Calcutta High Court
Animesh Chandra Sengupta vs State Of West Bengal on 14 January, 2004
Equivalent citations: 2004(2)CHN217
JUDGMENT P. N. Sinha, J.
1. This revisional application under Section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been filed by the petitioner praying for quashing the criminal proceeding being G.R. Case No. 575 of 1996 arising out of Chinsurah P.S. Case No. 37 dated 28.4.86 under Section 409 of the Indian Penal Code, now pending before the learned Judge, 1st Special Court, Hooghly being Special Court Case No. 2 of 1991.
2. Learned advocate for the petitioner contended that the petitioner was posted as Store Keeper-cum-Clerk-cum-Accountant of Imambara Sadar Hospital. On 23.4.86 he informed the Programma Director-cum-Superintendent, District Hospital, Hooghly stating that a sum of Rs. 8,000/- was defalcated by someone forging his signature. The petitioner was arrested by police in connection with Chinsurah P.S. Case No. 37 dated 28.4.86 under Section 409 of I.P.C. which was started on the basis of complaint lodged by Programme Director-cum-Superintendent, District Hospital, Hooghly alleging that the petitioner encashed Rs. 8,000/- through Cheque No. A 41/100073010 of State Bank of India, Chinsurah from current account by putting signature on the back of the cheque. But previously the petitioner informed the de facto complainant about the withdrawal of the money by someone forging his signature and at that time he also informed that counter folio of the cheque was missing from the cheque book which was in custody of petitioner. In the said case chargesheet was submitted on 9.1.91. The petitioner has retired from service on 31.8.92 while he was under suspension.
3. He contended that during investigation no specimen signature of the petitioner was obtained by the Investigating Officer (hereinafter called the I. O.) for verification by handwriting expert with the impugned signature appearing on the back page of the cheque. Though the case was started in 1986, the trial has not yet been commenced. Continuation of this criminal proceeding since 1986 amounts to miscarriage of justice and it is against principles of Article 21 of the Constitution. Right guaranteed under Article 21 of the Constitution lays down provision of speedy disposal of trial but pendency of the case for nearly 17 years is an abuse of the process of law. It is causing mental agony and harassment to the petitioner. Accordingly, the said criminal proceeding should be quashed. In support of his contention he cited two decisions namely 2002 C Cr LR (SC) 497 (P. Ramachandra Rao v. State of Karnataka) and 2003 C Cr LR (Cal) 721 (Pradip Mitra v. State of West Bengal and Ors.) for consideration of Court.
4. Learned advocate appearing for the State submitted that it is a case under Section 409 of I.P.C. in which the Government money worth Rs. 8,000/-was defalcated and misappropriated by the petitioner. The petitioner was the Store-Keeper-cum-Accountant and the cheque book was in his custody. The money was withdrawn on the basis of a cheque and signature of the petitioner appeared on the back side of the cheque. It is true that nearly 18 years have passed in the meantime but the trial did not start. This itself cannot be a ground for quashing the criminal proceeding. This Court may give necessary direction to the learned Trial Court for expeditious trial of the said case and the petitioner may be given liberty to agitate all the points before the Trial Court.
5. I have duly considered the submissions of the learned advocates of both parties and perused the contents of application and annexures made thereto. It appears that the G.R. Case No. 575 of 1996 which has subsequently been converted into Special Court Case No. 2 of 1991 was started on the basis of Chinsurah Police Station Case No. 37 dated 28.4.86 under Section 409 of the I.P.C. with the allegation that this petitioner defalcated Rs. 8,000/- after withdrawing the said amount from current account of District Sadar Hospital, Hooghly in respect of Programme Director, P. P. Unit through bearer cheque No. A41/100 073010 of State Bank of India, Chinsurah on 14.4.86. This accused petitioner informed the informant that the said sum of Rs. 8,000/- was misappropriated and the counter folio of the cheque was also missing from the cheque book and he did not sign behind the impugned cheque through which the money was withdrawn. On the basis of F.I.R. lodged by P.K. Bhar, Superintendent, District Sadar Hospital, Hooghly the aforesaid case was started and this petitioner was arrested by police and subsequently after detention in custody for about 40 days he was enlarged on bail. Subsequently, after completing investigation the police submitted chargesheet against the petitioner on 9.1.91. The petitioner was placed under suspension and he has retired from office on 31.8.92 after attaining age of superannuation.
