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2000 DIGILAW 60 (CAL)

Mongla Prosad Chatterjee v. State of West Bengal

2000-02-02

Malay Kumar Basu

body2000
Judgment Malay Kumar Basu, J. This is an application under section 482 Cr. P.C. filed by Mongla Prosad Chatterjee against the State of West Bengal, O.P. for quashing of the criminal proceeding being special trial Case No. 19/85 arising out of Goalter P.S. Case No.1 dated 11.7.83 under section 409 I.P.C pending before the Court of 1st Special Judge, Midnapore. The relevant facts leading to this application are in short as follows. The petitioner was a Branch Post Master, Jirapara P.O., under Midnapore district in 1983. A complaint was lodged by one Sri B. Adhikari, Inspector of Post Office, Midnapore, West Sub-Division to the effect that the petitioner while acting as E.D. Branch Post Master, Jirapara accepted a sum of rupees 200/- on 27.9.82 from one Sri Gora Chand Mandi for opening a new Savings Bank Pass Book in the name of Sri Mandi, but he did not make any entry of the said amount in the new account or in the S.B. Fund and kept the amount with himself till 26.10.82 on which date he credited the same into the Government account in the name of Gora Chand Mandi and issued receipt being No. 27 dated 26.10.82 in his favour and thus he misappropriated the money for making wrongful gain. On the basis of this complaint Goaltar P.S. Case No.1 dated 11.7.83 under section 409 I.P.C. was registered. On completion of this investigation the Investigating Officer submitted a final report after consulting his superior officer in the year 1983, the learned Magistrate by his order dated 5.1.84 accepted. that final report and discharge the petitioner from the case and further passed an order returning Alamat of the case in favour of the person whom he seized. Thereafter on 15.3.85 at the instance of another S.I., D.E.B., Midnapore, the learned Magistrate passed an order reopening further investigation of the case and after completion of re-investigation the S.I., D.E.B. submitted a charge-sheet on 17.7.85 against the petitioner under section 409 I.P.C. The charge-sheet was received in the court of learned Additional Sessions Judge on 1.8.85. Since thereafter a large number of adjournments were allowed by the court which took about four years and thereafter charge was framed against the petitioner-accused under the above mentioned section. In all 47 dates were fixed for the framing of charge and out of them the petitioner was absent on only five occasions. Since thereafter a large number of adjournments were allowed by the court which took about four years and thereafter charge was framed against the petitioner-accused under the above mentioned section. In all 47 dates were fixed for the framing of charge and out of them the petitioner was absent on only five occasions. According to the petitioner, the reopening of the investigation of the case and fresh submission of charge-sheet was had in law, inasmuch as, the order of the learned Magistrate accepting the final report and discharging the accused-petitioner had not been set aside by any superior court. Secondly, the date of alleged occurrence is 26.10.82 while the complaint was lodged on 11.7.83 and the said final report was submitted in 1983, whereas the case was reopened on 15.3.85, and the new charge-sheet was submitted on 17.7.85 and charge was framed on 1.3.89 and the trial had not yet commenced at the time when the revisional application was filed i.e. on 18.9.92. According to Mr. De, Learned Advocate for petitioner this shows that there has been inordinate delay in the disposal of this case causing mental suffering, anxiety, agony and harassment and financial loss to the petitioner in flagrant violation of the fundamental right of being entitled to speedy trial as enshrined in the Article 21 of the Constitution of India. Thirdly, it is contended that the alleged appropriation is in respect of the paltry sum of Rs.200/- only and considering such nature of the offence as well as the hardships suffered by the petitioner due to the long pendency of this case, it may be taken that sufficient punishment has already been inflicted upon the petitioner. Lastly, the amount in question namely Rs.200/- was ultimately credited and it was retained with the petitioner as alleged for about a month only and as such the petitioner cannot strictly be said to have misappropriated that amount for making any wrongful gain as alleged. It is the contention of the petitioner that considering all these reasons the criminal proceeding should not be continued any further and should be quashed. According to Mr. It is the contention of the petitioner that considering all these reasons the criminal proceeding should not be continued any further and should be quashed. According to Mr. De the trend of decisions of the Apex Court is in support of this contention, inasmuch as, reasonably expeditious trial has been regarded as an integral and essential part of the fundamental right to life and liberty as laid down under Article 21 of the Constitution and any further continuation of the proceeding in question will be an abuse of the process of Court. 