Mahesh Chandra Pattnaik v. State (Vigilance Department)
2010-02-24
B.K.PATEL
body2010
DigiLaw.ai
JUDGMENT B.K. PATEL, J. — In this Criminal Revision, the petition¬er has assailed the order dated 9.3.2007 passed by the learned Special Judge, Vigilance, Bhubaneswar in T.R. No.40 of 2007 taking cognizance of alleged commission by the petitioner of offence under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988. 2. In view of the limited nature of grievance raised by the learned counsel for the petitioner in course of hearing, the back ground facts of the case may be narrated in brief as follows : The petitioner entered into service on 5.5.1962 and worked in various capacities under the Revenue Department of the State Government till he retired on superannuation on 30.11.1997. When the petitioner was in service, search operation was conducted by the officers of the Vigilance Department on 16.10.1998. On the basis of search, FIR was lodged on 7.11.1988 alleging that the petitioner was found to have acquired and possessed pecuniary resources worth Rs.4,69,150.90 paise which was disproportionate to his known sources of income. On completion of investigation, charge-sheet was filed in the Court of C.J.M., Cuttack against the petitioner on 27.3.1995, i.e., 7 years after lodging of the FIR. In the charge-sheet it was alleged that the disproportionate assets of the petitioner was calculated at Rs.78,240.54 paise. On 3.4.1995 original documents were sent to copying section for preparation of copies of police papers. On 7.3.2007., on receipt of copies of police papers, the case record was submitted to the Court of Special Judge, Vigilance, Bhubaneswar, upon which order dated 9.3.2007 taking cognizance of offence was passed. On ap¬pearance of the petitioner in Court on 9.8.2007 the case was posted to different dates for supply of copies of some police papers as requested by the petitioner. It is stated that copies of police papers which were requested to be supplied, have not been made available inspite of filing of this revision on 24.9.2007. 3. It was strenuously contended by the learned counsel for the petitioner that the case was registered in the year 1988 and after lapse of 19 years, in the year 2007, the petitioner was supplied with an incomplete set of police papers. Inspite of the prayer made by the petitioner, copies of vital documents relied upon by the prosecution have not been supplied so far. Even after a lapse of more than two decades trial has not commenced.
Inspite of the prayer made by the petitioner, copies of vital documents relied upon by the prosecution have not been supplied so far. Even after a lapse of more than two decades trial has not commenced. There is no likelihood of conclusion of the trial within a reasonable period. Therefore, the petitioner has been deprived of his right to speedy trial under Article 21 of the Constitution. Relying upon the decision of the Hon’ble Supreme Court in Vakil Prasad Singh v. State of Bihar reported in AIR SCW 1418 it was strenu¬ously contended that as the delay in investigation and prosecu¬tion is not at all attributable to the petitioner, the impugned order as well as criminal proceeding is liable to be quashed in exercise of revisional jurisdiction under Section 397 read with 401 as well as inherent jurisdiction under Section 482 of the Code of Criminal Procedure. 4. In reply, it was contended by the learned counsel for the State that as the prosecution against the petitioner relates to commission of offence under Prevention of Corruption Act, on the allegation that he was found to be in possession of assets disproportionate to known sources of income, investigation was bound to be time consuming. Delay occurred in Court after submis¬sion of charge sheet as the petitioner wanted copies of some of the documents which were not supplied to him with the police papers. Therefore, to some extent the petitioner also contributed to the delay. 5. It is now well settled that Article 21 of the Constitution includes a right in the accused to be tried speedi¬ly. Upon reference to decisions in Hussainara Khatoon and others v. Home Secretary, State of Bihar (1980) 1 SCC 81 , Abdul Rehman Antulay and others v. R.S. Nayak and another : (1992) 1 SCC 225 and P. Ramachandra Rao v. State of Karnataka : (2002) 4 SCC 578 , the Hon’ble Supreme Court in Vakil Prasad Singh v. State of Bihar (Supra), in which prosecution had been launched against the appellant for alleged commission of offences under Sections 161 (before its omission by Act 30/2001), 109 and 120-B of the Indian Penal Code and Section 5(2) of Prevention of Corruption Act, 1947, held and concluded as follows : “15. It is, therefore, well settled that the right to speedy trial in all criminal prosecutions is an in alienable right under Article 21 of the Constitution.
