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2007 DIGILAW 1095 (PAT)

Vakil Prasad Singh v. State Of Bihar

2007-07-09

RAMESH KUMAR DATTA

body2007
Judgment RAMESH KUMAR DATTA, J. 1. Heard Learned counsel for the parties. 2. The petitioner seeks quashing of the entire criminal proceedings pending against him in Special Case No. 29 of 1987 earlier in the court of Special Judge, Patna and now before the Special Judge, Muzaffarpur, arising out of Kaji Mohammadpur P.S. Case No. 201 of 1981 dated 8.4.1981. 3. In the present matter, the petitioner was made an accused in Kaji Mohammadpur P.S. Case No. 201 of 1981 under Sec. 161 of the Indian Penal Code and Sec. 5 (2) of the Prevention of Corruption Act after he was caught red- handed in a trap laid by the police at the instance of a contractor, namely, Mr. Lal Babu Tiwary. 4. Earlier, the petitioner had approached this court by filing Cr. Misc. No. 2049 of 1990 for quashing the order taking cognizance dated 9.12.1982 passed by the learned Special Judge, Muzaffarpur and this court by its order dated 7.12.1990 (Annexure-2) quashed the order taking cognizance as also the entire investigation carried out by the inspector of Police and directed that the case be investigated afresh by an officer of the rank of the Deputy Superintendent of Police or by any Officer authorized in law to investigate the same. It was further directed that the investigation be completed within three months from the date of production/receipt of the said order. Thereafter, since no re-investigation had been started, the petitioner has again approached this court in the year 1998 for quashing the entire criminal proceedings on the ground of delay. 5. When the matter was earlier taken up for hearing, a prayer was made by the learned counsel for the Vigilance for adjourning the matter so that the stage of the case as to whether the investigation has been completed or not may be informed to the court. 5. When the matter was earlier taken up for hearing, a prayer was made by the learned counsel for the Vigilance for adjourning the matter so that the stage of the case as to whether the investigation has been completed or not may be informed to the court. Subsequently, a counter affidavit has been filed on behalf of the opposite party on 11.5.2007 in which it is stated that pursuant to the direction of the Superintendent of Police, Muzaffarpur, the Deputy Superintendent of Police (Town) started the investigation on 28.2.2007 and after recording the statements of witnesses the case was found prima facie true under Sections 161, 109 and 120-B of the Indian Penal Code and under Sec. 5 (2) of the Prevention of Corruption Act and that the investigation was completed on 1.5.2007 and charge sheet was also submitted by C.S. No. 73/07 dated 1.5.2007 in the Court of the Special Judge (Vigilance), Muzaffarpur. The copy of the said charge sheet has also been enclosed. 6. Learned counsel for the petitioner submits that the submission of the charge sheet after investigation being carried out after the matter had come up for hearing shows the gross negligence of the investigating agency in the matter and for such a gross delay of nearly 26 years from the institution of the case, it is a fit case for quashing the entire proceedings. It is further submitted that till today no sanction was obtained and further the gross delay has not been caused on account of the petitioner. Learned counsel further submits that the present quashing application had been filed much earlier and on 7.10.1998, learned counsel for the Vigilance has prayed for time and, thus, he was aware of the present matter and cannot be permitted to say that the Department became aware of the matter when this court enquired to indicate the stage of the case. 7. In view of the aforesaid situation, learned counsel for the petitioner submits that it is a fit case for quashing the criminal prosecution against the petitioner on the ground of delay. 8. In support of his case, learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Mahendra Lal Das Vs. State of Bihar and others: 2002 (1) BLJ 530 S.C., In paragraph nos. 5 to 7, it has been held as follows: "5. 8. In support of his case, learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Mahendra Lal Das Vs. State of Bihar and others: 2002 (1) BLJ 530 S.C., In paragraph nos. 5 to 7, it has been held as follows: "5. It is true that interference by the Court at the investigation stage is not called for. However, it is equally true that the investigating agency cannot be given the latitude of protracting the conclusion of the investigation without any limit of time. This court in Abdul Rahman Antulay and others Vs. R.S. Nayak and another, JT 1991 (6) SC 431: 1992 (1) SCC 225 , while interpreting the scope of Article 21 of the Constitution held that every citizen has a right to speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest. It is in the interest of all concerned that guilt or innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and re-trial. While determining the alleged delay, the Court has to decide each case on its facts having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work-load of the Court concerned, pravailing local conditions etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case. Inordinate long delay can be taken as a preventive proof of prejudice. 6. In this case, the prosecution has miserably failed to explain the delay of more than 13 years by now, in granting the sanction for prosecution of the appellant-accused of possessing disproportionate wealth of about Rs. 50,600/-. The authorities of the respondent-State also appear to be not satisfied about the merits of the case and were convinced that despite granting of sanction the trial would be a mere formality and exercise in futility. 7. In case of corruption the amount involved is not material but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. 7. In case of corruption the amount involved is not material but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. Cases relating to corruption are to be dealt with swiftly, promptly and without delay. As and when delay is found to have been caused during the investigation, inquiry or trial, the concerned appropriate authorities are under an obligation to find out and deal with the persons responsible for such delay. The delay can be attributed either to the connivance of the authorities with the accused or used as a leaver to pressurise and harass the accused as is alleged to have been done to the appellant in this case. The appellant has submitted that due to registration of the case and pendency of the investigation he lost his chance of promotion to the post of Chief Engineer. It is common knowledge that promotions are withheld when proceedings with respect to allegations of corruption are pending against the incumbent. The appellant has further alleged that he has been deprived of the love, affection and the society of the children who were residing in foreign country as on account of the pendency of the investigation he could not afford to leave the country." 