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2010 DIGILAW 749 (GAU)

Goutam Sengupta v. State of Tripura

2010-09-22

A.C.UPADHYAY

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JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. B.N. Majumder, learned Counsel appearing for the Petitioner as well as Mr. A. Ghosh, learned Additional Public Prosecutor, Tripura appearing for the State Respondents. 2. This application has been filed by the Petitioner under Article 226 of the Constitution of India read with Article 227 of the Constitution of India and Section 482 Cr.P.C., praying for a direction for quashing the Criminal Case No. G.R. 1518/1992, pending before the Addl. Chief Judicial Magistrate, West Tripura, Agartala. 3. Facts, leading to filing this petition, may be summarized, as follows: 4. The Petitioner, as far back in the year 1973, joined in the Department of Fisheries, Government of Tripura as Fishery Officer. By the passage of time, he became one of the senior most Fishery Officers in the Department of Fisheries and, accordingly, he was sent on deputation as Executive Officer to the Tripura Apex Fisheries Cooperative Societies Limited (hereafter referred to in short as TAFCS Ltd.), a Government of Tripura undertaking managed by a Managing Committee, constituted under the Chairmanship of a politically designated person. In the year 1992, Sri Narayan Das, Ex-MLA of Melaghar Assembly Constituency, was the Chairman of the TAFCS Ltd. As a Chairman of the Managing Committee, Sri Narayan Das, had the power to sign cheques amounting to more than Rs. 5,000/- (rupees five thousand) and also to take policy decision in respect of the TAFCS Ltd. While the Petitioner was working as Executive Officer in the TAFCS Ltd., he worked together with 12-14 staffs, out of them, 3 officers were brought on deputation from the Department of Fisheries and the rest staffs were the employees appointed by the TAFCS Ltd. While the Petitioner was working in the TAFCS Ltd. On 17.11.1992, an FIR was lodged by the Director of Fisheries Department, Government of Tripura, against the Petitioner. The FIR was registered as East Agartala PS Case No. 12(11)/1992 under Section 409 IPC, alleging therein that while the Petitioner was working as Executive Officer of TAFCS Ltd., on physical verification of cash on 31.08.1992, a shortfall of Rs. 3,48,202.75 was detected. It was further alleged that Rs. 85,075/-, which was received by the Petitioner from the Chief Executive Officer, Fishery Pharma development Agency, North Tripura, was also not found at the time of physical verification of cash on 31.08.1992. 3,48,202.75 was detected. It was further alleged that Rs. 85,075/-, which was received by the Petitioner from the Chief Executive Officer, Fishery Pharma development Agency, North Tripura, was also not found at the time of physical verification of cash on 31.08.1992. In the FIR it was also alleged that the Petitioner was asked to refund the amount of Rs. 4,33,277.75 but since the said amount was not deposited by the Petitioner, the case was registered against him under appropriate section of Indian Penal Code and the investigation was carried out. During the course of investigation, the Petitioner was arrested on 05.12.1992, and subsequently, was released on bail by the Chief Judicial Magistrate, West Tripura, Agartala. Immediately after the arrest, the Petitioner was put under suspension. On completion of the investigation, the investigating police officer submitted charge sheet in the case on 23.06.1995 against the Petitioner, alleging commission of offence under Section 409 IPC. 5. Mr. B.N. Majumder, learned Counsel appearing for the Petitioner has submitted that though there was allegation for defalcation of an amount of Rs. 85,075/- by the Petitioner and another sum of Rs. 3,48,202.75 but, in fact, witnesses to the prosecution categorically revealed that the amount of Rs. 85,075/- was returned by the Petitioner to Sri Madan Chakraborty, Cashier and the amount of Rs. 3,48,202.75 was also shown to have been received by the office of the TAFCS Ltd. from the Cooler In-Charge, Pradip Choudhury, Fishery Officer to collect the same from the sale of fish of Dumbur Reservoir. 6. It is further stated on behalf of the Petitioner that since there were complaints against the TAFCS Ltd. for its irregular financial transactions, the Director of Fisheries, Govt. of Tripura, had constituted an Inquiry Committee, headed by Sri Sunil Choudhury, Account Officer of the Directorate of Fisheries, who visited the officer of the TAFCS Ltd. on 10.08.1992 for inquiry and, on that day, the Petitioner was pre-occupied in a meeting with the Registrar of Cooperative Societies, and as such, could not make himself available in the TAFCS Ltd. however, he had handed over the second key of the iron safe of the office to the Cashier, Madan Chakraborty. On 10.08.1992, the Petitioner met with an accident and had to remain in the hospital till 12.08.1992. On 10.08.1992, the Petitioner met with an accident and had to remain in the hospital till 12.08.1992. During the period of his hospitalization, Sri Madan Chakraborty, Cashier of the TAFCS Ltd. handed over the key of the iron safe of the office to the wife of the Petitioner. 