State of Punjab vs Chanan Singh

S.K. Jain, J.—Each one of the appellants, Chanan Singh, R.K. Bansal and Sarwan Singh, who were employed in the Punjab State Electricity Board (hereinafter referred to as the Board) as Officer on Special Duty, Sub-Divisional Officer and Sectional Officer, respectively were convicted by Judicial Magistrate, Ist Class, Patiala vide his judgment dated 18-9-1989 under Sections 409, 467, 468/471, I.P.C. and sentenced as under : --

(i) u/s 409, I.P.C. -- to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- each or in default of payment thereof to further undergo rigorous imprisonment for six months;

(ii) u/s 467, IPC -- to undergo rigorous imprisonment for two years and to pay & fine of Rs. 200/- each or in default of payment thereof to further undergo rigorous imprisonment for six months;

(iii) u/s 468, IPC -- to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/- each or in default of: payment thereof to further undergo rigorous imprisonment for six months; and,

(iv) u/s 465/471, IPC - to undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/- each or in default of payment thereof to further undergo rigorous imprisonment for six months.

The substantive sentences of rigorous imrisonment were directed to run concurrently.

R.K. Bansal and Sarwan Singh, convicts, preferred Criminal Appeal No. 71-T of 1990 whereas Chanan Singh filed Criminal Appeal No. 9-T of 1990. Both these matters were heard by Additional Sessions Judge, Patiala and vide his judgment of April 2, 1991, he set aside the judgment of the learned Magistrate and acquitted all three of them.

Feeling aggrieved the State has preferred this appeal against the above mentioned judgment of the learned Additional Sessions Judge, Patiala.

Shorn of unnecessary details, facts of this case are that the Punjab State Electricity Board in order to construct 220 KVA Grid sub-station at Patiala acquired 500 acres of land in village Ablowal, District Patiala in the year 1976. A new 220 KV Civil Power Works, Sub-Division, Patiala was created. Chanan Singh, respondent was posted as Officer on Special Duty whereas R.K. Bansal and Sarwan Singh, respondents were posted as Assistant Executive Engineer and Sectional Officer, respectively. The land being uneven was required to be levelled with the help of tractors. A counter plan of the area was drawn. An estimate amounting to Rs. 2,88,423/- for the levelling and dressing of the land was prepared and submitted by R.K. Bansal to the Officer on Special Duty. In the first instance, sanction to incur an amount of Rs. 40,000/- was sought in the absence of the sanctioned estimate. The said sanction was accorded on 31-8-1976 without deciding as to whether levelling and dressing work was to be got done departmentally or through private contractors. This decision had to be taken by Chanan Singh, Officer on Special Duty.

In order to execute the work, on 20-8-1976 an enquiry was floated by S.K. Bansal only to the five firms of Patiala thereby inviting sealed quotations for cutting and filling of the earth at the average lead of 600 ft. On receipt of the quotations, the same were opened on 25-8-1976 and a comparative statement was prepared. The tractors were hired and work was got executed. However, the matter was investigated by D.I.G. (Vigilance) of the Board. It was found that --

(i) The enquiry inviting sealed tenders was circulated only to five firms of Patiala and no quotations were invited from Punjab Agricultural Industrial Corporation, B & R (PWD) Mechanical Division, Patiala though Bylarus tractors of 50 HP with Karah and harrow were available with the said Corporation for hire at the rate of Rs. 35/-per tractor per hour at the relevant time;

(ii) The date on which the tenders had to be opened was not mentioned in the said enquiry;

(iii) In the said letter of enquiry, it was not mentioned as to whether the quotations were invited for hiring the tractors or for getting the whole work executed through a contractor;

(iv) One Ravinder Kumar, so called contractor, helped in managing and manipulating bogus and fictitious quotations for hiring tractors on rates higher than those which were normally charged by the tractor owners during the relevant period;

(v) Said, Ravinder Kumar, in conspiracy with the three respondents and with a view to earn wrongful gain for themselves and cause wrongful loss to the Board got a case for hiring 40 HP tractors at the rate of Rs. 45.75 per tractor per hour, recommended. The said recommendation was submitted by R.K. Bansal and approved by Chanan Singh with an ulterior motive of cheating the Board and misappropriating its funds with dishonest intention;

