Allahabad High Court
Ramanand vs State Of U.P. on 16 November, 1991
Equivalent citations: 1992CRILJ612
ORDER
1. This petition has been filed under Section 482, Cr. P.C. praying that the first information report dated 13-7-1979 along with the proceedings in Sessions' Trial No. 3 of 1984 State v. Ramanand, pending before the Special Judge, Varanasi, be quashed as against the present applicant.
2. The facts, which may be relevant for the purposes of the present petition, are that the petitioner Ramanand, is a clerk in the Sales tax Department. A first information report was lodged on 13-7-1979 by Senior Treasury Officer, Varanasi, alleging that offences under Sections 419, 420, 465, 468, 471, I.P.C. have been committed by the accused. The assertion was that a large number of sales tax refund vouchers have been forged and payments have been obtained in respect of the same by opening fictitious accounts in the name of various firms. It was also asserted that attempt was also made to get other refund vouchers passed from the Treasury officer but the forgery was detected in time and the attempt could not succeed. An investigation was made on the allegations made in the first information report by the Inspector, C.I.D. (Economic Offences Cell), and ultimately charge-sheet was submitted before the Special Judge, Varanasi on 23-3-1984. It appears that during the investigation the present petitioner was arrested on 28-10-1980 but was released on bail on 8-1-1981. In the charge sheet submitted on 23-3-1984 four persons, including the present applicant, were named as accused. It was alleged that the accused persons have in pursuance of the conspiracy between them withdrawn amounts totalling Rs. 3,15,573/- relating to 22 forged refund vouchers. It was further mentioned that three more forged refund vouchers were prepared and attempt was made to withdraw the amount totalling Rs. 85,000/- under these vouchers. It was asserted that these accused persons have committed offences punishable under Section 419, 420, 465, 468, 471, 474, 511, 120-B, I.P.C. and Section 5(1)(D)(2) of the Prevention of Corruption Act. Sanction by Assistant Commissioner, Sales tax was obtained for prosecuting the accused persons for the offence under Section 5(2) of the Prevention of Corruption Act. The trial started in the year 1984 after the filing of the charge-sheet. During the trial one of the accused persons, namely, Vijai Shanker Joshi alias Dau Dayal Joshi, turned approver. It also appears from the material on record that the State Government appointed Sri J. P. Mehtra, Advocate, as Special Public Prosecutor. It also appears that at one stage in June 1987 Sri J.P. Mehtra moved application before the Court, concerned mentioning that he was unable to conduct the case on behalf of the prosecution as his fee has not been paid by the State so far. However, later on, the D.G.C. (Cr.), Varanasi, moved application before the Court mentioning that now Sri J. P. Mehta has agreed to appear in the Court but as he has met with an accident he was unable to attend the Court. It has been asserted on behalf of the State of U. P. in this case that Sri J. P. Mehta remained confined to the hospital for several months and ultimately he died. Later on another Special counsel was appointed to conduct the case. The record also shows that in the year 1984 itself the present petitioner approached the Hon'ble Supreme Court and filed a writ petition challenging the order of suspension passed against him. The Supreme Court directed the payment of subsistence allowance to the petitioner within one month of the date of order dated 26-3-1985. It further directed that the Criminal Trial No. 3 of 1984 pending in the Court of Special Judge, Varanasi, be expedited and shall be disposed of within six months from the date of the order. The matter, however, remained pending before the Special Judge and out of sixty-four witnesses mentioned in the charge-sheet only fifteen could be examined by the time the petitioner filed the present petition in this Court in December, 1987. Further proceedings before the trial Court were stayed by order dated 26-2-1988 in the present petition. With the result that the proceedings in the trial continue to be stayed for the last more than 31/2 years during the pendency of the present petition.
3. The contention by the learned counsel for the petitioner in support of his prayer for quashing the proceedings is two fold. The first assertion is that there has been undue delay in the disposal of the trial even though a direction was issued by the Supreme Court for expeditious disposal of the same and for this reason the trial as against the present applicant was liable to be quashed. The second assertion is that the Assistant Commissioner, Sales Tax, who has granted sanction for prosecuting the present petitioner, who is a public servant, had no authority to do so as he was not competent to remove the petitioner from his office. It is contended that the sanction was invalid and for this reason the proceedings in this case were liable to be quashed.
