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Sunday, July 21, 2013

Extra-ordinary delay even charge sheet not filed due to Non- Availability of original records of misappropriation - for the same offence the accused was exonerated in departmental proceedings - FIR is quashed = It is not disputed by the respondent that the departmental proceeding was initiated against the appellant with regard to identical charges made in the FIR. It was alleged that as per CAG Inquiry Report dated 15th December, 2008 Rs.4,39,617/- has been misappropriated by the appellant, all the copies of original bills and documents are available in the office of CAG and the original documents are available in the office of the Directorate, State Literacy Programme. In the departmental proceeding identical allegation was made that as per the Inquiry Officer Report, an embezzlement of Rs.4,39,617/- was found to be done by the appellant. 32. During the investigation inspite of several requests made by the Investigating Agency (Police), the records in respect of allegation were not produced. No evidence came against the appellant-Lokesh Kumar Jain, from the file of the education department. As the case was pending since long and there was no possibility of availability of record in the near future, FR No.67/2000 against the appellant was filed before the CJM, Dausa. The CJM, Dausa by his order dated 18th November, 2000 on perusal of Final Report, in exercise of power conferred under Section 156(3) Cr.PC directed the SHO, Dausa to re-investigate the case with the assistance of complainant and to procure the original records. Inspite of order dated 18th November, 2000, for nine years, records were not made available, as apparent from the Inquiry Report dated 15th December,2008. There is nothing on the record, even by way of counter affidavit filed before this Court to show that record has now been traced to make it available to the Investigating Agency. There is no probability of finding out original documents or evidence mentioned in the counter affidavit. Though, delay has been alleged on the part of the appellant, there is nothing on the record to suggest that the appellant caused delay in the matter of investigation. On the other hand, the silence on the part of the respondent regarding availability of the original record or other evidence before the Investigating Agency shows that the delay caused due to inaction on the part of the respondent. Therefore, in our view, keeping investigation pending for further period will be futile as the respondent including Directorate for the State Literacy Programme is not sure whether original records can be procured for investigation and to bring home the charges. Considering the fact that delay in the present case is caused by the respondent, the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution is thereby violated and as the appellant has already been exonerated in the departmental proceedings for identical charges, keeping the case pending against the appellant for investigation, is unwarranted, the FIR deserves to be quashed. 34. In the result, the appeal is allowed and the FIR No.10/2000 lodged in Police Station, Dausa as against the appellant is hereby quashed.

            published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40537                                               

 REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 888    OF 2013
                    (ARISING OUT OF SLP(Crl.)NO.4513 OF 2012)

LOKESH KUMAR JAIN                                        … APPELLANT

                            VERUS

STATE OF RAJASTHAN                                … RESPONDENT

                               J U D G M E N T


1

SUDHANSU JYOTI MUKHOPADHAYA, J.


      Leave granted.  This  appeal  has  been  preferred  by  the  appellant
against the order dated 2nd March, 2012 passed by the Rajasthan High  Court,
Jaipur Bench in S.B. Criminal Miscellaneous Petition No.605 of  2006  titled
Lokesh Kumar Jain v. State of Rajasthan.
By the  impugned  order,  the  High
Court refused to quash the  FIR  No.10/2000  lodged  against  the  appellant under Section 409 IPC at Police Station, Dausa.
The petition under  Section
482 Cr.PC was disposed of by the High Court with the following observation:

           “This criminal misc. petition has been filed      under  section
     482 Cr.PC for quashing of  FIR      No.10/2000  registered  at  Police
     Station, Dausa.

           This Court has asked the learned  counsel  for  the   petitioner
     whether challan has been filed or not.  He replied that still  challan
     has not been filed and the matter is under investigation.

            If  it  is  to,   the   petitioner   is   permitted   to   file
     representation/documents on the basis of the judgment of  the  Hon'ble
     Supreme Court or any   other Court, the I.O.  Should  investigate  the
     matter on the basis of the judgment/documents/representation so  filed
     by the      petitioner and thereafter shall file  progress      before
     the court concerned.

           Accordingly, the petition is disposed of.”




In order to appreciate  the  rival  stands  of  the  parties,  it  would  be
necessary to notice the background facts in a greater detail.

