Manmohan Vaidya vs State of U.P.& Another

S.K. Phaujdar, J.—The present application has been filed to quash the proceeding in case No. 1612 of 1980, State v. Manmohan Vaidya, pending in the court of IInd A.C.M.M., Kanpur Nagar. In additions to the State the respondent No.2 Ravi Dutt Sharma also appeared and was heard.

The concerned case was initiated when an F.I.R. was lodged by the present applicant himself alleging a theft in his house, after a lurking house trespass by night. A case Crime No.716 dated 8101978 under Sections 457 and 380,I.P. C. was registered. After investigation, however, police found that it was Manmohan Vaidya himself who had misappropriated the property shown to have been stolen. Accordingly, a case under Section 406,I.P.C. was found against him and a chargesheet was submitted prior to the year 1980.

The charge was framed on 3111980 alleging that certain properties were entrusted by Ravi Dutt Sharma with Manmohan Vaidya, regarding which Manmohan Vaidya had committed criminal breach of trust between the period 2181978 to 10101978. There was an alternative charge of theft of these articles during the above period. The charge concerning theft, however, did not indicate as to from whose possession theft was committed.

After the framing of the above charge the present applicant moved a revision application No. 804M/1980 before the Session Judge, Kanpur and the revision stood dismissed on 841981. When the revision application was admitted the proceeding in the court below were stayed and the records had been called for. The records came back to the trial Court on 1891981. Thus a delay was caused for almost year due to pendency of the revision application and this delay could be attributed to the present applicant.

After receipt of the records in the trial Court the case was posted for evidence but for some reason of other the case stood adjourned for days, months and years. A copy of the ordersheet indicates that on certain dates, adjournment was obtained at the instance of the accused/present applicant. On 2781982 and 1391982 the first witness for the prosecution was examined and an application was filed by Ravi Dutt Sharma to summon on Gayatri Devi under Section 319, Cr.P.C. This was disallowed by the trial Court and a revision application was filed vide Criminal Revision No.253M/83 by Ravi Dutt Sharma. This revision application stood dismissed by an order of the 15th Additional Sessions Judge Kanpur. The loss of this time is not due to the present applicant. The matter again came back to the trial Court.

Orders were passed for placing the matter for evidence on different dates. On 1611984 the court issued bailable warrant against prosecution of witnesses, no witnesses turned up and on 2081984 the court directed that the remaining crossexamination of P.W. 1 be taken up on 1991984. On that date the accused obtained an adjournment. Again thereafter there was a series of adjournments, either for the applicant or for the prosecution or for the absence of the witnesses. The crossexamination of P.W. 1 was taken up on 1781985 but could not be concluded on that date and thereafter again a series of adjournments followed mostly due to absence of the presiding officer or for strike or on the prayer of the prosecution for absence of witnesses. Finally in 1991, the crossexamination of P.W. 1 could be completed and the matter was then posted for further evidence. The order dated 2451995 indicates that the court took up stem attitude and observed that the incident was of 1978 and was pending for all these years for evidence and the prosecution was accordingly given the last opportunity to bring the other witnesses. The order dated 3151994 indicates that the complainant made a prayer for adjournment as he proposed to move a transfer application. This order sheet made it clear that in terms of the order dated 2451994, the court had closed the prosecution evidence on 2851994 and had examined the accused under Section 313, Cr.P.C. and posted the matter'' on 3051994 for arguments. On that date the argument was heard and the case was to be disposed of on 3151994 when the aforesaid prayer of the complainant was made. The court allowed time to him and adjourned pronouncement of judgment. The order sheet dated 661994 indicates that no transfer order was received out as it had come before another court, further arguments were thought necessary and the matter was posted for arguments. At that stage again several adjournments were obtained. Although there is no indication in the affidavit of the case if there was any direction from the superior court to reopen evidence, further orders indicate that the case was posted for prosecution evidence. Even after examination of the accused person under Section 313, Cr.P.C.

