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1991 DIGILAW 342 (CAL)

S. M. Roy v. STATE OF WEST BENGAL

1991-07-16

J.N.Hore

body1991
Judgment J.N. Hore, J. 1. THIS is an application under section 401 read with section 482 for setting aside the order dated 4.6.90 passed by the learned 4th Additional Special Court, Calcutta in Special Case No. 6 of 1982 rejecting the petitioner's application under the newly inserted section 245(3) of the Code of Criminal Procedure and for quashing the impugned proceeding. 2. THE petitioner was Sales Manager, Central Marketing Organisation Steel Authority of India Limited, Calcutta and worked in that capacity till November 1980. THE petition of complaint was filed in the Court of the learned Judge, 4th Special Court, Calcutta on 22.9.82 under section 5(1)(c) read with section 5(2) of the Prevention of Corruption Act, alleging inter alia that the petitioner possessed assets disproportionate to his known source of income. THE accused petitioner appeared on 26.11.82 and the case is still pending. As the evidence was not completed within 4 years from the date of appearance of the petitioner, the petitioner filed an application under section 245(3) of the Code of Criminal Procedure, 1973 (as amended) for discharge of the petitioner. By Order No. 99 dated 4.6.90 the learned Judge rejected the application on the grounds that all the material witnesses had already been examined and only the Investigating Officer remained to be examined. THE Investigating Officer had already been examined in part. Considering the facts and circumstances of the case the learned Judge was of the opinion that it would not be in the interest of justice to discharge the accused at this stage when all the material witnesses excepting the I.O. have been examined. Mr. Sanyal, learned Advocate of the petitioner has contended that the learned Judge has committed an error in not discharging the accused in accordance with the mandatory provisions of section 245(3) of the Code of Criminal Procedure. He has further contended that the impugned proceeding is liable to be quashed on two other grounds also : Firstly, there has been unusual delay of about 8 years in violation of the fundamental right of the accused to a speedy and expeditions trial as enshrined in Article 21 of the Constitution causing untold sufferings to the petitioner. Secondly, it has been contended that the check period has been taken from 30.11.60 to 29.11.80 ignoring the previous period of service from 1945 and as such the prosecution is not maintainable. 3. Secondly, it has been contended that the check period has been taken from 30.11.60 to 29.11.80 ignoring the previous period of service from 1945 and as such the prosecution is not maintainable. 3. LET us first consider whether the learned Judge committed error in not discharging the accused under section 245(3) of the Criminal Procedure Code. It is true that the prosecution evidence has not been completed within 4 years from the date of appearance of the accused-petitioner. All the material witnesses, were, however, examined long before and the Investigating Officer has been examined in part on different date. There is no doubt that the prosecution took many adjournments and the examination of the Investigating Officer could not be completed in long time. The learned Judge has opined that for ends of justice the proceeding should continue and the petitioner should not be discharged. Considering the nature of the offence and the fact that the evidence has almost been completed I agree with the learned Judge that the petitioner-accused should not be discharged for interests of justice. 4. THE present proceeding had been continuing for 8 years before the petitioner filed the present revisional application. THE broad interpretation of the fundamental rights guaranteed under Article 21 of the Constitution now includes the right of an accused to have speedy trial. Quick trial is a sine qua non of Article 21 of the Constitution. Inordinate delay by itself on the facts and in the circumstances of a case may be held to be contrary to the spirit of the procedure established by law and may be a ground for quashing the proceedings. No other limit has, however, been fixed by any authoritative judicial pronouncement and the matter depends upon the facts and circumstances of each case. If upon consideration of all the facts and circumstances of the case and the length of delay, the High Court, comes to the conclusion that further continuation of the proceeding would be an abuse of the process of the court then the proceeding may be quashed for ends of justice. As already pointed out, all the material witnesses have been examined and the examination of the last witness, the Investigating Officer is also likely to be over within a short time and the stage for consideration of the charge would be reached. THE accused-petitioner also had some contribution towards the delay. As already pointed out, all the material witnesses have been examined and the examination of the last witness, the Investigating Officer is also likely to be over within a short time and the stage for consideration of the charge would be reached. THE accused-petitioner also had some contribution towards the delay. Considering the facts and circumstances of the case I do not think that further continuation of the proceeding would be an abuse of the process of the court and that it should be quashed for ends of justice. Of course a firm dead line should be fixed for completion of the trial in order to avoid prolonged harassment to the accused petitioner. The last contention of Mr. Sanyal has also no substance. In the case of a Government servant the prosecution would naturally infer that his own source of income would be the salary earned by him during his active service. The entire period of service should be taken into consideration. Though the check period of 20 years from 30.11.60 to 29.11.80 has been taken in this case still paragraph 5 of the petition of complaint clearly shows that an amount of Rs. 12,847.25 as net savings prior to the check period was taken into consideration. A careful perusal of the petition of complaint shows that the income and assets of the petitioner throughout his service even before 30.11.60 were taken into consideration. It cannot be said that the petition of complaint on the face of it is not maintainable. 5. IN the result, the revisional application is dismissed and order of stay is vacated. The lower court is directed to complete the trial (if charge is framed) within 8 months from the date of communication of the order. Let a copy of this order be sent to the lower court immediately. The learned Advocates for the parties would also be at liberty to communicate the operative part of the order to the lower court. The petitioner will not seek adjournments except in unavoidable circumstances. If the trial is not completed within the time fixed, the petitioner would be at liberty to move this court for quashing the proceeding. 6. The learned Advocates for the parties would also be at liberty to communicate the operative part of the order to the lower court. The petitioner will not seek adjournments except in unavoidable circumstances. If the trial is not completed within the time fixed, the petitioner would be at liberty to move this court for quashing the proceeding. 6. ON the prayer of the learned Advocate for the petitioner let the copy which is already made ready and placed in the file be sent after authentication to the lower court through a special messenger at the cost of the petitioner. Costs are to be deposited by 18.7.91. Application rejected.