The appellant was posted as Lower Division Clerk (for short,  'LDC')  during
the period November,  1996  to  November,1997  in  the  Office  of  District
Literacy Education Officer,  Dausa.
On  4th  January,  2000,  the  District
Literacy Education Officer, Dausa  registered  a  First  Information  Report
(for short, 'FIR') in Police Station, Dausa alleging therein that  when  the
appellant was  posted  as  LDC-cum-Cashier,  a  financial  irregularity  was
committed by him.
As per the report of Auditor General, an embezzlement  of
Rs.4,39,617/- has been discovered.  The original copies  of  the  bills  and
documents were available in the office of the Auditor  General  and  in  the
office of Directorate for the State Literacy Programme.
Therefore,  on  the
basis of report given by the Auditor General, the FIR was filed.

On the basis of report submitted by the complainant, the Police  lodged  FIR
No.10/2000 of the incident alleged to have taken place  in  the  year  1996-
1997, implicating appellant as an accused.
After making investigation,  the
Police submitted a final report in the matter on 2nd  June,2000  before  the
Chief Judicial Magistrate, Dausa (hereinafter  referred  to  as  the,  “CJM,
Dausa”)

During the pendency of the matter before the  CJM,  Dausa,  the  complainant
filed  an  application  on  18th  November,  2000  before  the  CJM,   Dausa
requesting therein to send  back  the  matter  to  the  Police  for  further
investigation.  The CJM, Dausa vide order dated 18th  November,  2000,  sent
back the matter to the Police under Section 156(3) of Cr.PC. Since then  the
matter remained pending with the police.  According  to  the  appellant,  he
met as well as represented on a number of times to  the  Police  Authorities
and the Departmental Authorities but still no action has been taken  by  the
Authorities. Neither final report is submitted  nor  the  challan  is  being
filed and the matter is pending since then.  Earlier in  the  final  report,
it was stated that the Police informed  that  the  original  copies  of  the
bills and another documents are not available, therefore,  no  investigation
could be made.

Having waited for more than six years, the appellant  preferred  a  petition
under Section 482 Cr.PC before  the  Rajasthan  High  Court  being  Criminal
Miscellaneous  Petition  No.605/2006  to  set  aside  the   FIR   No.10/2000
registered at Police Station, Dausa.

In the meantime, a Departmental Inquiry was initiated against the  appellant for the same charges in which the Inquiry Officer  after  inquiry  submitted his  report  on  15th  December,2008  exonerating  the  appellant  from  the charges.

The High Court by  impugned  order  dated  2nd  March,  2012  chose  not  to
interfere with the FIR and again  left  the  matter  in  the  hands  of  the
authorities. Hence, the special leave petition was filed  by  the  appellant
before this Court.

Learned counsel for the appellant challenged the decision of the High  Court
on the following grounds:

      (a)   Since the date of order passed by the CJM, Dausa  the  appellant
      has been suffering the harassment of investigation for  more  than  13
      years which is not completed till date because of lack  of  supply  of
      documents.

      (b)   After filing the closure report way back in  the  year  2000  no effective investigation has taken place.

      (c)   If investigation is allowed  to  continue  even  in  absence  of
      document, it will be futile and  can  only  cause  harassment  to  the
      appellant, serving no purpose as even in the departmental inquiry  for
      said charges conducted against the appellant in  the  year  2009,  the
      appellant was exonerated as none of the charges which  also  form  the
      basis of the present FIR could be proved against the appellant.

He also relied on decisions of this Court which will  be  discussed  in  the
following paragraphs of this judgment.

The State of Rajasthan has filed counter affidavit. According to  them,  the
investigation is still continuing and the appellant himself is delaying  the
same due to non-cooperative attitude adopted by him.  In any case, from  the
investigation carried out  till  now,  offence  under  Section  409  IPC  is
clearly made out against  the  appellant  and  on  this  ground  alone,  the
petition seeking quashing of FIR is liable to be  dismissed  and  the  legal
process deserves to be taken to a logical end.

12.   Though the aforesaid stand has been taken by the respondent  in  their
counter affidavit,  the  respondent  is  silent  about  the  documents  i.e.
whether  they  have  been  made  available  to  the   Police   for   further
investigation. Further no specific instance was shown to  suggest  that  the
appellant  failed  to  cooperate  with  the  Investigating  Agency  on   any
particular date.