It is the contention of the applicant that under Article 21 of the Constitution of India, an accused has right to get speedy trial and it was contended that he waited for 19 years from the date of initiation for the investigation in the case and for 17 years since the framing of charge and spent at least a quarter of his normal life span and it is now really a mockery of a trial. It was stated that the case is liable to be quashed. Reliance was placed on a decision of this High Court as reported in 1995(32) ACC 209, in that case a series of adjournments were granted to the prosecution to produce its witnesses and the last witness was produced and examined over a decade back. The court held that the trial was unduly delayed and the prosecution was quashed. Reliance was also placed on a Supreme Court decision as 1994 Cr LJ, 1975. In this case the prosecution stood pending for 14 years without examination of a single witness. There were allegations of possession of assets disproportionate to his known sources of income by the accused and these assets were valued at Rs. 2,00,000. The delay was not to be attributed to the accused. The High Court had quashed the proceeding and the Supreme Court confirmed it upon a view that the right to speedy trial was infringed by inordinate delay in proceeding. Reliance was also placed upon another decision of this High Court in the case 1993 U.P. Criminal Ruling page 581. In this case also the proceedings were quashed in exercise of the power under Section 482, Cr.P.C. on account of inordinate delay. It was a case of embezzlement.

On behalf of the respondent it was submitted that the delay was not solely attributable to the prosecution as on occasions the accused had also prayed for and was allowed adjournment. It was submitted with reference to certain decision of the Supreme Court and High Court that mere delay could not have entitled an accused to any benefit. Reference was made to a decision of the Allahabad High Court Criminal Cases as 1997(34), Anirudh Kumar Mishra v. State of U.P., where an Hon''ble single Judge of this High Court was of the view that mere delay in judicial proceeding could not be the sole ground for giving any relief to the accused. This view was taken not in a proceeding under Section 482, Cr.P.C. nor in any interpretation of Article 21 of the Constitution of India. The matter came up to the High Court in a revision against conviction which was confirmed in appeal by the Session Judge. The accused had prayed for some remission in sentence in view of the delay that had taken place in the trial. The incident was of 1987 and the appeal before the Session Court was filed in 1996 suggesting that the conviction was also made in 1996 and the trial had continued for about 9 years. In this context only the above observation was made. The respondent further relied upon a decision of the Supreme Court in the case of A.A. Mulla and others v. State of Maharshtra and anther, 1997(34) ACC 267 : 1997 JIC 212 (SC). The accused appellant in this case were charged under Section 490,I.P.C. and also under the Prevention of Corruption Act concerning incident of 1969. Two of these appellants before the Supreme Court were acquitted by the trial judge and the other two were acquitted by the High Court. These persons were also tried for offence u/S. 120B, I.P.C. read with Sections 135 & 136 of the Customs Act as also under the provision of Gold Control Act and Foreign Exchanged Regulation Act etc. A plea of double jeopardy was raised before the Supreme Court for the second mentioned trial and this plea was rejected. A further pleas was taken up for quashing the prosecution (in the second trial) on the ground of delay. The court was of the view that acts disclosed commission of serious economic offences and a strict view was to be taken and merely on the ground of delay the particular trial could not be quashed.

The last mentioned decision of the Supreme Court is rather a deviation from its earlier decisions and the Hon''ble Court itself gave a reason for this deviation as it had involved a serious economic offence which called for no leniency. An earlier decision of the court as 1994 Cr LJ p. 75 was also in respect of an offence covering an amount worth Rs. 2,00,000 even then the Supreme Court had quashed the proceedings. The case of A.A. Mulla (supra) before the Supreme Court was for an offence different in nature from an ordinary offence of affecting the property of a single individual. The case in our hands is one in which the individual respondent No. 2 is affected by the alleged offence. The guiding principle for this case therefore, would be the decision of the Supreme Court in the case of Santosh Deo v. Archna Guha and others, 1994 Cr LJ 1995 :1994 JIC 406 (SC). This Court, therefore, is competent to take it to amount if sufficient delay in the criminal prosecution to interfere under Section 482, Cr.P.C., notwithstanding that there were allegation of misappropriation against the accused. Speedy trial is one of the fundamental right accepted by our Constitution and if a trial takes 19 years from the date of lodging F. I.R. and 17 years from the date of framing of the charge. The court must keep in mind the agony suffered by the accused for this long period. On fact it is found that the delay is mainly attributable to the prosecution despite warning by the trial Court. Such infringement of the right granted by Article 21 of the Constitution of India must not be allowed to continue.

The application stands allowed. The criminal proceeding in question stands quashed. The applicant who is on bail is discharged from his bail bond.

Application allowed.