6. It appears that since the institution of the case and after submission of chargesheet the said case was sent for trial to the learned Judge, 1st Special Court, Hooghly at Chinsurah being Special Court Case No. 2 of 1991. It appears from the order sheet of the Court of the learned Special Judge that he received the case record on 26.3.91 and since then not a single witness has been examined in the instant case. The order sheet produced before this Court starting 23.3.91 upto 26.6.03 do not show framing of charge against this petitioner and taking of any steps regarding trial of the said case.
7. Learned advocate for the petitioner submitted that the petitioner has retired in 1992 and no effective steps for the trial has yet been taken though the criminal case was started in 1986 and the chargesheet was submitted in 1991. The petitioner has been harassed and put to suffer mental agony due to pendency of the criminal proceeding. He contended that the said proceeding may be quashed and he placed reliance on the aforesaid two cases as mentioned above.
8. The Hon'ble Apex Court in the case of Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr., , observed that, "In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatch--reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes." Thereafter, the Supreme Court laid down guidelines in respect of right to speedy trial emerging from Article 21 of the Constitution and the guidelines cannot be regarded as exhaustive but these are only illustrative.
9. Subsequently in Common Cause case certain limitations were prescribed in respect of criminal trials in view of the decisions Raj Deo Sharma v. State of Bihar, , Raj Deo Sharma v. State of Bihar, , 'Common Cause' A Registered Society v. Union of India, and 'Common Cause' A registered Society v. Union of India, The Constitutional Bench of Supreme Court in a subsequent decision in P. Ramachandra Rao's case (supra) observed that there cannot be any prescribed period of limitation for disposal of a criminal case. In that decision the Supreme Court has observed that dictum in A R. Antulay's case is correct and still holds the field.
10. Relying upon the aforesaid judgments of the Supreme Court it requires consideration whether there was delay in disposal of the case for the fault of the prosecution or fault of the accused petitioner. From the copy of the order sheet it does not appear that the accused petitioner used to remain absent all the time before the Trial Court and thereby caused delay in disposal of the case. It is true that he was absent for few days during the last 13 years but on the whole, he was present in the Trial Court for several dates. The order sheet reflects that the trial could not be started either for the non-availability of the power of the Court to try such cases or, due to the heavy congestion in the diary of the Trial Court. In that process starting from 26.3.91 upto this date even charge could not be framed against the petitioner. The learned Trial Judge also did not take effective steps to frame charges against the accused when power was with the Court and did not try to proceed with the trial. When power was not available due to transfer of the Judge, the Judge who joined next in the said Court did not take effective steps to obtain the power from the authorities concerned. It is clear, Therefore, that for the last 13 years except for adjournments there was no further progress in the instant matter.
11. The alleged offence took place in the year 1986 and the case was registered on 28.4.86. Chargesheet was submitted almost 5 years thereafter on 9.1.91. The learned Judge received the case record on 26.3.91. Thereafter, 53 dates passed or, 53 adjournments were made upto 26.6.03, the charge was not framed against the accused petitioner and there was no effective steps at all to proceed with the trial and to dispose of the case expeditiously. Since chargesheet nearly 13 years have passed no progress of trial has taken place in the instant case. The petitioner has already retired from service on 31.8.92 and he is suffering from mental agony and anxiety for the last 18 years because of the pendency of this proceeding.
12. In the present case, it is clear, that charge has not yet been framed and the Court is still without power to try the alleged offence against this petitioner. If at this stage the prosecution is permitted to proceed with the trial it will take almost another decade to conclude the trial. Accordingly, considering all aspects I am of opinion that it is a fit and proper case which requires interference by this Court. After a long gap of 18 years it would not be proper and desirable to give further opportunity to the prosecution to cause further harassment and mental agony to the petitioner. In view of the guarantee of fundamental right of speedy trial as enshrined under Article 21 of the Constitution, the present proceeding should be quashed.
13. In the result, the present revisional application succeeds and the same is allowed. The impugned proceeding being Special Court Case No. 2 of 1991 pending before the learned Judge, 1st Special Court, Hooghly is hereby quashed.
14. Send a copy of the order to the learned Judge, 1st Special Court, Hooghly for information and necessary action.
15. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.