s prayer for recalling the order issuing warrant of arrest against him having been rejected by the learned Special Judge, the Petitioner approached this Court in Cr. Misc. No. 5571 of 1993 (R). This Court disposed of the Cr. Misc. Case No. 5571 of 1993(R) by the order dated 24.11.1993 as follows:

Heard the counsel for the parties.

The grievance of the Petitioner is that though he wants to appear in the proceedings in the Court below, warrant of arrest has been issued against him and his prayer for recalling the said order issuing warrant of arrest has not been allowed.

Having regard to the facts of the case, particularly the fact that the Petitioner is facing trial for several years, it is in the interest of justice that the order issuing warrant of arrest against the petitioner is quashed with a direction to the petitioner to appear in the court below within two weeks from today. The trial court will thereafter proceed with the matter expeditiously and conclude the trial within six months, if possible.

I order accordingly.

After the aforesaid order was passed by this Court there was no progress in the trial, even charges were not framed within ten months of passing of that order. The Petitioner has thereafter approached this Court in this writ petition for quashing the proceedings pending against him in Special Case No. 8 of 1983 contending that his fundamental right to speedy trial guaranteed under Article 21 of the Constitution of India has been grossly violated by the inordinate delay. By the order dated 5.10.1994 the petition was admitted and an interim order was passed suspending the further proceeding of the Special Case No. 8 of 1993.

We have heard learned Counsel for the Petitioner and the learned Government Advocate.

Learned Counsel for the Petitioner submitted that the instant case was registered in 1983 but the charge sheet was submitted. after seven years in November, 1990. Thereafter supplementary charge sheets were submitted in July, 1991 and September, 1992. Inordinate delay in the investigation and submission of charge sheets has not been explained by the prosecution. Inspite of the direction of this Court issued in the order dated 24.11.1993 passed in Cr. Misc. No. 5571 of 1993 (R), no charge was even framed against the Petitioner within ten months of passing of the said order. Laches on the part of the prosecution to proceed with the trial and to conclude thereof within reasonable time writ large which has grossly violated the Petitioner''s fundamental right to speedy trial guaranteed under Article 21 of the Constitution of India and as such, the prosecution launched against the Petitioner in Special Case No. 8 of 1983 is liable to be quashed. In support of the contention learned counsel for the Petitioner has placed reliance on the decision of the Supreme Court in the case of Biswanath Prasad Singh Vs. State of Bihar, and in the case of Santosh De Vs. Archna Guha and others,

Learned Government Advocate, on the other hand, submitted that the Petitioner is also equally responsible for the delay in proceeding with the trial and concluding thereof inasmuch as he failed to appear on the dates fixed and for such failure, ultimately the order cancelling the bail was passed and warrant of his arrest has to be issued due to which considerable time was wasted.

I have considered the submissions made on behalf of the Petitioner and the learned Government Advocate and perused the materials on record.

In the case of Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., the Hon�ble Supreme Court amongst others held that 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 flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision retrial.

In the case of Biswanath Prasad Singh (supra) the Hon''ble Supreme Court amongst others taking note of the fact in that case that charge sheet was filed after lapse of five years from the date of filing of the F.I.R. and no explanation was forth coming for the extraordinary delay in filing charge sheet, held that the Appellant''s right to speedy trial was infringed and quashed the prosecution launched against him. In the case of Santosh De (supra) trial of serious criminal case was pending for a long time but the delay was not explained by the prosecution and the accused was not responsible for the delay and under the facts and circumstances of the case the Hon''ble Supreme Court held that the right of the accused to speedy trial was violated and the proceeding against the accused was rightly quashed by the High Court.

In the instant case admittedly the case was registered in the year 1983 but the charge sheet was filed after seven years on 26.11.1990 and thereafter supplementary charge sheets were filed in July, 1991 and September, 1992. Inordinate delay in concluding the Investigation and filing charge sheets has not been reasonably explained by the prosecution. Even no charge has been framed against the Petitioner up to the date of approaching this Court in this writ petition although taking note of the inordinate delay in proceeding with and concluding the trial, this Court by the order dated 24.11.1993 passed in Cr. Misc. No. 5571/93 (R) directed the learned trial Court to conclude the trial expeditiously preferably within a period of six months, if possible.

Under the aforesaid facts and circumstances of the case, I am constrained to hold that although because of non-appearance of the Petitioner and cancellation of his bail and issuing warrant of arrest for his appearance, consumed some time, the laches on the part of the prosecution to proceed with the trial and to conclude thereof within reasonable time is writ large and the prosecution is responsible for the inordinate delay in conclusion of the trial which has violated the Petitioner''s right to speedy trial flowing from Article 21 of the Constitution of India and as such, the prosecution launched against the Petitioner is liable to be quashed.

For the reasons stated above, I allow the petition and quash the prosecution so far as it was launched against the Petitioner in Special Case No. 8 of 1983 pending in the Court of learned Special Judge, Dhanbad.

Gurusharan Sharma J.

I agree.