Gujarat High Court
State Bank Of India vs Prakash Dhirajlal Sheth And Anr. on 19 July, 1995
Equivalent citations: (1996)2GLR13
JUDGMENT K.J. Vaidya, J.
1. The State Bank of India, Gandhidham(Kachchh) Branch by this petition under Article 226 of the Constitution of India, has moved this Court voicing a serious grievance against the illegal and unjust protracted proceedings merrily going on for about last 11 years before the Court of the learned J.M.F.C., Gandhidham, with no immediate signs of being started in for seeable future inter alia praying for the issuance of the writ of Mandamus and/or any other appropriate writ, direction or order directing the concerned learned Magistrate to immediately proceed ahead with the pending Criminal Case No. 1265 of 1984 and to decide the same at the earliest. Incidentally, at this stage, it may be pointed out that the relief of expeditious trial prayed for by the petitioner bank can even be prayed for by filing Misc. Criminal Application under Section 482 of the Criminal Procedure Code, 1973, and for that purpose, it is indeed not necessary to go to the Constitution, making petition under Article 226 of the Constitution of India.
2. To state few relevant facts briefly, leading to this petition, according to the petitioner, respondent No. 2: Mr. P.D. Sheth was serving as Field Officer in its Branch Office at Gandhidham. During his service tenure, he fabricated certain drafts and cheques, forging signatures and thereby misappropriated the huge amount of Rs. 1,75,000/-. On the basis of these allegations, the said Bank through its responsible officer, filed a Criminal Complaint against respondent No. 2 for the alleged offences under Sections 419, 420, 467, 468, 471 and 477-A of the Indian Penal Code before the Police on 31-8-1983, as a result of which he thereafter came to be suspended from service on 2-9-1983. After the investigation was over, on 6-3-1984, the investigating agency submitted the charge-sheet in the Court of the learned Magistrate at Gandhidham. Thereafter, the case went on being indiscreetly adjourned on and on and in the process ultimately more than as many as 11 years have passed by and yet there do not appear to be any ray of hope of its commencement in foreseeable future.
3. Under the circumstances, Mr. Desai, learned Counsel appearing for the petitioner-Bank has voiced quite a serious concern and anxiety towards the way in which the trial came to be disgustingly protracted before the Gandhidham Court; in the first instance by the respondent-accused, in the second instance, by the concerned learned Public Prosecutors in charge of the case at the relevant time, and in the third instance, by the learned Magistrate who indeed quite readily and indiscreetly granted adjournments after adjournments to the accused on mere asking, quite unmindful of the essence and importance of the time factor for the prosecution and expeditious trial !! Mr. Desai further submitted that if this is the way in which the trial is to be conducted, then in that case ultimately, the prosecution may succeed or fail, it is entirely the concern and question of fate of the prosecution for which the State has to worry about, but so far as the petitioner-Bank is concerned, because of the protracted proceedings, it has indeed been unnecessarily put to great financial burden and loss as it has to pay suspension allowance without taking in return work from the accused for no fault of it ! Further, according to Mr. Desai, respondent No. 2 came to be suspended in August 1983 and for last 12 years, staying idle and doing nothing he has been sheer dead weight on the Bank's fund which in a way is public money and that too for no fault of the complainant-Bank. The suspension allowance paid so far to respondent No. 2 according to Mr. Desai, approximately comes to Rs. 1,40,000/-44.
4. The contention of Mr. Desai is that after filing of the charge-sheet in the year 1984 for all these eleven years, the trial has not progressed an inch further, as a result, the Bank is unnecessarily continuously saddled with increasing financial liabilities simply because the concerned Magistrate and/or the learned A.P.P. in charge of the case have failed to respond to call of their respective duties !! Making good this contention, Mr. Desai has invited the attention of this Court to the Rojkam proceedings of the said Court at Gandhidham and submitted that it is only at the instance of respondent No. 2 who has irresponsibly prolonged the trial before the Court with active connivance of the concerned Public Prosecutors and he has been given the adjournments readily on mere asking as he was interested in seeing that the trial is protracted and delayed. On the basis of this submission, Mr. Desai finally urged that the learned Magistrate be directed to at once proceed ahead with the trial of the case immediately and decide the same at the earliest best giving it top most priority so as to relieve the petitioner-Bank from its financial burden of the respondent No. 2 who is required to be paid idle wages, who without contributing any sweat or time, which otherwise every employee for earning wages is bound to shed and contribute.
