Calcutta High Court
Pasang Yolmo vs State Of West Bengal And Anr. on 17 July, 2007
Equivalent citations: 2008(1)CHN499
JUDGMENT Sadhan Kumar Gupta, J.
1. This revisional application has been preferred under Section 482 of the Cr. PC praying for quashing of the proceeding being Special Case No. 146 of 2006, as pending before the Judge, Special Court (CBI), Calcutta.
2. Case of the petitioner is that he is a W.B.C.S. Officer and at present posted as Sub-Divisional Controller in the West Bengal Food and Supplies Department. He joined the post of Sub-Divisional Controller, Food and Supplies Department, Darjeelingon 1.2.1982. One Mr. N. Dasgupta, Inspector of Police, CBI, Siliguri started a criminal case on the basis of source information under Section 409/477A of the IPC and Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act against the petitioner and one Prithwish Chandra Pal. It has been alleged in the complainant that said Prithwish Chandra Pal while functioning as Inspector-in-Charge, FCI Godown, Darjeeling during the year 1990-91 dishonesty issued certain quantity of wheat, sugar, rice in excess of the actual allotment. On the basis of such complaint, a criminal case was started and after completion of investigation chargesheet was submitted against the said Prithwish Chandra Pal and also against the present petitioner.
3. Accordingly to the petitioner there is no reason for submission of chargesheet against the petitioner. He is in no way connected with the alleged misdeeds of Shri Prithwish Chandra Pal. The shortage or misappropriation of the food articles in question, if any, was done at the instance of said Prithwish Chandra Pal and the present petitioner is in no way connected with the matter. According to him due to the peculiar geographical condition of Darjeeling district. Food Department decided to take steps during rainy season for proving buffer stock of food grains in the said district to meet the natural calamities diring the rainy season. Often there is landslide in the district. So sometimes it was not possible to send the food grain to distant places and as such in order to meet such exigencies, the Food Department issued circular to the Sub-Divisional Controller/Rationing Officer to take suitable steps for creating buffer stock of food grains in the rainy season to meet the said exigencies. As such, being a subordinate being a subordinate officer, the petitioner took steps in that respect and by exercising his discretion, allotted, food items in favour of various M.R. Dealers and their indents were suitably modified keeping in mind those circulars and then the indents were sent and the indents were modified accordingly and advice list was sent to the concerned Inspector of the Food and Supplies Department. If the said Inspector manipulated the advice list, as sent by the petitioner in allotting foodgrains to the M.R. Dealers illegally, then the petitioner cannot be held responsible for that. Under such circumstances, the petitioner prayed before the learned Judge, Special Court for his discharge. But the said prayer was rejected. Although, the petitioner did not challenge the said order at the initial stage, but subsequently by filing this present petition, the petitioner has claimed that there is no basis for proceeding against him so far as this case is concerned and the matter was allowed to be pending for a long time without any reason whatsoever thereby denying the petitioner's right to get speedy justice. Due to all these reasons, the petitioner has prayed that the proceeding as pending against him, should be quashed immediately, if not for anything else but for the sake of natural justice.
4. The learned Advocate for the petitioner has contended that the case is pending since 1993 and uptil now only one and half witnesses have been examined, although in all 48 witnesses are to be examined by the prosecution. Due to this factual aspect, as discussed above, along with the fact that there was unusual delay in proceeding with the trial of the case, the learned Advocate for the petitioner argued that the criminal proceeding should immediately be quashed so far as the petitioner is concerned. In this respect, he has relied upon the decision reported in 1992 SCC (Cri) page 93 A.R. Antulay and Ors. v. R.S. Nayak and Anr. That apart, he has also relied upon the decision reported in 2007 (1) SCC (Cri) page 180 Motilal Sharaf v. State of Jammu and Kashmir and Anr.
5. As against this, learned Advocate for the CBI and the learned Advocate for the State submits that since chargesheet has already been submitted and trial has also commenced so it is not permissible to quash the criminal proceeding, as claimed by the petitioner. In this respect, the learned Advocate for the CBI has relied upon the decision reported in 2004 (4) AICLR page 664 State of Rajasthan v. Iqbal Hossain and the decision P. Ramchandra Rao v. State of Karnataka. In addition to that the learned Advocate for the CBI further argued that during investigation materials have been collected against the petitioner also and as such it will not be proper to quash the criminal proceeding as prayed for by him. He has prayed for dismissal of the revisional application.
