Orissa High Court
K. Achuta Rao And Anr. vs State Of Orissa on 24 December, 1986
Equivalent citations: 1987CRILJ2022
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. The petitioners have invoked the inherent jurisdiction of this Court to quash the criminal proceedings in G.R. Case No. 47 of 1979 pending before the Chief Judicial Magistrate, Jeypore, solely on the ground that gross delay in the commencement of the trial constitutes denial of justice and allowing such proceedings to continue after long lapse of years would not only cause gross miscarriage of justice, but also violates the constitutional guarantee of a speedy trial envisaged in Article 21 of the Constitution.
2. It is alleged by the prosecution in the F.I.R. lodged by the Assistant Registrar of Co-operative Societies and the Secretary of the Koraput Central Co-operative Bank Limited, Jeypore, that petitioner K. Achuta Rao while working as a Junior Accountant during the period from 6-1-1971 to 21-6-1972 and petitioner S. S. Goudo while working as an Assistant Superintendent during the period from 29-4-1970 to 3-4-1972, along with some others misappropriated a huge sum of about Rs. 4 lakhs and on the basis of the said report lodged during Jan., 1979, the police submitted charge-sheet on 3-9-1984 against three accused persons showing other four accused persons as absconders. On 3-9-1984, the learned Magistrate took cognisance against the petitioners under Section 408/34, Penal Code, issuing summons against the two petitioners and non-bailable warrants of arrest against other accused persons. In the meantime, the other accused persons also appeared and cognisance has been taken against them. After long lapse of about fifteen months, by order dt. 21st of Jan., 1986, the learned Magistrate framed charges against the accused persons including the petitioners under Section 408,1.P.C. and at this stage, the petitioners have approached this Court for quashing of the proceedings.
3. Mr. Palit, for the petitioners contends that the alleged misappropriation is of the year 1970-71 and in the meantime more than sixteen years have elapsed. Even from the date of the alleged detection in the year 1979, more than seven years have elapsed and the investigation itself continued for about six years. In this view of the matter, continuance of the criminal proceedings would be an undue harassment of the petitioners who would surfer untold miseries and the petitioners' valuable right of a speedy trial enshrined under the Constitution will be seriously jeopardised and, therefore, this is a fit case where this Court should exercise its inherent jurisdiction and quash the proceedings.
The learned Public Prosecutor, on the other hand, contends that since the misappropriation in question relates to an old event and is based on documents, the investigation naturally would take a longer time, but that by itself cannot be a ground for quashing the proceedings. The rival contentions require a closer scrutiny of the matter.
4. From the F.I.R. as well as the documents appended to the same, it appears that the misappropriation in question occurred in between 1970 and 1971 and the F.I.R. itself was lodged in Jan., 1979, i.e. after nine years. Then followed the endless investigation which continued till Sept., 1984 on which date the police submitted charge-sheet and ultimately in Jan., 1986, charges have been framed. This would indicate the cavalier fashion in which the entire matter has been approached. It has been indicated in the F.I.R. itself that one of the accused persons had died in the meantime. Initiation of a criminal proceeding after a long lapse of years would not only be an undue harassment to the accused persons, but the chances of success in the prosecution become remote, even in a case where the case hinges on documentary evidence. Contemporaneous witnesses do not become available and evidence in course of time gets obliterated and very often the end result goes against the prosecution. It is in this context in the case of Sri Harekrushna Mahatab v. Republic of India (1981) 52 Cut LT 473 : 1982 Cri LJ NOC 17 a Bench of this Court had quashed the criminal proceedings. It was held in that case that continuance of the prosecution would indeed be a harassment and it would be meet and proper to quash the proceeding. Instances are not rare where Courts have quashed criminal proceedings merely on the ground of initiation and continuance of the same after long lapse of time. In the case of State of U. P. v. Kapu Deo Shukla , the Supreme Court noted with approval its earlier decision , (Chajoo Ram v. Radhey Shy am) and held that lapse of a long time (in that case ten years) was a proper ground for holding that launching of a prosecution was inexpedient. In one of the earliest cases, in Machander v. State of Hyderabad , their Lordships of the Supreme Court had observed :
...While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go.
