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2003 DIGILAW 306 (JK)

Bushan Lal Ogra v. CBI Through SSP, Jammu

2003-10-09

Y.P.NARGOTRA

body2003
The petitioner-accused is seeking the quashment of the charge sheet and consequent criminal proceedings initiated against him in the case entitled State through CBI v. Bushan Lal Ogra, by invoking the powers of this Court under section 561-A Cr. P. C. 2. Brief facts of the case are that CBI registered FIR No. RC. 10/E/86-DLI dated 30th September 1986, on the complaint received from Shri N. S. Srivastava, DCCI&E, Office of Jt. CCI&E New Delhi. After registration of the case, the investigation was commenced. During investigation, it transpired that the Government of India vide its Circular dated 30th September 1982 formulated a scheme under which all licensing Officers under the CCI&E were empowered to allow Cash Compensatory Support (Cash Incentives) to the exporters of hand-made woolen carpets. Under the said scheme, accused-petitioner B. L. Ogra used to export hand made woolen Carpets to foreign buyer on behalf of M/s Sea Rock Exporters and claimed cash incentives. In the investigation, it was further revealed that the accused B. L. Ogra submitted 31 applications in the Office of ACCI&E, Srinagar for the grant of cash assistance against the exports of hand made woolen carpets on behalf of M/s. Sea Rock Exporters on 21-05-1984, 22.5.1984, 23.5.1984, 24.5.1984, 25.5.1984, 28.5.1984 and 29.5.1984 which were received in the Office of ACCI&E on the same dates. Along with these 31 applications, the accused also enclosed invoices in favour of M/s. United Mcans Inc 1123, Broadway, Suite 1015 New York duly certified by Bombay Mercantile Cooperative Bank, Srinagar, shipping bills of M/s K. K. Raity & Co. CHA Bombay, Banks certificate in respect of invoices purported to have been issued by Bombay Mercantile Cooperative Bank, Srinagar, application forms, disclaimer certificates, Cash certificates and provisional certificates. These papers were found to have been signed by the accused B. L. Ogra on behalf of the Firm as its proprietor. The investigation further disclosed that B. L. Ogra was allowed cash assistance to the tune of Rs. 5, 45, 157/- against the above said 31 claims. It was also revealed that in addition to above amount of cash assistance, M/s. Sea Rock Exporters obtained cash assistance of Rs. 1, 67, 177/-, Rs. 1, 13, 3761, 05, 668 and Rs. 1, 72, 258/- on earlier occasions on the basis of Bank certificates issued by the State Bank of Patilia, Srinagar. The bank Certificates for this amount of Rs. 1, 67, 177/-, Rs. 1, 13, 3761, 05, 668 and Rs. 1, 72, 258/- on earlier occasions on the basis of Bank certificates issued by the State Bank of Patilia, Srinagar. The bank Certificates for this amount of Rs. 5,53,479/- had been genuinely obtained from respective banks on the basis of genuine export documents but an amount of Rs. 1, 67, 258/- obtained as cash assistance on the basis of bank certificates issued by the State bank of Patilia, Srinagar had not been paid to the bank by the Importer and hence B. L. Ogra, Proprietor of M/s Sea Rock Exporters undertook to refund this amount from his future claim of CCS for the year 1984-85. Subsequently, against the above mentioned 31 claims submitted by the accused, this amount of Rs. 1, 67, 258/- was refunded by him to ACCI&E, Srinagar. Against the 31 claims, a total amount of Rs. 5, 45, 157/- was granted to Firm M/s Sea Rock exporters as cash assistance against the export figures provided by the accused which included the earlier amount of Rs. 1, 67, 258/- refunded by him. It was further disclosed from the investigation that all the above mentioned claims had been availed by the accused on behalf of M/s Sea Rock Exporters on the basis of bank certificates and the said bank certificates had been got issued by the accused on the strength of forged bills of lading, shipping bills etc. It was also revealed to the Investigating Agency that while applying for the bank certificates, an exporter was required to fill in GR-I Form and submit the same to the Bank in 10 digits for the purpose of obtaining bank certificates on which the Office of the CCI&E allowed the claims of cash assistance. The accused however, submitted GR-I form in six digits only which had been accepted by the Bombay Mercantile Cooperative Bank, Srinagar on an undertaking from the accused for indemnifying the bank against any loss. It was however, revealed that the accused had submitted forged shipping bills and bills of lading etc. with his application for obtaining bank certificates and thereby defrauded the office of ACCI&E, Srinagar to the tune of Rs. 5, 45, 157/- in the claim of cash assistance on the basis of forged documents. 3. It was however, revealed that the accused had submitted forged shipping bills and bills of lading etc. with his application for obtaining bank certificates and thereby defrauded the office of ACCI&E, Srinagar to the tune of Rs. 5, 45, 157/- in the claim of cash assistance on the basis of forged documents. 