Jammu & Kashmir High Court
Parshotam Kumar vs < on 22 October, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 21.09.2021
Pronounced on: 22.10.2021
OWP No. 1062/2014
IA No. 1430/2014
c/w
OWP No. 1073/2014
IA No. 1442/2014
Parshotam Kumar ...Appellant/Petitioner(s)
Through :- Mr. Surinder Singh, Advocate
v/s
<
Union of India and others .....Respondent (s)
't
Through :- Mr. Vishal Sharma, ASGI
Ms. Monika Kohli, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. In these petitions, the petitioner has prayed for quashing of sanction order bearing No. F4/57/2000/III dated 26.11.2013 issued by respondent No. 3 for prosecution of the petitioner in FIR bearing No. RC0042000A0006 of 2000 and also for quashing of Charge Sheets presented by the respondent No. 2 against the petitioner in the court of learned Special Judge Anticorruption CBI cases, Jammu (hereinafter to be referred as the trial court) on 20.01.2014 for commission of offences under Sections 420, 409 RPC and 5(1) (C)(D), read with section 5/2 J&K Prevention of Corruption Act.
2. The brief facts are that FIR bearing No. RC0042000A0006 of 2000 dated 27.06.2000 for commission of offences under Sections 420, 409 RPC and 5(1)(C)(D), read with section 5/2 J&K Prevention of Corruption Act was 2 OWP No. 1062/2014 OWP No. 1073/2014 registered by respondent No. 2 on the basis of source information against the petitioner and his father, namely, Sansar Chand on the basis of allegations that the father of the petitioner, Sansar Chand, Extra Departmental Branch postmaster Branch Post office, Bhaga and petitioner as Extra Departmental Branch Post Master had entered into a criminal conspiracy with each other during the period from 17.02.1995 to March 2000 and misappropriated a sum of Rs. 93,000/- which was entrusted to them by different account holders for depositing in their respective accounts in Bhaga Branch Post office. Initially, the charge sheets bearing No. 4 and 5 were filed against the petitioner on 27.07.2001. It is further stated that the petitioner had faced the trial before the trial court and after 12 years of trial and the learned trial court after discussing the entire evidence vide order dated 30.07.2013 dropped the proceedings against the petitioner by returning a finding that the prosecution has been launched against the petitioner without any sanction in terms of Section 6 of Prevention of Corruption Act, 1988. It is further stated that the respondent No. 2 without challenging the validity of the order passed by the learned trial court filed other charge sheet against the petitioner on same set of facts, before the Special Judge, Anticorruption, (CBI Cases), Jammu on 20.01.2014 and by virtue of order dated 20.01.2014, the petitioner was asked to produce sureties for his presence before the trial court during the trial of the case.
3. It is further stated by the petitioner that the respondents cannot file a fresh charge sheet after discharge of the petitioner from the first challan on same cause of action and on the same facts and circumstances and the filing of challan by the respondents without any sanction had already caused immense mental, physical and emotional harassment to the petitioner and has resulted into 3 OWP No. 1062/2014 OWP No. 1073/2014 the violation of the right of speedy trial of the petitioner. It is further averred that the respondent No. 3 has issued sanction bearing No. F4/57/2000/III dated 26.11.2013 after a long period of thirteen years whereas respondent No. 3 was in possession of all the materials and record, but did not issue any sanction for prosecution of the petitioner in case registered under FIR bearing No. RC0042000A0006 of 2000 dated 27.06.2000 and now without explaining delay in issuing sanction order, has issued the same. It is on the basis of this sanction order, fresh charge sheet has been filed against the petitioner.
4. The petitioner has filed the present writ petition primarily on the following twin grounds:
(a) That the respondents cannot launch fresh prosecution on same cause of action.
(b) That the respondents have not explained delay of thirteen long years in issuing the sanction order for prosecution of the petitioner and as such, the fundamental right of the petitioner for speedy trial has been violated.
5. Response stands filed by the respondent No. 2, in which besides narrating the factual aspects of the case, it has been stated that after the proceedings were dropped by the learned trial court vide order dated 30.07.2013, fresh sanction for prosecuting the petitioner was obtained from the competent authority and after receiving the same, the charge sheet was filed against the petitioner on 20.01.2014. It is also stated that the petitioner was not acquitted by the trial court but was discharged in absence of sanction for prosecution and there is no legal bar for filing a fresh charge sheet after obtaining the sanction from competent authority. It is further stated that the petitioner was "put off" 4 OWP No. 1062/2014 OWP No. 1073/2014
from the services by the department and the learned trial court after hearing both sides, came to the conclusion that "put off" means suspension, therefore, sanction under Section 6 of Prevention of Corruption Act, 1988 was necessary for launching prosecution and as such, the accused was discharged. In such circumstances, the sanction for prosecution of the petitioner was obtained from the competent authority. The corruption cases are considered a class apart and merely on the basis of delay, the accused cannot be let off from such type of serious offences under P.C. Act. As the petitioner is facing serious criminal charge, so the present petition deserves to be dismissed.