2. In support of his contention Mr. Dey has referred to a number of decisions namely; 1986 CCLR 199 (SC), 1999 CCLR 241 (Cal), 1994 CCLR 122 (Cal); 1991 CCLR 55 and 365 (Cal). The decision reported in 1986 CCLR 199 (SC) will not be applicable to our case since in that case it was found by their Lordships, regard being had to the materials on record of that case, that it was extremely doubtful whether it would at all result in conviction and under such circumstances no useful purpose would be served by allowing the prosecution to continue. But, in the present case the materials on record did not give any such indication or raise any such doubt. On the other hand, it appears to be prima facie evident that the accused-petitioner was entrusted with the money being Rs.200/- but did not deposit the same to the Government Treasury or did not enter it into the account book of the office concerned and retained the same with himself for about a month. The second ruling mentioned above namely, 1999 CCLR 241 (Cal) will also have no application to our case because in that case under reference also it was found by the Court that the ingredients of the offences under section 406 IPC had not been disclosed from the materials on record and it was therefore held that more retention of property or document entrusted to a person without any misappropriation does not constitute an offence of criminal breach of trust and the criminal proceeding in question was ordered to be quashed. But in our present case the fact and circumstances are not alike. But in our present case the fact and circumstances are not alike. Here as per the allegation the accused retained public money with himself for as long a period as one month without making any attempt of bringing it into official records, far less depositing it before the cash section of Government Treasury. Therefore, it cannot be stated that the element of dishonesty and misappropriation is not fulfilled here. The third ruling referred to above namely 1994 CCLR 122 (Cal) also cannot be attracted to the facts of the present case. Here the criminal proceeding in question was quashed by the order of this Court on account of a different ground that employees of a nationalised bank are not public servant within the meaning of section 21 IPC and hence they cannot be tried by the special court, although it was found by the Learned Judge that ingredients of the offence under sections 409, 420, 467 and 471 IPC had been disclosed from the materials on record against the accused-petitioner. 3. The next case laws cited are two decisions reported in 1991 CCLR 365 (Cal) and 1991 CCLR 55 (Cal). In both the decisions a learned Single Judge of this court has taken the view that administration of justice requires that the accused is entitled to have as much protection as the prosecution is entitled to and waste of time affects the defence of the accused and the witness of which the accused may choose to examine may suffer from physical inability during trial in the event of a trial being dragged for years together. It has been further held that the mental torture and anxiety suffered by an accused for long length of time is to be treated as sufficient punishment inflicted on him and the prosecution cannot have the luxury of dragging a case in a court of law for years together. The Learned Judge observed that the inordinate delay in the continuance of the criminal proceeding violates the fundamental right of an accused. The accused is entitled to fair and speedy trial as enshrined under Article 21 of the Constitution of India. In order to arrive at such finding the Learned Judge in this two cases have relied upon the legal principles enunciated by the Apex Court in different judgments. Thus, in AIR 1988 SC 1729 corresponding to 1988 Cr. The accused is entitled to fair and speedy trial as enshrined under Article 21 of the Constitution of India. In order to arrive at such finding the Learned Judge in this two cases have relied upon the legal principles enunciated by the Apex Court in different judgments. Thus, in AIR 1988 SC 1729 corresponding to 1988 Cr. L.J. 1803 it has been held by the Apex Court that keeping a person is suspended animation for 9 and 1/2 years without any case at all cannot be the spirit of the procedure established by law and the criminal proceeding in question was liable to be quashed solely on the ground of delay. In another earlier Division Bench decision, namely, AIR 1978 SC 579 the Apex Court has been quoted to have held that if a person is deprived of his liberty under a procedure which is not reasonable fair or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution and a procedure cannot be reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of the accused and there cannot be any doubt that speedy trial, whereby I mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined under Article 21 of the Constitution. The Learned Judge in the above referred two decisions of this court has further relied upon another judgment on a Division Bench of this court reported in 1990 Cr. L.J. 643 (Ranjit Pal vs. The State) wherein relying on Srinivas Pal's case. It has been held that long delay in disposal of the proceedings prejudicially affects the defence of an accused and in the event of trial being dragged for years, judicial view is in favour of dropping of the proceeding irrespective of the nature of the case. 4. Subsequent to the pronouncement of the above two decisions, the question came under further scrutiny of the Apex Court and in the case of A.R. Antule vs. R.S. Nayak, reported in 1992 Cr. 4. Subsequent to the pronouncement of the above two decisions, the question came under further scrutiny of the Apex Court and in the case of A.R. Antule vs. R.S. Nayak, reported in 1992 Cr. L.J. 2717, the Constitution Bench of the Supreme Court has held that fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily and the right to speedy trial is a fundamental right of the accused and it is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. Their Lordships, in this decision, issued certain guidelines with regard to the terms of speedy trial. Thus, it has been held that sometimes, the delay is largely contributed to by the defence as a matter of tactical measure because, as a result of such delay, non-availability of witnesses, disappearance of evidence by lapse of time, etc. emerge and they work against the interest of the prosecution and, therefore, in every case where the right to speedy trial is taken resort to, the first question to be answered is who is responsible for the delay. Secondly, it has been further held in this case that each and every delay does not necessarily prejudice the accused and in fact some delays may work to his advantage and hence, in such a context, the fact of incarceration of the accused will also be a relevant fact. Thirdly, it is not advisable or practicable to fix any time limit for trial of any offence and in every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay and it is for the Court to weigh all the circumstances of a given case before pronouncing upon the complaint. Lastly, another principle enunciated by this judgment is that where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges shall be quashed, but this is not the only course open and the nature of offence of other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice and the court may in such cases, fix a time limit within which the trial of the accused persons must be completed. 5. 5. Still another decision of the Apex Court has been subsequently pronounced sufficiently modifying the principles discussed above and that decision has been reported in 1995 Cr. L.J. .2640 (Santosh Dev vs. Archana Guha). Their Lordships in this case observed that being encouraged by such a trend of law being set, the accused persons may stall the proceedings for decates if he has means to do so and the superior courts should guard against such a possibility and should not fall prey to such stratagems so that a man with means should not be allowed to keep the law at bay which would mean the failure of the entire system. 6. The long and short of what has been laid down by the Apex Court as well as different High Courts in various rulings discussed above is that where there is a genuine case that the prosecution has failed to take appropriate action for speedy disposal of the case and for that the accused should not suffer, the court should interfere in such matter, but where the accused persons are themselves responsible for such delay and there was no laches or lapses on the part of the prosecution for expeditious trial of the proceeding for the wrong of the accused, the prosecution should not be penalised. 7. In the light of this settled position of law on the subject, let us examine the facts of the present case to ascertain how the delay originated, whether due to any lapses indulged in by the defence or genuinely due to the failure of the prosecution to ensure completion of the trial within a reasonable time. 8. The order-sheet of the case before the trial Magistrate has been placed before me which shows that the F.I.R. was lodged with the police on 11th July, 1983 under section 409 I.P.C. After investigation, police submitted final report in the very year and the same was accepted by the learned Magistrate by order dated 5th January, 1984 and discharged the accused-petitioner. Thereafter, on 15th March, 1985, Sub-Inspector, D.E.B., Midnapore made a fresh prayer before the learned Magistrate for reopening the investigation of the case and that prayer was allowed and after completion of that re-investigation, police submitted charge-sheet on 17th July, 1985 under section 409 I.P.C. Thereafter, the accused went on appearing before the Court for about four years and on 1st March, 1989 charge was framed