2

13.   Before deciding the question
whether  under  the  given  circumstances
the High Court should have exercised its inherent powers under  Section  482
Cr.PC to prevent abuse of process of any court or otherwise  to  secure  the
ends of justice, it will be desirable to notice some  of  the  decisions  of
this Court relating to  categories  of  cases  wherein  extraordinary  power
under Section 482 Cr.PC could be exercised by  the  High  Court  to  prevent
abuse of process of the Court.


3

14.   In State of Haryana v. Bhajan Lal, 1992 (Suppl.) 1 SCC 335 this  Court
while formulating the categories of cases by way  of  illustration,  wherein
the extraordinary power under the aforestated provisions could be  exercised
by the High Court to prevent abuse of process of the Court and  observed  as
follows:-

    “102. In the backdrop of the interpretation  of  the  various  relevant
    provisions of the Code under Chapter XIV and of the principles  of  law
    enunciated by this Court in a  series  of  decisions  relating  to  the
    exercise of the extraordinary power under Article 226 or  the  inherent
    powers under Section 482 of  the  Code  which  we  have  extracted  and
    reproduced above, we give the following categories of cases by  way  of
    illustration wherein such power could be exercised  either  to  prevent
    abuse of the process of any court or otherwise to secure  the  ends  of
    justice, though it may not be possible to lay down any precise, clearly
    defined and sufficiently channelised and inflexible guidelines or rigid
    formulae and to give an  exhaustive  list  of  myriad  kinds  of  cases
    wherein such power should be exercised.


    (1)    Where the allegations made in the first  information  report  or
    the complaint, even if they are taken at their face value and  accepted
    in their entirety do not prima facie constitute any offence or make out
    a case against the accused.
    (2)    Where the allegations in the first information report and  other
    materials, if any, accompanying the FIR do not  disclose  a  cognizable
    offence, justifying an investigation by police officers  under  Section
    156(1) of the Code except under an order of  a  Magistrate  within  the
    purview of Section 155(2) of the Code.
    (3)     Where  the  uncontroverted  allegations  made  in  the  FIR  or
    complaint and the evidence collected in support  of  the  same  do  not
    disclose the commission of any offence and make out a case against  the
    accused.
    (4)    Where, the allegations in the FIR do not constitute a cognizable
    offence but constitute only a non-cognizable offence, no  investigation
    is permitted by a police officer without an order of  a  Magistrate  as
    contemplated under Section 155(2) of the Code.
    (5)    Where the allegations made in the FIR or complaint are so absurd
    and inherently improbable on the basis of which no prudent  person  can
    ever reach a just  conclusion  that  there  is  sufficient  ground  for
    proceeding against the accused.
    (6)    Where there is an express legal bar  engrafted  in  any  of  the
    provisions of the Code or the concerned Act  (under  which  a  criminal
    proceeding is instituted) to the institution  and  continuance  of  the
    proceedings and/or where there is a specific provision in the  Code  or
    the concerned Act, providing efficacious redress for the  grievance  of
    the aggrieved party.
    (7)    Where a criminal proceeding is  manifestly  attended  with  mala
    fide and/or where the proceeding  is  maliciously  instituted  with  an
    ulterior motive for wreaking vengeance on the accused and with  a  view
    to spite him due to private and personal grudge.”


15.   Need for speedy investigation and trial as both are  mandated  by  the
letter and spirit of the provisions of Cr.PC have been  emphasized  by  this
Court in numerous cases.

16.   In Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1  SCC
81 this Court observed that Article 21 confers a fundamental right on  every
person not to be deprived  of  his  life  or  liberty  except  according  to
procedure established by law; that such procedure is not some  semblance  of
a procedure but the procedure should be “reasonable,  fair  and  just”;  and
therefrom flows, without doubt,  the  right  to  speedy  trial.  This  Court
further observed that:

     “8. In regard to the exercise of  the  judicial  power  to  release  a
     prisoner awaiting trial on bail or on the execution of a personal bond
     without sureties for his appearance, I have to say this briefly. There
     is an amplitude of power in this regard within the existing provisions
     of the Code of Criminal Procedure, and it is for the courts  to  fully
     acquaint themselves with the nature and extent of their discretion  in
     exercising it. I think it is  no  longer  possible  to  countenance  a
     mechanical exercise of  the  power.  What  should  be  the  amount  of
     security required or the monetary obligation demanded in a bond  is  a
     matter calling for the careful consideration of several  factors.  The
     entire object being only to ensure that the undertrial does  not  flee
     or hide himself from trial,  all  the  relevant  considerations  which
     enter into the determination of  that  question  must  be  taken  into
     account. A synoptic impression of what the considerations could be may
     be drawn from the following provision in the United States Bail Reform
     Act of 1966:


         “In determining which conditions of releases will reasonably assure
         appearance, the judicial officer shall, on the basis  of  available
         information, take into account the nature and circumstances of  the
         offence charged, the weight of the evidence  against  the  accused,
         the  accused's  family  ties,  employment,   financial   resources,
         character and mental condition, the length of his residence in  the
         community, his record of convictions, and his record of  appearance
         at court proceedings or of flight to avoid prosecution  or  failure
         to appear at court proceedings.”


     These are considerations which should be kept in mind when determining
     the amount of the security or monetary obligation. Perhaps, if this is
     done the abuses  attendant  on  the  prevailing  system  of  pre-trial
     release in India could be avoided or, in any event, greatly reduced.”




17.   In Abdul Rehman Antulay v. R.S. Nayak, (1992) 1  SCC  225,
the  Court
formulated as many as 11 propositions with a  note  of  caution  that  these
were not to be treated as  exhaustive  and  were  meant  only  to  serve  as
guidelines.

   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 re-trial. 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. 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 Barker “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  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 Barker 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. 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.”


18.   Seven learned Judges of this Court in  P. Ramachandra Rao v. State  of
Karnataka, (2002) 4 SCC 578, considered the validity of the ratio laid  down
in Common Cause case (I) as modified in Common Cause case (II) and  Raj  Deo
Sharma  (I)  and  (II)  cases  wherein  this  Court  prescribed  periods  of
limitation beyond  which  the  trial  of  a  criminal  case  or  a  criminal
proceeding cannot continue and directed to close the proceeding by an  order
acquitting or discharging the accused in such cases. In the said case of  P.
Ramachandra Rao(supra) after exhaustive consideration of  the  authority  on
the subject this Court held:

      “29. For all the foregoing reasons, we are  of  the  opinion  that  in
      Common Cause case (I) [as modified in Common Cause (II)] and  Raj  Deo
      Sharma (I) and (II) 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), Raj Deo  Sharma  (I)  and
      Raj Deo Sharma (II) 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). 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  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  CrPC  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.”


19.   This Court in Vakil Prasad Singh v. State of Bihar, (2009) 3  SCC  355
considered the question of quashing of criminal proceedings  due  to  delay,
when warranted. Referring to earlier decisions of this Court on  the  issue,
this Court held that speedy investigation and trial, both are  enshrined  in
Cr.PC. The right to speedy trial is guaranteed  under  Article  21  and  the
same is applicable  not  only  to  actual  proceedings  in  court  but  also
includes within its sweep the preceding police investigations as well.

20.   In Vakil Prasad Singh(supra) one search  operation  was  conducted  by
the office of  Superintendent  of  Police,  Crime  Investigation  Department
(Vigilance), Muzaffarpur, on the basis of a  complaint  lodged  by  a  civil
contractor against the accused, an Assistant Engineer  in  the  Bihar  State
Electricity Board (Civil) Muzaffarpur, for  allegedly  demanding  a  sum  of
Rs.1000 as illegal gratification for release of payment for the  civil  work
executed by him.  The case was instituted on 8th April, 1981 and the charge-
sheet  for  aforesaid  offences  was  filed  against  the  accused  on  28th
February, 1982.  The Magistrate took cognizance  on  9th  December,1982  but
nothing substantial happened. The accused filed  a  petition  under  Section
482 Cr.PC before the Patna High  Court  against  the  order  passed  by  the
Special Judge, Muzaffarpur taking cognizance of the said  offences,  on  the
ground that the Inspector of Police, who had conducted  the  investigations,
on the basis whereof the charge-sheet was filed,  had no jurisdiction to  do
so.  Accepting the plea, the High Court by its  order  dated  7th  December,
1990 quashed the order of the Magistrate taking cognizance and directed  the
prosecution to complete the investigation within three months.  However,  no
further progress was made and the matter rested there till  1998,  when  the
accused filed another petition under Section 482 Cr.PC, giving rise  to  the
appeal before this Court.