6. Mr. Surinder Singh, learned counsel for the petitioner vehemently argued that the petitioner has suffered mental harassment for the period of fourteen years and further filing of the charge sheet after obtaining fresh sanction has violated the fundamental right of the petitioner to have a speedy trial and now the petitioner cannot be prosecuted again with regard to the offences allegedly committed fourteen years ago. Mr. Singh has placed reliance upon the judgments passed by the Apex Court in case titled 'Mahendra Lal Das vs. State of Bihar and others' reported in 2001(7) Supreme 748 and in case titled 'Mansukhlal Vithaldas Chauhan vs. State of Gujrat' reported in 1997(8) Supreme 178.
7. Ms. Monika Kohli, learned counsel for the respondents reiterated the averments made in the objections to the writ petitions and relied upon the judgment passed by the Apex Court in case titled 'P. Ramachandra Rao vs. State of Karnatka' reported in 2002(2) Crimes 200 (SC).
8. Heard and perused the record.
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9. The issues, those arise for the consideration of the Court, are as under:
(a) Whether the petitioner can be prosecuted again on the same set of allegations for which he faced the trial for twelve long years?
(b) Whether in the present facts and circumstances of the case, the proceedings can be quashed against the petitioner on the basis of the delay only?
10. Issue (a): From the perusal of the judgment dated 30.07.2013 passed by the learned trial court, it is revealed that the proceedings against the petitioner have been dropped by the learned trial court because of lack of sanction. Learned trial court has not returned any finding qua the merits of the allegations against the petitioner. The petitioner has not been acquitted by the trial court. The Hon‟ble Apex Court has already considered the issue as to whether the accused can be put to a subsequent trial when the accused was earlier prosecuted without any sanction. In case titled 'Bali Nath Prasad Tripathi vs. State of Bhopal and another' reported in AIR 1957 SC 494, the Hon‟ble Apex Court refused to quash the subsequent criminal proceedings initiated against the petitioners therein, after the earlier trial of the petitioners therein was held to be void due to lack of sanction. The relevant para is extracted as under:
6. After the pronouncements made in the decisions referred to above, it is really unnecessary to embark on a further or fuller discussion of the point raised, except merely to state that we have heard learned counsel for the petitioners who made a vain attempt with a crusading pertinacity worthy of a better cause, to show that the Privy Council decision was wrong and the decision of this Court required reconsideration, and having heard learned counsel 6 OWP No. 1062/2014 OWP No. 1073/2014 in full, we are of the view that the decisions referred to above state the legal position correctly. It is clear beyond any doubt that clause (2) of Article 20 of the Constitution has no application in these two cases. The petitioners are not being prosecuted and punished for the same offence more than once, the earlier proceedings having been held to be null and void. With regard to Section 403 of the Code of Criminal Procedure, it is enough to state that the petitioners were not tried, in the earlier proceedings, by a Court of competent jurisdiction, nor is there any conviction or acquittal in force within the meaning of Section 403(1) of the Code, to stand as a bar against their trial for the same offences. Learned counsel for the petitioners invited our attention to Sections 190, 191, 192, 529 and 530 of the Code of Criminal Procedure and submitted that in certain circumstances the Code drew a distinction between "jurisdiction"
and "taking cognizance". The whole fabric of the argument of learned counsel was founded on this distinction. Assuming, however, that in certain cases one Magistrate may take cognizance and another Magistrate may try an accused person, it is difficult to appreciate how any court can try the petitioners of these cases in the absence of a sanction in view of the mandatory provisions of Section 6 of the Prevention of Corruption Act, 1947. If no court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to be a court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void, and the sections of the Code on which learned counsel for the petitioners relied have really no bearing on the matter. Section 530 of the Code is really against the contention of learned counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try an offender, tries him, then the proceedings shall be void. Section 529(e) is merely an exception in the matter of taking cognizance of an offence under Section 190, sub-section (1), clauses (a) and (b); it has no bearing in a case where sanction is necessary and no sanction in accordance with law has been obtained.