6. So far as the claim of the petitioner that prosecution has failed to complete the trial within a reasonable period and thereby denied-the accused/petitioners right to get speedy justice is concerned, learned Advocate for the petitioner pointed out that although the case was started in the year 1993 and chargesheet was submitted in the year 1995 still out of 45 witnesses, prosecution only examined the PW. 1 in full and the PW. 2 in part. This shows that the prosecution is not at all interested in proceeding with the trial in effective manner and as such as the accused/petitioner's right to get speedy trial has been denied, so it is a fit case where the criminal proceeding should be quashed so far as the accused/petitioner's is concerned. I have already pointed out that in this respect the learned Advocate for the petitioner relied upon the decisions reported in 1992 SCC (Cri) 93 (supra) and 2007 (1) SCC Cri 180 (supra). In both the decisions it has been held by the Hon'ble Supreme Court that the accused cannot be denied the right to get speedy trial and this question of denial of the right has to be decided by balancing the attendant circumstances and relevant factors. It is impossible to frame a strait-jacket formula in this respect and each case should be decided on its merit by way of considering the entire surrounding circumstances. Learned Advocate for the CBI heavily relied upon the decision reported in 2004 (4) All India Criminal Law Reporter page 664 (supra) wherein the Hon'ble Apex Court observed right to speedy trial is not a right not to be tried. In the said decision also it has been held that simply because the trial could not be completed within a certain period that cannot be a ground for discharging an accused in a criminal case. From all these decision it is very much clear that ratio as decided by the Hon'ble Apex Court is to the effect that simply there was delay in conclusion of the trial, that cannot be a ground ipso facto for discharging an accused without conclusion of the trial before passing such an order, another circumstances should be considered as to where there was any laches on the part of the prosecution to conclude the trial. I have already pointed out that in this case chargesheet was submitted in the year 1993 and upto 2007 only one and half-witnesses could be examined on behalf of the prosecution. It is correct that for that unusual delay the prosecution cannot be held solely responsible as because the delay took place due to other reasons also. In this respect, the learned Advocate for the CBI showed the dates on which the case was adjourned. It appears that in most of the dates the trial could not be completed due to the absence of the Presiding Officer and also due to the non-appearance of the witnesses. The trial date was adjourned on 11 occasions on the ground of the defence. But it appears from the order sheets that on those dates also the prosecution was not ready with the witnesses and as such I cannot be said that the trial was delayed due to the accused persons. Had the witnesses been present then on all those dates they could have been examined by asking the learned Advocate to represent the absentee accused persons. But that step was not taken. Be that as it may, from the list of dates as supplied by the learned Advocate for the CBI, there cannot be any doubt that the trial was unnecessarily delayed for no fault of the accused persons. I have already pointed out that chargesheet was submitted in the year 1995 and only one and half witnesses could be examined upto the year 2007. I have also pointed out that altogether 45 witnesses are to be examined. The speed in which the prosecution case is moving, raises a presumption that it will take few more years to examine all these witnesses. For this long and unusual delay, the accused/petitioner is the worst sufferer although he had claimed that he was no way connected with the alleged offence. As such, it is necessary to see whether there is any prima facie material against the petitioner or not. If it appears that there is strong prima facie case against the accused/petitioner, then in that event it is always desirable that appropriate direction should be given to the learned Trial Judge to complete the trial within a specific time limit. Let us now see as to what are the allegations against the present petitioner and what materials have been collected against him. The plain reading of the chargesheet shows that the entire allegation of the prosecution is against the other accused Prithwish Chandra Pal. It is the case of the prosecution that it is this accused Pal who actually made double supply of food grains to the M.R. Dealer illegally by preparing duplicate copy of the advice list, as sent by the present petitioner. It is also the case of the prosecution that during investigation the other accused deposited some amount in favour of the Government in order to cover up his misdeeds. This shows that there is absolute prima facie case against the said accused. So far as the present petitioner is concerned, it appears that he was at that time working as the Sub-Divisional Control Officer in the Food and Supplies Department. From the copy of the circulars which have been annexed along with this revisional application, it appears that discretion was given to the Sub-Divisional Control Officer to take appropriate steps for supply of the food grains to various M.R. Dealers in order to create a buffer stock to meet the exigencies during natural calamities. The chargesheet shows that on various occasions the present petitioner issued advice list in respect of supply of the food grains in excess of the fixed quota. But at the same time, it appears that on some other occasions advice list was sent showing supply of less quantity of food grains, as mentioned in the allotted quota. So there is reason to believe that the accused/petitioner exercised his discretion in this respect in sending such advice list. It cannot be said that by sending such advice list. It cannot be said that by sending such advice list, he has committed any misdeeds, as claimed by the prosecution. Even if the action on the part of the accused/petitioner is said to be incorrect, then also it cannot be said that he had done this with some illegal motive. After all, the advice list was sent to the Inspector, who according to the prosecution prepared duplicate copies of the same and supplied the food grain to the M.R. Dealers in excess of the prescribed limit as mentioned in the said list. For this misdeed of the Inspector, the accused/petitioner, being the Sub-Divisional Control Officer cannot be blamed. There is nothing on record that the petitioner conspired with the Inspector in misappropriating the property of the Government. It further appears from the annexures that initially the petitioner was suspended by his department. But subsequently said suspension order was withdrawn and he has reinstated in the same post with all the back wages treating his absence to be on leave. As such, it prima fades raise the presumption that the department concerned was satisfied with the explanation of the accused/petitioner. There is nothing to show that any departmental proceeding was started against the petitioner and he was published in the said departmental proceeding. It appears from the discussion made above, that there is practically no material to hold that the accused/petitioner made conspiracy with the other accused in misappropriating the Government property which amounts to misconduct, as per provisions of the Act. As such, I have got no hesitation to hold that the prosecution has failed to make out any probable prima facie case against the accused/petitioner, so far this case is concerned. That apart, I have already pointed out that this case is pending for the last 12 years since the filing of the chargesheet and until now only one and half witnesses could be examined. Considering all such circumstances, I am of opinion that it is a fit case where the criminal proceeding, as pending against the accused/petitioner should not be allowed to proceed any further. To my mind, said proceeding should be quashed immediately against the petitioner, if not for anything else but for ends of justice. I have got no hesitation to hold that no purpose will be served in allowing the criminal proceeding to proceed further, so far as the accused/petitioner is concerned, and as such he is entitled to be acquitted immediately.
7. In the result, the revisional application succeeds on contest. The criminal proceeding being Special Case No. 146 of 2006, as pending in the Court of the Judge, Special (CBI) Court, Calcutta is quashed so far as the accused/petitioner passing Yolmo is concerned. He be discharged at once so far as this case is concerned. It is made very clear that the case will proceed so far as the other accused is concerned, unless any other direction is passed by the competent Court. The interim order of stay, if any, stands vacated.
8. Send a copy of this order to the Court below at once for information and taking necessary action. Criminal Section is directed to supply certified copy of this judgment, if applied for, to the parties on urgent basis.