21.   Having noticed the ratio laid down by this Court in  number  of  cases
including  State of  Haryana  v.  Bhajan  Lal  (supra),  Hussainara  Khatoon
(supra),  Abdul Rehman Antulay (supra) etc. and the relevant facts of  Vakil
Prasad Singh (supra) case, this Court was of the view  that  it  was  a  fit
case where the High Court should have exercised its power under Section  482
Cr.PC as the State was not sure as to whether  a  sanction  for  prosecuting
the accused is required and if so, whether it has been granted  or  not  and
that the case was pending for about 17 years  and  the  proceedings  against
the appellant was quashed.

22.   To find out the factual scenario, we have noticed the background in  a
greater detail as mentioned hereunder:

23.   On 4th January,  2000,  the  following  allegation  was  made  by  the
complainant-District Literacy & Education  Mission  Officer,  Dausa  in  the
FIR, the relevant portion of which is quoted below:

                          “First Information Report

      Office of literacy  and  continuous  education  mission,  Dausa  File
     No.672 dated 4.1.2000

      To,

      The SHO

      Police Station: Dausa

      Subject: Regarding misappropriation of the amount of pending Bill for
     the period 11.96-11.97 by Sh.Lokesh Jain LDC(Cashier),

      In reference to the above subject, it is requested  that  Sh.  Lokesh
     Jain, Lower Division Clerk (Cashier) presently under suspension  while
     working on the post of cashier has committed financial  irregularities
     for which financial department and office of CAG conducted an  enquiry
     which is annexed herewith.

      As per the enquiry report Rs.4,39,617 has been  misappropriated,  all
     the copies of the original bill are present in the office of  CAG  and
     the original documents are available  in  the  office  of  Directorate
     State Literacy and Education Mission.

      Hence, it is requested that an FIR may be got registered on the basis
     of the annexed enquiry report of the office of the CAG.

      Enclosures enquiry 8 pages

                                                                        Sd/-

                                               District Literacy & Education

                                                     Mission Officer, Dausa”

24.   After conducting investigation,  the  Investigation  Agency  submitted
Final Report on 2nd June,2000 before the CJM, Dausa,  the  relevant  portion
of which reads as follows:

            “Brief Facts of the case:

            Respected Sir,

            The facts of the present case are that on  4.1.2000  Sh.  Murari
      lal S/o Sh.  Harmukh  Prasad,  caste:  Brahmin,  aged  56  years,  R/o
      Village: Oonch, P.S: Nandbai, District:Bharatpur presently  posted  as
      district literacy and mission education officer, Dausa,  presented  in
      the Police Station and filed one report against Sh. Lokesh Kumar  Jain
      (LDC) presently under suspension that Lokesh  Jain  while  working  as
      cashier, committed  certain  financial  irregularities  which  emerged
      during an enquiry conducted  by  the  office  of  the  Controller  and
      Auditor General as per which  misappropriation  of  Rs.4,39,619/-  has
      been reflected.

            Copy of report is annexed; copies of the  original  document  of
      CAG and original document of  state  literacy  and  mission  education
      office are available.  On the basis of the said report FIR  No.10/2000
      u/s 409  of  IPC  was  registered  and  investigation  witnesses  were
      recorded. Oral requests were  made  several  times  to  the  concerned
      department for producing the requisite document pertaining to the case
      but was ineffective subsequently on 13.4.2000. A notice was issued u/s
      91 Cr.PC  for making available of the requisite document  but  despite
      that no record was made available.

            Again on  21.4.2000  a  notice  u/s  91  Cr.PC  was  issued  and
      directions were given that in case of non-supply of document one sided
      action will be taken.  No document, no record was produced.

            During the course of investigation  pertaining  to  Lokesh  Jain
      (LDC) for the period 11.96 -11.97 statements of Sh.  Kailash  and  Ram
      Kishor Bairwa (Jr. accountant) who stated  that  during  investigation
      credit-debit record was not  made  available  and  they  showed  their
      inability to produce the record before the  I.O,  No.  T.P.  31162,  a
      complaint was also given in this regard, C.O. has also written to  the
      department to produce the record but they showed  their  inability  to
      produce the same.

