IN THE HIGH COURT OF JHARKHAND AT RANCHI. Cr. M.P.No. 2866 of 2014 1.Gopal Chandra Oraon @ Gopal Chand Oraon 2.Dinanath Sinha @ D.N.Sinha Petitioners. Versus The State of Jharkhand through Vigilance . Respondent. ----- CORAM : THE HON'BLE MR. JUSTICE RAVI NATH VERMA ----- For the Petitioners : M/s Sudhir Sahay & Sunil Kr. Sinha For the Vigilance : Mr. Shailesh Kr. Singh ----- Reserved on 05.05.2016. Delivered on 16 /09/2016. ----- R.N.Verma,J.
Invoking the inherent power of this court under section 482 of the Code of Criminal Procedure ( in short “the Code”) the two petitioners have prayed for quashing of the entire criminal proceeding, including the order taking cognizance dated 25.09.2012 passed by the Special Judge ( Vigilance) Ranchi in Special Case no. 28 of 1989 arising out of Khunti P.S.Case no. 57 of 1989.
2. Bereft of unnecessary details, the fact, which is relevant for the proper adjudication of the dispute between the parties, in short, is that at the instance of the Officer-in-Charge, Khunti Police Station, Khunti P.S. Case no. 57 of 1989 was instituted on 30.05.1989 under sections 419, 420,465,467,468,409,120(B) of the Indan Penal Code and section 7/13(c)(1-b)15 of the Prevention of Corruption Act, 1988 with the allegation that 300 bags of cement, total value of Rs. 10,000/- was seized from a truck by the Officer-in-Charge, Khunti Police Station and on inquiry, it came in the light that the said cement was being removed towards Ranchi town by one Rajendra Prasad Singh, a man of contractor P.K.Mukherjee, instead of construction site. The said Contractor was assigned the work of construction of bridge over the river Banail. It is alleged that cement was obtained from the REO Department for construction of said bridge, but it was subsequently sold to the said Rajendra Prasad Singh at the rate of Rs.60/- per bag and that cement was issued by the godown keeper of the said Department, on a slip signed by its Junior Engineer. On the basis of enquiry from one Girdhari Mandal, Junior Engineer, Headquarter, -2- REO, the aforesaid case was lodged against the petitioners, the contractor, Rajendra Prasad Singh and the truck driver. Whereafter the statement of Girdhari Mandal, Junior Engineer was recorded under section 164 Cr.P.C. After investigation, the police submitted the charge-sheet almost on completion of 23 years of lodging of the F.I.R. Learned court below being satisfied with sufficiency of materials took cognizance of offence vide order dated 25.09.2012 and proceeded with the case. Hence, this criminal Misc. Petition.
3. After filing of this case, a supplementary affidavit on behalf of the petitioners, was filed disclosing that in the light of Clause 1.20 of the Agreement between the Department and the Contractor double of the price of the cement was later on deducted from the bills of the contractor.
4. Mr. Sudhir Sahay, learned counsel appearing for the petitioners assailing the order taking cognizance as well as continuance of criminal proceeding as bad in law and perverse, seriously contended that the FIR was lodged in the year 1989 but the charge-sheet was submitted almost after 23 years i.e in the year 2012 though there was no latches on the part of the petitioners, rather petitioners always co-operated with the investigation and as such keeping investigation pending for such a long period is unwarranted and it is against the principle of Constitutional Guarantee of Speedy Trial under Article 21 of the Constitution of India. Hence, the order taking cognizance deserves to be quashed and that the court below erred in law in taking cognizance of the offence when there was a provision in the agreement for realization of double of the cost of the cement and the same has already been realized from the bill of the contractor, which would be evident from the statement made in the supplementary affidavit. It was also submitted that there had been a lull in the investigation for fairly long spell causing inordinate delay and the trial according to law is yet to commence, as such it is eminently fit case for quashing the entire criminal proceeding including the order taking cognizance. In support of his contention, learned counsel has relied on several judgments of Hon'ble Supreme Court like (2013) 11 SCC-130 : Lokesh Kumar Jain.Vs. State of Rajasthan, (1990) 2SCC-340: State of AndhraPradesh Vs. -3- P.V.Pavithran and (2009)3 SCC-355: Vakil Prasad Singh.Vs. State of Bihar.
5. Per contra, Mr. Shailesh, learned counsel appearing for the Vigilance contended that the delay in submission of the charge-sheet was also , to some extent, attributable to the petitioners and it was not that the delay was only on the part of of the Investigating Authority and since there is sufficient materials against the petitioners and other accused persons for proceeding in the case, the submission of quashing of the entire proceeding can not sustain. It was also submitted that the competent authority has already granted sanction against the two petitioners and in fact, there was delay in grant of sanction by the authority concerned and whatever delay has been caused, is procedural delay. In support of his contention,learned counsel has relied on a judgment reported in (2013) 4 SCC-642 : Niranjan Hemchandra Sashittal Vs. State of Maharashtra and further submitted that though petitioners have a right to speedy trial as enshrined in the Constitution of India as well as in the Code of Criminal Procedure but as the allegation relates to Prevention of Corruption Act, irrespective of the fact that the amount is small or big, it is a social crime and merely because of delay in filing charge-sheet, if the entire proceeding is quashed, it will open flood gate for unscrupulous people.
