Allahabad High Court
Prakash Chandra Jaiswal vs State Of U.P. And Ors. on 13 August, 1991
Equivalent citations: 1992CRILJ1590
JUDGMENT N.L. Ganguly, J.
1. The applicant Prakash Chandra Jaiswal was a Sub-Inspector in L.I.U. (Local Intelligence Unit) posted in District Farrukhabad, in the year 1975-77. A report was lodged against him and another person by Sri Ram Prakash Tripathi, a Member of Parliament. An investigation was made and a charge-sheet was submitted on 18-12-78 under Sections 161, 120B, I.P.C. and Section 5(2) of the Prevention of Corruption Act. The case was registered as S.T. No. 1 of 1979 before the Court of Special Judge, Farrukhabad. The petitioner has quoted in para 20 of the affidavit that as many as 50 dates were fixed in this case in the said trial. During the long drawn trial on 50 different dates evidence of 25 witnesses could be recorded besides one Court witness. One defence witness was also examined. The learned I Addl. Sessions Judge, Farrukhabad by his judgment dated 10-11-81 discharged the accused applicant for want of proper sanction for the prosecution in offences under the provisions of prevention of Corruption Act etc. The petitioner was already suspended w.e.f. 31-12-77. The suspension order continued even after the discharge of the accused applicant. The co-accused of the applicant Chatrapati Singh, Head constable who was also discharged along with the applicant had also applied for reinstatement with the applicant to the S.S.P. Jhanshi. The co-accused Chhatrapti Singh, Head constable was reinstated but the applicant was not reinstated.
2. A fresh charge-sheet was submitted against the applicant after moving the defect pointed out in the judgment of discharge passed by the Sessions Judge. A fresh S.T. No. 2 of 1983 was registered against the applicant on 24th August, 1983. Again in the fresh sessions trial, 38 dates were fixed. The applicant is resident of District Aligarh and he had to attend the Court at Farrukhabad on each and every date in the said trial. The agony of the trial continued till the end of July, 1986.
3. After 38 dates in the trial before the Special Judge, the learned Judge expressed himself that he would like to re-examine the witnesses afresh as the old procedure adopted by his predecessor was wrong. After recording the statements on 28-8-86, which was 51st date in the second trial, the Special Judge (P.C. Act) directed the Addl. Government Advocate to file application for spiliting of the case. Thus, an application was moved by the learned Addl. Government Advocate and one Sessions trial was spilited into seven sessions trials and numbered as separate Sessions Trials.
4. An application under Section 482, Cr.P.C. was filed by the applicant against the order dated 10-7-85 before this Hon'ble Court and Hon. V. P. Mathur, J. was pleased to dispose of the petition No. 7255 of 1988 with observation that "in view of the fact that the applicant is retiring shortly and the case is lingering on since long, it will be just and proper to expect that Special Judge (P.C. Act) Farrukhabad completes the S.T. No. 2/83 State v. Prakash Chandra Jaiswal expeditiously without unnecessary delay and an effort to see that entire evidence is completed within a reasonable time".
5. Further four witnesses of the prosecution were re-examined.
6. A writ petition No. nil of 1986 was filed before the Division Bench for quashing the order of suspension pending prosecution of the applicant for offences under Sections 161, 120B, I.P.C. read with Section 5(2) of prevention of Corruption Act. The petition was dismissed on the ground of alternative remedy under Section 482, Cr.P.C. Thus, the applicant filed the present application under Section 482, Cr.P.C. for quashing the proceedings, as stated above.