            The present case, several requests were made for  production  of
      record but the same was not produced.  No evidence  came  against  Sh.
      Lokesh Jain, from the file of the education department.  The case  has
      been pending since long and there is no probability of availability of
      record in the near future.  Further investigation will be taken on the
      receipt of the records from the concerned departments.

            Hence  FR  No.67/2000  is  being  filed  for  kind  perusal  and
      acceptance because of insufficient evidence.”




25.   On perusal of Final  Report,  the  CJM,  Dausa  passed  the  following
order:

     “Before the Chief Judicial Magistrate

     District: Dausa, Dausa

     Complainant: Murari Lal

     FIR No. 10/2000

     18.11.2000

     Present App.

     Present complainant: Sh Murari Lal Sharma

     In this case final report has been filed with the  avernment  that  the
     original  record  has  not  been  supplied  to  the   SHO   and   hence
     investigation cannot be carried out.  The  complainant  Murari  Lal  is
     present and he is ready to  cooperate  with  the  police  officers  for
     procuring the said records.

     Hence u/s 156(3) Cr.PC the SHO Dausa is directed to re-investigate  the
     case with the  assistance  of  Sh.  Murari  Lal  literacy  and  mission
     education officer to procure the original records.  Final report is not
     accepted, case diary is being returned.

                                                                    Sd/- CJM

                                                     District: Dausa, Dausa”

26.   Thereafter, nothing on the record suggest that after the  order  dated
18th November, 2000 passed by the CJM, Dausa  the  respondent  produced  the
original records before the Investigation Agency for further  investigation.


27.   At least for more than nine years neither original  records  could  be
traced by the Authorities nor  any  relevant  document  could  be  found  to
implicate the appellant, as evident  from  the  Inquiry  Report  dated  15th
December,2008 submitted by the Inquiry Officer  whereby  the  appellant  was
exonerated over the identical charges for which criminal  case  was  lodged.
The respondent inspite of repeated requests by the  Inquiry  Officer  failed
to produce any records including originals from the Bank  to  establish  the
guilt of  the  delinquent  official,  Sh.Lokesh  Kumar  Jain.  The  relevant
portions of Inquiry Report dated 15th December, 2008 are quoted hereunder:

    “The prosecuting officer after the lapse of various dates has presented
    the following documents:

    a) Books of  accounts,  Encashment  Register  and  Bill  register  (all
    photocopies)

    b) Letter dated 26-04-2004 issued by S.B.B.J. Bank Branch  Dausa  which
    was addressed to the office of Literacy officer, Dausa.

    c) Letter dated 21-11-2008 issued by the office of the treasurer of the
    treasury.

    d) Letter bearing CA/II/Dausa/176 dated 04-11-2008 issued by the office
    of the chief auditor.

    According to the aforesaid documents, the photocopies of  the  original
    documents was shown to the alleged officer.  After the perusal  of  the
    photocopies, the alleged officer denying the same has again  filed  the
    application on 12-01-2009 and demanded that  he  might  be  allowed  to
    peruse the original records.  The objections were raised by the alleged
    officer and the prosecuting  officer  was  given  strict  direction  to
    present the original record and evidence.  On the  next  several  dates
    also the prosecuting officer  failed  to  produce  any  other  original
    record.

    On 24-07-2009, the alleged officer along with the assistant perused the
    case and the related document  and  letters  in  the  presence  of  the
    prosecution party and for the purpose of  the  presenting  the  written
    argument the case was fixed for 29-07-2009. The defence appearing along
    with the assistant has filed his written argument which  was  taken  on
    record.

    The prosecution party and the defence party were  given  one  last  and
    final  opportunity  to  present   the   witness/evidence/documents   in
    accordance with the principle of natural justice.  On  the  date  fixed
    neither   the   prosecution   nor   the   defence   has   filed   their
    witness/evidence/documents.

    According to the notification, following offence  was  alleged  against
    Shri Jain on 22-12-2007:

    1. That you Shri Lokesh Kumar Jain (Cashier) being in the office of the
    District Education and Education officer Dausa from 20-11-1995 to 13-11-
    1997, was given the work of accountant.

    According the inquiry report of 11/96  to  11/97,  an  embezzlement  of
    Rs.4,39,617/- was found to be done by you.

    The details of the allegation is depicted as follows:

    a) Bills of F.V.C. amounting to Rs.65,330/- is found to be  entered  in
    the Bill Register but after the passing of the bill from the  treasury,
    the entry of which was not found in the encashment register  and  books
    of account.