(vi) Chanan Singh, respondent, in the capacity of Officer on Special Duty and in charge of the Project, without checking the authenticity of quotations and in flagrant disregard of the departmental instructions, without providing guidelines, to the Assistant Executive Engineer as to whether the work was to be executed departmentally or on contractual basis, approved the said exhorbitant rates with undue haste and without ascertaining as to whether the quotations for hiring tractors were coming forth from genuine firms;

(vii) R.K. Bansal and Sarwan Singh got the work of levelling and dressing of the land done departmentally in the months of August and Sept. 1976 by engaging private tractors at the rate of Rs. 45.75 per hour per tractor of 40 HP or above but as a matter of fact lesser amounts were disbursed to the tractor owners/drivers than shown in the muster-rolls/records. Thus a wrongful loss amounting to Rs. 1,30,000/ was caused to the Board by preparing bogus muster-rolls. The said money was embezzled by the respondents and the said contractor;

(viii) In the records of the Board 93% of the work was shown to have been completed on the date of last payment i.e., Sept. 29, 1976 even though the work of levelling and dressing was started on Aug. 26, 1976.

(ix) 34 owners/drivers of the tractors were paid lesser amounts than actually shown to have been disbured to them in the muster-rolls;

(x) A total amount of Rs. 2,34,541.45/- was shown to have been disbursed to the owners/drivers of the tractors whereas actual amount paid to them was Rs. 1,39,512/-. Thus the difference thereof i.e. Rs. 95,028.50/- was embezzled and misappropriated by R.K. Bansal, Sarwan Singh and Ravinder Kumar Contractor with the active connivance and in conspiracy with Chanan Singh;

(xi) On the site only 50 per cent work had been done as against 93 per cent shown in the record. Fresh survey was got done and estimate on the basis of the same rate, lead and accomplishment as in the original estimate, was prepared. It was found that for completion of the work at site, another amount of Rs. 1,40,900/- was required and an amount of Rs. 95,000/- had been excessively and wrongfully shown in the records of the Board;

(xii) Incorrect and false records of measurements were prepared;

(xiii) Full payment on exhorbitant rates to nine tractor owners was also made thereby causing wrongful loss of Rs. 8,000/- to the Board.

With the above said allegations, the Superintending Engineer of the Board addressed complaint Exhibit P48/A to the S.H.O., Police Station, Sadar, Patiala for registration of a case under Sections 406/409/420/465/467/468/471/477/109/34 and 120B, IPC read with Section 5(2), 47 of the Prevention of Corruption Act against the respondents. Resultantly, FIR No. 26 dated 1-2-1978 was recorded in Police Station, Sadar, Patiala.

On the completion of the investigation and other formalities, the three respondents along with Ravinder Kumar, Contractor were challaged by Inspector Jit Singh. However, learned trial Magistrate charged them under Sections 420/409/465/467/468/471/120B/34, IPC vide order dated 2-3-1985. This order was challenged before this court vide Criminal Miscellaneous No. 2084 of 1985, which was dismissed on 3-12-1987. It seems that before the start of the prosecution evidence, Ravinder Kumar, Contractor had expired. In order to prove its above referred case, the prosecution examined 52 witnesses before the trial Magistrate.

In their statement u/s 313, Cr.P.C. the respondents admitted to be the employees of the Board at the relevant time and that the work in question was entrusted to them in their official capacity but they denied all the incriminating evidence appearing against them and pleaded false implication.

The respondents did not lead any evidence in defence despite being called upon to do so at the trial.

As mentioned hereinbefore, the trial Magistrate believing the prosecution evidence, convicted and sentenced each one of them but on appeal the learned Additional Sessions Judge, Patiala acquitted them.

We have heard learned counsel for the parties besides perusing the record.

Admittedly, three respondents were public servants and they had been entrusted with the work of levelling and dressing of 500 acres of land in village Ablowal for construction of 220 KV Grid sub-station of the Board.