4. I will first take up the question of delay. As mentioned earlier the first information report in this case was lodged in July 1979 alleging that large scale fraud, cheating and forging of documents has been committed and a large amount running into lacs had been withdrawn on the basis of forged documents, Obviously the allegations needed thorough investigation by the C.I.D. Naturally it takes a pretty long time to investigate such matters and to find out as to who the culprits are. The Inspector concerned of the C.I.D. submitted the charge sheet in the Court concerned on 23-3-1984. It cannot in the circumstances of the case be said that the Investigating Officer had taken unconscionably long time in conducting the investigating. As mentioned earlier, as many as 64 witnesses were named in the charge-sheet. The trial started in the year 1984. It appears that certain time was spent in disposing of the prayer by one of the accused who turned approver. The petitioner in the year 1984 itself approached the Supreme Court challenging his suspension. The Supreme Court rejected the prayer for setting aside the suspension but ordered the payment of the subsistence allowance. It, however, further directed that the hearing in the case be expedited and should be concluded within a period of six months from the date of the order. It is true that the Special Judge, Varanasi, could not conclude the hearing within that period. There were various factors due to which it could not be done. One of the same was the involvement of the special prosecutor in an accident which ultimately resulted in his death. It can, however, be also said that the prosecution was not very vigilent in producing the witnesses on the date fixed and with the result that only fifteen witnessed could be examined before the present petitioner came to this Court and obtained stay order in the beginning of the year 1988. So in effect the trial remained pending for a period of four years only before the Special Judge and after that it remained pending due to the stay order granted by this Court. Can it be said that the period of four years in respect of the trial of such a serious nature is such a long period so as to justify the quashing of the entire proceedings.? It is true that the accused persons have a fundamental right for speedy trial but the question about delay cannot be considered in isolation irrespective of facts of the case. In case the trial is in respect of very minor offence, delay of only a few years may justify quashing of the proceedings. However, in a case like the present one, delay of only four years in concluding the trial cannot justify the quashing of the proceedings. In the case Raghubir Singh v. State of Bihar, AIR 1987 SC 149 : (1987 Cri LJ 157). It was observed that the question of delay depends on facts and circumstances of each case. In the case Mangi Lal Vyas v. State of Rajasthan, 1990 Banking Cases 220 : (1988 Cri LJ 1188), cases under Sections 408 and 409, I.P.C. against the Manager of a Central Co-operative Bank were pending for over 25 years. A petition was filed in the High Court of Rajasthan for quashing the proceedings. The petition was, however, dismissed in the circumstances of the case. The petitioner filed appeal before the Supreme Court. The appeal was dismissed, holding that though the trial in the pending cases has been unduly protracted due to various causes which is no doubt a regrettable feature but having regard to the nature of the allegations made and the availability of evidence in support of the prosecution it is not expedient to terminate the proceedings at this stage, on account of lapse of time alone by invoking the inherent power of the Court. The Court, however, gave appropriate directions for the expeditious disposal of the proceedings.
5. In the present case, considering the nature of the proceedings it cannot be said that there was such undue delay in concluding the proceedings that this Court should in exercise of inherent powers under Section 482, Cr. P.C., quash the proceedings. In such circumstances the prayer for quashing the proceedings on the ground that there was undue delay in concluding the proceedings cannot be allowed, though appropriate directions for expeditious disposal of the case can be issued.
6. Now coming to the second point, the petitioner has asserted that he was promoted as a Lekhak Pralekhak in the year 1978 from the grade of 200-320 to the grade of 230-385 by the Deputy Commissioner, Sales tax by order dated 29-1-1978. Annexure R.A. 7 has been filed in support of this contention. It is further asserted that under the provisions of Sales Tax Manual either the Deputy Commissioner or Assistant Commissioner, Sales Tax is the appointing authority in respect of the employee in the grade of Rs. 200-320 mentioned in Schedule I but in respect of other posts the Deputy Commissioner (Administration) was the appointing authority as well as the punishing authority. It cannot be denied that an officer who is the appointing authority in respect of an employee of a particular grade is also the punishing authority and is competent to remove him. In the present case the sanction for prosecuting the petitioner has been granted by Sri R. C. Joshi, Assistant Commissioner, Sales tax by order dated 1-8-1983. The contention by the learned counsel for the petitioner is that the sanction for prosecuting the petitioner could not be granted by the Assistant Commissioner but either by the Deputy Commissioner or by the Joint Commissioner. The learned counsel has also referred to Annexure R. A. 1 and R.A. 2 to show that when a departmental enquiry was held against him. The Joint Commissioner, Sales Tax appointed Assistant Commissioner, Sales Tax as Enquiry Officer. The petitioner has also filed a letter dated 1-2-1988 (R.A. 4) by the Assistant Commissioner (Admn.), Sales Tax, Varanasi dated 9th March, 1988, mentioning that the appointing and punishing authority in respect of Alekhan/Pralekhan (Senior Clerk) is the Joint Commissioner (Admn.) Sales Tax. From these documents as well as from the Sales Tax Manual it will appear that the appointing authority in respect of the post which the petitioner was holding was the Joint Commissioner or at least the Deputy Commissioner, Sales Tax and not Assistant Commissioner, Sales Tax.