It is, therefore, well settled that the right to speedy trial in all criminal prosecutions is an in alienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in Court but also includes within its weep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the Court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the Court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the Court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the Court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial. 16. Tested on the touchstone of the broad principles enumer¬ated above, we are convinced that in the present case appellant’s constitutional right recognized under Article 21 of the Constitu¬tion stands violated. It is manifest from the facts narrated above that in the first instance investigations were conducted by an officer, who had no jurisdiction to do so and the appellant cannot be accused of delaying the trial merely because he suc¬cessfully exercised his right to challenge an illegal investiga¬tion. Be that as it may, admittedly the High Court vide its order dated 7th September, 1990 had directed the prosecution to complete the investigation within a period of three months from the date of the said order but nothing happened till 27th February, 2007 when, after receipt of notice in the second peti¬tion preferred by the appellant complaining about delay in inves¬tigation, the Superintendent of Police, Muzaffarpur directed the Deputy Superintended of Police to complete the investigation. It was only thereafter that a fresh chargesheet is stated to have been filed on 1st May, 2007.
It was only thereafter that a fresh chargesheet is stated to have been filed on 1st May, 2007. It is also pertinent to note that even till date, learned counsel for the State is not sure whether a sanction for prosecuting the appellant is required and if so, whether it has been granted or not. We have no hesita¬tion in holding that at least for the period from 7th December, 1990 till 28th February, 2007 their is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or trial was in any way attributable to the appellant. The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trail under Article 21 of the Constitution. We feel that under these circumstances, further continuance of criminal proceedings, pending against the appel¬lant in the Court of Special Judge, Muzaffarpur, is unwarranted and despite the fact that allegations against him are quite serious, they deserve to be quashed. 17. Consequently, the appeal is allowed and the proceedings pending against the appellant in Special Case No.29 of 1987 are hereby quashed.” 6. In course of hearing, a report was called for from the Special Judge, Vigilance, Bhubaneswar which reveals that though the case record was sent by the C.J.M., Cuttack for copying of the documents on 3.4.1995, copies of police papers were received on 7.3.2007. After appearance of the petitioner before the Special Judge, Vigilance, Bhubaneswar, copies of police papers received from the Court of C.J.M., Cuttack were supplied to him on 10.1.2008 and the case was posted to 14.2.2008 for considera¬tion of charge.
After appearance of the petitioner before the Special Judge, Vigilance, Bhubaneswar, copies of police papers received from the Court of C.J.M., Cuttack were supplied to him on 10.1.2008 and the case was posted to 14.2.2008 for considera¬tion of charge. On 14.2.2008 a memo was filed on behalf of the petitioner requesting for supply of copies of some other docu¬ments and for supply of legible copies of some of the police papers which had been supplied to him. Learned Special Judge, Vigilance directed the prosecution to supply legible copies of police papers and copies of documents as prayed for. But the prosecution did not supply the same on the ground that the said documents had not been received from the Court of C.J.M., Cut¬tack. Thereafter the prosecution submitted legible copies of some of the police papers on 5.5.2009 with an undertaking to file copies of remaining documents soon after receipt thereof from the Court of C.J.M. Cuttack. 7. On consideration of facts and circumstances of the present case in the light of principles enumerated in Vakil Prasad Singh v. State of Bihar (supra) I am of the considered judgment that the petitioners’ constitutional right under Article 21 of the Constitution has been violated. There is no explanation with regard to delay of seven years in investigation. It took long twelve years thereafter for preparation of copies of police papers. Moreover, petitioner’s grievance to have not been sup¬plied with copies of some of the relevant documents and to have been supplied with some illegible copies of police papers was also not attended to for redressal with promptitude inspite of Court’s direction. It is pertinent to observe that though on the basis of an enquiry preceding lodging of the FIR it was alleged in the FIR that the petitioner was in possession of dispropor¬tionate assets worth Rs.4,69,150.90 paise, in the charge sheet he was alleged to have possessed disproportionate assets worth Rs.78,240.54 paise approximately. No circumstance is brought to the notice to indicate that delay in investigation as well as com¬mencement of trial may be attributed to the petitioner. Also, it is not at all shown that any exceptional circumstances exists for over looking the inordinate delay. Therefore, further delay by allowing continuance of criminal proceeding against the petition¬er, being violative of Article 21 of the Constitution, is unwar¬ranted.
Also, it is not at all shown that any exceptional circumstances exists for over looking the inordinate delay. Therefore, further delay by allowing continuance of criminal proceeding against the petition¬er, being violative of Article 21 of the Constitution, is unwar¬ranted. In order to ensure propriety and secure the ends of jus¬tice, the proceeding is liable to be quashed. 8. Consequently, the revision is allowed. The impugned order is set aside and proceeding against the petitioner in T.R. No.40 of 2007 in the Court of learned Special Judge, Vigilance Bhubaneswar is quashed. Revision allowed.