J. Lalthangsei vs State Of Manipur And Others

M.V. Muralidaran, J

The case in FIR Case No.171(7)98 C.C.P. PS under Sections 409, 420, 468, 120B IPC and Section 13(2) of Prevention of Corruption Act is being sought to be quashed on the ground of denial of speedy justice to the petitioner infringing fundamental right as enshrined under Article 21 of the Constitution of India.

The case of the prosecution is that on 13.07.1998, the Director Treasuries and Accounts, Government of Manipur wrote a letter to the Treasury Officer, Churachandpur to make a complaint with the Station House Officer regarding fraudulent withdrawal of pension money from Churachandpur Treasury, as he found discrepancies of the amount between the advice figure and paid vouchers amount due to the manipulation/alteration/correction, resulted in a loss of Rs.25,772/- to the State exchequer. The complaint was to be made against (i) Shri T.Thenkholun, UDC (DA/Civil Pension) (ii) Shri Thangkhotinpao, Sweeper (DA/Despatch Pension); (iii) Shri Haopu (son of Ngamkhojang) peon and (iv) Shri J.Lalthang Sei, Peon-cum-Chowkidar worked as messenger of the Treasury Officer to the Bank and other unknown persons who were suspected to be involved with the fraudulent withdrawal and for taking up necessary action. Accordingly, on 16.07.1998, the Treasury Officer, Churachandpur lodged the FIR against (i) Shri T.Thenkholun, UDC (DA/Civil Pension) (ii) Shri Thangkhotinpao, Sweeper (DA/Despatch Pension); (iii) Shri Haopu (son of Ngamkhojang) peon and (iv) Shri J.Lalthang Sei, Peon-cum-Chowkidar for fraudulent withdrawal of an amount of Rs.25,772/-.

The case of the petitioner is that he is innocent and that he has been made victim by some unscrupulous person taking undue advantage of his being a peon. The relevant official records will show that he was never involved in the alleged crime. According to the petitioner, he has not been considered for his next higher promotion and his promotion was seriously affected due to the FIR.

The further case of the petitioner is that the FIR does not disclose any offence on its face and on the other hand, a period of about 15 years since the registration of the case against the petitioner has elapsed and charge sheet has also not yet been filed. According to the petitioner, the officer-in-charge of Churachandpur Police Station has not legally exercised the powers under Section 157 Cr.P.C. to register the case against the petitioner. It is stated that the investigation is pending for two decades and if the investigation is allowed to continue, the same would amount to abuse of process of law. Hence, the petitioner has filed the present petition seeking to quash the FIR Case No.171(7)98 C.C.P. PS registered under Sections 409, 420, 468, 120 B IPC and Section 13(2) of Prevention of Corruption Act.

Mr.M.I. Sharma, learned counsel for the petitioner submitted that the petitioner is innocent and in the case on hand, the investigation has not yet completed and the petitioner is on the verge of retirement and also his service career is seriously affected for no fault on him. The learned counsel would submit that though a period of 18 years since registration of the case against the petitioner has elapsed, the trial has not yet commenced, even the Investigating Officer has not med the charge sheet and thus, the petitioner has been deprived of his constitutional right to speedy investigation and trial flowing from Article 21 of the Constitution of India.

The learned counsel further submitted that the officer in-charge of Churachandpur Police Station has not legally exercised his powers under Section 157 of Cr.P.C. and registered the case against the petitioner and commenced the investigation into the same. Such investigation if allowed to continue, the same will be abuse of process of law and therefore, the FIR Case No.171(7)98 C.C.P/PS is to be quashed.

The Iearned counsel further added that there is nothing specific against the petitioner to show that the petitioner had actually withdrawn a sum of Rs.25,772/- and had involved in any way in withdrawing the said amount. The allegation made in the first information report even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the petitioner. To fortify his submissions, the learned counsel for the petitioner relied upon the decisions in Lokesh Kumar Jain v. State of Rajasthan, reported in (2013) 11 SCC 130 and Vakil Prasad Singh v. State of Bihar, reported in 2009 Cr.L.R. (SC) 372.

While not denying the plea of delay in completing the investigation and filing of the charge sheet and/or commencement of trial, Mr.Y.Ashang, learned Public Prosecutor for the State submitted that the right to speedy trial is the essence of criminal trial, but It depends upon several circumstances such as accused absconding, accused adopting dilatory tactics etc. and thereby delay in trial cannot be a ground for quashing of the proceedings. The learned counsel further submitted that the Court should not adopt mechanical approach whenever plea of infringement of right to speedy justice is taken.