In nutshell, the case of the prosecution was that : --

(i) In order to establish a 220 KVA Grid sub-station, five hundred acres of land was acquired by the Board in village Ablowal. It was required to be levelled. A new Sub-Division was created. Chanan Singh, respondent was made in charge of the Project and posted as Officer on Special Duty. R.K. Bansal and Sarwan Singh, respondents, were posted as Assistant Executive Engineer and Sectional Officer, respectively;

(ii) In the capacity of being public servants, they were required to execute the said work, the estimated cost whereof was Rs. 3,20,028.50/- with which property they were entrusted. With a view to earn wrongful gain for themselves and cause wrongful loss to the Board a limited tender enquiry was directed to five firms of Patiala, most of which were bogus. No tenders were invited from Punjab Agricultural Industrial Corporation, B&R (PWD) Mechanical Division, Patiala from where tractors of 50 HP along with necessary implements were available for hire at a rate lower than the one quoted by the said firms. The hiring of the 40 HP tractors at the exhorbitant rate of Rs. 45.75 per tractor per hour was recommended and got approved. Bogus entries in the muster-rolls and other relevant records were made. Higher amounts were shown to have been paid to the tractor owners/drivers whereas lesser amounts were actually paid to them. 93% work was shown to have been completed although at site 50% work was still to be done. Bogus quotations, muster-rolls and other documents were used as genuine in order to defraud the Board. An amount of Rs. 3,02,028.50/- of the Board was misappropriated.

Learned counsel for the State has vehemently agrued that the prosecution had proved the guilt of the accused to the hilt and the learned first appellate Court had misread, misinterpreted and misconstrued the evidence on record and legally erred in setting aside the well reasoned judgment of the learned trial Magistrate and had wrongly acquitted the accused. On the other hand, learned counsel for the respondents has argued to support the impugned judgment.

There is considerable force in the contention of the learned counsel for the respondents that --

(i) the entries in the Board''s record, such as, muster-rolls, daily progress reports, enquiry files, contour plan, estimate regarding the work of levelling and dressing of the land, measurement books, registers regarding work and quotations had not been properly proved by examining the scribes thereof;

(ii) the learned trial Magistrate had wrongly relied upon the enquiry report submitted by Jaswant Singh, PW 38, as the prosecution had to succeed by substantially proving its version and it could not take advantage of the weakness of the defence nor a new case could be made out for the prosecution for convicting the accused on its basis;

(iii) the entrustment of money has not been proved on record by exhibiting cash book along with entries therein or other relevant records nor alleged misappropriation by the respondents has been proved by exhibiting entries in muster-rolls and relevant bills. There is not even an iota of evidence on record to show that the respondents had made any payment vide muster-rolls MR2 to MRS. Different amounts were allegedly disbursed to different group of persons but neither each relevant entry in the muster-rolls nor actual payment has been proved on the record. Payment to 30 different persons had been allegedly made but only 10 of them had been examined at the trial. Identity of those tractor owners to whom less payment had allegedly been made by the respondents had not been established;

(iv) the Investigating Officer who took various steps in the progress of the investigation till its completion has not been examined. By examining DSP Banta Singh, PW37 who had partly investigated the case at the fag end of the investigation, will not meet the requirement of checks and balances. He does not prove anything. Rather his testimony is nothing but hearsay evidence as he has stated that during the course of investigation, he had come to know that accused used to give less payment against receipts of excess amount. Although he is stated to have recorded the statement of certain persons but he does not name them. Jaswant Singh, Inspector recorded statements of witnesses but he also does not name them. Therefore, his deposition also is neither here nor there. The respondents have thus been deprived of a very valuable right of crossexamining the Investigating Officer. Sucha Singh, PW39 was posted as DIG (Vigilance) on the establishment of the Board at the relevant time. Through recovery memo Exhibit PW36/A an enquiry file was taken in the police possession in his presence. Vigilance Inspector, Surjan Singh, PW 40 also does not name the witnesses whose statements he had recorded during the course of enquiry. So the testimony of these two witnesses does not contain any incriminating material against the respondents. To the same effect is the deposition of Pal Singh, PW 17 and Balkar Singh, PW 29;

