Surinder Singh Arora vs State of Punjab

J.S. Sekhon, J.

Through this petition filed under Section 482 of the Code of Criminal Procedure, 1973, Sarvshri Surinder Singh Arora and Malkiat Singh Parihar seek the quashment of FIR No. 104 of 1979, registered at Police Station Sub Division No. 6, Jalandhar, for offences punishable under Sections 406, 420, 409, 471A read with Section 120B of the Indian Penal Code, 1860 and Section 5(2) of the Prevention of Corruption Act, 1947, as well as the resultant proceedings therefrom. During the pendency of this petition, Shri Surinder Singh Arora (petitioner) died. Therefore, vide order dated July 30, 1992, this Court ordered that this petition has become infructuous as all the criminal proceedings pending against him had already abated on his death. Now this petition survives on behalf of Sh. Malkiat Singh Parihar petitioner only.

The brief facts of the case figuring in the FIR (copy Annexure P1) are that Sh. Surinder Singh Arora, while working as Executive Engineer (Civil) at Civil Works Division, Punjab State Electricity Board, Jalandhar, in connivance with other coaccused, including Sh. Malkiat Singh Parihar petitioner, during the span of 11/2 month from 1.4.1978 to 15.5.1978 purchased goods worth Rs. 8,38,569.04 and made payments to the contractors for supplying the material. Out of this material, some material was substandard, some of it was not even required and the supply of sometimes was imputed to some contractors, who have not even supplied such articles and that the material was purchased on a very high price. List of the articles of inferior quality purchased from different contractors was also given in the FIR. Thus, it is maintained that all these persons had connived themselves for causing wrongful gain to themselves and loss to the Board. Taking this information reliable, the case for the above referred offences was registered against the petitioners and others by Shri Balwant Singh, D.S.P. Vigilance Bureau, Punjab, Jalandhar on 26.4.1979. After completion of the investigation, challan was submitted in the court on 6.1.1990 i.e. after a lapse of 11 years, the trial Court is yet to frame the charge, when the petitioners approached this Court through this petition for quashment of the FIR and the resultant proceedings therefrom.

The petitioner contends that this unexplained delay of 11 years in filing the chargesheet after registration of the case had resulted in depriving him of his fundamental right to speedy trial and justice enshrined in Art. 21 of the Constitution of India. It is also maintained that due to this inordinate delay, the petitioner is prejudiced in setting up a proper defence.

In the return filed by Shri Shangara Singh Inspector, Vigilance Bureau Punjab, Jalandhar, it is maintained that the petitioner along with eighteen other coaccused is involved in the same case and after protracted investigation, nine challans were prepared against the petitioner and eighteen other persons. The delay in concluding the investigation was explained in para 5 of the return as under :

"Para No. 5 of the petition is wrong and is denied. It is submitted that the petitioners along with other coaccused purchased various kinds of goods from various contractors by preparing bogus bills and preparing bogus record in higher rates. The goods were purchased approximately to the tune of Rs. 8,38,569.04 during the month 1.4.78 to 15.5.78 and Rs. 1,10,000/ during the year 197778. The investigating agency was to collect all the bills and other records from the department of the petitioners and the concerned firms. During investigation the department of the petitioners did not cooperate with the investigating agency. The goods were purchased from various contractors on higher rates. During the investigation all the bills were collected and the statements of various persons/officials were recorded. The investigation was done by about eight Inspectors and two D.S.Ps. at different stages and time. The above investigating officers were also entrusted with other enquiries and cases. Moreover, on 14.5.1979 after registration of the case all the accused got confirmed interim/anticipatory bails from the Court of Sh. R.L. Randev, Special Judge, Jalandhar, but five accused, namely, Bakshish Singh, Harbhajan Singh, Janak Raj, Om Parkash and M.M. Malhotra did not join the investigation and their whereabouts were not known. Therefore, in the year 1985 one challan was prepared and the objections were got complied with. Ultimately, on 19.9.88 nine separate challans were prepared. After the completion of investigation, nine challans were prepared and in all the challans both the petitioners are main accused and in all the challans total 195 witnesses were examined under Section 161 of the Code of Criminal Procedure. The investigation was very lengthy, which took time in finalising the challans. Moreover, the accusedpetitioners and othercoaccused were transferred to various stations during the investigation. One of the accused, namely, Janak Raj was got declared proclaimed offender during the course of investigation. This fact took considerable time in completing the investigation. All the accused could not be present in the Court, when the challan was to be put in the Court. This fact also took at least six months. At this stage also, three of the accused are yet to be produced in the Court. The delay was not caused by the investigating agency knowingly but it was due to unavoidable circumstances and due to lengthy investigation. The delay in the case was due to delaying and dilatory tactics adopted by the accused. The grounds mentioned in this para are wrong and denied. The evidence in this case in hand is mostly documentary. The witnesses are to depose in Court on the basis of documentary evidence."