3. On the aforesaid investigation and revelation, the CBI instituted the charge sheet against the accused seeking his trial for commission of offences under sections 420, 467/468/471 RPC before the Court of Learned Chief Judicial Magistrate, Srinagar on 12th October 1988. Since the offence under section 467 RPC is exclusively triable by the Court of Sessions, therefore the learned Chief Judicial Magistrate, Srinagar committed the case for trial to the Court of Sessions Judge, Srinagar by his Order dated 26th May 1989. The case file was received and taken cognizance by the learned Sessions Judge on 11th July 1989. Before the learned Sessions Judge, Srinagar, after appearing for 2/3 dates, the accused absented and remained absent up to the year 1997. Thereafter, a Criminal Application No. 4/1995 was filed by the accused before this Court and this Court vide its order dated 13th March 1997 transferred the case from the file of learned 3rd Additional Sessions Judge, Srinagar to the file of Ist Additional Sessions Judge, Jammu. After transfer of the case, the file was received in the Court of Ist Additional Sessions Judge, Jammu on 29th May 1997 and on that date as the accused was absent so he was ordered to be summoned through non-bailable warrants. The accused however, appeared on 22nd July 1997, on which date Presiding Officer was on leave so the case came up on 27th August 1997. On that date, PP submitted before the Court that documents and record of the case have not been received along with the file so the same were ordered to be summoned. It appears that record could not be traced and produced before the learned trial court till 22nd September 2001, on which date Special PP produced some Photostat copies of the record instead of the record and thereafter the case was heard on the question of charge and discharge. It appears that record could not be traced and produced before the learned trial court till 22nd September 2001, on which date Special PP produced some Photostat copies of the record instead of the record and thereafter the case was heard on the question of charge and discharge. The orders could not be passed by the learned trial court due to the non-availability of the relevant record and, therefore, another endeavor was made for procuring the record, as is indicated from the interim order dated 24th August 2002. Ultimately, the learned trial Court again re-heard the case on 15th January 2003 on the question of charge and the learned trial court by its order dated 29th January 2003, framed the charge against the accused for commission of offences under sections 420/467/468/471 RPC. The accused has pleaded not guilty to the charge and, therefore, the learned trial Court directed the prosecution to lead evidence. Till date, no witness of the prosecution has been examined, however, the accused filed this petition under section 561-A Cr. P. C, seeking the quashment of the proceedings on 21st August 2003. The main ground urged by the learned counsel for the petitioner for quashing the proceedings is that there has been delay of about 15 years in disposal of the case which according to learned counsel for the petitioner, has resulted in violation of the fundamental right to speedy trial guaranteed under Article 21 of the Constitution of India. 4. Mr. P. N. Goja, learned counsel for the petitioner-accused has argued that major part of the delay in disposal of the case is not attributable to the accused. The FIR was registered against him in the year 1986 when he was a young man but the case has not come to its logical end despite the fact that he has become an old man now. According to him, speedy trial is the fundamental right of an accused and once this right is violated, proceedings deserve to be quashed. In support of his contention, he has relied upon the cases reported in AIR 1992 SC 1701, 2002(3) Supreme 263 and 2003(1) JKJ 24. 5. Mr. According to him, speedy trial is the fundamental right of an accused and once this right is violated, proceedings deserve to be quashed. In support of his contention, he has relied upon the cases reported in AIR 1992 SC 1701, 2002(3) Supreme 263 and 2003(1) JKJ 24. 5. Mr. K.N. Bhat, learned counsel for the CBI has argued that accused has been charged for commission of serious offences for the trial of which law has not prescribed any limitation and, therefore, simply because there has been some delay in the disposal of the case, it cannot be said that right of the accused for speedy trial has been violated. He has further argued that delay in disposal of the case while it was pending trial in the Court of Sessions Judge, Srinagar, was caused due to the absence of the accused himself and, therefore, the State cannot be held responsible for that delay. So far as the trial of the case at Jammu is concerned, delay has occurred because of misplacement of the record and, therefore, it was a genuine delay for which the State cannot be held responsible. 