The learned Public Prosecutor further submitted that in the instant case the petitioner and others fraudulently withdrew the pension amount of Rs.25,772/- from Churachandpur Treasury and thereby caused loss to the Government exchequer and in such circumstances, the present criminal proceedings need not be quashed.

I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

It appears that the petitioner was appointed as Peon and his duty was assigned as Peon-cum-Advise Dispatcher to United Bank of India and also he has been serving since 1996 In the Department of Treasury, Office at Churachandur. According to the petitioner, the official records and documents would show that he never involved in the alleged crime. The petitioner stated that due to the FIR registered against him, his promotion was affected.

The main grievance of the petitioner is that though a period of about 18 years has elapsed, the trial has not yet commenced and even the Investigation Officer has not filed the final report and thus, the petitioner has been deprived of his constitutional right to speedy investigation and trial as mandated under Article 21 of the Constitution of India.

The factum of non-filing of the final report/charge sheet by the Investigating Officer has not been denied by the State. Nothing has been produced by the State to show that the Investigating Officer has filed the charge sheet before the Court concerned and the Court had taken cognizance of the offence. Thus, it is clear that the State has felled to show any exceptional circumstances which could possibly be taken into consideration for condoning the inordinate delay of more than two decades in investigating the case and/or commencement of trial. It is not the case of the State that the said delay occurred due to the petitioner. Therefore, the petitioner was right in taking the plea that the delay clearly violates the constitutional guarantee of a speedy investigation and trial mandated under Article 21 of the Constitution of India.

Right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution of India. The said right is applicable not only to the actual proceedings in Court, but also includes within its sweep the preceding police investigations as well.

In Lokesh Kumar Jain, supra, the Hon'ble Supreme Court held:

"15. Need for speedy investigation and trial as both are mandated by the letter and spirit of the provisions of CrPC have been emphasised by this Court in numerous cases.

In Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81 this Court observed that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be "reasonable, fair and just"; and therefrom flows, without doubt, the right to speedy trial. This Court further observed that:

"8. In regard to the exercise of the judicial power to release a prisoner awaiting trial on bail or on the execution of a personal bond without sureties for his appearance, I have to say this briefly. There is an amplitude of power in this regard within the existing provisions of the Code of Criminal Procedure, and it is for the courts to fully acquaint themselves with the nature and extent of their discretion in exercising it. I think it is no longer possible to countenance a mechanical exercise of the power. What should be the amount of security required or the monetary obligation demanded in a bond is a matter calling for the careful consideration of several factors. The entire object being only to ensure that the undertrial does not flee or hide himself from trial, all the relevant considerations which enter into the determination of that question must be taken into account.* A synoptic impression of what the considerations could be may be drawn from the following provision in the United States Bail Reform Act of 1966:

"In determining which conditions of releases will reasonably assure appearance, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offence charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings."

These are considerations which should be kept in mind when determining the amount of the security or monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing system of pre-trial release in India could be avoided or, in any event, greatly reduced."

In Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225, the Court formulated as many as 11 propositions with a note of caution that these were not to be treated as exhaustive and were meant only to serve as guidelines:

In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard-and-fast rules. These propositions are:

(1) 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 is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.

(3) The concerns underlying the right to speedy trial from the point of view of the accused are:

(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.

(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, 'delay is a known defence tactic'. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is-who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.

(5) While determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on- what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.

(6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker5 'it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate'. The same idea has been stated by White, J. in U.S. v. Ewell in the following words:

'....the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredient; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.'

However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.

(7) We cannot recognise or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.

(8) Ultimately, the court has to balance and weigh the several relevant factors-'balancing test' or 'balancing process'-and determine in each case whether the right to speedy trial has been denied in a given case.

(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order-including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded-as may be deemed just and equitable in the circumstances of the case.

(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.

(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis."

In Vakil Prasad Singh, supra, the Hon'ble Supreme Court considered the question of quashing of criminal proceedings due to delay, when warranted. Referring to the earlier decisions, in Vakil Prasad Singh, the Hon'ble Supreme Court held that speedy investigation and trial, both are enshrined in the Criminal Procedure Code. The right to speed trial is guaranteed under Article 21 and the same is applicable not only to actual proceedings in Court but also includes within its sweep the preceding police investigations as well.

In Hussainara Khatoon (1) v. State of Bihar, reported in (1980) 1 SCC 1, the Hon'ble Apex Court observed that Article 21 confers a fundamental right on every person not to be deprived of life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be "reasonable, fair and just", and therefrom flows, without doubt, the right to speedy trial.

There cannot be any dispute that right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 of the Constitution and is reflected in Section 309 Cr.P.C. There cannot also be any dispute that in case of unexplained and inordinate delay in conclusion of proceedings, the High Court has discretion under Section 482 Cr.P.C. to quash the proceedings having regard to the attendant, circumstances and relevant factors.