    There is no entry of any bill of F.V.C. in the aforesaid manner in  the
    photocopy of the records (Cash book, Encashment Register) filed by  the
    prosecution in respect of the offence alleged.  From the  bare  perusal
    it becomes clear that the bill which  is  entered,  the  earlier  entry
    record of which is entered according to the rules. The letter  of  both
    the agencies were produced in respect  of  the  withdrawal  of  various
    bills of F.V.C. amounting to Rs.65,330/- (P-1) from the  banks  and  in
    respect of passing from the treasury and the said bills are also  found
    to be mentioned in the bill register (P-2) (P-3). The  entries  of  the
    bills are not available in  the  other  records  apart  from  the  Bill
    Register.  On the basis of the documents produced (P-2)  (P-3)  by  the
    prosecution, the original bill which was to be obtained from the office
    of the Chief Auditor, was not received (P-4).

    Hence it is not clear that which person has withdrawn  the  said  bills
    from the bank nor the original bill is there on  record,  looking  into
    the pages of which conclusion could be drawn that who has withdrawn the
    amount of the said bills from the bank.

    In the light of the said evidence (P-2) (P-3) the  first  part  of  the
    offence (1), the offence of embezzlement of amount by  withdrawing  the
    amount of said bills from the banks could not establish  the  guilt  of
    the Delinquent Officer Shri Lokesh Kumar Jain. Hence the  part  of  the
    offence is not established in respect of the accused.

    2.     The entry of the Bills of F.V.C. amounting to  Rs.2,96,100/-  is
    found in the Bill Register, Encashment Register and Books of account:-

    In respect of the said offence, the original bill or the carbon copy of
    the said bills is not filed by the prosecution.  On the  basis  of  the
    documents P-1 and P-2 filed by the State, the delinquent  member  could
    not be held guilty for the withdrawal of the amount of the said  bills.
    The said offence merely on the basis of the letters  of  the  bank  and
    Treasury could not be regarded as cogent evidence. The entries  of  the
    bills are not available on any record of the  related  office.  In  the
    inquiry, the original bills are not available with the Assistant Agency
    Treasury nor the carbon copies  of  the  bills  are  available  in  the
    office.   In  the  said  facts  and  circumstances,  it  could  not  be
    established that the said bills are withdrawn by Shri Lokesh Kumar Jain
    because in ordinary course of business it is not  possible  for  single
    person to execute the entire work that is to say generation  of  bills,
    getting it passed and withdrawing the same.

    Hence the second part of offence is  not  proved  against  Shri  Lokesh
    Kumar Jain for want of cogent and sufficient proof.

    3.     Embezzlement of the amount of  Rs.78,179/-  by  withdrawing  the
    bills of the other department in the head of Literacy and Education  in
    the Budget.

    The prosecution has filed the evidence of (P-2) (P-3) in respect of the
    offence.  According to the evidence,  the  payment  was  made  for  the
    purpose of making the payment of the bills  of  said  Sparsh  Vidyalaya
    RAMAVI Dhigariya but in the budget  the  same  is  under  the  head  of
    Literacy and Education department.

    The entire part  of  the  offence  is  completely  disputed.  There  is
    withdrawal of the bills of the other department in the head of Literacy
    and Education in the Budget but it is not clear as to who has  received
    the payments.  Merely on the basis of the Treasury office regarding the
    fact of expenditure and receiving  the  payments  does  not  prove  the
    delinquent officer to be the guilty of the  offence.   It  is  possible
    that error might have happened by the other assisting  agency.   It  is
    also impossible to pass the bill merely on the budget head.   It  could
    not be ascertained, without looking to pages of the  original  records,
    whether the guilty officer has obtained the payment of the  bills  from
    the bank or not.

                                 CONCLUSION:

    On the basis of the records, evidence and documents  presented  in  the
    proceedings and upon the basis of written and oral  arguments  of  both
    the parties, the undersigned comes to the conclusion that who was  made
    the payment of amount of  various  bills  alleged  in  the  offence  is
    doubtful.  All the said  bills  were  passed  by  the  Treasurer.   The
    original and carbon copies of the said entire bills  is  not  available
    with the department.  Merely  on  the  basis  of  the  letters  of  the
    Assisting Agencies the offence against the alleged officer is not found
    to be established.