against him, by the learned Special Judge. Out of this period of four years, on a scrutiny of the order-sheet it is found that the prosecution took long one and half years (10th December, 1985 to 31st March, 1987) for supplying copies to the accused who is found to have attended the court on each date fixed. Thereafter, dates were fixed for consideration of charge since 2nd June, 1987, It is found that up to 1st March, 1989, the learned court below went on granting adjournments on every date fixed, mostly, on the verbal prayer of the learned Public Prosecutor and at long last on 1st March, 1989, it is detected, almost on the majority of such dates, the examination of prosecution witnesses could not be possible due to the failure of the prosecution to bring the witnesses and filing of prayer for adjournment by the learned Public Prosecutor. May be, there are few dates when the accused remained absent or made a prayer for adjournment. Total number of such dates appear to be quite normal looking and it cannot be assumed that the accused was being governed by any ulterior motive of resorting to delaying tactics for the purpose of taking any advantage of the legal position enunciated by the Apex Court as discussed above. 9. This being the position, I am of the view that it cannot be said that the delay in the trial of the case was the result of any evil design or ulterior motive of the accused in this direction, but it was wholly and particularly due to the failure of the prosecution to be in readiness at the time of hearing on the dates fixed. 10. One more factor to be taken into consideration in this order is the nature and magnitude of the offence with which the accused has been charged. 10. One more factor to be taken into consideration in this order is the nature and magnitude of the offence with which the accused has been charged. As I have already discussed above, the offence charged against him is that he received a sum of Rs.200/- from a depositor, but instead of entering it in the Account Book in the name of that depositor or depositing it in the Cash Section of the office or the Government Treasury, he retained the same with him for about a month and, thereafter, he brought it into the official record. The learned advocate for the State has contended that the offence of criminal misappropriation does not require that prosecution has to show how the accused used that money or whether he at all spent that money for his benefit, etc. and simple retaining of the money with him is enough to disclose the ingredients of that offence and from that point of view, it must be held that, prima facie, fulfilment of the ingredients of section 409 I.P.C. has been done. Nobody disputes this position, but what is to be considered in the present situation is whether the inordinate delay which has been entirely attributed to the prosecution and as a result of which the accused has already suffered considerable agony and monetary loss should be taken to be sufficient for the purpose of coming to the conclusion that sufficient punishment has been inflicted on him and in view of the paltry sum in respect of which the alleged offence has been committed there is no justification for indulging in further delay by compelling the trial to be dragged for a longer period. 11. As I have already discussed above, the trend of judicial decisions and view are not in support of such a proposition. In a identical circumstances, the Apex Court has ordered the quashing of the proceeding and discharge of the accused. 11. As I have already discussed above, the trend of judicial decisions and view are not in support of such a proposition. In a identical circumstances, the Apex Court has ordered the quashing of the proceeding and discharge of the accused. Relying on those decisions I am bound to hold that in view of the facts and circumstances being identical in the instant case there is little justification for me to depart from the same and adopt a different view particularly when as long a period as 11 years elapsed not due to any fault or default on the part of the accused, but due to adjournments taken by the prosecution and, further, when the sum which is the subject matter of the alleged offence of criminal misappropriation is a paltry one and that too being retained by the accused allegedly for a period of one month. 12. In the result, I am unable to agree with the contention of the learned Advocate for the State that this is not a fit case where the criminal proceeding in question should be quashed and on the other hand, I am inclined to accept the contention to the learned Advocate for the applicant in view of the settled principles enunciated by the Apex Court discussed above and, therefore, the impugned criminal proceeding be quashed and the accused applicant be discharged. 13. Xerox certified copies, if applied for by either of the parties, be supplied within 10 (ten) days from the date of deposit of the requisite stamps and folios. Impugned criminal proceeding quashed.