(v) Sadhu Singh, Banta Singh, Balbir, Dalip Singh, Babu Singh, Har Chanel Singh and another Babu Singh, PWs. 5, 13, 15, 18, 25, 30 and 32, respectively did not support the prosecution version at the trial and turned hostile. Rather in the course of cross-examination, they supported the accused by saying that they had received the payment for the work they had done. Testimony of Ramesh Kumar Goel, PW41 and Paramjit Kaur, PW42 is of normal nature. Ramesh Kumar Goel prepared site plan Ex. PW41/A whereas the latter had attested recovery memo Ex. PW42/A. Mohinder Singh, PW43 has testified that the levelling and dressing of land of Ablowal Grid sub-station was got done departmentally. The rates were approved by the department. A Contractor was, however, employed. He admitted that there was no written order directing SDO to make payment. In support of his oral evidence, no document was placed on the record. Sampuran Singh, Peon PW 47 has been examined to add to the number of witnesses because he neither delivered nor received any dak with regard to the work in question. Similarly, PW 48, Hardev Singh Mohi had only sent the complaint to S.H.O., PS Sadar, Patiala on 10-1-1978 under the directions of D.I.G. (Vigilance) of the Board. PW 49, Chaman Lal Joshi, has only proved the recovery memo Ex. PW42/A vide which the police had seized an enquiry file. Salim Ahmed, PW50 was posted as Executive Engineer w.e.f. June, 1981 to 1984. He has not deposed even one single word against the respondents. Service book of R.K. Bansal and Chanan Singh were produced before the police by PW 51, Charanjit Singh. First Information Report, Ex. PW52/A has been proved on the record in the statement of PW52, Raj Kumar;

(vi) the evidence of PW4 Harnek Singh and PW15 Balbir Singh to the effect that they had received the payment for the work done by them with their tractors from the Contractor does not in any way further the prosecution version. PW22 Ram Lal (renumbered) had worked with his tractor at the site, he had executed receipt Ex.PW22/A. In his cross-examination, he admitted to have received the payment for the hours he plied his tractor. He received the payment from the Contractor. Similary, the sum and substance of the evidence of Devinder Singh, PW23 is that the Contractor had hired his tractor and had made payment to him at the rate of Rs. 30/- per hour as against departmentally approved rate of Rs. 45.75 per hour. This piece of evidence is also not incriminating against the respondents;

(vii) Father of PW 26 Rajinder Singh, driver of Manjit Singh PW27; Jagir Singh driver of Karminder Singh PW31, Sukhdev Singh son of Arjan Singh PW33, father of Surjit Singh PW35, who used to receive the payment have not been examined. No complaint whatsoever was lodged with any police or departmental authority on behalf of any one of them. The testimony of Bhajan Singh PW 34 with regard to the rates of hiring the tractor was hearsay evidence;

(viii) Tractor of Bhagwan Singh PW44 is alleged to have also been hired. His driver Shadi Khan PW24 had worked with it at site. They have made mutually contradictory statements. Bhagwan Singh says that his driver Shadi Khan had received the payment and he did not know the rate per hour at which the payment had been made. He had received the payment for the work done by his driver. Whereas Shadi Khan, his driver appeared as PW29 and contradicted him by saying that the payment had been received by Bhagwan Singh;

(ix) PW 45 Pal Singh stated that since his tractor was not in a position to do the levelling work, he did not work at the site with his tractor. Sarup Singh, PW 46 has testified that his tractor had been employed through the Contractor whose name he did not remember nor he could tell the rate per hour which was settled. He also did not remember the total amount received for the work done. However, in his cross-examination, he admitted that he had received the amount for the work done by him and that he had not made any complaint regarding less payment whatsoever. PW 52, Raj Kumar proved memo Ex.PW52/A;