5. Mr. J.G. Shah, the learned advocate appearing for the respondent-accused while taking serious exception at the entire blame being placed at the door of accused, vehemently submitted that the same was not entirely correct. Anyway according to Mr. Shah having regard to the facts and circumstances of the case, his clients indeed cannot have any objection if the learned magistrate is ultimately directed to expedite the trial.
6. Having heard the learned advocates appearing for the respective parties, there is indeed no doubt whatsoever in the mind of this Court that the proceedings before the learned Magistrate has been conducted in the most ignoble, irresponsible and ridiculous manner! It has been conducted as if a child was flying kite on the terrace without any time bound sense or responsibility. Adjournments after adjournments were sought for and on behalf of the accused respondent No. 2 herein and surprisingly enough, the same appears to have been not opposed or objected to by the public prosecutor in charge of the case at the relevant time!! This is the quality of the public prosecutor we have in the instant case !! What inference needs to be drawn from such dereliction of duty on the part of the learned Public Prosecutor is a matter left entirely to sense of responsibility and discretion of the District Magistrate, or District Superintendent of police, Kachchh, whosoever is supposed to be the had of department of Public Prosecutors!! So far as the Court is concerned, it is indeed a matter of shock, sorrow and surprise that the concerned learned magistrate at relevant times have feely dolled out adjournments after adjournments to the accused as if it was a charity house doling out alms to the handicapped beggars!! The whole scenario is so painful and disgusting that if this is the manner in which the trials are to be conducted making non-sense of 'speedy justice' in total defiance of Article 21 of the Constitution of India, there is indeed no hope for any future of the administration of criminal justice!! A bare perusal of the Rojkam proceedings demonstrates that at different stages different Magistrates were presiding over the said Court. However, it is not possible to find out as to who was the Public Prosecutor at the relevant time.
7. In this view of the matter, the present learned Sessions Judge, Kachchh at the Bhuj after calling for the record of the case and seeking explanation from the concerned learned Magistrate may submit a report as to why adjournments after adjournments were indiscreetly granted on mere asking by the accused!! Similarly, the District Magistrate and/or District Superintendent of Police, Kachchh under whom the concerned Public Prosecutors were working is also directed to collect the names of those Public Prosecutors (if more than one) who were in charge of the matter at different stages and call for the explanation and take appropriate action as deemed fit and proper. The learned Sessions Judge, the D.M. and D.S.P., Kachchh are also directed to submit their respective reports to this Court (Coram: K.J. Vaidya, J.) Preferably on or before 31st January, 1996. Instructions should also be issued to all the Public Prosecutors that they should attend their cases diligently and not to be a party to any unreasonable adjournments asked by the accused and in turn the same being granted by the Court. Whenever any adjournment application is filed on behalf of the accused and is objected to by the learned P.P. the said application must bear an endorsement 'objected' stating the reasons countersigned by the learned P.P. Mere defence of oral objection to adjournment will not be sufficient. If this objection is not recorded, it can be reasonably assumed that the learned PP was also a party to the fraudulent adjournment prayed for by the accused !! The D.M. and D.S.P., Kachchh and for that purpose, all D.M.s and D.S.P.s of Districts of the State are hereby directed to see that the Public Prosecutors in charge of the cases attend the cases regularly and discharge their duties efficiently by not being party, even silent consentors to the unreasonable adjournments sought by accused !! All the learned Sessions Judges are also hereby directed to immediately issue instructions to all the learned Magistrates within their respective jurisdiction not to grant adjournments without recording reasons, as any indiscreet adjournment would also henceforth be a point and important count to assess their competency that is to say sincerity, honesty and efficiency, and accordingly shall form a part of service record for their future consideration !! The circulars so issued to the learned Magistrates be forwarded to this Court. Not only that but the learned Sessions Judges would indeed do well if at regular intervals exercising much needed vigilance keeping constant eye it supervises the performance of the learned Magistrates by taking stock of the adjournments granted by them either by calling regular reports of how many adjournments given in which particular case, on what ground, every month or by taking surprise visit checking out files to find out adjournments granted !
