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2007 DIGILAW 406 (CAL)

ALOKE KUMAR KUNDU v. STATE OF WEST BENGAL

2007-06-07

PRAVENDU NARAYAN SINHA

body2007
( 1 ) THE Judgment of the Court was as follows : this revsional application has been preferred by the petitioner with a prayer to quash the criminal proceeding being Special Case No. 2 of 1997 arising out of Haldibari P. S. Case No. 106/94 dated 1. 10. 94 under Sections 408/471/409 of the Indian Penal Code (in short the. P. C.) now pending in the Court of the learned Additional Sessions Judge cum Special Judge, Cooch behar. ( 2 ) MR. Subir Banerjee, the learned Advocate for the petitioner submitted that the FIR was registered at Haldibari P. S. on 1. 10. 94 and the charge sheet was submitted on 14. 5. 97. On the basis of such charge sheet the Special Case No. 2 of 1997 is now pending in the Court of the learned special Judge at Cooch Behar. Nearly 13 years have passed since the FIR was registered there was no step in the trial and not a single witness has yet been examined. The FIR was lodged by the Chairman of the Haldibari municipality, and subsequently, the de facto complainant submitted a prayer before the District Magistrate, Cooch Behar for withdrawing the case by the prosecution. In the FIR itself towards end it was mentioned that the accused petitioner deposited the alleged defalcated amount within two days from the incident. ( 3 ) MR. Banerjee further submitted that Article 21 of the Constitution enshrines right to speedy trial. Pendency of the case for nearly 13 years in a matter where the alleged defalcated amount was deposited within two days of the alleged incident violates the scope of Article 21 and continuation of the criminal proceeding is an abuse of process of law. He further submitted that though the de facto complainant submitted a prayer before the District magistrate for withdrawing from prosecution, there was no step by the State administration to withdraw from prosecution. In this case, the accused was denied his right and Article 21 of the Constitution was violated. The criminal proceeding accordingly should be quashed. In support of his contention Mr. In this case, the accused was denied his right and Article 21 of the Constitution was violated. The criminal proceeding accordingly should be quashed. In support of his contention Mr. Banerjee cited the decisions in Moti Lal Saraf v. State of Jammu and Kashmir reported in 2006 Cr LJ 4765, Sri Subhas Chandra Das v. The State of West bengal reported in (2006)2 Cal LJ 158, Animesh Chandra Sengupta v. The state of West Bengal reported in 2004 C Cr LR (Cal) 502 Pradlp Mitra v. The state of West Bengal reported in 2003 C Cr LR (Cal) 721, Aswini Kumar bhattacharya v. State of West Bengal reported in (2002)3 Ca\ HN 670 and subir Kumar Basu v. State reported in (2006)2 Cal HN 326. ( 4 ) ON the other hand, Mr. Alok Roy Chowdhury, the learned Advocate for the State submitted that the Chairman of the Haldibari Municipality has no authority or jurisdiction to withdraw from prosecution. Nearly Rs. 27, OOO/- was defalcated which was the amount of Haldibari Municipality. It is a case under Section 409 of the. P. C. concerning defalcation of public, money and this one is not a simple and formal case. At the stage of consideration of charge these points may be raised by the petitioner before the learned Special judge. There is no ground at all to quash the criminal proceeding. ( 5 ) THE FIR lodged by the Chairman of the Haldibari Municipality dated 1. 10. 94 itself reveals that before lodging of the FIR, the amount allegedly defalcated by the accused petitioner amounting to Rs. 27,055,22 was deposited in the treasury. It further appears that the Chairman of the Municipality, who was the de facto complainant, himself submitted a prayer before the District magistrate for withdrawal from prosecution. Such a prayer was made in the year 1997 but, it is evident that the District Magistrate did not pass any order over such application. In my opinion, the Chairman of the Haldibari Municipality was not at all entitled to withdraw from the prosecution. Prayer for withdrawal from prosecution can be considered by Court under Section 321 of the Cr. P. C. provided the conditions prescribed in the said section itself are fulfilled. Two important factors require consideration in this matter. In my opinion, the Chairman of the Haldibari Municipality was not at all entitled to withdraw from the prosecution. Prayer for withdrawal from prosecution can be considered by Court under Section 321 of the Cr. P. C. provided the conditions prescribed in the said section itself are fulfilled. Two important factors require consideration in this matter. It is clear that before lodging of FIR the amount allegedly defalcated was paid by the accused petitioner and such amount was deposited in the treasury. Secondly, the de facto complainant himself submitted a prayer before the District Magistrate, cooch Behar for withdrawal from prosecution though no action was taken over such application. It gives the clear indication that, the de facto complainant was not interested to proceed with the criminal proceeding since the amount allegedly defalcated was already paid by the accused. If is also clear that the accused petitioner was also placed under suspension. ( 6 ) THE other starting feature of this case is that the charge sheet was submitted in the year 1997 and charge was framed against the petitioner on 9th September, 1999. The FIR was registered on 1. 10. 94. More than 12 years 6 months have passed since registration of FIR and 10 years have passed since submission of charge sheet. Nearly 8 years have passed since the charge was framed against the petitioner. The certified copy of the order sheet annexed with the revisional applications clearly reveals that the petitioner is attending the trial Court regularly but till now not a single witness was examined by the prosecution. The order sheet reflects that the witnesses were not examined either due to the transfer of the Presiding Officer of the Court or, that the trial court was busy with other cases or, that the Presiding Officer was on leave and, that the learned public prosecutor prayed for time/adjournment on different dates. In that process the very spirit of Article 21 of the Constitution was violated. The decisions cited by the learned Advocate for the petitioner referred to above are very apposite. It is clear that the petitioner is attending the Court regularly and pendency of the case for more than 12 years has caused great mental agony and anxiety to the petitioner. He had to spent money behind lawyers and also for attending Court for the last 12 years and more. It is clear that the petitioner is attending the Court regularly and pendency of the case for more than 12 years has caused great mental agony and anxiety to the petitioner. He had to spent money behind lawyers and also for attending Court for the last 12 years and more. Article 21 of the constitution prescribes right to speedy trial and it is intended to avoid oppression and prevent delay. It is the bounden duty of the Court and the prosecution to prevent unreasonable delay of trial. In the instant case not a single witness has been examined by the prosecution for the last 8 years since charge was framed against the petitioner. There was no lapse or fault on the part of the petitioner. In a matter of this nature where the amount allegedly defalcated was paid before lodging of FIR continuation of the criminal proceeding any further would be an abuse of the process of law. Accordingly, the State cannot be permitted any further to continue with the proceeding and trial and further pendency of the trial would be total abuse of the process of law. Considering all aspects I am of opinion that this is a fit and proper case. In which interference by this Court is required. In view of the guarantee of fundamental right of speedy trial as enshrined under Article 21 of the Constitution and considering the peculiar facts and circumstances of the case, the present proceeding requires to be quashed. ( 7 ) IN the result, the revisional application succeeds and is allowed. The criminal proceeding being Special Case No. 2 of 1997 now pending in the court of the learned Additional Sessions Judge cum-Judge, Special Court, cooch Behar is hereby quashed. ( 8 ) CRIMINAL Section is directed to forward a copy of this order to the learned Additional Sessions Judge-cum-Judge, Special Court, Cooch Behar for information and necessary action. C. R. R. No. 2805 of 2005 (LATER) let xerox certified copy of this order be given to the parties as expeditiously as possible from the date of making of such application on payment of proper fees and charges. .