(x) when the testimony of Ranjit Khosla, PW1, star witness of the prosecution is scrutinized surgically it was found that he had excluded Chanan Singh, respondent totally. He did not ascribe any part to him. In his statement, Ex. DA, he admitted that his tractor was engaged at the rate of Rs. 45.75 per hour and he had received the payment of Rs. 1555.50; Rs. 1830.00; Rs. 1875.75; Rs. 2424.75; Rs. 2470.50; and Rs. 4143.25 on 30-8-76, 3-9-76, 7-9-76, 13-9-76, 21-9-76, and 29-9-76 against voucher Nos. 1 to 4 and 9 and 11, respectively from the respondents. To the same effect is the testimony of Baldev Singh, PW2 who in his statement Ex. DB had admitted that the Executive Engineer had made the payment to him at the rate of Rs. 45.75. Although he implicates Contractor by saying that he had taken a sum of Rs. 20.75 from him yet it does not in any way incriminate against the respondents. PW3, Surinder Singh could not give the hours for which he had done the work. Moreover, admittedly his driver used to take the payment. When cross-examined, he admitted that the Contractor had engaged his tractor through his driver and that his driver used to make payment to him at the rate of Rs. 20/- per hour. In view of the said evidence, it cannot be found out as to at what rate the driver used to receive the payment from the Contractor. Finally, this witness has deposed that he did not know as to how much amount the Contractor used to receive from the department. In this view of the matter, the evidence of this witness is also of no consequence. PW 6 Jagtar Singh admitted that it was the Contractor who used to get the work done from the tractor owners/drivers. There is nothing on record to show as to from whom he used to receive the payment. The story of Balwant Singh, PW 9, who admitted his signatures on Exhibit P-16 to P-20, is that whenever the respondents used to make the payment, an entry was made in the records but no such entry has been got proved in evidence. He did not identify any of the respondents in Court nor he maintained any accounts. When he was confronted with his statement, Ex. D.B., it was found that therein he had not mentioned (i) that the payment was being made at the rate of Rs. 20/- per hour, (ii) and that he had made a complaint to the effect that payment at a rate lesser than Rs. 45.75 P. was being made;

(xi) Ujaggar Singh, PW 10 was admittedly engaged by the Contractor. Although he has stated to have made a complaint, yet neither the original was summoned and got proved nor a copy thereof was exhibited on the record. PW 11, Gehna Singh, PW 12 Bhagwan Singh, PW 19, Garib Singh, PW 20, Sham Singh, PW 21, Sham Lal and PW 28, Attar Singh have not supported the prosecution case. Otherwise also their testimony suffers from material infirmities.

After having scrutinized the prosecution evidence we are of the view that the learned lower appellate Court had rightly concluded that if the Contractor had employed some tractor owners/drivers and had kept some amount with him then that would not mean that the respondents were answerable and that there was no evidence on record that the respondents had disbursed any amount to above said witnesses. We fully agree with the finding arrived at by the learned first appellate Court that the prosecution could not bring guilt home to the accused.

Now on to the legal aspects of the case. Learned counsel for the convicts had contended that the prosecution of the accused was barred under Rule 2.2 of the Punjab Civil Services Rules because offences were alleged to have been committed in the year 1976 the case was registered on 1-2-1978 whereas final report was presented in Court on 1-12-1983 i.e. after four years. This argument does not hold good in view of the latest pronouncement of Hon''ble the Supreme Court in State of Punjab Vs. Kailash Nath, . It is evident from the perusal of the impugned judgment that learned first appellate Court had taken into consideration the following judgments : --

(i) The State of Punjab v. Sain Dass, (1988) 2 R C R 564 (Punj & Har);

(ii) Des Raj Singla v. State of Punjab (1986) 1 R C R 66

(iii) B.S. Yadav and Others Vs. State of Haryana and Others, ; and

(iv) Kailash Nath v. State of Punjab (1987) 1 C LR 558

and held that the challan having been presented after a lapse of four years of the commission of the alleged offence was not entertainable or the accused should have been discharged. Since Kailash Nath''s case (supra) was not cited at the bar before the first appellate Court, he arrived at that decision relying on the ratio laid down in Des Raj''s case (supra). The Supreme Court in Kailash Nath''s case (supra) held as under : --

