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2012 DIGILAW 901 (RAJ)

Jagdish Kumar Chandel v. State of Rajasthan

2012-04-11

NISHA GUPTA

body2012
JUDGMENT 1. - This revision petition has been filed against the judgment dated 22.5.2000 passed by the appellate Court in Appeal No. 70/1996 whereby the appeal has been dismissed upholding the conviction of the appellant for the offences under Sections 409, 467, 471 and 477A I.P.C. 2. The present petitioner has been convicted for the above offences and has been sentenced as under: For offences under Sections 409, 467, 471 and 477A Six months S.I. with a fine of Rs. 200/-, in default of payment of fine to undergo further one moths' S.I. 3. During course of arguments, the learned counsel for the petitioner has not press conviction of the present petitioner. He submitted on the point of sentence and he has further submitted that the conviction is liable to be quashed on the ground that the present petitioner has denied his right to speedy trail.4. The present petitioner has placed reliance on the judgment reported in the case of Banwari Lal v. State of Rajasthan, 2011 (2) Cr.L.R. (Raj.) 1461 , which is mainly based on Hussainara Khatoon v. Home Secretary, State of Bihar and Abdul Rehman Antule v. R.S. Nayak, (1992) 1 SCC 225 , where the constitutional Bench of the Apex Court has held as under: "The Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay?; (iv) 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 work-load of the Court concerned, prevailing local conditions and so on-what is called, the systemic delays; (v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. 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; (vi) ultimately, the Court has to balance and weigh several relevant factors-'balancing test' or 'balancing process'-and determine in each case whether the right to speedy trial has been denied; (vii) Ordinarily speaking, where the Court comes to a 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 and having regard to the nature of offence and other circumstances when the Court feels that quashing of proceedings cannot be in the interest of justice, it is open to the Court to make appropriate orders, including fixing the period tor completion of trial; (viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. 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." 5. The contention of the present petitioner is that the matter pertains to year 1982. The petitioner has been convicted by the trial Court in 1985. He preferred appeal which took 15 years to conclude and now revision petition is also lingering from last 12 years and hence he has been denied right to speedy trial which includes all the stages of trial, investigation, appeal and revision also.6. There is no fault in the above submission that the right to speedy trial is a right of the person who is facing that before any Court and right of speedy trial encompasses all the stages of investigation, trial, appeal and even revision. The first question to be put up which has to be answered that who is responsible for the delay. In the trial Court, it cannot be inferred that any right to speedy trial has been infringed. The trial has been concluded in three years. The first question to be put up which has to be answered that who is responsible for the delay. In the trial Court, it cannot be inferred that any right to speedy trial has been infringed. The trial has been concluded in three years. Against the conviction, appeal has been filed by the present petitioner and the record of the trial Court goes to show that on most of the dates of hearing, time has been sought by the present petitioner and hence the prosecution cannot be blamed for the delay in the disposal of the appeal, and when the present petitioner has taken time for most of the occasions, he cannot complain that his right to speedy trial has been adversely prejudiced. Same scenario could be seen in the present revision petition. Initially, revision petition was filed without arraying the C.B.I. as a party. The Court has ordered accordingly. Thereafter, the learned counsel for the petitioner has submitted that he is not in contact with the petitioner. Then he has been summoned through a bailable warrant. Again on some dates, none present for the petitioner and the matter has been dismissed in non-prosecution. On the prayer of the petitioner, the order was recalled and the matter was listed for hearing. All these go to show that petitioner is responsible for the delay of the proceedings and he cannot take advantage of his own conduct and it can safely be concluded that the right to speedy trial has not been infringed by anybody and he cannot take advantage of his own conduct. The cases which have been relied upon by the learned counsel for the petitioner are having totally different facts where no charge-sheet has been filed after more than 20 years and only the prosecution was responsible for seeking adjournments, but here in the present case, the petitioner himself is responsible for seeking adjournments and hence the conviction cannot be quashed on the ground of infringement of his right under Article 21 of the Constitution of India for speedy trial.7. The next contention of the present petitioner is that the matter pertains to 1982. He has been dismissed from service. He is T.B. Patient since long. He is 70 years of age. He is still under treatment and money has been paid to the proper persons after some time. Hence it is a case of temporary retention. The next contention of the present petitioner is that the matter pertains to 1982. He has been dismissed from service. He is T.B. Patient since long. He is 70 years of age. He is still under treatment and money has been paid to the proper persons after some time. Hence it is a case of temporary retention. The present petitioner has already undergone 18 days imprisonment and his sentence should be reduced to that already undergone by him and he has placed reliance on the judgment reported in the case of S. Natrajan v. State of Mysore (Special Police Establishment), AIR 1980 SC 639 . 8. The learned Public Prosecutor has submitted that the facts of the case are quite different. In the case of S. Natrajan (supra) money was not paid on account of some mistake which was deducted on 22.5.1971 and the amount has been disbursed on 1.6.1971 but here in the present case, the present petitioner has obtained the amount of money order which has to be paid to Smt. Laxmi Devi and others. The present petitioner has prepared forged receipt on the voucher of money order and also made wrong entries in the record and he has misappropriate the money or Rs. 2360/- in the year 1982 and looking to the nature of the offence he deserves no sympathy.9. Looking to the facts of the case when the present petitioner has misappropriated the money and willfully prepared the forged receipt on the voucher of the money order, the present petitioner deserves no sympathy. It is not in dispute that the present petitioner has re-paid the money when the complaint has been made by the victims but payment of the money could not absolve the present petitioner from his liability.10. The present petitioner has misappropriated the public money and looking to the fact that the cases of misappropriation and corruption in dealing with public money are increasing, the present petitioner deserves no sympathy.11. Looking at the above facts and circumstances of the case, there is no merit in this revision petition and the same is liable to be dismissed. The revision petition is, therefore, dismissed. The petitioner is on bail. He should surrender before the trial Court to undergo rest of the sentence.Revision Dismissed. *******