8. The net result of the aforesaid discussion is that taking into consideration the fact that after filing of the charge-sheet, as many as 11 years have elapsed, the learned Magistrate is directed to commence the trial latest by 15-8-1995 and proceed ahead with the same giving it top most priority by seeing to it that the present case is not adjourned on any unreasonable ground and thereby shunted-off of the track and further whenever the case is required to be adjourned he shall invariably record the reasons for adjourning the case, in case he so adjourns the case. If for whatever reasons the learned P.P. was not attending the Court, it shall also be the duty of the learned Magistrate to immediately bring it to the notice of the D.M. and/or D.S.P. of the area to make suitable arrangements at once. In case on the date so fixed for the examination of the witnesses, if for whatsoever reasons, adjournment is asked for either on behalf of the accused or the prosecution, the learned Magistrate shall consider whether in the first instance, any genuine, exceptional ground is made out to grant the same, and in the second instance, if the default is committed whether any order of costs, even exemplary costs, as the case may be, is required to be passed in the light of the observations made in the decision of this Court rendered in case of the State of Gujarat v. Dr. C.K. Patel . In fact, whenever any application for adjournment is submitted, it is indeed the duty of the Court to appreciate firstly the physical and mental inconvenience caused to the witnesses remaining present before the Court on the fixed date, secondly his/their waste of time, thirdly, the money spent for coming and going back from the Court, fourthly, the trial getting protracted many a time to the greatest disadvantage of the prosecution, fifthly the precious public time of the Court, sixthly, public exchequer unnecessarily taxed paying unproductive subsistence allowance to the accused and seventhly in a given case, if the accused public servant is innocent, his plight of maintaining family on bare subsistence allowance for unnecessarily prolonged period because of adjournments and strikes !! As a matter of fact, every Court should understand and bear in mind that the time is far more precious than money; loss of money could be made-up. Loss of time cannot be. Every Court accordingly is required to judiciously spend the same and account for it. The complainant/informant or his successor in office, when case is in charge of the Public Prosecutor and trial gets belated, he can as well contact the concerned Public Prosecutor who may take fixed date from the learned Magistrate for proceeding further with the case.