9. Learned counsel for the petitioner relies upon two Division Bench judgments of this court in the case of Krishna Chandra and others: 1992 (2) PLJR 711 and Brijnandan Prasad Singh Vs. The State of Bihar and others; 1996 (2) PLJR 100. In the case of Krishna Chandra Gupta a Division Bench of this court held that the prosecution had been delayed nearly by 23 years, for which the petitioner could not be held responsible for the delay and it was further found that the offence was not of a serious nature involving only a shortage of 4 K.G. of Banaspati, out of 628 K.Gs. at the time search and inspection and the sale register, stock register and licence were not produced at that time. 10. In the said circumstances, it was held that the prosecution has callously consumed three years and it could not be in the interest of justice to permit the prosecution to continue with the case and accordingly, the proceedings were quashed. 11. 10. In the said circumstances, it was held that the prosecution has callously consumed three years and it could not be in the interest of justice to permit the prosecution to continue with the case and accordingly, the proceedings were quashed. 11. In the case of Brijnandan Prasad Singh a Division Bench of this court found that there was a delay of nearly 22 years since the F.I.R. was lodged in a case under Sections 307/326/114 of the Indian Penal Code and Sec. 25 of the Arms Act and further there was no material to hold that such delay was deliberate. 12. Considering the entire facts and circumstances, this court directed the trial court to dispose of the case positively within six months from the date of appearance of the accused. 13. Learned counsel also relies upon a decision of the learned single judge of this court in the case of Baijnath Prasad alias Baidyanath Sah Vs. The State of Bihar and others ; 1998 (3) PLJR 77. It was a case under Sec. 3 of the Railway Property (Unlawful Possession) Act, 1966 and on the ground that even after seven years from the date of filing of the case the charge was not framed, this court quashed the prosecution against the petitioner. 14. Learned counsel for the Vigilance, on the other hand, states that the petitioner has been caught red-handed accepting a bribe of Rs. 1000/-after a trap was made on the complaint of the informant and sufficient material had been found against him during the earlier investigation also. However, the cognizance taken on the basis of the earlier charge sheet filed had been quashed on the technical ground that the Inspector of Police, who had investigated the matter, had not been specifically authorised for the same by the State Government as required under the provisions of the Prevention of Corruption Act and thus, the investigation could only be carried out by an officer of the rank of the Deputy Superintendent of Police, but the same having not been done, this court had quashed the proceedings. Thus, it is submitted that there was sufficient material to proceed against the petitioner even on the basis of the first investigation. Thus, it is submitted that there was sufficient material to proceed against the petitioner even on the basis of the first investigation. It is submitted by learned counsel that the delay in the present matter has been caused on account of the fact that the matter was earlier pending before the Special Judge, Muzaffarpur and from there it has been transferred to the court of Special Judge, Patna and subsequently again the case was transferred to the court of the Special Judge, Muzaffarpur. It is submitted by learned counsel that when the matter was again taken up for investigation in the year 2007 after repeated attempts made to locate-the records, it was found that in the records lying in the court of the Special Judge, Muzaffarpur the case diary and other documents were not available. Further attempts were made to locate the records but the same could not be found in the office of the S.P., Muzaffarpur. It is submitted that it is only on account of disappearance of the records that the matter could not be proceeded with further. Learned counsel for the Vigilance submits that such disappearance of record was most likely at the instance of the petitioner himself, who is a beneficiary of the delay being caused in this regard since in the present matter there was a clear cut evidence of accepting the bribe by the petitioner who was caught red-handed by the raiding party. It is further submitted by learned counsel for the Vigilance that now the investigation has been completed after re-examining ail the witnesses. On the basis of the investigation made by the competent officer, namely, the Deputy Superintendent of Police, considering the gravity of the evidence the criminal proceedings against the petitioner ought not to be quashed, even though there has been delay in the conclusion of the proceedings. 15. In support of the aforesaid stand, learned counsel for the Vigilance, relies upon a decision of the Supreme Court in the case of Rajdeo Sharma Vs. The State of Bihar; J.T. 1998 (7) SC 1, in paragraph no. 11 of which the Apex Court has quoted in detail the law laid down by the Constitution Bench, in this regard in the case of Abdul Rahman Antulay and others Vs. R.S. Nayak and another; JT 1991 (6) SC 431. The State of Bihar; J.T. 1998 (7) SC 1, in paragraph no. 11 of which the Apex Court has quoted in detail the law laid down by the Constitution Bench, in this regard in the case of Abdul Rahman Antulay and others Vs. R.S. Nayak and another; JT 1991 (6) SC 431. Learned counsel relies upon the propositions considered in sub-paragraphs (4) and (6) quoted in paragraph no. 11 of the said judgment, which are as follows: "4. At the same time, one cannot ignore the fact that it is usual 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 prosection. 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 by 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 in order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation. 