Article 309 empowers making of rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union of any State. On the plain language of Article 309, the proposition that any rule framed under this Article has to be confined to recruitment and conditions of service of persons mentioned therein admits of no doubt. In the normal course that falls within the purview of the term "conditions of service" may be classified as salary or wages including subsistence allowance during suspension, the periodical increments, payscales, leave, provident fund, agratuity, confirmation, promotion, seniority, tenure or termination of service, compulsory or premature retirement, superannuation, pension, changing the age of superannuation, deputation and disciplinary proceedings. Whether or not a Government servant should be prosecuted for an offence committed by him obviously cannot be treated to be something pertaining to conditions of service. It is not proper to say that an assurance to an employee that he shall not be prosecuted after his retirement, even though guilty of committing a grave misconduct or negligence during the period of his service, after the lapse of a paticular time is a condition of service calculated to ensure a person peace of mind after retirement, and so falls within the purview of "conditions of service" as contemplated by Article 309. Making a provision that a Government servant, even if he is guilty of grave misconduct or negligence which constitutes an offence punishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive. It is likely to be an incentive not for efficient work but for committing offence including embezzlement and misappropriation by some of them at the fag end of their tenure of service. Such a situation cannot be created by framing a rule under Article 309 of the Constitution laying down an embargo on prosecution as a condition of service. Moreover if giving a Government servant peace of mind after his retirement in his old age can be a good ground to grant him immunity from prosecution Rule 2.2 granting such immunity only to Govt. servants would on the face of it be discriminatory and thus arbitrary inasmuch as if peace of mind in old age can be a good ground for immunity from prosecution for offences committed by a person, there can be no reason why such immunity may not be available to all old persons and should be confined only to Government servants. On the face of it the Govt. servant cannot constitute a class by themselves so as to bring their case within the purview of reasonable classification, if the purpose of granting immunity from prosecution is ensuring peace of mind in old age.

Even on a plain reading of Rule 2.2, it is apparent that the intention of framing the said rule was not to grant immunity from prosecution to a Government servant, if the conditions mentioned therein are satisfied. Rule 2.2 is in Chapter II of the Punjab Civil Service Rules which deals with ordinary pension. Making provision with regard to pension falls within the purview of "conditions of service". The alleged embargo on prosecution is not to be found in the main Rule 2.2 but in the third proviso to the said rule. It is now settled that a proviso must be considered with relation to the principal matter to which it stands as a proviso. Although it is true that the proviso need not always be restricted to the main provision, when a rule containing an absolute or general embargo on prosecution of a Government servant after his retirement for grave misconduct or negligence during the course of the service does not fall within the purview of laying down conditions of service under Article 309, such a provision cannot in the purported exercise of power under Article 309 be made by either incorporating it in the subtantive clause of a rule or in the proviso thereto.

Keeping in view the scope of rule making power under Article 309 of the Constitution, the third proviso to Rule 2.2 cannot be interpreted as laying down an absolute or general embargo on prosecution of a Government servant if the conditions stated therein are satisfied. Even if on first impression the said rule may appear to be placing such an embargo it has to be interpreted by taking recourse to the well settled rule of reading down a provision so as to bring it within the framework of its source of power without, of course, frustrating the purpose for which such provision was made. Clause (b) of Rule 2.2 which can be called the substantive clause reserves to the Government the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if, in a departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. The purpose of the third proviso to Rule 2.2 is to carve out an exception to the right conferred on the Government by the substantive clause if the conditions contemplated by the proviso are fulfilled. This purpose can be achieved if the said proviso by adopting the rule of reading down is interpreted to mean that even if a Government servant is prosecuted and punished in judicial proceedings instituted in respect of cause of action which arose in an event which took place more than four years before such institution the Government will not be entitle to exercise the right conferred on it by the substantive provision contained in Clause (b) with regard to pension of such a Government servant. The word "such" in the beginning of the third proviso also supports this interpretation.

The plea that the third proviso to Clause (b) of Rule 2.2 was for the benefit of a Government servant and virtually incorporates the principle underlying Article 21 of the Constitution by fixing four years as the limit for initiating prosecution cannot be accepted. Even if the soundness of the principle that there should be speedy trial may not be disputed, the said principle cannot be invoked by the Govt. employees in support of their interpretation of the third proviso to Clause (b) of Rule 2.2 framed under Article 309 of the Constitution whose purpose is not to place an embargo on prosecution. It is always open to quash a prosecution on the ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case.