During the pendency of this petition, on the application of the petitioners for staying further proceedings, this Court had only stayed the pronouncement of the final order/judgment vide order dated May 30, 1990.

I have heard learned counsel for the parties besides perusing the records.

By now the law is well settled that the delay in concluding the investigation or trial results in prejudice to the accused and defeating his valuable right to speedy trial and justice enshrined under Art. 21 of the Constitution of India. The Full Bench of the Patna High Court in Madheshwardhari Singh and another v. State of Bihar, AIR 1986 Patna 324, had gone to the extent of holding in para 27 of the judgment that right to speedy public trial is not applicable to actual proceedings in the Court but includes within its sweep the preceding police investigation in a criminal prosecution as well. The Full Bench in para 49 of the judgment after relying upon the observation of the final Court in S. Guin v. Grindlays Bank Ltd., AIR 1986 SC 289, concluded in para 50 of the judgment that although the outer limit for concluding of the original trial in offences other than the capital ones is seven years for inferring prejudice to the accused, but sounded a note of caution that it may not be misunderstood or misconstrued to mean that a delay of less than seven years would not in any case amount to prejudice. Justice S.S. Sandhawalia (then Chief Justice of the Patna High Court) who delivered the judgment on behalf of the Full Bench in para 50 of the judgment observed as under :

"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. But since we are following binding 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 Art. 21. This is a question which can be properly considered and adjudicated where it may expressly arise."

The abovereferred view of the Full Bench of the Patna High Court outer limit being seven years'' delay in trial of the offence not punishable with death or imprisonment for inferring prejudice to the accused was modified by the apex Court in Abdul Rehman Antulay etc. v. R.S. Nayak and anr. etc., 1992(1) All India Criminal L.R. page 1. by observing as under :

"But then speedy trial or other expressions conveying the said concept are necessarily relative in nature. One may ask speedy means, how speedy ? How long a delay is too long ? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind. For example, take the very case in which Ranjan Dwivedi (petitioner in writ petition No. 268 of 1987) is the accused. 151 witnesses have been examined by the prosecution over a period of five years. Examination of some of the witnesses runs into more than 100 typed pages each. The oral evidence adduced by the prosecution so far runs into, we are told, 4,000 ages. Even though, it was proposed to go on with the case five days of a week and week after week, it was not possible for various reasons viz., nonavailability of the counsel, nonavailability of the accused, interlocutory proceeding and other systemic delays. A murder case may be a simple one involving say a dozen witnesses which can be concluded in a week while another case may involve a large number of witnesses and may take several weeks. Some offences by their very nature e.g., conspiracy cases, cases of misappropriation embezzlement, fraud, forgery, sedition, acquisition of disproportionate assets by public servants, cases of corruption against high public servants and high public officials take longer time for investigation and trial. Then again, the workload in each Court, district, region and State varies. This fact is too wellknown to merit illustration at our hands. In many places, requisite number of Courts are not available. In some places, frequent strikes by members of the Bar interferes with the workschedules. In short, it is not possible in the very nature of things and present day circumstances to draw a time limit beyond which a criminal proceeding will not be allowed to go. Even in the U.S.A. the Supreme Court has refused to draw such a line. Except for the Patna F.B. decision under appeal, no other decision of any High Court in this country taking such a view has been brought to our notice. Nor, to our knowledge, in United Kingdom. Wherever a complaint of infringement of right to speedy trial is made the Court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period. In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiablybroadly speaking. Of course, if it is a minor offence not being an economic offence and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter. For all the above reasons, we are of the opinion that it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. It is not necessary to do so effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory."