7 OWP No. 1062/2014OWP No. 1073/2014 Thus, there is no force in the contention of the petitioner that the petitioner cannot be prosecuted again on the same set of allegations on basis of which, he was prosecuted earlier.
11. The other issue is as to whether the proceedings are liable to be quashed because of the delay in issuance of sanction order as well as filing of charge sheet. It requires to be noted that the earlier trial was null and void because of the lack of the proper sanction as per mandate of Section 6 of Prevention of Corruption Act, 1988. Hon‟ble the Apex Court in case titled 'Hussanara Khatoon vs. State of Bihar reported in 1980(1) SCC 81 has held that the right to speedy trial is a fundamental right. Further in case titled 'Abdul Rehman Antulay and others vs. R. S. Nayak and another' reported in 1992(1) SCC 225, the Hon‟ble Apex Court has held that right to speedy trial is implicit in Article 21 of the Constitution of India and has laid down following 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.
8 OWP No. 1062/2014OWP No. 1073/2014 (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 9 OWP No. 1062/2014 OWP No. 1073/2014 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 [33 L Ed 2d 101] "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 [15 L Ed 2d 627] 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 [33 L Ed 2d 101] 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 10 OWP No. 1062/2014 OWP No. 1073/2014 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."
12. Further, the decision in A. R. Antulay's case, was considered by the Constitution Bench of Hon‟ble Supreme Court in P. Ramachandra Rao Vs State of Karnataka reported in 2002 SCC (Cri) 830, in which it was held that the Court cannot fix time limit, beyond which the trial cannot continue, entitling the accused to be acquitted on account of delay. It was further held by the Constitution Bench in above mentioned case that the desired object of speedy trial can even be obtained within available procedural safeguards and avenues provided for obtaining the relief.
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13. Now coming to the facts of the present case, the petitioner underwent trial for twelve years. The allegations against the petitioner are very serious. The offence under section 409 RPC is punishable with imprisonment for life or imprisonment for 10 years and fine. Besides, offence under section 409 and 420 RPC, the petitioner is also facing allegations for commission of offences under Prevention of Corruption Act. There is no doubt that the petitioner has already undergone rigmarole of trial for twelve long years and now, he is again sought to be prosecuted on the basis of similar allegations. The allegations against the petitioner are with regard to the misappropriation of the amounts deposited by the innocent and gullible depositors, who deposited their hard earned money with the post office that is usually considered as safe investment destination by public but the petitioner committed the breach of trust and mis-appropriated the said money while performing his official duties. The right to speedy trial of the petitioner is no doubt a fundamental right but equally true is the interest of the society at large. In such type of situation, balance is required to be maintained between the right of the petitioner and the interest of the public at large. So, the right to speedy trial of the petitioner can be taken care of by directing the trial court to conduct proceedings as expeditiously as possible. As such, this Court is of the considered opinion that in the present facts and circumstances of the case, the proceedings cannot be quashed only on account of delay.
14. This Court has examined the list of witnesses and found that there are only twenty four witnesses in one charge sheet and sixteen witnesses in another charge sheet and it cannot be said that the trial cannot be concluded without delay.
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15. The judgment relied upon by Mr. Surinder Singh, learned counsel for the petitioner in case titled 'Mansukhlal Vithaldas Chauhan vs. State of Gujrat' reported in 1997(8) Supreme 178 is not applicable in the present facts and circumstances of the case as in the said case, where the petitioner was facing trial for commission of offence under section 161 IPC and 5/2 PC Act and not for any offence punishable with imprisonment for life. Further, judgment relied upon by Mr. Singh in case titled 'Mahendra Lal Das vs. State of Bihar and others' reported in 2001(7) Supreme 748 is also not applicable as in the said case, there was no explanation for the delay of more than thirteen years in granting the prosecution sanction whereas, in the instant case, the petitioner was earlier prosecuted without sanction on the basis of some wrong premises and subsequently, sanction was granted for prosecution on the application made by the respondent No. 2.
16. In view of what has been discussed above, there is no merit in the present petitions, as such, the same are dismissed. The learned trial court shall make all possible endeavors to conclude the proceedings preferably within the period of one year from the date copy of this order is furnished to the trial court. It is made clear that no unnecessary adjournment shall be granted to either of the parties.
17. The record of the trial court summoned after reserving the judgment be sent back forthwith.
(RAJNESH OSWAL) JUDGE JAMMU:
22.10.2021 Neha Whether the order is speaking: Yes Whether the order is reportable: Yes