9. This matter does not and indeed cannot simply rest here with the simple directions as aforesaid. In fact, the further and most important question of quite great public importance touching upon the public administration and public exchequer has arisen in this case which having been once noticed by this Court cannot be hoodwinked ignoring exercising its power as responsible Constitutional functionary !! After criminal case is filed against a public servant, in most of the cases, ordinarily, the public servant is suspended, and during the said period he earns some suspension allowance as per the rules of the concerned department. Now, if in cases of the public servants, who are serving in the Government or with the public institution like the Bank. Statutory Corporations, etc. the Criminal trials against them for whatever reasons are protracted and sometimes protracted indiscreetly, irresponsibly and indefinitely like the present case, then in that case, the concerned department will have to continuously pay the suspension allowance to the accused without taking any work from him. The net result of this is that the department suffers on two vital counts, viz., firstly, it will suffer that much less work which the concerned servant was doing and secondly, it will also have to pay the subsistence allowance during the suspension period of the concerned servant. This will be a sort of double punishment to the department for no fault of it rather for the indecisive delayed trial conducted by the unconcerned, irresponsible learned Magistrate !! If the cases of the public servants were to be indefinitely or say for quite longer period to be continued for years together, the sum total of the subsistence allowance in that case was bound to go on increasing substantially taking a very heavy toll of the public coffer without taking any work from him/them ! This is indeed too sad and serious a thing to be lightly countenanced by any sensible, responsible citizen worth the name much more so by the learned Magistrates and Judges who are presiding over the proceedings !! No sensible, enlightened citizen more so any authority or the Court can be oblivious to the fact that ultimately the subsistence allowance paid to the suspended employee comes from the public exchequer money collected from the tax contribution of the honest tax-payers' blood, toil and sweat !! In this view of the matter, the amount so collected cannot be allowed to be frittered away because the concerned suspended employee, the concerned learned P.P. and the learned Magistrate were somehow not in mood to proceed with the trial under the pretext of some adjournments !! I am told by Mr. Desai, learned Advocate for the petitioner-bank that as per Rule 50-A(7)(1) of the State Bank of India Supervisory Staff Rules, a person who is under suspension is given 50% (fifty per cent) of the basic and 100% (cent per cent) of the other allowances. Accordingly in this case, by now the accused has been paid subsistence allowance to the extent of Rs. 1,40,000/- during the course of last 12 years. Now in case, if this accused scores acquittal, what about back wages? At whose cost?
10. Now unfortunately this is not the solitary case of suspension ! In fact though difficult to be exact and yet taking the most conservative estimate, the minimum number of the public servants under suspension could be roughly around about 1,000 such employees. Now, tentatively taking this figure of 1,000 into consideration, if roughly estimating an average amount of subsistence allowance at the rate of Rs. 2,000/- per month; per suspended employee, the total amount of the said subsistence allowance would come to about Rs. 20 Lacs per month and Rs. 2 Crores 40 Lacs per annum !!! This is confined to the employees of the State Government only and to this, if the list of the suspended employees of other public organizations, such as Banks, Corporations, State Undertaking Boards, Institutions, etc., is added then the figure may cross even Rs. 5 Crores which will be too excessive a burden ultimately on people !! This is the rough and ready estimate of the Gujarat State only with a view to impress upon the learned Magistrates as to how the sin of indiscreet adjournment can visit and penalize the public coffer, public interest involved ! In light of this, if the National picture is visualized what an astronomical amount it would be which could be diverted to the social welfare schemes !! Out of such huge amount so many constructive things could be atonce done and accordingly to put the interest of the "Rule of Law and Justice" first, where the people get the delayed justice crying and clamouring for expeditious justice, many Courts/Judges can be accommodated appointed. If not that, at least one Medical College or Engineering College or any other technical institution can be opened or many other services of public utility including the employment avenues and opportunity to the needy section of the Society can be provided with. There can be more hospitals, educational institutions, and such other social welfare organizations without imposing additional taxes to the said extent! Once the aspect of adjournment is viewed from the overall social perspective, the aforesaid unproductive amount which is just being wasted away by way of subsistence allowance to the suspended employee without doing any work can be quite reduced to a sizeable extent if a policy decision is taken whereby the criminal cases against the Government servants and the servants of the Public Corporations and/or Institutions put under suspension are attended to and disposed of as expeditiously as possible giving top most priority to them eschewing unjust, unreasonable adjournments !! It appears that the required attention is not at all focussed on this overall vital aspect so far. Not to expedite cases of the public servants getting suspension allowance and ignore it altogether is just like allowing the precious water from public/Municipal tap continuously leaking away in water scarcity areas going unused, unproductive in a drainage !! Can this be permitted? If not, can the Court be a party to such unproductive collosal waste of public money? Here it is equally the duty of the departmental head and officer in charge of the departmental inquiry to expedite the departmental proceedings against the delinquent without waiting for the Court proceedings unless some stay order is obtained from the Court or there is some legal sanction in proceeding with the departmental proceedings pending criminal trial!!
