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Madhya Pradesh High Court · body

2008 DIGILAW 597 (MP)

H. S. S. RAGHUVANSHI v. STATE OF M. P.

2008-04-21

R.C.MISHRA

body2008
Judgment R.C.Mishra, J. ( 1. ) his is a petition, under Section 482 of the Code of Criminal Procedure (for short the Code), for having the FIR and consequent investigation quashed. The corresponding case has been registered as Crime No.33/ 06 at Special Police Establishment Lokayukt, Bhopal in respect of the offences punishable under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. ( 2. ) The background facts may be summarized as under: - "A departmental enquiry was initiated against the petitioner upon the charge that on 02.06.2000, while working as Assistant Estate Manager of M.P. Housing Board as against total requirement of Rs.2489/ - as registration charges, he had taken an amount of Rs.6000/ - from K.P.Tiwari for getting sale deeds executed in favour of her daughters Manju Sharma and Anju Thapak and failed to refund the excess amount. Ultimately, he was found guilty and was punished with penalty of stoppage of two increments with cumulative effect. His appeal, under Section 16(2)(a) of M.P. Grih Nirman Mandal Adhiniyam, 1972, was dismissed by the Board. Although, he challenged legality of the appellate order of the Board, by preferring an appeal, under Section 16(2)(b) of the Adhiniyam, before the State Government yet, without waiting for its decision, he invoked writ jurisdiction of this Court. His writ petition is pending as W.P. No. 556/07. ( 3. ) The petitioner has challenged the initiation of criminal proceedings in view of the following facts : (i) There is an inordinate delay in lodging the FIR. (ii) The adverse finding in the departmental enquiry, forming basis of the prosecution, is still under judicial review. (iii) The first informant is a total stranger to the transaction. ( 4. ) In response, learned Standing Counsel for SPE Lokayukt has submitted that none of the grounds raised necessitates any interference with a legitimate prosecution of the petitioner. ( 5. ) It is a well settled that any one can set or put the criminal law into motion except where the statute enacting or creating ah offence indicates to the contrary (A. R. Antulay v. Ramdas Nayak and another AIR 1984 SC 718 referred to). Further, the Board, as the employer, has a discretion, in every case, whether or not to initiate criminal prosecution in addition to departmental proceedings for a particular misconduct attributable to its employee. ( 6. Further, the Board, as the employer, has a discretion, in every case, whether or not to initiate criminal prosecution in addition to departmental proceedings for a particular misconduct attributable to its employee. ( 6. ) Thus, the only question that is required to be addressed is as to whether, in the facts and circumstances of the case, the FIR deserves to be quashed on the ground of delay in lodging the same ? ( 7. ) Admittedly, the FIR pertaining to the offence, allegedly committed on 2/6/2000, was lodged on 9/11/2006 i.e. after a considerable period of more than six years. ( 8. ) Learned counsel for the petitioner, while placing primal reliance upon a decision of the Supreme Court in The State of Punjab Vs. Kailash Nath (1989 (1) Crimes 126), has contended that an unexplained and unconscionable delay in initiating investigation is sufficient to quash the FIR. In that case, legality of the High Courts order quashing the FIR as against the respondent Kailash Nath on the ground that same having been lodged six years after the event of alleged misconduct and three years after his retirement was in the teeth of Rule 2.2 of the Punjab Civil Service Rules was called in question. The relevant portion of sub - rule (b) of the Rule, as extracted in the judgment, reads : - "(b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Govt, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re - employment after retirement. Provided that: (1) and (2) ......... (3) No such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re - employment shall be. instituted in respect of a cause of action which arose or an event which took place more than four years before such institutions : Explanation : For the purpose of this rule. (a) ......... (b) a judicial proceeding shall be deemed to be instituted. instituted in respect of a cause of action which arose or an event which took place more than four years before such institutions : Explanation : For the purpose of this rule. (a) ......... (b) a judicial proceeding shall be deemed to be instituted. (i) in the case of a criminal proceedings on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance is made........" ( 9. ) Although, the Apex Court reversed the view taken by the High Court that the 3rd proviso (supra) placed absolute or general embargo on prosecution of Government servants yet, maintained its order quashing the FIR on the ground of inordinate delay. In this view of the matter, all that Kailash Naths case (above) lays