In State of Andhra Pradesh v. P.V. Pavithran, AIR 1990 Supreme Court 1266, the apex Court at page 1268 again dealt with the inordinate delay on the part of the investigating agency in completing the investigation by holding that although a lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis yet all the same there are offences of heavy magnitude such as diabolical crimes of conspiracy or clandestine crimes committed by members of the underworld with their tentacles spread over various parts of the country or even abroad. Therefore, in the very nature of such offences, it takes considerable time for unearthing the crimes and bringing the culprits to book. Thus, it is not possible to formulate inflexible guidelines or rigid principles of uniform application for speedy investigation or to stipulate any arbitrary period of limitation within which investigation in a criminal case should be completed. Thus, it depends on the facts and circumstances of each case to infer whether such inordinate delay is a ground to quash the F.I.R.

On the facts of the case in hand, the explanation for concluding the investigation within a span of 11 years given by Inspector Shangara Singh in para 5 of the return, clearly shows that concerned investigations had to verify the genuineness of the purchase transactions of the goods worth Rs. 8,38,569.04 from 1.4.1978 to 15.5.1978 and goods worth Rs. 1,10,000/ during the year 197778. He further stated that the investigating agency had to collect all the bills and other documents from the department and concerned firms. It is also mentioned that during the investigation, the department did not cooperate with the investigating agency. Investigation was done by eight Inspectors and two Deputy Superintendents of Police at different stages and time. Moreover, on 14.5.1979 after registration of the case, all the accused secured anticipatory bail from the Court of Special Judge, Jalandhar, but five accused, namely, Bakhshish Singh, Harbhajan Singh, Janak Raj, Om Parkash and M.M. Mathotra failed to join the investigation and their whereabouts were not known. Thereafter, in the year 1985 one challan was prepared and the objections got complied with. Ultimately, on 19.9.1988, nine separate challans were prepared and in all the challans both the present petitioners are main accused. It is also highlighted that in all 195 witnesses were examined during the investigation of the case. During this period, the accusedpetitioners were transferred to various stations. One of the accused, namely, Janak Raj, was got declared proclaimed offender. Moreover, presence of all the accused could not be secured while putting the challan in the Court and this process took about six months. It is further mentioned that at this stage also three of the accused are yet to be produced in the Court. It is further maintained that the delay had occurred due to lengthy nature of investigation and dilatory tactics adopted by the accused. Under these circumstances, the ratio of the decision of the learned Single Judge of this Court in Pirthi Ram @ Prithvi Singh v. State of Haryana, 1983(1) C.L.R. 118, that the delay of ten years in filing the challan against the accused in the Court had resulted in abuse of the process of the Court as the memory of the witnesses is likely to fade and such circumstances were likely to prevent the trial being altogether fair, is of no help to Malkiat Singh petitioner in this case, especially when the case mainly hinges upon the documentary evidence. The ratio of the decision of the apex Court in State of U.P. v. Kapil Deo Shukla, AIR 1973 SC 494, upholding the order of the High Court quashing the pendency of proceedings due to the protracted trial for a period of 20 years was likely to prevent fair trial, is also not applicable to the facts of the case in hand.

The observations of the apex Court in Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 as well as in Maneka Gandhi v. Union of India, AIR 1978 SC 597 are also of no help to the petitioner in the case in hand in view of the complicated nature of the'' investigation and the dilatory tactics resorted to by the coaccused of the petitioner.

For the aforementioned reasons, no case is made out for quashing the FIR and resultant proceedings therefrom. The trial Court is, however, directed to decide the case as early as possible. A copy of this order be sent to the trial Court for compliance. The petition stands disposed of accordingly.

JUDGMENT accordingly.