Narendra Kumar Sharma vs The State of Bihar

M.L. Visa, J.—This is an application for quashing the order dated 25.7.94 by which cognizance under Sections 467, 468. 471, 477A, 120(B), 420 and 409 of the Indian Penal Code and Section 5(2) read with Section 5(1)(c)(d) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 has been taken against the Petitioner and others by the Special Judge (Vigilance), South Bihar, Patna, in Special Case No. 75/86 arising out of Vigilance P.S. Case No. 30/86 and for quashing entire prosecution against the Petitioner in this case.

The brief facts of the case are that one Arun Kumar Singh ''Vineet'', Vigilance Inspector, lodged a written report dated 1.10.86 addressed to Officer-in-charge of Vigilance Police Station, Patna, alleging therein that during the preliminary confidential inquiry made by him it was found that the Petitioner who at the relevant time was posted as Block Development Officer, in connivance with his subordinates Halka Karamchari, Jana Sewak, Executive Assistant, Nazir, Junior Engineer, Assistant Engineer and executing agents, misused his official position and got false record prepared and producing the same as correct one defalcated a sum of Rs. 24,807/ - of Government money. About the allegations against the Petitioner he submitted that a sum of Rs. 2272/ - which was 50 per cent of the estimated cost for boring sanctioned in favour of one Ram Swaroop Yadav was approved on 30.1.85 but payment was shown to him on 2.2.85 meaning that payment was made before completion of work. One another agreement of boring in the name of Dinesh Yadav, the son of aforesaid Ram Swaroop Yadav was approved on 30.1.85 and payment of a sum of Rs. 1500/ - was made under the orders of Petitioner whereas the fact is that Dinesh Yadav was minor and was living with his father and there was no application of Dinesh Yadav on record for boring and in fact for the same land money was paid to Ram Swaroop Yadav. In one another case a sum of Rs. 2700/ - was paid as subsidy to one Tokhan Ram showing him as harijan and the amount was 90% of the estimated cost but in fact Tokhan Ram was not a harijan and he was entitled to get only 50% of the estimated amount. One Jagadish Singh was paid subsidy for 8 tube wells which were sanctioned in the name of his sons and nephews and it was found that except one all were minors and only 4 tube wells were constructed. Gendhari Sao, Dharmendra Kumar Sao, Sunil Kumar Sinha and Ajit Kumar Sinha have also been shown recipients of subsidy for boring but no boring in their lands was found. Some other persons namely, Anandi Mahto, Binod Mahto, Suresh Rai, Baleshwar Mahto and Sato Singh during the inquiry complained that they had either received no payment or received less payment shown in the records. In the report prayer for taking action against the Petitioner and others was made. After investigation chargesheet against the Petitioner and others under sections as indicated above was submitted on 25.7.94 and cognizance was taken on the same day by the Special Judge (Vigilance), Patna against the Petitioner and others.

The case of the Petitioner is that chargesheet was submitted about 8 years after lodging of first information report on 1.10.86 and the Petitioner appeared in person in the court below on 22.10.96 and since then he has been regularly appearing on each and every date but till date copies of relevant documents and papers on which the prosecution proposes to rely its case have not been supplied to him and the mandatory provisions of Section 207, Code of Criminal Procedure (in short, Cr.P.C.) have not yet been complied with and the continuance of the criminal prosecution against the Petitioner for such a long time is an infringement of right of the Petitioner to speedy trial to which he is entitled under Article 21 of the Constitution of India. On the facts of the case the case of the Petitioner is that entire allegations against him were inquired by the District Development Officer, Munger and after thorough inquiry report (annexure-4) was submitted snowing the entire allegations against the Petitioner false and an enquiry was also conducted by DRDA, Munger under the orders of District Magistrate, Munger, who also submitted report (annexure-5) and found the allegations against the Petitioner false. The District Development Commissioner, Munger, by his letter (annexure-7) informed the Government that allegations made against the Petitioner as mentioned in the FIR were found not correct and the Petitioner has been exonerated from the charges in an inquiry made by different set of officers. The case of the Petitioner is that he being posted as Block Development Officer was not required to inspect the site and he had simply released the payment and that too on the basis of bills prepared by Junior Engineer as per the entries made in the measurement book and site book which were duly checked by the Assistant Engineer and he had no reason to disbelieve their reports which were prepared after inspection of site and he had no option but to release the payments and he can not be fastened with any criminal liability on the ground that he did not inspect the site. According to the Petitioner, he joined the service on 13.6.78 and has completed about 21 years in service maintaining a clean record and because of pendency of this criminal case he is not being considered for the posts of S.D.O. and Additional Collector and as the case is pending since last 16 years without any trial it has caused immense worry, anxiety and peace of mind to the Petitioner apart from the expenses and disturbance of his vocation.

Learned Counsel for the Petitioner relying upon the decisions of the Supreme Court in the cases of Bishwanath Pd. Singh v. State of Bihar 1994 Suppl. (3) SCC 97 and Santosh De Vs. Archna Guha and others, has prayed for quashing the entire criminal proceeding against the Petitioner. Although learned Counsel for the Vigilance Department has appeared and submitted his argument but no counter affidavit has been filed.

From the copies of order sheets of the court below (annexure-3) it appears that the Petitioner on 22.6.95 appeared before the court below and since then regular steps are being taken by him but the case is pending for appearance of other co-accused persons against whom warrant of arrest has already been issued. In his application the Petitioner has stated that he is regularly appearing in the case but copies of documents and papers on which prosecution proposes to rely its case have not been supplied.

As stated above, since the case is pending for appearance of other co- accused persons, therefore, the stage of supply of copies of documents and papers on which the prosecution proposes to rely its case has not reached. So the contention of Petitioner that the case is pending merely for supply of copies of papers and documents does not appear to be correct. In the case of Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., has held as follows:

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 work-load 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 pedantic one.

....

....

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.

The present case is in respect of defalcation of Government money. It is true that in this case investigation has taken about 8 years. In order to decide whether the right of a person to speedy trial has been violated, the facts and circumstances of the particular case are to be considered. The present case, as stated above, is pending for the appearance of other co- accused persons and warrant of arrest for procuring their attendance has already been issued. It is true that the Petitioner is appearing in the case since last about 5 years and no progress in the case has been made because of non-appearance of other co-accused persons but then it cannot be held that the prosecution is deliberately making delay in the commencement of trial causing harassment to the Petitioner. I therefore do not find it a fit case for quashing the entire criminal proceeding against the Petitioner.

Considering the abnormal delay in the appearance of other co-accused persons the court below should have separated the case of Petitioner and other co-accused persons who are in attendance from the case of absenting co-accused persons and should have proceeded with trial. However, as the Petitioner is appearing in court regularly since 22.6.95 and the case is still pending for appearance of other co-accused persons, the trial court is directed to separate the case of Petitioner and other co-accused persons who are in attendance from the case of remaining absenting co-accused persons and proceed with trial and dispose it of as early as possible, preferably, within a period of six months from the date of receipt/production of copy of this order.

With the aforesaid observation, this application stands dismissed.