State of J. and K. vs Gh. Rasool Bhat

Sunil Hali, J.—This Criminal Revision is directed against the order dated 28th of April' 06, passed by the learned Special Judge,

Anticorruption, Srinagar.

The case of the petitioner is that respondent who was working as Patwari at Halqa Natipora, Tehsil Chadoora, took bribe of Rs. 4800/- from

one Ali Mohammad Dar on the pretext that he will deposit the said money as levy in the treasury and will get the land of one Shamboo Nath

comprised in Khasra No. 923, situated at Natipora, mutated in favour of aforementioned Ali Mohd. Dar. The respondent, however, did not

deposit the said amount in the treasury and embezzled the same. On receipt of complaint, investigation was conducted and it was established that

the respondent has done the embezzlement. Accordingly, sanction was accorded by the competent authority to prosecute the respondent on 22nd

of June'89. Challan was filed in the court of Special Judge, Anticorruption, Srinagar, on 3rd of April'06.

Mr. Shah, learned Dy. AG, appearing for the petitioner-State submitted that the court below passed the impugned order and discharged the

respondent-accused solely on the ground that the sanction order was in cyclostyle form and no original sanction was produced. It is stated that the

learned trial court should have granted sufficient time to the petitioner-State for placing on record the original sanction. Placing reliance on a

judgment dt. 10th or April'09, passed in Criminal Revision 30/2006, titled State of J & K v. Peerzada Ghulam Rasool and Ors., learned Dy. AG,

submitted that under similar circumstances, this Court in the aforementioned case had allowed the criminal revision and directed the trial court to

proceed in the matter in accordance with the law.

In the case in hand, the occurrence is of the year 1980. The FIR against the respondent was registered in the year 1987. The investigation in the

matter was conducted and the competent authority is said to have granted the sanction on 22nd of June'89. Thereafter challan was presented in the

trial court on 3rd of April'06, i.e. after about seventeen years of grant of sanction by the competent authority. This fact was taken note of by the

trial court and at page 4 of the order impugned it has been observed as under:

As prosecution failed to prove grant of sanction by competent authority, to launch prosecution, in terms of Section 6 of Prevention of Corruption

Act, this Court has no jurisdiction to proceed further.

As the prosecution has failed to prove the valid sanction, it would not be proper for me to go into the effect of the delay in the instant case.

The trial court without considering the matter so far as delay is concerned, ultimately discharged the respondent vide order impugned on the

ground that valid sanction has not been proved. Therefore, keeping in view this fact, the trial court was not right to discharge the accused on the

ground that prosecution has failed to prove the valid sanction.

There is another aspect of the matter which relates to speedy trial of the case. As observed here-in-above, the occurrence is of the year 1980

and the FIR was registered in the year 1987. Sanction was granted by the competent authority on 22nd of June'89. Thereafter, the challan was

filed before the trial court in April'06, i.e., after about 17 years. The trial court, even though, has made mention of this fact, but it has not dealt with

this issue.

Fair, just and reasonable procedure in terms of Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy

trial is the right of an accused. The fact that a speedy trial is also in public interest and serves the societal 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. This right, as indicated above, flows from Article 21 of the Constitution and encompasses all the stages namely the stage of

investigation, inquiry, trial, appeal, revision or re-trial. While determining whether undue delay has occurred resulting in violation of the right to

speedy trial, one must have regard to all the attendant circumstances including the 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 systematic delays. Inordinate long delays may be taken as a

presumptive proof of prejudice. However, there are certain exceptions which are:

a. Where the delay is caused by the accused by failing to appear in the court or filing revision petition against any interim order, it is essential to

determine who is responsible for the delay;

b. That it is not practicable to fix any time limit for the trial of the offence. In every case of complaint of denial of right to speedy rial, it is for the

prosecution to explain the delay.

Applying the above principle to the present case, it be seen that sanction in this case was granted in the year 1989 and the challan was produced

before the trial court in the year 2006 after about 17 years. For presentation of the report u/s 173, the accused had no role to play. It was required

to be done by the prosecution which has failed to do so. There is no explanation worth coming from the record in this regard for the delay in filing

of the report before the court after a lapse of 17 years. To put the accused on trial after more than about 20 years of granting of the sanction,

would not be fair when as indicated above, the accused had no role in delaying the trial.

The trial court was aware of this fact that the trial has been unnecessarily delayed by the prosecution but it has not taken upon itself to decide

this question and has discharged the accused only on the ground of lack of sanction. I, therefore, hold that the trial of the accused has been delayed

by the prosecution itself which is violative of his right under Article 21 of the Constitution of India which creates a right in the accused to be tried

speedily.

For the reasons mentioned above, this revision petition is found to be without merit and is dismissed.