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1998 DIGILAW 887 (PAT)

Om Prakash Mishra v. State Of Bihar

1998-12-18

M.Y.EQBAL

body1998
Judgment M.Y.Eqbal, J. 1. In this application filed under Sec. 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing the order dated 15.9.1998 passed by the Special Judge, Vigilance, South Bihar, Patna, in Special Case No. 66 of 1988 by which the application for discharge filed on behalf of the petitioner has been rejected and the case has been ordered to be placed for framing of charge. The plaintiff has also filed a supplementary application and prayed for quashing the entire criminal prosecution arising out of Vigilance P.S. Case No. 0044 of. 1980, dated 22.9.1980 and Special Case No. 66/88 so far as it relates to the petitioner. 2. The aforesaid Vigilance case was instituted on 22.9.1988 on the basis of a written report submitted by the Inspector of Police (Vigilance), Investigation Bureau, Patna, to the Officer-in-charge, Vigilance PIS. Patna against the petitioner and other persons under Secs. 409, 420, 120-B of the Indian Penal Code and Sec. 5(2) read with Sec. 5(1)(c)(d) of Prevention of Corruption Act, 1947 and Sec. 13(2) read with Sec. 15(1)(c)(d) of amended Prevention of Corruption Act, 1988. 3. The prosecution case, in brief, is that 238 pieces of scrap pipes was sold by the petitioner in connivance with the other accused persons, but the sale proceed amounting to Rs. 7,759.00 was not deposited in the Government treasury. 4. Mr. Kanhaiya Prasad Singh, learned Senior Advocate appearing for the petitioner submitted that although the prosecution was lodged in the year 1988 in respect of the occurrence alleged to have been committed in the year 1980, but till date the prosecution is continuing. According to the learned Counsel, continuance of the petitioners prosecution for more than a decade itself is violative of Article 21 of the Constitution of India and the entire prosecution is liable to be quashed. Learned Counsel further submitted that the Court below has committed illegality insofar as it held that there are sufficient materials to frame charge against the accused persons including the petitioner and there is no ground to discharge the petitioner, from the charges levelled against him. On the other hand, Mr. B.P. Pandey, learned Spl. P.P. appearing on behalf of the Vigilance submitted that the petitioner twice came before this Court but the prosecution was not challenged on the ground of inordinate delay. On the other hand, Mr. B.P. Pandey, learned Spl. P.P. appearing on behalf of the Vigilance submitted that the petitioner twice came before this Court but the prosecution was not challenged on the ground of inordinate delay. Learned Counsel further submitted that when prima facie case was made out and cognizance was taken then the prosecution should not be quashed on the ground of delay. 5. Admittedly F.I.R. was lodged after eight years from the date of occurrence and the allegation is that the petitioner along with other co-accused sold 238 pieces of scrap pipes at the price of Rs. 7,759.00 but the sale proceed was not deposited in the Government treasury. Although the prosecution was started in the year 1988 in respect of an occurrence of 1980 but again it took 8 years in submission of the charge-sheet which was said to have been submitted on 14.1.1996 and 1.7.97. In this way although about 11 years have passed but still charges have not been framed. In my opinion, therefore, continuance of the proceedings for such long period itself infringes the fundamental right of speedy trial guaranteed under Article 21 of the Constitution of India. In this connection I rely on my own decision given in similar case of Baidyanath Prasad v. State of Bihar reported in 1998 (3) PLJR 77. The submission of the learned Counsel for the Vigilance that although the petitioner came twice before this Court but this ground of delay was never taken, cannot be a ground to reject the contention of the petitioner. It appears that in one occasion the petitioner challenged the order of sanction for prosecution and the writ application was withdrawn given liberty to the petitioner to raise the point at the appropriate stage. The petitioner then came second time against the order by which the Special Judge failed to consider the application of the petitioner for his discharge and this Court held that the application was premature and the Court below was directed to pass a fresh order after hearing the petitioner on his application at the time of framing of charge. In my opinion, merely because the petitioner earlier moved this Court but did not raise this question cannot be a ground to hold that the petitioner is debarred from raising the question of delay in prosecution. In my opinion, merely because the petitioner earlier moved this Court but did not raise this question cannot be a ground to hold that the petitioner is debarred from raising the question of delay in prosecution. In this connection reference may be made to a decision of the Division Bench of this Court in the case of R.K. Mandal and Ors. V/s. State of Bihar reported in 1997 (1) PLJR 103. Their Lordships observed as under- None of the aforementioned circumstances has been considered by the Apex Court to be not to invoke the right to speedy trial flowing from Article 21 of the Constitution. The Supreme Court held that the proceeding taken by either party in good faith to vindicate their rights and interest, as perceived by them, is not to be treated as delaying tactics nor the time taken in pursuing such proceeding is to be counted towards delay in the instant case. I find that the petitioners had approached this Court in the present Writ Petition on account of the law laid down by the Full Bench of this Court with respect to according sanction of such prosecution after lapse of seven years. Thereafter the matter went to the Supreme Court and the same was finally disposed of and decided by the Apex Court on 10.12.1991 in the case of A.R. Antuley (supra), which decision is reported in -- : 1991 (2) BLJR 1145 : 1992 (1) PLJR 41. 6. Having regard the facts and circumstances of the case particularly in view of the fact that the occurrence is of the year 1980 and the F.L.R. was lodged In 1988 and thereafter charge-sheet was submitted In 1996. I am of the opinion that continuance of the prosecution for last more than a decade itself infringes the right of the petitioner to speedy trial and the case is squarely covered by the ratio decided by the Apex Court in A.R. Antuleys case -- . In that view of the matter, the prosecution against the petitioner is liable to be quashed. 7. For the reasons aforesaid, this application is allowed and the Impugned order as also the entire criminal prosecution so far as the petitioner is concerned is hereby quashed.