6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. In Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by Whitel J. In U.S. Vs. Some delays may indeed work to his advantage. As has been observed by Powell, J. In Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by Whitel J. In U.S. Vs. Ewell in the following words: "...The Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances". However, inordinately long delay may be taken as per 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." 16 Reliance was also placed by learned counsel for the Vigilance in the case of Seeta Hemchandra Shashittal and anr. Vs. State of Maharashtra and Ors. : JT 2001 (2) SC 558. The said case was registered under sec. 5(2) of the Prevention of Corruption, Act, 1947 with respect to disproportionate assets and delay of 11 years was involved. 17. On a consideration of the entire facts and circumstances of the case, relying upon A.R. Antulay case, the Apex Court dismissed the application of the Public servants concerned for quashing the criminal proceedings on the ground of delay. 18. On a consideration of the rival contentions of the parties, there can be hardly any doubt that there has been a substantial delay in concluding the proceedings against the petitioner in the present matter. However, the first part of the delay was caused on account of the fact that the investigation had been carried out by the Inspector of Police, who could not have done so, unless specifically authorized by the State Government and in the absence of such authorization only a Deputy Superintendent of Police could have investigated the matter, but the same not having been done, this court by its order dated 7.12.1990 quashed the order taking cognizance on the basis of the previous investigation made by the Inspector of Police and directed fresh investigation in the matter by a competent police officer. Thereafter, it appears that on account of the records being sent from Muzaffarpur to Patna and again from Patna to Muzaffarpur and further disappearance of a substantial part of the records including the previous case diary, both from the court as well as from the office of the Superintendent of Police, the matter was not taken up for investigation for a long period of 16 years after the remand. Only when the learned counsel for the Vigilance sought further instruction regarding the stage of the investigation, the matter was taken up in right earnest and the investigation was concluded by a competent officer within a period of two months and charge sheet has also been filed. 19. So far as the question of quashing criminal proceedings is concerned, the principle with respect to the same has been considered by the Apex Court in detail in case of Abdul Rahman Antulay (supra) and the Apex Court has clearly held that no period can be laid down for the purpose of considering the question of undue delay leading to violation of rights under Article 21 for speedy trial. It has been held that the Court has to consider several factors and determine in each case whether the right of speedy trial has been denied in the given case. One of factors, which is to be considered, is not only the delay but also as to whether the accused is to be held responsible for the delay of the proceedings and further the nature of the offence is also to be taken into consideration. It has been specifically laid down by the Apex Court that one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings and it is a well known defence tactics, and ordinarily it is the prosecution which is prejudiced by the delay on account of non-availability of witnesses and disappearance of evidence by lapse of time. 20. In the present matter it appears that one of the reasons for the delay may have been that there has been transfer of case first from the court of Special Judge, Muzaffarpur to Special Judge, Patna and again from the Court of Special Judge, Patna to the Special Judge, Muzaffarpur. In the said process, the crucial part of the record, specially the case diary went missing. In the said process, the crucial part of the record, specially the case diary went missing. It cannot be said specifically that the said disappearance of the record has been caused by the petitioner but there can hardly be any doubt that the disappearance of those records has enured to the benefit of the petitioner. More so, because the records could not be located even in the office of the S.P. Muzaffarpur. 21. The other aspect of the matter is that the charge against the petitioner is of a serious nature in which the petitioner has allegedly been caught red-handed accepting bribe in course of raid made on a complaint against him. Even in the cases cited by learned counsel for the petitioner inspite of delay of 22 years, the Division Bench of this Court had refused to quash the prosecution in a matter involving the graver Sections of the Indian Penal Code. 22. Similarly, the Apex Court refused to quash the charges in the aforesaid case cited by learned counsel for the Vigilance, although there was a delay of 11 years since the matter involved possession of disproportionate assets in a case under the Prevention of Corruption Act. 23. Thus, on a consideration of the facts and circumstances of the case, this court is of the view that although some prejudice may have been caused to the petitioner in his professional career on account of continuance of the criminal case against him as he was deprived of the promotion in the meantime, but only for the said reason it is not a fit case for quashing the entire criminal proceedings against the petitioner, keeping in view particularly the seriousness of the allegations against him and the fact that in the earlier investigation also the charge sheet had been submitted against him and cognizance had also been taken against him by the trial court. Now that a fresh charge sheet has again been submitted on the basis of the investigation conducted by a competent police officer, the proper direction in the present matter to be given to the court below is to conduct that trial in the matter on a day to day basis and complete the trial within a period of lour months from today and if the sanction is required in the present matter, the State Government is directed to consider the same and dispose of the question of grant of sanction within a period of six weeks from today. 24. In the aforesaid facts and circumstances of the case, this application is dismissed with the aforesaid observations. 25. Let a copy of this order be handed over to Mrs. Anita Sinha, learned Special P.P. for the Vigilance, North Bihar for onward communication.