7. In spite of time granted to the opposite parties, the respondents have not filed any counter affidavit to the affidavit and the application. The petition is expected by the order of the Hon'ble Chief Justice. The learned counsel for the applicant submitted firstly that the prosecution of the applicant is wholly illegal and abuse of process of the Court liable to be quashed, secondly it was urged that the order of the learned I Addl. Sessions Judge, Farrukhabad discharging the applicant by his order dated 10-11-81 after framing the charge, evidence led by both the parties amounts to an acquittal and not a discharge. It was submitted that fresh prosecuted after obtaining necessary sanction for prosecution is illegal, it cannot proceed in view of bar of Section 300, Cr.P.C. thirdly it was submitted that the case is pending since 1978 and the charge-sheet was submitted against the applicant for more than 12 years back the applicant has already retired, the continuation of the criminal proceedings amounts to an abuse of process of the Court and fourthly it was also submitted that the petitioner was charged under Sections 420, 384, 385, 161, 120B, I.P.C. and Section 5(2) of prevention of Corruption Act. It was urged that in case No. 1/79 which started against the applicant on 5-5-79 after 17 dates four charges were framed by the learned sessions and after 17 dates, two other charges were added on 21-5-81. Again on 7-9-81, the charges proposed were revised and the accused was discharged on 10-11-81. The retrial started on 20-6-83 after 20 date for charge under Sections 384, 385, 120, 420, I.P.C. and after 19 dates on 29-8-85, the Special Judge again after recording evidence on P. Ws. proposed to spilit the case and framed five charges again in a revised manner under Section 219, I P.C. It was submitted that the maximum sentence provided for 420, I.P.C. is seven years, 384, I.P.C. three years, 385, I.P.C. two years, 161, I.P.C. three years and Section 5(2) of prevention of Corruption Act in question the maximum punishment is seven years. It is submitted that the long drawn prosecution and harassment of the applicant is nothing but abuse of process of the Court.
8. In support of the submissions, mentioned above, the learned counsel for the applicant cited 1978 Alld. Criminal Rulings 119, Ram Narain Rathore v. State to show that in circumstances similar to the present case whether (sic) the special Judge has arrived at a conclusion that the case could not proceed on the basis of the sanction already on record and ordered that record be consigned. The High Court held--
In this view the sanction for prosecution of the applicant for the offences under Section 161, Cr.P.C. and Section 5(2) Prevention of Corruption Act was invalid as it offended the provisions of Section 6(2) Prevention of Corruption Act. In the circumstances, therefore, the only order the Special Judge could be (sic) for the acquittal of the applicant.
The order for consigning the case to the record room was held to be illegal and was quashed.
9. Another case cited by the learned counsel for the applicant is 1983 Acc 193, Smt. Kitabun v. State of U.P. where the accused persons were discharged by the learned Magistrate in a warrant case relating to cognizable offences. Such order of discharge was held to amount as acquittal and the petitioner was not liable to be retried for the same offence in view of Section 403 of the old Code of Criminal Procedure.
10. It is worth mention that this petition was heard on 19th 1989 (sic) by Hon. R. K. Saxena, J. partly and he was pleased to send for the records of the case No. 1/79 State v. Prakash Chandra Jaiswal decided by Sri S.R. Bhargava, I Addl. Sessions Judge, Farrukhabad decided on 10-11-81 and the record of S.T. No. 2 of 1983, State v. Prakash Chandra Jaiswal was sent back to the authorities concerned, It is clear from the said requisition order that the Court wanted to verify the charge levelled against the other co-accused, the Head constable, who was discharged by the Sessions Judge by order dated 10-11-81. The Court wanted to verify and see the circumstances as to what was the circumstance which was considered in case of Head Constable Chhatrpati Singh to reinstate and not tried afresh after the fresh sanction was accorded. Although the record of the case appears to have been received but this case was not put up before Hon. R. K. Saxena, J. for further hearing and his lordships retried.
11. I have examined the record of the aforesaid two sessions trials and examined the judgment of Special Trial No. 1 of 1979, the charges against Chhatrapati Singh, Head constable and the applicant and the judgment in the said sessions trials. The record shows that the charges against both the accused persons were under Sections 120B, 420, 384, 385 and 161, I.P.C. and 5(2) of Prevention of Corruption Act. The learned special Judge had recorded a finding that it was clear that the accused while committing the alleged offences under Sections 120B, 420, 384, 385, 161, I.P.C. acted or purported to act in discharge of their duties and they were entitled for protection under Section 197(3), Cr.P.C. Since, there was no sanction for prosecution under the aforesaid sections, both the accused persons were not convicted. The learned special Judge observed that it appears that the allegations against the accused persons were of serious nature and if the allegations are shown to be correct that the accused dishonestly embezzled the money and also brought the measure of emergency into ridicule, they may be dealt with severally. But for want of the sanction in respect to the said offences, the Court stayed its hand from proceeding into scrutiny of the evidence for acquitting of the accused of the said charges. The Court adopted a peculiar course and instead of a acquitting the accused persons, discharged them giving an opportunity to the authorities to reconsider the entire matter after reconsideration and submit proper charge-sheet with necessary sanction.