Clause (b) of Rule 2.2 may be in the nature of a beneficent legislation. But by applying the rule of interpretation with regard to a beneficent legislation, a benefit never intended to be conferred cannot be conferred.

It is no doubt true that the State enjoys plenary power in the matter of prosecution for an offence and if the Government in its wisdom thought it fit that a Government servant after his retirement should not be prosecuted for grave misconduct or negligence committed during the period of his service if the cause of action arose or the incident took place more than four years before the institution of judicial proceedings for prosecution, no exception can be taken to that power. But that does not support the construction sought to be placed by employees on Rule 2.2, namely that it places an embargo on prosecution of Govt. servants, because the third proviso to Clause (b) of Rule 2.2 has not been framed for that purpose but has been framed for a different purpose namely to provide an exception to the power of the Government in the matter of withholding or withdrawing etc. of pension of a retired Government servant contained in Clause (b) of Rule 2.2.

When the above said ratio is applied to the facts and circumstances of this case, we find it difficult to uphold the conclusion of the first appellate Court that the prosecution of the respondents could not be launched after the expiry of four years from the date of commission of the crime because making a provision that a Government servant, even if he is guilty of grave miscondact or negligence which constitutes an offence punishable either under the Penal Code or Prevention of Corruption Act or an analogous law should be granted immunity from such prosecution after the lapse of a particular period so as to provide incentive for efficient work would not only be against public policy but would also be counter productive. It is likely to be an incentive not for efficient work but for committing offence including embezzlement and misappropriation by some of them at the fag end of their tenure of service. Such a situation cannot be created by framing a rule under Article 309 of the Constitution laying down an embargo on prosecution as a condition of service. Moreover, if giving a Govt. servants peace of mind after his retirement in his old age can be a good ground to grant him immunity from prosecution Rule 2.2 granting such immunity only to Government servants would on the face of it be discriminatory and thus arbitrary inasmuch as if peace of mind in old age can be a good ground for immunity from prosecution for offences committed by a person, there can be no reason why such immunity may not be available to all old persons and should be confined only to Government servants. On the face of it, the Government servants cannot constitute a class by themselves so as to bring their case within the purview of reasonable classification, if the purpose of granting immunity from prosecution is ensuring peace of mind in old age. Moreover, there is nothing on record to show that any of the respondents had retired prior to the registration of the case or at any other relevant stage.

It is true that in all criminal prosecutions the right to a speedy public trial 19. It is true that in all criminal prosecutions the right to a speedy public trial is now an inalienable fundamental right of the citizen under Article 21 of the Constitution. In Madheshwardhari Singh and Another Vs. State of Bihar, . S. S. Sandhawalia, C.J., speaking for the Full Bench, held, on a review of several decisions of the Supreme Court and of the United States of America, that right to speedy trial is inherent in and flows from Article 21. The learned Chief Justice stated the following four principles as flowing from Article 21, viz.,

That, now by precedential mandate the basic human right to a speedy public trial in all criminal prosecutions has been expressly written as if with pen and ink in the constitutional right relating to life and liberty guaranteed under Article 21 of our Constitution. Further, that this right is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution.

That the American precedents on the Sixth Amendment of that Constitution would be equally attracted and applicable as persuasive on this facet of Article 21 of Our Constitution as well.

That once the constitutional guarantee on a speedy trial and the right to a fair, just and reasonable procedure under Article 21 has been violated, then the accused is entitled to an unconditional release and the charges levelled against him would fall to the ground.

That a callous and inordinate prolonged delay of ten years or more, which, in no way arises from the accused''s default (or is otherwise not occasioned due to any extraordinary and exceptional reasons), in the context of reversal of a clean acquittal on a capital charge, would be per se prejudicial to the accused and would plainly violate the constitutional guarantee of a speedy trial under Article 21.