6. Before entering into the veils of submissions of learned counsels, it would be pertinent to look into the order impugned dated 25.09.2012 by which cognizance of offence has been taken, wherein the Court on perusal of the FIR, charge-sheet, photocopy of the case diary, sanction order and the materials available on record being satisfied with the prima facie case, took cognizance of the offence. The learned counsel appearing for the petitioners have not even whispered or questioned the non-availability of sufficient materials on record. The question which has come up for consideration as to whether the delay in investigation of criminal proceeding, by itself, serve as a ground for quashing the entire proceeding.
7. Before adverting to the core issue, it would be appropriate to notice the circumstances and the parameters enunciated and reiterated by the Hon'ble Supreme Court in a series of decisions under -4- which this Court can exercise its inherent powers to prevent abuse of the process due to delay in investigation. It is well settled that the power of the High Court is very wide but this do not confers an arbitrary jurisdiction to the High Court to act according to whim or caprice. If the court is convinced on the basis of materials available on record that there are sufficient materials to proceed with the case there is no question to quash the entire proceeding and allowing the proceeding to continue would never amount to an abuse of the process of court.
8. In the case State of Haryana.Vs. Bhajan Lal : (1992) 1 Suppl. SCC-335, the Hon'ble Supreme Court while formulating seven categories of cases, wherein the extraordinary power of this Court could be exercised either to prevent abuse of the process of court or otherwise to secure the ends of justice, held that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers should be exercised. In the case P.V.Pavithran (Supra ) as cited by the learned counsel for the petitioners, the Hon'ble Supreme Court while considering the similar issue held in paragraph nos. 10,11 and 12 as follows :
10. The assessment of the above factors necessarily vary from case to case. It would, therefore, follow that no general and wide proposition of law can be formulated that whenever there is inordinate delay on the part of the investigating agency in completing the investigation, such delay, ipso facto, would provide ground for quashing the first information report or the proceedings arising therefrom.
11. Our above view is supported by a decision of this Court in Raghubir Singh V. State of Bihar. Reference may also be had to Bell V. Director of Public Prosecutions of Jamaica and the article captioned “The power of the Courts to stay a Criminal Prosecution.”
12. It follows from the above observation that no general and wide proposition of law can be formulated that wherever there is any inordinate delay on the part of the investigating agency incompleting the investigation, such delay is a ground to quash the FIR.
9. In another case Lokesh Kumar Jain (Supra) an FIR was lodged under section 409 of the Indian Penal Code against the appellant of that case, who was clerk-cum-cashier, for financial irregularities and mis-appropriation and a departmental proceeding -5- was also initiated with identical charges, but in the said proceeding, the appellant was exonerated on the ground that it was not clear as as to who received the payment for various transaction,even original and carbon copy of bills were not available. In the said criminal case even after the repeated request of the investigating officer, the department failed to produce required incriminating documents and submitted closure report but the Magistrate further directed for reinvestigation under section 156(3) of the Code and the said investigation remain pending for 12-13 years inspite of appellant making request to the police authority to complete investigation and so the court considering the facts quashed the FIR holding that the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution of India is violated. However, the facts of the instant case is different and Investigating Officer had completed its investigation but could not file charge-sheet in absence of the sanction order and the delay was, in fact, caused by the competent authority, who had to grant sanction, as the petitioner no. 1 and 2 were Executive Engineer and Junior Engineer of Department of REO and sanction was mandatorily required before filing charge-sheet.
10. It is true that right to speedy trial is guaranteed under Article 21 of the Constitution and the Hon'ble Supreme Court in several decisions emphasised the need for speedy investigation and trial as both are mandated by provisions of Cr.P.C. as well as under Constitutional protection enshrined in Article 21 of the Constitution. This right is applicable not only on a delay in actual proceedings in the court but also includes within its sweep the preceding of police investigation as well. Before coming to any conclusion on the issue of delay, the court has to consider the attending circumstances and if it comes to the conclusion that right to speedy trial of the case has been infringed, it may quash the entire proceeding. But in a situation, as discussed above the present case does not come within the ambit of such cases, since there is sufficient materials to proceed with the case and the petitioners have admitted the fact that subsequently in terms of the Clause of the agreement between the department of REO and the contractor double price of the cement has been realized by the government from the bills of the contractor, mere payment of said -6- amount do not confer any right to the petitioners to be exonerated from their respective criminal liability, that too, in a case of Prevention of Corruption Act. The delay caused has to be weighed on the factual score, nature of offence and the concept of social justice. The Hon'ble Supreme Court in case the Niranjan Hemchandra Sashittal (Supra) has observed in paragraph 23 as follows :
23. At this stage, we think it apposite to advert to another aspect which is sometimes highlighted. It is quite common that a contention is convassed in certain cases that unless there is a speedy trial, the concept o fair trial is totally, crucified. Recently, in Mohd. Hussain V. State (Govt. of NCT pf Delhi), a three- Judge Bench, after referring to the pronouncements in P. Ramachandara Rao cae, Zahira Habibulla H. Sheikh V. State of Gujarat, Satyajit Banerjee V. State of W.B. , pointed out the sublet distinction between the two in the following manner: (Mohd. Hussain case, SCC pp. 427-28 para 40)
"0. "Speedy trial' and 'fair trial' to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of persecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-a-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be wighed along th the right of the accused to speedy trial and it the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end." -7- The Hon'ble Supreme Court finally observed that relief for quashing of a trial under Prevention of Corruption Act, 1988 has to be considered in the above backdrop.
11. In view of the discussions made above, I do not find any force in the submissions of the learned counsel for the petitioners. The Cr. Misc. Petition is, accordingly, dismissed. Sd/- ( R. N. Verma , J.) Raman /