In another case, in State of Bihar v. Uma Shankar Kotriwal , their Lordships of the Supreme Court observed:
It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher Courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage.
In the present case, however, the petitioners have not played any role in the delay in commencement of the trial or in the protraction of the investigation. Again in the case of Hussainara Khatoon v. Home Secretary, State of Bihar, Patna , Bhagwati, J. (as his Lordship then was) held:
...Even a delay of one year in the commencement of the trial is bad enough : how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice....
In another recent case of the Supreme Court in the case of S. Guin v. Grindlays Bank Ltd. , their Lordships observed:
We are of the view that following the above principle the High Court should have dismissed the appeal before it even if it disagreed with the view taken by the trial Court with regard to the gist of the offence punishable under Section 341, Penal Code, having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants and the difficulties that may have to be encountered in securing the presence of witnesses in a case of this nature nearly 7 years after the incident. The termination of the criminal proceedings in that way would secure the ends of justice as it would bring about reconciliation between the management and the employees and also put an end to a State criminal proceeding in which the public had no longer sufficient interest....
The aforesaid observations were of course made in connection with a judgment of acquittal being converted to a conviction by the High Court. But on principle, the ratio would equally apply to a stale commencement and protracted investigation.
A Full Bench of the Patna High Court in the case of Madheshwardhari Singh v. State of Bihar , even gives a greater dimension to the problem by holding that the fundamental right to a speedy public trial extends to all criminal prosecutions for all offences generically, irrespective of their nature. It is not confined or constricted to either serious or capital offences only. It was further observed :
The right under Article 21 of our Constitution to a speedy public trial is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution. The Sixth Amendment to the American Constitution in terms says, 'in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial'. Even on principle it is obvious that on the plain language of the Sixth Amendment to the American Constitution, the fundamental right of a speedy trial is not confined to any particular category and without any such restriction. Coming now to precedent the American precedent, which is the fountainhead of the concept of speedy public trial, has now consistently extended it without limitation to all offences and all criminal prosecutions.
Their Lordships further held:
In the majestic sweep of the fundamental right of a speedy public trial in the context of a criminal prosecution, initiated at the State's instances, it necessarily connotes all the period from the date of the levelling of the criminal charges to the date of the rendering of the judgment in Court. Unless it is so held, the cherished fundamental right herein would be whittled down to a teasing mirage, where the investigation of the offences itself may protract on for years and, thus rendering the very concept and purpose of a speedy trial purely illusory. Therefore, a speedy trial in a criminal prosecution herein includes within it both the police investigation of the crime and the later adjudication in Court based thereon.
In the aforesaid Patna case, their Lordships spelt out an outer limit of seven years from the date of the offences to be the period beyond which a criminal proceeding is not to be countenanced at all. While fixing such limit, their Lordships relied upon the observations of the Supreme Court in Grindlays Bank's case AIR 1986 SC 289 : 1986 Cri LJ 255.
5. In view of the authoritative pronouncements referred to supra, and applying the same to the facts and circumstances of the present case, I cannot but come to any other conclusion than that allowing the criminal proceedings to continue would be an abuse of the process of Court and the ends of justice require that the proceedings ought to be quashed. It is too well settled that High Court's inherent powers are designed to achieve a salutary public purpose which is that a Court's proceeding ought not to be permitted to degenerate into a weapon of harassment and persecution. It would be profitable at this stage to quote the observations of the Supreme Court in the case of State of Karnataka v. L. Muniswamy to the following effect:
...In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the Legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.
Suffice it to note that the learned Public Prosecutor appearing for the State could not assign a single reason for the inordinate protraction of the investigation and the inordinate delay even in the commencement of the prosecution.
6. In the result, therefore, I would quash the charges framed against the petitioners and the criminal proceedings against the petitioners stand quashed. This Criminal Revision is accordingly allowed.