7. However, on 31.08.1992, when the Enquiry Committee, headed by Sri Sunil Choudhury, opened the iron safe, cash amount was not found available and Sri Madan Chakraborty, Cashier, was also found absconding and was not fund for interrogation by the investigating police officer. 8. It is submitted on behalf of the Petitioner though the amount was misappropriated by the Cashier, Sri Madan Chakraborty, but the Petitioner was falsely implicated and was also placed under suspension due to the criminal case pending against him. However, the suspension order was subsequently revoked by the authority concerned. 9. It is contended on behalf of the Petitioner that even after lapse of 18 years after institution of the FIR against the Petitioner, the trial has not taken place, which has caused serious prejudice to the Petitioner. Learned Counsel for the Petitioner further contended that finally on 26.07.2008, formal criminal charge under Section 409 IPC has been framed against the Petitioner and Sri Madan Chakraborty, Cashier but till date the prosecution failed to examine any of the witnesses. Learned Counsel for the Petitioner has submitted that the delay in trial of the case has infringed the right of the Petitioner for speedy trial as guaranteed under Article 21 of the Constitution of India and further such delay has caused the following adversities to the Petitioner: (i) Although he was exonerated from the departmental proceeding but the service benefit (promotional, gradational benefits) is denied to him and by this time, although your humble Petitioner has gone on superannuation, till date his pensionary benefit has not been settled. (ii) Due to the non-settlement of the service benefit as well as the pensionary benefit in favour of your humble Petitioner, the son of the Petitioner Shri Sarat Sengupta who is prosecuting higher study in IIPM, Bangaluru, Karnataka, could not continue with the same since your humble Petitioner is not in a position to support him financially and bear the expenses required for his studies. (iii) That due to the delay in the proceedings of the case the Petitioner is under immense mental and physical pressure. (iii) That due to the delay in the proceedings of the case the Petitioner is under immense mental and physical pressure. Due to his aforesaid implication in the criminal case his prestige in the society is affected and he is carrying the mental pain and agony for the last 16 years due to the pendency of the criminal trial against him. (iv) Because of the delay of 16 years, your humble Petitioner is unable to make out a strong defense case because of the non availability of crucial documents/defense witnesses to support his case. 10. It is further contended on behalf of the Petitioner that the delay in trial was not attributable to the Petitioner. Learned Counsel for the Petitioner has pointed out the dates, on which he religiously appeared in the Court expecting the trial to be over, but unfortunately for almost 18 years he is still waiting for conclusion of the trial. 11. Learned Counsel for the Petitioner has relied on the following decisions in support of his contention: 1. (1980) 1 SCC 81 : Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar 2. (1992) 1 SCC 225 : Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr. 3. (2002) 4 SCC 578 : P. Ramchandra Rao v. State of Karnataka 4. (1998) 7 SCC 507 : Rajdeo Sharma v. State of Bihar, (1999) 7 SCC 604 : Rajdeo Sharma v. State of Bihar 5. 1981(1) SCC 75 : State of Bihar v. Uma Shankar Ketriwal and Ors. 6. 1994 Cri. LJ 1975: Santosh De v. Archana Guha and Ors. 7. AIR 2008 SC 5165: Pankaj Kumar v. State of Maharashtra and Ors. 8. (1981)1 SCC 75 (3) State of Bihar v. Uma Sankar Ketriwal 12. Though learned Counsel cited the above decisions in support of his contention, however I am of the view that the decisions of the Hon'ble Supreme Court in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 and P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 , cited by him squarely dealt with the subject matter of right to speedy trial covering the decisions cited by the learned Counsel for the Petitioner. Therefore, I do not propose to thrash out the decision cited by the learned Counsel separately. 13. Therefore, I do not propose to thrash out the decision cited by the learned Counsel separately. 13. In Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 , the Apex Court after due deliberation of the question seriously canvassed before it relating to the consequence flowing from an infringement of right to speedy trial, held as follows: 86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: (1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the right to speedy trial from the point of view of the accused are: (a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise. (4) At the same time, one cannot ignore the fact that it is usually 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. (4) At the same time, one cannot ignore the fact that it is usually 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 prosecution. 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 an 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. (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on - what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (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 Barker22 "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 White, J. in U.S. v. Ewell 39 in the following words: '... Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker22 "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 White, J. in U.S. v. Ewell 39 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 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. (7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker22 and other succeeding cases. (8) Ultimately, the court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis. 14. In P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 , the Apex Court discussed and laid the principle of right to speedy trial as follows: In the order dated 19-9-2000, the Bench of three learned Judges stated: "The question is whether the earlier judgments of this Court, principally, in 'Common Cause' A Registered Society v. Union of India3, 'Common Cause' A Registered Society v. Union of India4, Raj Deo Sharma v. State of Bihar1 and Raj Deo Sharma (II) v. State of Bihar2 would apply to prosecutions under the Prevention of Corruption Act and other economic offences. Having perused the judgments aforementioned, we are of the view that these appeals should be heard by a Constitution Bench. We take this view because we think that it may be necessary to synthesise the various guidelines and directions issued in these judgments. We are also of the view that a Constitution Bench should consider whether time limits of the nature mentioned in some of these judgments can, under the law, be laid down." The Apex Court while considering whether time-limits of the nature mentioned in some of these judgments can, under the law, be laid down held as follows: 29. For all the foregoing reasons, we are of the opinion that in Common Cause case (I)3 [as modified in Common Cause (II)4] and Raj Deo Sharma (I) 1, (1998) 7 SCC 507 and (II)2 the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A.R. Antulay case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time limits or bars of limitation prescribed in the several directions made in Common Cause (I), (1996) 4 SCC 33 , Raj Deo Sharma (I), (1998) 7 SCC 507 and Raj Deo Sharma (II), (1999) 7 SCC 604 could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay case, (1992) 1 SCC 225 and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. (5) The criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482 Code of Criminal Procedure and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act. We answer the questions posed in the orders of reference dated 19-9-2000 and 26-4-2001 in the above said terms. 15. Keeping in view the discussion in decision of the Hon'ble Supreme Court and the guidelines laid in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 and P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 , it would be pertinent to trace the history of the case pending against the accused/Petitioner 16. It may be, first of all, pointed out that the maximum punishment for commission of offence alleged against the Petitioner, under Section 409 IPC is imprisonment life. 17. It may be, first of all, pointed out that the maximum punishment for commission of offence alleged against the Petitioner, under Section 409 IPC is imprisonment life. 17. Perusal of the lower Court record reveals delay in disposal was contributed by the co-accrued Madan Chackroboty, by remaining absent on the dates fixed by the learned court below. On perusal of the Lower Court Records it appears that after framing of a formal charge under Section 409/34IPC against the Petitioner and Madan Chakraborty on 26.04.2008, as many as 7(seven) dates were fixed on various days starting from 16.07.2008 to 23.07.2008 by the trial Court, for recording of the evidence of the prosecution witnesses. Unfortunately, 16.07.2008, the evidence of the witnesses could not be recorded as the presiding officer of the Court was put on suspension. As no presiding officer was put in the vacant post due to suspension of the officer, the criminal trial also remained suspended. The position did not change till the Petitioner filed this revision on 12.12.2008, which resulted in stay of the proceedings in the Court below. 18. As a matter of fact, the prosecution did not get any opportunity to adduce testimony of any of its witnesses after framing charge against the accused/Petitioner, due to above reason i.e. absence of the presiding officer in the Court. 19. Therefore, taking into consideration the entire gamut of facts leading to the situation, in the facts and circumstances of the case, I propose to dispose of this petition with a direction to the learned Addl. Chief Judicial Magistrate, West Tripura, Agartala to dispose of the G.R. Case No. 1518 of 1992 expeditiously. Further, considering that the trial is pending for such a long time, learned Addl. Chief Judicial Magistrate, West Tripura, Agartala, shall make every endeavour to dispose of the case within a period of 4(four) months from the date of receipt of the copy of this order, together with the lower court records. Ordered accordingly. 20. The Registry is directed to transmit the records of GR Case No. 1518 of 1992 received from the learned Court below together with a copy of the order, by deputing a special messenger. 21. With the above direction and order the writ petition stands disposed of.