down is that it is open to quash a prosecution on the ground of unexplained unconscionable delay in making the FIR and it is, thus, no authority for the proposition that a mere delay in lodging the FIR would, by itself, serve as a sufficient ground for quashing the proceedings in pursuance of the registration of the case notwithstanding whatever may be the reasons for the delay. This view is fortified by a subsequent pronouncement of the Supreme Court in State of Andhra Pradesh vs. P. V.Pavithran AIR 1990 SC 1266 . The illuminating observations clinching the point under consideration are reproduced below: "There is no denying the fact that a lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceedings to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis. Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence or inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the Court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation . The determination of the question whether the accused has been deprived of a fair trial on account of delayed or protracted investigation would also, therefore, depend on various factors including whether such delay was unreasonably long or caused deliberately or intentionally to hamper the defence of the accused or whether such delay was inevitable in the nature of tilings or whether it was due to the dilatory tactics adopted by the accused. The Court, in addition, has to consider whether such delay on the part of the investigating agency has caused grave prejudice or disadvantage to the accused. The assessment of the above factors necessarily vary from case to case. ( 10. ) Adverting to facts of the case on hand, it may be observed that the departmental enquiry initiated against the petitioner could be concluded on 7/2/ 2004 only. The adverse findings recorded by the Enquiry Officer and the consequent penalty are subject matter of challenge in W.P. No. 566/07. Considering the very nature of offence and the plea of defence in the Enquiry, it is not possible to conclude that the delay in lodging the FIR would cause any prejudice to the petitioner in his defence or occasion a failure of justice. ( 11. ) In Adarsh Kumar Batra vs. State of Punjab 1991 CRI.L.J. 118, the FIR was not quashed on the ground of inordinate delay of 8 years alone but also for the reasons that it did not contain any specific allegation that building was constructed by accused over plot purchased by his wife or that he spent huge amount on construction of house and that income of wife was not taken into consideration while holding that he made or spent mote money during the check period over these items in excess of known sources of his income or that of his wife. Further, in Kulbir Singh vs. State of Punjab 1991 CRI.L J. 1756, the FIR lodged after lapse of 9 years and all proceedings resulting therefrom against accused were quashed on the ground that the accused would be prejudiced in defending himself effectively in view of the fact that actual measurement of subject matter of offence of embezzlement viz. stone metal was not possible as it was in scattered position. stone metal was not possible as it was in scattered position. It is relevant to note that in Kulbir Singhs case (supra), only one of the facets of the delay in lodging the FIR was highlighted by quoting the following observations made by the Supreme Court in P.V. Pavithrans case (above): - "There is no denying the fact that a lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceedings to live every moment under extreme emotional and merital stress and strain and to remain always under a fear psychosis. Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence or inefficiency of the investigating agency causing unreasonable and substantial Delay resulting in grave prejudice or disadvantage to the accused the Court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation." ( 12. ) However, these observations can not be read in isolation as, after considering the other material aspects of the matter, it was categorically laid down in P. V. Pavithrans case only that no general and wide proposition of law can be formulated that whenever there is inordinate delay on the part of the investigating agency in completing the investigation, such delay, ipso facto, would provide ground for quashing the First Information Report or the proceedings arising therefrom. (emphasis supplied) ( 13. ) In State of Haryana vs. Bhajan Lal AIR 1992 SC 604 the Supreme Court, after illustrating category of cases attracting interference under S. 482 Of the Code, also sounded a note of caution to the effect that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases. Accordingly, the FIR disclosing commission of an offence punishable under Section 13(l)(d) read with 13(2) of the Prevention of Corruption Act 1988, does not deserve to be quashed on the ground of delay. ( 14. ) For these reasons, the question formulated above is answered in the negative. ( 15. ) In the result, petition stands dismissed. Petition dismissed.