11. Accordingly, it is the duty of the department in the first instance to conduct the departmental inquiry and pass appropriate final orders against the delinquent officer and in the second instance for the Court to hear and decide the case at the earliest. The reason is supposing the delinquent officer ultimately succeeds he would be unnecessarily earning back wages for number of months, years even for not working. As against the individual interest of any accused delinquent employee, the overall stake of the society is undoubtedly heavy and larger and accordingly, it is desirable that the said consideration must prevail upon the Court while deciding such cases. In that view of the matter, as far as possible, the Court must see to it as its foremost duty to the public, that the cases of the public servants (under suspension) are conducted as expeditiously as possible and no unreasonable adjournments are granted and when granted, reasons thereof should be recorded, imposing cost and even exemplary cost in a given case. In fact, the learned Magistrates, whenever any adjournments is prayed for should bear in mind firstly, the guidelines given in para 91 to 98 of the Criminal Manual issued by the High Court of Gujarat which reads as under:
91. In order to minimise the hardship caused by unnecessary detention of parties and witnesses in cases which have to be adjourned for want of time, the Magistrate should, at the commencement of work on any day, consider applications for adjournment of cases in the day's list. Thereafter, he should assess the number of cases he would be able to take up during the course of the day. For this purpose, he should consider the position in regard to the part-heard and new cases on the Board, due regard being given to the principles as to priorities indicated above. He should then discharge the cases which are not likely to be heard on that day so that the parties and the witnesses may not have unnecessarily to remain present in the Court. Before rising for the afternoon recess, the Magistrate may again assess the position, and if he be of the opinion that any cases, which were not discharged earlier are not likely to be taken up, he may discharge such cases after giving suitable dates for the next hearing.
92. Section 309, Code of Criminal Procedure, 1973, provides, "in every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for the reasons to be recorded." The hearing of a case should, therefore, go on from day to day, and this practice should be strictly followed. Exception may be made only where an insistence on it would defeat the ends of justice so is required by the Law.
93. (1) Under the second proviso to Sub-section (2) of Section 309, no adjournment shall be granted when witnesses are in attendance, without examining them except for special reasons to be recorded in writing. So far as possible, all witnesses who are present on any day, should be examined.
(2) The reasons for not hearing a part-heard case, and the adjournment of the case where the witnesses are in attendance, should be recorded by the Magistrate.
(3) No case should be adjourned on the ground that all the witnesses, who have been summoned are not present.
94. Adjournments should not ordinarily exceed seven days when the accused is in custody and 15 days when he is on bail. Adjournments for longer periods should be granted only for special reasons which should be recorded.
95. The convenience of lawyers shall not ordinarily be regarded as a good ground for adjourning the case.
96. Cases should not ordinarily be adjourned for the personal convenience of the Assistant Public Prosecutor. Frequent absence of the Assistant Public Prosecutor should be reported by the Magistrate to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be. The Chief Metropolitan Magistrate shall communicate it to the Commissioner of Police. Ordinarily, when an Assistant Public Prosecutor consents to be present on a particular date, the Magistrate should not adjourn the case, unless the absence of the Assistant Public Prosecutor is due to reasons beyond his control or unless the Magistrate otherwise deemed it proper to do so in the interest of justice.
97. In view of the provisions of proviso to Section 256 and of Section 317, Code of Criminal Procedure, 1973, the mere absence of either the complainant or the accused is not a sufficient cause for adjournment. The Magistrate should, whenever possible, proceed with the hearing of the case in their absence.
98. It is noticed that the trial of cases is often delayed by the absence of witnesses and that some of the Magistrates fail to take action when witnesses though duly served, do not attend without sufficient cause. Magistrate may in proper cases take action under Section 350, Code of Criminal Procedure, 1973, against witnesses who fail to appear on a summons or a bond, unless satisfactory reasons are given for their absence.