7. The opposite party, State Government, has asserted that the sanction for prosecution in the present case was granted by a competent authority. However, no material has been placed to show that the Assistant Commissioner was the competent authority to grant sanction for prosecuting the present petitioner.
8. Under Section 6(1)(c) of the Prevention of Corruption Act, 1947 the sanction for prosecuting the public servant could be granted by the authority competence to remove him from his office. This section also provides that no court shall take cognizance of an offence punishable under Sections 151, 164 and 165, I.P.C. or under Sub-section (2) or Sub-section (3A) of Section 5 of this Act alleged to have been committed by a public servant except with the previous sanction of the authority concerned.
9. The learned A.G.A., who is representing the opposite party, has argued that in the present case no sanction was necessary for prosecuting the petitioner and even if the Assistant Commissioner, Sales-tax was not a competent authority to grant the sanction, the prosecution of the petitioner was valid. It has also been argued that the petitioner is being prosecuted not only in respect of offence under Section 5 of the Prevention of Corruption Act but also in respect of offences under Sections 419, 420, 465, 468, 471, 474, 511, 120-B, I.P.C. It is contended that in respect of these offences no sanction was necessary. As mentioned earlier the petitioner is being prosecuted in respect of offence under Section 5(1)(d) of the Prevention of Corruption Act. Also, obviously his prosecution in respect of this offence is barred unless a valid sanction is obtained under Section 6 of the Act. In the present case no such valid sanction has been obtained as the authority granting such sanction was not the competent authority to grant it. So the petitioner cannot be prosecuted for the offence under Section 5 of the Prevention of Corruption Act in the absence of valid sanction. However, the entire prosecution cannot be quashed on this ground. The petitioner is being prosecuted in respect of the offences under Sections 419, 420, 511, 467, 468, 471, 474 and 120-B, I.P.C. also. It cannot be said that these offences are ancillary to the offence under Section 5 of the Prevention of Corruption Act. Actually these offences are the principal offences as it is asserted that the applicant along with other accused has conspired and had in pursuance of that conspiracy forged refund vouchers, opened accounts in banks in the names of several firms and had withdrawn the amounts running into lacs of rupees. Actually the offence under Section 467 is punishable even with imprisonment for life or for imprisonment for ten years though the offence under Section 5 of the Prevention of Corruption Act is punishable with a much lesser sentence. Considering these facts the trial in respect of the offences other than the offence under Section 5 of the Prevention of Corruption Act cannot be quashed on the alleged ground of absence of valid sanction.
10. Considering the above mentioned facts and circumstances the prayer by the petitioner for quashing the entire proceedings due to absence of valid sanction cannot be allowed. However the prosecution of the petitioner in respect of the offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947 is quashed as these is no valid sanction for prosecuting the petitioner in respect of that offence. Further, while rejecting the prayer by the petitioner for quashing the proceedings on the ground of delay, it is directed that the Special Judge, Varanasi, in whose Court the special case No. 3 of 1984 is pending shall dispose of this case as expe-ditiously as possible. The learned Special Judge shall not grant any unreasonable adjournment in the case and record statements of prosecution witnesses day to day. The learned Judge shall dispose of the case within the period of one year from the date on which he receives a copy of this order. The stay order dated 26-2-1988 is vacated. A copy of this order be sent immediately to the Court concerned so that the case may proceed further. The petition is disposed of accordingly.