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2007 DIGILAW 352 (ORI)

Sailendra Tomatia v. Republic of India

2007-05-11

L.MOHAPATRA

body2007
JUDGMENT L. MOHAPATRA, J. : The petitioner who is a former Director of NALCO has filed this application under Article 226 of the Constitution of India for quashing the proceeding in T.R. No.151 of 1999 pending in the Court of the learned Special Judge, C.B.I., Bhubaneswar on the ground of delay in disposal of the said case. 2. Shri Das, the learned counsel appearing for the peti¬tioner referring to the order sheet attached to the petition submitted that the F.I.R. was received by the Court in February, 1997 and charge-sheet was filed on 07.04.1999. On 8.8.2000, the petitioner filed an application under Section 227 of the Code of Criminal Procedure read with Section 239 of the said Code to discharge him. Both the petitions were rejected by order dated 10.10.2001 and after framing of charge the trial commenced in January, 2005. It is further submitted by the learned counsel that though the trial has commenced since January, 2005, only five witnesses have been examined so far and the case being of the year 1997, the prosecution having not taken any step for dis¬posal of the case early, the proceeding should be quashed. The learned counsel relied upon a decision of the Apex Court in the case of P. Ramachandra Rao v. State of Karnataka reported in JT 2002 (4) SC 92. Shri S. K. Padhi, the learned Senior Counsel appearing for the C.B.I., on the other hand, submitted that after framing of charge, the matter was brought before this Court and ultimately before the Supreme Court and in the process more than three years were consumed at the instance of the petitioner. It was further submitted by the learned counsel appearing for the C.B.I. that there was no Presiding Officer for a long time as a result of which the trial could not proceed and the prosecution is now ready with all the witnesses so that the trial can be concluded as early as possible. Shri Padhi also relied upon a decision of the Apex Court in the case of State of Bihar v. Baidnath Prasad alias Baidyanath Shah and another reported in (2002) 1 Supreme Court Cases 465. 3. From the entire order-sheet, it appears that though F.I.R. was received by the Court in February, 1997, charge-sheet was filed on 07.04.1999. Shri Padhi also relied upon a decision of the Apex Court in the case of State of Bihar v. Baidnath Prasad alias Baidyanath Shah and another reported in (2002) 1 Supreme Court Cases 465. 3. From the entire order-sheet, it appears that though F.I.R. was received by the Court in February, 1997, charge-sheet was filed on 07.04.1999. After submission of charge-sheet, the petitioner filed an application to discharge him as stated earlier and the said petition was rejected and charges were framed. It further appears from the order-sheet that the peti¬tioner wanted certain documents produced by him to be taken into consideration at the time of framing of charge and the trial Court having refused to accept such documents on behalf of the defence at the time of framing of charge, the matter was brought before this Court and ultimately before the Apex Court and in the process more than three years were consumed. After the Special Leave Petition was dismissed by the Supreme Court, th trial com¬menced in the year 2005. It also appears from the order-sheet that different applications were filed by the petitioner at dif¬ferent stages and all such applications caused the delay in commencement of examination of witnesses. After the dates for trial were fixed, on certain dates the witnesses were not present to be examined but subsequently from March, 2005 there was no Presiding Officer for the said Court and the learned Sessions Judge was in-charge of the said Court from March, 2005 for cer¬tain period. In December, 2005, the Presiding Officer was posted and the matter was taken up and since then as stated by the learned counsel for the parties, five witnesses were examined. As is evident from the aforesaid discussions, the petitioner was prosecuting the case before this Court and the Apex Court and also almost for ten months there was no Presiding Officer for the trial Court. Apart from the above, the petitioner also filed dif¬ferent petitions at different stages thereby causing delay in disposal of the case. Learned counsel for the petitioner relied on a decision of the apex Court in the case of P. Ramachandra Rao v. State of Karnataka (supra). From the said decision, it appears that the accused was acquitted by the Special Court on the ground of failure of commencement of trial in spite of lapse of two years from the date of framing of charge. From the said decision, it appears that the accused was acquitted by the Special Court on the ground of failure of commencement of trial in spite of lapse of two years from the date of framing of charge. When the matter was brought to the High Court at the instance of the State, the delay in filing of the appeal was condoned and the appeals were dis¬posed of without notice to the accused persons. The said order of the High Court was set aside. In the said judgment relying on A.R. Antulay’s case reported in JT 1991(6) SC 431 the Apex Court further held that in appropriate cases the jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of the Constitution of India can be invoked seeking appropriate relief or suitable directions. The facts of the present case are completely different and I am therefore of the view that the principles laid down in the said decision are well settled prin¬ciples but on facts the said decision is distinguishable. In the case of State of Bihar v. Baidnath Prasad alias Baidyanath Shah and another (supra) the Apex Court held that while considering the question of quashing of a proceeding on the ground of delay, the Court should not ignore the seriousness of the offence in¬volved in the case or the involvement of the accused in dragging the proceeding. As is evident from the discussions made earlier, though on certain dates the prosecution failed to produce the witnesses for examination and since 2005, five witnesses have been examined, the defence has also contributed a lot for delay in disposal of the case by filing different applications at different stages before the trial Court and also approached this Court as well as the apex Court. Apart from the above, for almost ten months there was no Presiding Officer for the said Court and all these factors have contributed to delay in disposal of the case. 4. In view of what has been discussed above, it is not the fault of the prosecution alone for delay in disposal of the case. The petitioner also contributed to a considerable extent for delay in disposal of the case. I, therefore, decline to quash the proceeding on the above ground. 4. In view of what has been discussed above, it is not the fault of the prosecution alone for delay in disposal of the case. The petitioner also contributed to a considerable extent for delay in disposal of the case. I, therefore, decline to quash the proceeding on the above ground. Considering the submissions of Shri Padhi, the learned senior counsel appearing for the C.B.I. that the prosecution is now ready for early disposal of the case, I direct that the learned Special Judge, C.B.I., Bhubaneswar shall try to dispose of T.R. No.151 of 1991 as early as possible preferably by the end of November, 2007. The writ application is disposed of accordingly. Application disposed of.