Harpal Dutt Sharma vs State

D. K. Trivedi, J.—This is a petition under Section 482, Cr. P. C. for quashing the proceedings under Section 409, I. P. C. in Case No. 604 of 1987 pending in court of the 1st Additional Musif Magistrate, Sitapur.

The petitioner Harpal Dutt Sharma was prosecuted under Section 409, I. P, C. by the police of P. S. Sidhauli, District Sitapur. It is alleged that the petitioner was In charge of Seed Store Sidhauli from 1966 to 1970 and he did not hand over the fertilizer worth Rs. 1,88,27393 at the time of handling over charge and, therefore, the petitioner embezzled the said fertilizer. A first information report was lodged at P. S. Sidhauli on 27111970 at 18.30 hours under Section 409, I. P. C. The case was investigated but the investigation took about five years and finally chargesheet submitted to court in 1975 but the said chargesheet was received in court "on 2671976. A copy of the said chargesheet was handed over to the accused on 931977. It appears that copies of all the papers were not supplied and, therefore, the court had directed the prosecution to supply all the papers to the accused. After about five months to said copies were supplied to the petitioner on 2781977. Thereafter charges were framed and evidence of one witness Nepal Singh was recorded. In the meantime the Chief Judicial Magistrate found that the case is tribal by Sessions, therefore, he committed the accused to the Court of Sessions. The Sessions Judge after receipt of the case came to the conclusion that the case is tribal by the Magistrate and, therefore, the case was again transferred to the court of the Magistrate. The Magistrate received back the file of this case on 1131980 and thereafter again the case proceeded in the court of the Magistrate. The witnesses were again summoned on 1141980 but in view of the fact that several dates had been fixed the evidence of only one witness, namely, Nepal Singh could be completed. It may be mentioned here that evidence of Nepal Singh started before the Magistrate in 1978 but finally it concluded in 1985. In the chargesheet 16 witnesses were mentioned but up to now only one witness was examined. Then learned Magistrate on 2441981 passed a specific order granting last opportunity to the prosecution for evidence, but even then no evidence was produced; abovementioned facts are not disputed by the opposite parties.

The contention of the learned counsel for the petitioner is that due to this inordinate delay in the trial the petitioner''s fundamental right of speedy trial guaranteed under Article 21 of the Constitution of India is being violated. The petitioner''s counsel pointed out that the petitioner was suspended in 1971 god thereafter he retired from service in 1976. He further pointed out that the petitioner is residing in Meerut and he has to come to Sitapur on each and every date from Meerut in order to attend the trial. He pointed out that about 77 dates have been fixed in this case but in spite of this there is no hope for conclusion of the trial.

The sole point for consideration is whether on the facts of the case (he right of speedy trial guaranteed under Article 21 of the Constitution of India has been violated or not and the petitioner is entitled to get benefit of the said violation or not. It is settled law after decision of the case of Husain Ara Khatoon v. Home Secretary, State of Bihar, reported in AIR 1979 SC 1360 and the case of Sheela Barse and others v. Union of India, reported in 1986 Cr LJ 1736 that right of speedy trial is a fundamental right enshrined under Article 21 of the Constitution of India and therefore, delay in the conclusion of the trial without any fault of the accused amounts to violation of fundamental right. The Patna High Court in a Full Bench case of Madhesh wardhari Singh v. State of Bihar, reported in AIR 1986 Pat 324, held that it is applicable not only to proceedings before the court but also police investigation. In the instant case the F. I, R. was lodged in 1970. After a prolonged investigation a chargesheet was substituted which was received in court in IV 76. In spite of the fact that chargesheet bad been submitted and charges were framed against the petitioner in 1977 more than ten years have passed but even then the trial is pending and evidence of only one witness out of 16 witnesses has been recorded in court and these appears no sign of conclusion of the trial in the near future.