                                                        Sd/- Chitarmal Meena

                                      Inquiry Officer and Principal Officer,

                                           RAU Department Bhandarej, Dausa.”



28.   In P.S. Rajya v. State of Bihar, (1996) 9 SCC 1,  this  Court  noticed
that the appellant was exonerated in  the  departmental  proceeding  in  the
light of report of the Central Vigilance Commission  and  concurred  by  the
Union Public Service Commission. The criminal case was pending  since  long,
in spite of the fact that the appellant was exonerated in  the  departmental
proceeding for same charge.

29.   Having regard to the aforesaid fact,  this  Court  held  that  if  the
charges which is identical  could  not  be  established  in  a  departmental
proceedings, one wonders what  is  there  further  to  proceed  against  the
accused  in  criminal  proceedings  where  standard  of  proof  required  to
establish the guilt is far higher than the standard  of  proof  required  to
establish the guilt in the departmental proceedings.

30.   Having regard to the  factual  scenario,  noted  above,  and  for  the
reasons stated below, we are of the opinion that the  present  case  of  the
appellant is one  of  the  fit  cases  where  the  High  Court  should  have
exercised its power under Section 482 Cr.PC.
 It  is  not  disputed  by  the
respondent that  the  departmental  proceeding  was  initiated  against  the
appellant with regard to identical charges made in the FIR. 
It  was  alleged
that as per CAG Inquiry Report dated 15th December, 2008  Rs.4,39,617/-  has
been misappropriated by the appellant, all the copies of original bills  and
documents are available in the office of CAG and the original documents  are
available in the office of the Directorate, State Literacy Programme.

31.   In the departmental proceeding identical allegation was  made that  as
per the Inquiry Officer Report, an embezzlement of Rs.4,39,617/-  was  found
to be done by the appellant.

32.   During the investigation inspite  of  several  requests  made  by  the
Investigating Agency (Police), the records in  respect  of  allegation  were
not produced.  
No evidence came against  the  appellant-Lokesh  Kumar  Jain,
from the file of the education department.  
As the case  was  pending  since
long and there was no possibility of availability  of  record  in  the  near
future, FR No.67/2000 against  the  appellant  was  filed  before  the  CJM,
Dausa. 
The CJM, Dausa by his order dated 18th November, 2000 on  perusal  of
Final Report, in exercise of power  conferred  under  Section  156(3)  Cr.PC
directed the SHO, Dausa to re-investigate the case with  the  assistance  of
complainant and to procure the original records.  
 Inspite  of  order  dated
18th November, 2000, for nine years, records were  not  made  available,  as
apparent from the Inquiry Report dated 15th December,2008.

33.   There is nothing on the record,  even  by  way  of  counter  affidavit
filed before this Court to show that record has now been traced to  make  it
available to the Investigating Agency. 
There is no  probability  of  finding
out original documents or  evidence  mentioned  in  the  counter  affidavit.
Though, delay has been alleged on  the  part  of  the  appellant,  there  is
nothing on the record to suggest that the  appellant  caused  delay  in  the
matter of investigation.  
On the other hand, the silence on the part of  the
respondent regarding availability of the original record or  other  evidence
before the Investigating Agency shows that the delay caused due to  inaction
on  the  part  of  the  respondent.  
Therefore,   in   our   view,   keeping
investigation pending for further period will be futile  as  the  respondent
including Directorate for the State Literacy Programme is not  sure  
whether original records can be procured for investigation and  to  bring  home  the
charges. 
Considering the fact that delay in the present case  is  caused  by
the respondent, the constitutional guarantee of a speedy  investigation  and
trial under Article 21 of the Constitution is thereby violated  and  as  the
appellant has already been exonerated in the  departmental  proceedings  for
identical charges, keeping  the  case  pending  against  the  appellant  for
investigation, is unwarranted, the FIR  deserves to be quashed.

34.   In the result, the appeal is allowed and the FIR No.10/2000 lodged  in
Police Station, Dausa as against the appellant is hereby quashed.





                                             ………………………………………………………………………….J.
                                         (T.S. THAKUR)




                                              ……………………………………………………………………….J.
                                  (SUDHANSU JYOTI MUKHOPADHAYA)




NEW DELHI,
JULY 9,2013

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