In Criminal Petition No.20 of 2014 (Shri Amrit Kar v. The State of Manipur and others), decided on 27.01.2017, the learned Single Judge of this Court held that the right of speedy trial in all the criminal proceedings is the fundamental right under Article 21 of the Constitution and right to speedy trial applies equally to all criminal proceedings and is not confined to a particular case.

Referring to Menaka Gandhi v. Union of India, reported in (1978) 1 SCC 248; Hussainara Khatoon(1) v. State of Bihar, reported in (1980) 1 SCC 81; Abdul Rehman Antulay v. R.S.Nayak, reported in (1992) 1 SCC 225; P.Ramachandra Rao v. State of Karnataka, reported in (2002) 4 SCC 578; Vakil Prasad v. State of Bihar, reported in (2009) 3 SCC 355; Mohd. Hussain @ Julfkar Ali v. State (Government of NCT of Delhi), reported in (2012) 9 SCC 408, this Court held as under:

"16. In view of the settled principle as stated above, it is to be determined as to the facts appearing in this case justifying quashment of the criminal proceeding.

As I have already stated that upon institution of the case the Investigating agency, as per the case of the prosecution, took 6 (six) years whereas as per the case of the petitioner it took 24 years which is also supported the petitioner had put appearance in the case when the charge sheet was submitted in the year 2011, still trial has not commenced and the petitioner, in no manner, is responsible in delaying the trial. Further, there has been no direct accusation of the petitioner committing offence of forgery of the drafts and withdrawing the money, rather the allegation is that the petitioner did put entry of receipt of advice but said Register could not be placed before his superior office for his countersignature which accusation, prima facie, would never go to prove that the petitioner had hands in glove with the main accused. Under the circumstances, I do feel that further continuance of criminal proceeding against the petitioner would be unwarranted and would be defeating the right of speedy justice and thereby entire proceeding of the case bearing Criminal (P) Case No.4 of 2011/219/2013 (arising out of the FIR Case No.525(7)87 Imphal P5 is hereby quashed so far the petitioner is concerned.

Thus, this Cril. Petition is disposed of."

In the instant case, though investigation was commenced by the Investigating Officer on 16.7.1998, the Investigating Officer has not filed the charge sheet, which fact has also been not denied by the State. Even till date, the State is not sure whether a sanction for prosecuting the petitioner is required and only after obtaining sanction, the so called FIR was lodged. The specific case of the petitioner is that he is innocent and he has been made victim by some unscrupulous person taking undue advantage of his being a Peon. Admittedly, there has been no direct accusation of the petitioner committing the offence of fraudulent withdrawal of an amount of Rs.25,772/- from Churachandpur Treasury. Further, nothing to show that the petitioner had acted in any way In withdrawing the said amount.

The learned Public Prosecutor submitted that the principle Is, where the Court comes to a conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. He would submit that when quashing of proceedings Is not In the Interest of justice, it is open to the Court to pass appropriate orders, including fixing the period for filing charge sheet or for completing the trial, as the case may be.

Time and again, the Hon'ble Apex Court held that where the Court comes to a conclusion that right to speedy trial of an accused has been infringed the charges, the criminal proceedings shall be quashed. Further, quashing of proceedings is not the only course open and having regard to the nature of offence and other circumstances when the Court feels that quashing of proceedings cannot be in the interest of justice, it is open to the Court to pass appropriate orders, including fixing the period for completion of investigation and/or trial.

In the instant case, as stated supra, a period of about 18 years since registration of the case against the petitioner has elapsed, and the charge sheet has not been filed to commence the trial and, therefore, it is clear that the petitioner has been deprived of his constitutional right to speedy investigation and/or trial.

On a reading of the allegations set out in the First Information Report, it is seen that even if the allegations are taken at their face value and accepted in entirety, the same do not prima facie constitute any offence or make out a case against the petitioner. As stated supra, upon registration of the FIR, the Investigating Officer took nearly two decades in filing the charge sheet, which is supported by the version of the State. Further, the petitioner, in no manner, is responsible in delaying the investigation and/or trial. This Court has no hesitation to hold that if the investigation and/or trial allowed to continue, the same would amount to abuse of process of law. In such view of the matter, further continuance of the present criminal proceedings against the petitioner would be unwarranted and would be defeating the right of speedy justice and thereby the entire proceedings of the case bearing FIR Case No.171(7)98 C.C.P/PS is liable to be quashed so far as the petitioner is concerned.

In the result, the Criminal Petition is allowed. The entire criminal proceedings in FIR Case No.171(7)98 C.C.P./PS is quashed so far as the petitioner is concerned.