In the counteraffidavit it was pointed out that the witnesses belong to the Agricultural Department and their places of posting are being traced. The petitioner was Seed In charge, in Government service and was suspended from service in 1971. Since then the petitioner is out of job. The petitioner finally retired from service in 1976. The petitioner is running from Meerut to Sitapur on each and every date of trial. There is nothing on record to indicate that the petitioner is guilty of delay. On the other hand, from the perusal of order sheet it is clear that the petitioner took only 2 or 3 adjournments during this period. On the other hand, the case was adjourned from 1441980 continuously either on the request of the Public Prosecutor or on the ground that the witnesses did not turn up. No doubt on some of the dates the case was adjourned as Presiding Officer was on leave, but the fact remains that mostly the case was adjourned on the request of the Public Prosecutor on the ground that the witnesses did not turn up on the said date. However, the fact remains that the case is lingering on from 1970 and even after about twenty years there is no sign of conclusion of the trial. The progress of the trial is that out of lo witnesses only one witness was examined during this period. Even in the counteraffidavit nothing has been said about this delay and there is general allegation that the prosecution alone is not responsible for this delay. It is settled now that the accused is entitled to get benefit of speedy trial and this right of the accused is guaranteed under Article 21 of the Constitution of India. The inordinate delay in trial amounts to infringement of right of the accused guaranteed under the Constitution of India. The effect of infringement is violation of the right guaranteed under the Constitution of India and, therefore, proceedings pending in the court below are liable, to be quashed. In the instant case as pointed out above, the prosecuting agency is itself responsible for the inordinate delay and there is nothing on record to show that delay is either the handiwork of the accused or was occasioned by some special or exceptional circumstances.

In another case of State of Bihar v. Uma Shanker Kotriwal, reported in 1981 Cr LJ 159, the Hon''ble Supreme Court took the view that even though the accused are responsible for the delay and the offence is serious one but as the trial has not been concluded and 20 years have passed, therefore, no ground for interference in Government Appeal arises. It was held in the said case in Para 8 :

"3. Learned counsel for she appellant State has challenged the impugned order not only on the ground that its finding about the polios report not disclosing any offence against the respondents was erroneous but also with the argument that the delay in the conclusion of the trial was not a justification for quashing the proceedings. We have heard him at length and although is much to be said against the impugned order in so far as the finding about the police report is concerned, we cannot lose sight of the fact that the trial has not made much headway even though EO less than 20 years have gone by. Such protection itself means considerable harassment to the accused not only momentarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety. It may well be that the respondent themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. In this view of the matter we do not consider the present case a proper one for our indifference in spite of the tact that we feel" that the allegations disclosed tae commission of an offence which we regard as quite serious."

In another latest decision of T. J. Stephen and others v. M.S. Paris Bottling Co. (P.) Ltd., reported in 1988 (1) SVLR (Cr) A76, the Hon''ble Supreme Court held in Para 2 :

"2. Once the order of the High Court is vacated the order of the learned Magistrate would review and the prosecution as directed by the learned Magistrate has now to continue. The petition of the complainant at page 21 of the paper book shows that the alliance committed between 1967 and 1969 which is some 20 years back. While we have no sympathy for the respondent No. 2 and we are clearly of the opinion that he has no equity in his favour and the delay after the complaint had been filed has been mostly on account of his mala fide move, we do not think it would be in the interest of justice to allow a prosecution to start 20 years after the offence has been committed If we could convict the respondent No. 2 in accordance with law, we would have prepared to do so taking the facts of the case and conduct of the respondent into consideration but that would not be possible within the frame work of the law of procedure. We, therefore, do not propose to allow the learned Magistrate to proceed with the trial of the case at this belated stage."

The Hon''ble Supreme Court after holding that the accused has no equity in his favour and the delay in trial was due to mala fide move of the accused quashed the proceedings and did not allow the Magistrate to proceed with the trial of the case at this belated stage. As pointed out above, there is delay of about 20 years and out of 16 witnesses only one witness was examined up to now. Admittedly the prosecution witnesses are mostly Government servants and they can be easily called by the prosecution. It may further be mentioned that the case mostly rests on the official records of the Seed Store which were easily available to the Investigating Officer at the time of the investigation. The petitioner has borne the burden of prolonged investigation and trial for nearly 20 yeas the meantime, part from his suspension from the job he also retired from service. Keeping in view the above mentioned facts. I hold that this delay cannot be said to be fair, reasonable and just and, therefore, the present petition under Section 482, Cr. P. C. for quashing the proceedings deserves to be allowed.

The petition under Section 482, Cr. P. G. is accordingly allowed. The proceedings of Crime Case No. 366 of 1970 and Case No. 604 of 87 (now No. 753 of 1989) pending in the court of the Judicial Magistrate I, Sitapur, are hereby quashed. It is, however, made clear that quashing of the proceedings in no way would affect any departmental proceedings or penalties already instructed,

contemplated or concluded against the petitioner.