It has also been found in the said judgment; (i) the right to speedy trial applied not only to major crimes but to minor offences as well; (ii) it takes in its fold not only the proceedings in Court but also the preceding police investigation; (iii) the provisions of the Code of Criminal Procedure and the Bihar Police Manual not only embody the spirit of a speedy public trial, but, in fact, epitomise it by express provisions mandating speedy and expeditious disposal within specified time limits. There is no conflict between Article 21 and the provisions of the Code.

The more important principle enunciated in this decision relates to the question whether a time-limit should be prescribed to effectuate the said right. After an elaborate examination of several decision of the Supreme Court, including Sheela Barse, and the Amercian Supreme Court, the learned Judge came to the following conclusion :

... an outer limit to concretise the right to speedy public trial is envisioned both by principle and precedent. It is further held that a callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones plainly violate the constitutional guarantee of a speedy public trial under Article 21.

It was further held :

A sharp note of caution must be sounded. The aforesaid finding must not be misunderstood or misconstrued to mean that a delay of less than seven years would not in any case amount to prejudice. Indeed, what is sought to be laid down is the extreme outer limit whereafter grave prejudice to the accused must be presumed and the infraction of the constitutional right would be plainly established. Really, I am somewhat hesitant in spelling out even the aforesaid outer time limit which, perhaps, errs on the side of strictitude. But since we are following finding precedent, the same has to be unreservedly accepted. Nor is it sought to be laid down that in a lesser period than seven years an accused person would not be able to establish circumstances pointing to the patent prejudice which may entitle him to invoke the guarantee of speedy public trial under Article 21.

The Supreme Court of India after noticing the above said Full Bench Judgment of Patna High Court have been pleased to lay down the following propositions meant to serve as guidelines in Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., .

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.

Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. This is how, this court has understood this right and there is no reason to take a restricted view.

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

(a) the period of remand and preconviction 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.

It was further observed that (Para 54 of Cri LJ) :

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 indicate their right and interest as perceived by them, cannot be treated as delaying tactic 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 a frivolous. Very often these stays are obtained on ex parte representation.

While determining whether undue delay has occurred (resulting in violation of Right of 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 systematic 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.

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 Barker "it cannot be said how long a delay is too long in a system where justice is supnosed to be swift but deliberate." The same ideal has been stated by White, J. in U. S. v. Well (1966) 15 L E. 627 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 ingredients; 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.

We cannot recognize 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 accuseds 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 U.S.A., the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.

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

Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges of 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.

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 U.S.A. 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.

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.

Their Lordships have been pleased to observe that these observations are not exhaustive; that it is difficult to foresee all situations; that nor it is possible to lay down any hard and fast rules; that each case must be left to be decided on its own facts having regard to the above enunciated pinciples; that it is neither advisable nor feasible to draw or prescribe an outer limit for conclusion of all criminal proceedings; that it is not necessary to do so for effectuating the right to speedy trial; and that right to speedy trial does not become illusory without such an outer limit.

In Mangilal Vyas Vs. State of Rajasthan, the appellant filed applications u/s 482 of the Code of Criminal Procedure, for quashing criminal proceedings in eight cases pending against him for the offence u/s 408 of the Indian Penal Code, for his having allegedly embezzled and misappropriated the bank funds. These applications were dismissed by one single judgment dated 29-1-1987 by the Rajasthan High Court. He preferred an appeal by special leave against the said judgment before the Supreme Court. Their Lordships were pleased to hold that in view of the nature of the allegations and availability of evidence, it was not expedient to terminate the proceedings at this stage, on account of lapse of time alone, by invoking the inherent power of the Court.

When the facts and circumstances of the case in hand are examined in the light of the guidelines laid down in Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., , and having regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the Court concerned and the prevailing local conditions, we find that no avoidable delay was caused at any stage, namely, the stage of investigation, enquiry and trial. Therefore, the right of speedy trial of the accused has not been in any way infringed.

As a sequel to the above discussion, the conclusion of the learned first, appellate Court to the effect that the prosecution of the respondents could not be launched after the expiry of four years from the date of commission of crime, is set aside.

However, in view of the fact that the finding of the learned first appellate Court on merits has been upheld and the respondents having not been found guilty of the offences! with which they have been charged, both the; appeals are hereby dismissed.