12. I have examined in detail the charges against Chhatrapati Singh, Head constable and the petitioner. There is no difference or dissimilarity in the charges and the allegations in respect to difference in the amount which also was not of much significance. I fail to understand the circumstances and reason for not taking action afresh against the Head constable Chhatrapati Singh, co-accused who was reinstated also. But action on the part of the State in not taking action against Chhatrapati Singh and taking action against the petitioner without any cogent reason is clearly discriminatory. The prosecution and the State should have acted fairly without discrimination. Since the State without any particular reason or circumstances proposed to prosecute afresh the order and prosecution cannot be allowed to continue and is liable to be quashed.
13. It is not disputed that full fledged trial in respect of offences mentioned above was concluded against the applicant and the co-accused Chhatrapati Singh the case under the said sections was found to be not cognizable for want of sanction under Section 197(3), Cr.P.C. The Court was not legally correct in the circumstances of the case to discharge the accused applicant to give another opportunity to the prosecution for prosecuting the accused applicant afresh after lapse of more than five years of the alleged date of commission of the offence, in AIR 1985 SC 289 : (1986 Cri LJ 255), S. Guin v. Greeland's Bank Ltd. The Hon'ble Supreme Court held that inordinate delay and nature of offence involved in the said case, retrial was held not proper. In the present case, the matter in fact is by now more than 14-15 years old. The Supreme Court in a case similar to this was pleased to set aside the order for retrial. It is also worth nothing that the present applicant has retired few years back. In similar circumstances the learned single Judge of this Court in 1988 All Cr Cases 303 : (1988 All LJ 802), Sahabuddin Kureshi v. State of U.P. quashed the proceedings against the accused which was initiated after 13 years of the retirement of the accused persons from service.
14. In view of the facts and circumstances, stated above, I am of the view that there was no justification or reasonable cause for proceeding afresh against the applicant for the offences charged under Sections 420, 384, 385 and 120B of Indian Penal Code. The Court below had committed a minifest error of law in not acquitting the accused person after recording a finding that there was no sanction under Section 197(3) of Cr.P.C. for prosecution of the applicant for the said offences which according to the finding of the Court itself was committed in discharge of official duties or purported to be in discharge of his official duties. If the prosecution was negligent in not prosecuting the accused applicant after obtaining necessary sanction, there was no good reason for giving an opportunity to the prosecution for filling in the lacuna in the prosecution case after more than 13 years long drawn prosecution before the Court. The order of discharge passed by the Court in Special Trial No. 1 of 1979 was itself bad in law. I have no hesitation in holding that the applicant was discriminated and was tried to face the trial afresh for the offences for which co-accused Chhatrapati Singh, Head constable was also discharged with the applicant, he was later on not prosecuted rather given reinstatement. After considering the facts and the circumstances of the case, enumerated above, I am fully satisfied that there was no justification for the learned special Judge to further split up a case into number of special trials after lapse of 8 years of the alleged commission of offence. The overall assessment of the fact clearly goes to show that the proceedings taken against the applicant is nothing but, abuse of process of the Court and the prosecution of the applicant arising out of Special Case No. 1 of 1979 and Special Case No. 2 of 1983 pending in the Court of Special Judge, (E.C. Act) Farrukhabad is liable to be quashed.
15. The application under Section 482, Cr.P.C. is allowed and the proceedings arising out of Special Case Nos. 1 of 1979 and No. 2 of 1983 State v. Prakash Chandra Jaiswal and State v. Prakash Chandra Jaiswal, respectively, pending in the Court of Special Judge (P.C. Act) Farrukhabad are hereby quashed.