Secondly, the decision of this Court rendered in the case of State of Gujarat v. C.K. Patel (supra) which has covered aforesaid aspects !!
12. In fact, with a view to help assist the appellate Court to have immediate grasp of the manner in which the trial came to be conducted, at the bottom of judgment every Court as of duty should also give the synopsis of Court proceedings in the following form:
(1) Date on which charge-sheet/complaint came to be filed.
(2) Date on which charge was framed.
(3) The name of the learned trial Judge.
(4) Names of different trial Judges at different stages in case in between period there being any transfer.
(5) Date on which trial commenced.
(6) Total number of prosecution and defence witnesses.
(7) Number of adjournments prayed for by the prosecution side. (7-A) Actually granted.
(8) Number of adjournments prayed for on behalf of the accused. (8-A) Actually granted.
(9) Date on which examination of witnesses commenced.
(10) Date on which the evidence was over.
(11) Date on which arguments were heard.
(12) Judgment delivered on.
(13) On the date of judgment, total number of pending criminal cases/Sessions and Special cases.
(14) The oldest pending case !! (15) The accused, if not released on bail, his total period as an under-trial prisoner.
(16) In case there is delay in trial, reasons for the same.
This chart would enable the higher Court to have an exact idea at a glance as how efficiently the trial Court has conducted itself. Furnishing the aforesaid tabulated schedule information is indeed not difficult, if alongwith the regular Rojkam proceedings due care is taken by the concerned Clerk of the Court right from the beginning. This Will Have to be Done - to make all concern conscious and accountable for undue delays in trial proceedings.
13. It is also pertinent to note that despite the earlier directions of this Court (Coram: D.C. Gheewala, J.) in Misc. Criminal Application No. 1909 of 1988, in Criminal Revision Application No. 154 of 1984 issued on 6-9-1988 directing the learned Magistrate to proceed with the present criminal case, the same has not been proceeded further for all these seven years. Under the circumstances, if the learned Magistrates still dare ignore and flout the directions of this Court in this manner, without any justifiable reasons, he can in absence of sufficient reasons be as well subjected to the contempt proceedings !! This message is required to be noted down by all the concerned Courts below !! If for whatever reasons, it is not possible to complete trial within the stipulated period as directed by the High Court, then before the said period expires stating reason for the extension of the period can be prayed for by requesting the concerned superior Court even the basic courtesy requires the same !! Accordingly, this must be done.
14. The further grievance of Mr. Desai was that on the one hand the accused himself delayed the trial and on the other hand he required to be paid subsistence allowance ! This is simply strange and accordingly, according to Mr. Desai, this Court should make some observations with regard to the stoppage of further payment of the subsistence allowance to the accused. No doubt, the grievance ventilated by Mr. Desai has grain of substance to be considered, but at the same time, this preceedings are hardly the proceedings where anything could be done except observing that the petitioner would be at liberty to agitate the same in appropriate proceedings.
Once a public servant is suspended and given suspension allowance, then be it a case of criminal trial or the departmental proceedings or before any other Courts, the same should be attended to and decided at the earliest within the reasonable shortest possible time !! This as pointed out is in the overall interest of the employer and concerned employee !
15. It is also pertinent to mention here that the concerned Bank should also be vigilant and accordingly, the competent authority should review the cases of the suspended employees periodically and in cases where it is of the opinion that no useful purpose would be served by further continuing the concerned employee under suspension, it should revoke the suspension in such cases so as to avoid payment of unnecessary idle wages to the concerned employee. This way in a given case the innocent employee will also be saved from unnecessary prolonged financial hardships and difficulties to which they are subjected to on account of suspension.
16. In the light of the aforesaid discussion, this petition is allowed. The learned Judicial Magistrate, Gandhidham is hereby specifically directed to proceed ahead with the Criminal Case No. 1265 of 1984 at the earliest preferably on or before 15th August, 1995. Rule is accordingly made absolute. Writ to be sent forth with.