6. I have considered the respective contentions of learned counsel for the parties and perused the record of the case. The first question, which calls for determination before this Court is whether procrastination of the proceedings is a ground for quashing the proceedings, In the case reported in AIR 1992 SC 1701, entitled Abdul Rehman Antulay etc. v. R. S. Naik and another, five Judges constitution Bench of the Honble Supreme Court of India has held as follows: - "The provisions of the Code of Criminal Procedure provide for an early investigation and for a speedy and fair trial. If only the provisions of the code are followed in their letter and spirit, there would be little room for any grievance. The fact however, remains unpleasant, as it is that in many cases, these provisions are honoured more in breach. Be that as it may, it is sufficient to say that the constitutional guarantee of speedy trial emanating from Art. 21 is properly reflected in the provisions of the Code. " Their Lordships further held :- "It is not possible in the very nature of things and present day circumstances to draw a time limit beyond which a criminal proceedings will not be allowed to go. " Their Lordships further held :- "It is not possible in the very nature of things and present day circumstances to draw a time limit beyond which a criminal proceedings will not be allowed to go. Even in the U. S. A., the Supreme Court has refused to draw such a line. 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, delay may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable-broadly 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, 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 for effectuating the right to speedy trial. It cannot also be said that without such an outer limit, the right becomes illusory."(emphasis supplied by me) It was further held that:- " The plea that an accused who does not demand a speedy trial, who stands by and acquiesces in the delays cannot suddenly turn round after a lapse of period and complain of infringement of his right to speedy trial, would not be tenable. An accused does not prosecute himself. The State or complainant prosecutes him. It is true, the obligation of the State or the complainant, as the case may, to proceed with the case with reasonable promptitude. Particularly, in this Country, where a large majority of accused come from and poorer weaker sections of the society, not vested in the ways of laws, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Particularly, in this Country, where a large majority of accused come from and poorer weaker sections of the society, not vested in the ways of laws, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But accused would not be disentitled from complaining of infringement of his right to speedy trial on the ground that he did not ask for insist upon a speedy trial. " Their Lordships further held: - "It cannot also be said that the only consequence flowing from an infringement of right to speedy trial was the quashing of charges and/or conviction. " (emphasis supplied by me) Their Lordships have laid down the following propositions with a forewarning that these are not exhaustive as it is difficult to foresee all situations. These propositions are:-- (1) Fair, just and reasonable procedure implicit in Art. 21 of the constitution create a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to Speedy Trial flowing from Art. 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the rights to speedy trial from the point of view of the accused are : (a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, dis-appearance or nonavailability of witnesses or otherwise. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays obtained on ex parte representation. (5) While determining whether undue delay has occurred (resulting in violation of right to speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on- what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) The `demand rule cannot be recognized or given effect to. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) The `demand rule cannot be recognized or given effect to. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accuseds plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases. (8) Ultimately, the Court has to balance and weigh the several relevant factors- `balancing test or `balancing process- and determine in each case whether the right to speedy trial has been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion that Right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the Court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded- as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of Right to speedy trial, it is primarily for the prosecution to justify and explain the delay. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of Right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the Court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U. S. A, too has repeatedly refused to fix any such outer time limit in spite of the Sixty amendment. Nor it can be said that non-fixing any such outer limit ineffectuates the guarantee of Right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the high court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High court must, however, be disposed of on a priority basis. " In 2002 (3) Supreme 260, entitled P. Ramchandra Rao v. State of Karnataka, before Seven Judges Constitution Bench, scope of Article 21 of the Constitution of India, qua the right to speedy trial of a criminal case again came up for consideration. Their Lordships, approving the law laid down in A. R. Antulays Case (Supra) held as follows:- "Bars of limitation judicially, engrafted are, no doubt, meant to provide a solution to the aforementioned problems. But a solution of this nature gives rise to greater problems like scuttling a trial without adjudication, stultifying access to justice and giving easy exit from the portals of justice. Such general remedial measures cannot be said to be apt solutions. For two reasons we hold such bars of limitation uncalled for and impermissible: first, because it tantamounts to impermissible legislation- an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A. R. Antulas case and, therefore, run counter to the doctrine of precedents and their binding efficacy. " In the said Judgment, their Lordships did not approve of the limits set out in the Judgments rendered in common cause case (I), modified in common cause case (II) and Raj Deo Sharma (I) and (II), beyond which the trial of a criminal case or criminal proceedings cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. Single Bench of this Court, in case Chaman Lal Jalla v. State, reported in 2003 (1) JKJ -24, has also held that inordinate delay not attributable to the accused amount to infringement of Article 21 of the constitution of India and is a sufficient ground for the quashment of the proceedings. In another case entitled Sate of Bihar v. Baidnath Parsad alias Baidyanath Shah and another (AIR 2002 SC 64), their Lordships have laid down as follows:- "In considering the question whether delay alone is sufficient to quash pending criminal proceedings the seriousness of the offence involved is not to be overlooked. This aspect has been highlighted in the aforecited decision after extracting the observation made by the Constitution Bench in A.R. Antulay v. R. S. Naik, (1992) (1) SCC 225). In the present case, the offence charged against the respondents is Section 3 of the RPUP Act. That offence is punishable with imprisonment for a term which may extend to five years and in the absence of special and adequate reasons to be mentioned in the Judgment such imprisonment shall not be less than one year. If it is found that the accused had committed the second or a subsequent offence such minimum term of imprisonment shall be two years. We point out this aspect to show that the offence now pitted against the respondents is serious in nature. " 7. From the above said authorities, law on the point is now well settled that criminal proceedings cannot be quashed on the ground of delay alone. In every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is that who is responsible for the delay. If the accused is found responsible for the delay or where delay is attributable to the system, the power vested under section 561-A Cr. P. C should not be exercised for quashing the proceedings. If the accused is found responsible for the delay or where delay is attributable to the system, the power vested under section 561-A Cr. P. C should not be exercised for quashing the proceedings. And even otherwise where the offences alleged to have been committed by the accused appear to be serious in nature still the criminal proceedings must not be scuttled by quashing the same by the High court by exercising inherent jurisdiction. As has been noticed above, from the interim orders of the trial court, it transpires that from the period of presentation of the challan against the accused i. e. 12th October 1988 up to the date it was transferred and received in the Court of Ist additional Sessions Judge, Jammu on 29-05-1997, the delay caused is attributable to the accused himself as it was he who had absented from the proceedings and, therefore, no progress towards the trial of the case could be made. From 29th May 1997 to 29th January 2003, the date on which the charges were framed against the accused, the delay is attributable to non-tracing of the record and for this neither the accused nor the prosecution can be blamed but it is the system to which fault can be attributed. As was held by the Honble Supreme Court in Antulays case, such delays cannot be treated as unjustifiable. This apart, the accused has been charged for the economic offence of a very serious nature, and, therefore, delay alone cannot be made basis for quashing of the proceedings in view of the law laid down in Antulays case as well as in Baidnath Shahs case (Supra). Therefore, there is no merit in the contention of learned counsel for the petitioner and the petition merits dismissal. The same is, therefore, dismissed. 8. However, before parting with this Judgment, I feel that much delay has been caused for the disposal of the case. In this view of the matter, I direct the learned trial Court to conduct the trial of the case expeditiously and conclude the same within a period of six months from today.