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2001 DIGILAW 51 (GAU)

CBI (ACB) Shillong Branch v. Ashutosh Modak

2001-03-08

N.SURJAMANI SINGH

body2001
In this application under section 482 read with section 397 of the Code of Criminal Procedure, 1973, the petitioner sought for setting aside the impugned order dated 17.2.99 passed by the learned Special Judge Shillong in Special Case No. 2/93 whereby the prosecution evidence in the aforesaid case had been closed; coupled with a prayer for setting aside the statements of the accused persons/ respondents recorded under section 313 CrPC on 1.4.99 and fixing the case for final argument on 5.5.99 by contending inter alia, that the prosecution cited 39 prose­cution witnesses and 34 numbers of listed documents for proving the prosecution case and out of the above cited witnesses, the prosecution could examined 9 (nine) numbers of factual witnesses, but the learned Special Judge without considering the existing facts and circumstances of the case particularly the reasons for the delay of the trial, passed the impugned order of 17.2.99 without any jurisdiction. 2. The brief facts of the prosecution case is that the accused No. 1 Sri Ashutosh Modak, while working as Sub Staff/Bill Collector, United Bank of India, Shillong Bench, entered into a criminal conspiracy with the accused No. 2 Ganga Prasad Nath and with one Shri Mihir Kanti Paul for defrauding the LICI policy holders and in the process a total amount of Rs 1,66,300.85 was misappropriated by the said accused persons, the respondents herein. 3. Mr. DK Das, learned senior counsel for the CBI petitioner submitted that during the continuance of the related proceedings/trial in connection with Special Case No. 2/93, the defence side took 4/5 adjournments on their prayer, and the prosecution took 9 adjournments and the Court could not function for a total number of 8 (eight) sittings on the related dates fixed by the Court below, and the proceeding also could not take place on two dates as the dates fall on local holidays as such, there has been a delay in the said proceedings and the prosecution could not complete to adduce their evidence and, these facts in existence were not examined and considered by the learned Special Judge Shillong, while passing the impugned order of 17.2.99. It is also submitted by the learned senior counsel that, the learned Special Judge without application of his judicial mind has passed the impugned order thus causing a great prejudice to the prosecution inasmuch as, the prosecution has been prevented from adducing evidence in support of its case. Mr. Das learned senior counsel also submitted that the learned Court below had wrongly interpreted and mis-appreciated the law laid down by the Apex Court in Raj Deo Sharma vs. State of Bihar reported in (1998) 7 SCC 507 , inasmuch as the Apex Court had already re-examined the legal issues involved therein and by virtue of the subsequent decision of the Apex Court rendered in Raj Deo Sharma (II) vs. State of Bihar reported in (1999) 7 SCC 604 , the Apex Court allowed the prosecution in the said case to examine the witnesses thus affording one year period so as to enable the prosecution to complete the examination of the prosecution witnesses and as such, in the instant case, the learned Court below i.e the learned Special Judge Shillong ought to have given at least chance and adequate time to complete the examination of the prosecution witnesses. 4. At the hearing Miss Paul, learned counsel for respondent No. 1, and Mr. HR Nath, learned counsel for respondent No.2 submitted that the decision so far rendered by the Apex Court in the said case reported in (1999) 7 SCC 604 , is not applicable in the instant case, inasmuch as, in the said case the Apex Court had examined and considered the delay caused in the proceeding of the trial of the case because of the non-availability of the Presiding Officer of the Court as well as the pendency of the case namely criminal revision or appeal before a revisional Court or the appellate Court and because of such circumstances the delay had been condoned by the Apex Court, thus giving further time to the prosecution to complete the prosecution to examine the witnesses in that case, but in the instant case enough time to the extent of more than two and a half years have been given and taken by the prosecution in adducing evidence and, apart from it, the prosecution did not sought for any prayer for extension or grant of time for enabling the prosecution to adduce evidence. The learned counsel for the respondents also submitted that there is no infirmity or illegality in the impugned order and as such, no interference of it is called for. 5. Now this Court is to see and examine as to whether the impugned order dated 17.2.99 in tenable in the eye of law or not in the light of the existing facts and circumstances of the case, and whether the prosecution should be given further chance so as to enable them to examine the remaining witnesses or not in view of the nature of the present case. 6. From the available materials on record, the charge under section 120B/ 420/406 IPC read with section 13 (1) (d), punishable under section 13 (2) of PC Act, 1988, have been framed against the accused persons respondents on 31.5.96 and the prosecution had examined 9 (nine) witnesses so far out of the said 39 prosecution witnesses before passing the impugned order of 17.2.99. It is not disputed that the defence also took adjournments of the case on 4/5 occasions and likewise, the prosecution also sought for 9 (nine) adjournments and the learned Court below could not function for a total eight number of dates and some time the Presiding Officer was on local trial at Jowai, etc as seen from the available case record maintained by the learned Court below. A bare perusal of the impugned order of 17.2.99 appears to me that the learned Special Judge at Shillong had lost sight of the observations and directions made by the Apex Court in Raj Deo Sharma (II) vs. State of Bihar, reported in (1999) 7 SCC 604 , while passing the impugned order of 17.2.99. 