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2013 DIGILAW 1017 (JHR)

Bajrang Lal Nagelia v. State of Jharkhand

2013-09-04

R.R.PRASAD

body2013
ORDER Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite party No. 2. 2. The order dated 23.5.2012 passed in Adityapur P.S. Case No. 244 of 2001 under which cognizance of the offence punishable under Sections 406, 420, 120B of the Indian Penal Code has been taken against the petitioners is being sought to be quashed on the ground that the petitioners have been denied right to speedy justice and that no case is made out, even if the allegations made against the petitioners are taken to be true. 3. Learned counsel appearing for the petitioners in this respect submits that the allegation which has been put against the petitioners is that the petitioners secured loan from the Bihar State Financial Corporation after creating equitable mortgage of the property bearing plot No. C-47 but subsequently, the petitioners mortgaged the said property with the Allahabad Bank. Further case is that the petitioners were sanctioned additional loan supposedly upon mortgaging the property, bearing plot No. C-46 but the petitioners in connivance with the officials of Bihar State Financial Corporation did not pledge the document related to that property with the Corporation. On such allegation case was registered though by such act the Corporation cannot be said to have been cheated by the petitioners, rather if anyone has been cheated, it could be Allahabad Bank and thereby the Court has committed wrong in taking cognizance of the offence. In this regard it was further submitted that if any offence is made out, that is made out under Section 42 of the State Financial Corporation Act, 1951 a special Legislation and in that view of the matter, the petitioners cannot be allowed to be prosecuted under General Law. 4. Heard learned counsel appearing for the Corporation. 5. Having heard learned counsel appearing for the parties, it does appear that all these events which were placed by learned counsel appearing for the petitioners took place much before 1994. However, the Corporation came to know about it in the year 1994, still F.I.R. was lodged in the year 2001 and the Investigating Officer took almost more than a decade in submitting charge-sheet which was submitted only on 23.5.2012, upon which cognizance has been taken. However, the Corporation came to know about it in the year 1994, still F.I.R. was lodged in the year 2001 and the Investigating Officer took almost more than a decade in submitting charge-sheet which was submitted only on 23.5.2012, upon which cognizance has been taken. Since cognizance has already been taken of the offence, it would not be desirable keeping in view the severity of the offence alleged to quash the proceeding on the ground of denial of right to speedy justice. 6. Learned counsel has referred to a decision recently rendered in a case of Lokesh Kumar Jain v. State of Rajasthan, (Cr. App. No. 888 of 2013) in order to put forth of his point that in case of infringement of right to speedy justice, criminal proceeding warrants to be quashed. 7. It has been well settled that right to speedy trial in all criminal prosecution is inalienable right under Article 21 of the Constitution of India but at the same time, it has been held by the Honble Supreme Court that unless the Court feels having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. 8. In this respect, I may refer to a decision rendered in a case of Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355 wherein it has been observed as follows : "It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in Court but also includes within its sweep 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. 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." 9. Here in the instant case, it is said that the petitioners by committing offence of cheating have put the Corporation to loss of Rs.2 crore and odd. However, it was disputed by learned counsel appearing for the petitioners by saying that the Corporation is calculating the loss by including the amount of interest as well as penal interest which accrued on the amount which was due to be paid to the Corporation. 10. Be that as it may, the gravity of the offence alleged to have been committed does not warrant quashing of the criminal proceeding on the ground of denial to right to speedy justice when on submission of charge trial is to be taken up which needs to be expedited. So far as the case relied upon on behalf of the petitioner is concerned, the fact of the case was as such which call for quashing of the proceeding. In that case upon lodgment of a case, it was investigated upon. During investigation nothing came against the petitioner of that case. Hence, final form was submitted. However, the Court directed the police to go for further investigation. Police took up the matter again but failed to collect any material against the petitioner even after lapse of about eight years. That apart, the petitioner had been exonerated from the same charge in a departmental proceeding. 11. Hence, final form was submitted. However, the Court directed the police to go for further investigation. Police took up the matter again but failed to collect any material against the petitioner even after lapse of about eight years. That apart, the petitioner had been exonerated from the same charge in a departmental proceeding. 11. Coming to the other aspect of the matter, I do find that the allegations do not fall within the parameter of Section 42 of the State Financial Corporation Act as it never happens to be the case of the Corporation that any false statement was made for securing the loan, rather the allegation is that land was mortgaged to Corporation while securing loan but the said land was again mortgaged to the Allahabad Bank. 12. Further allegation seems to be that the petitioners were also supposed to mortgage another property bearing plot No. C-46 on account of having additional loan but in connivance with the officials of State Financial Corporation that was never mortgaged and without mortgaging that property loan was secured. 13. Since the allegation prima facie does constitute offence under which cognizance has been taken, I do not find it a fit case for quashing of the order taking cognizance. Accordingly, this application stands dismissed. 14. However, the petitioners would be at liberty to take all the points which have been taken in this application at an appropriate stage. 15. Before parting with this order, it be stated that any finding recorded may not be prejudicial to the case of the parties and that at this stage, the defence of the petitioners has not been taken into account. Application dismissed.