7. It is well settled that the right to speedy trial flows from Article 21 of the Constitution and encompasses the stages right from the date of the registration of the-Ejahar/FIR and onwards. In Raj Deo Sharma (I) case, (1998) 7 SCC 507 , the Apex Courts made directives for effective enforcement of right to speedy trial under Article 21 and the power of the Court to close prosecution evidence on completion of two years in case of offences punishable with imprisonment for a period not exceeding 7 (seven) years and on completion of three years in case of offences punishable with imprisonment for a period exceeding 7 (seven) years. But the Apex Court in the same case, namely Raj Deo Sharma (II) (supra) (1999) 7 SCC 604 , clarified the said directions as sought for by CBI and the Apex Court held that the following period can be excluded from the prescribed period of 2/3 years for completion of prosecution evidence (1) period of pendency of appeal or revision, against interim orders, if any preferred by the accused to protract the trial, (2) period of absence of Presiding Officer in the trial Court, (3) period of 3 months in case the office of the Public Prosecutor falls vacant (for any reasons other than the expiry of tenure) for enabling the Govt to appoint the successor in that office and, apart from it, the Apex Court observed that Courts have discretion to grant further time to prosecution to adduce evidence both in cases where the offences are punishable with imprisonment for a period not exceeding 7 (seven) years as well as for a period exceeding 7 (seven) years, and even the power of the Courts under section 311 Cr. PC can be invoked by the prosecution even after closure of the trial in compliance with the said direction of the Supreme Court and the provision of Section 309 CrPC is to be strictly followed. The Apex Court in that case further held that it would not be just and fair to society and the victims to close the a prosecution evidence after the said prescribed periods without considering the nature of offence and the other causes for delay, such as dilatory procedure, large pendency of cases, insufficient strength of Judges or non-availability of counsel - if allowed, law would lose its deterrence and would affect rule of law - it would affect smooth functioning of society in accordance with law and finally the Constitution. 8. From the available materials on record, it has been revealed that, the learned Court below failed to appreciate the feet that the prosecution was ready to adduce evidence with witnesses on other dates, but the adjournments of the case from the end of the prosecution as well as the defence on some or the other ground and because of local holidays and for certain other reasons, as discussed above, the Court below could not proceed with the case, hence the trial could not be completed soon and thus the delay. 9. 9. In my considered view, the learned Court below ought to have examine all these existing facts and circumstances of the case and the reasons of delay of the trial of the case and ought not to have passed the impugned order thus closing the prosecution which would affect smooth functioning of the society in accordance with law and, it is not just and fair to close the prosecution evidence under the impugned order without considering the existing facts and circumstances of the case, as discussed above. Apart from it, the learned Court below has lost the sight of the subsequent decision of the Apex Court rendered in Raj Deo Sharma (II) (supra) (1999) 7 SCC 604 while passing the impugned order. 10. For the reasons and discussions made above, this Court need not go more into depth as 1 am of the view that, the impugned order is not tenable in the eye of law as it is not just and fair and apart from it, it affects the prosecution. According to me, the prosecution should be given the opportunity to adduce further evidence, in other words, to examine the prosecution witnesses in support of it and accordingly, the impugned order dated 17.2.99, passed by the learned Special Judge, Shillong, in Special Case No. 2/93 is set aside. It is made clear that all other proceedings and steps taken after passing the impugned order of 17.2.99 including the recording of the statements of the accused persons under section 313 CrPC on 1.4.99 and fixing the case for final argument on 5.5.99, shall be treated as non est. 11. I made the above observations and directions in order to prevent abuse % of the process of the Court as well as to secure the ends of justice. In the result petition is allowed with a further direction to the learned Special Judge, Shillong to allow the prosecution to examine the remaining witnesses and to complete the trial and dispose of the case as early as possible in accordance with law. No order as to costs. 12. Interim order passed by this Court on 4.5.99 stands vacated. Registry is directed to transmit the related case record to the learned Special Judge, Shillong, immediately.