Orissa High Court
Balaram Swain vs The State Of Orissa on 27 January, 1986
Equivalent citations: 1986(I)OLR350
JUDGMENT K.P. Mohapatra, J.
1. This is a petition under Section 482 of the Code of Criminal Procedure ('Code' for short) for quashing the charges framed against the petitioner under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act (hereinafter referred to as the 'Act') and under Section 409 read with Section 109 of the Indian Penal Code ('I.P.C' for short).
2. The relevant facts may be stated in a nutshell. Accused Sudhir Chandra Misra was the District Veterinary Officer, accused Ajodya Prasad Mishra was the Head Clerk and the petitioner Balaram Swain was the Accountant in the District Veterinary Office, Bolangir, in the year 1967. On 31.3.1967 accused Sudhir Chandra Misra in his official capacity drew a sum of Rs. 27,187.86 by presenting Bill No. 427 in the local Treasury. On 15.5.1967 the petitioner took an amount of Rs. 2360/- therefrom for payment of costs of transportation of furniture and presented a Kutcha unstamped receipt. The furniture were in fact transported by Government vehicle. The petitioner did not spend the amount of Rs. 2,360/- for the purpose for which he had taken the same. The above fact came to light when an Auditor audited the books of accounts of the District Veterinary Office, Bolangir, for the period 1966-67 and 1967-68 from 14.8.1973 to 17.11.1973 and submitted audit report No. 10 of 1973-74. On the basis of his report F. I. R. was lodged on 18.3.1975 and investigation commenced. After close of investigation, charge sheet was submitted on 26.11.1980 against the above named three persons in T. R. Case No. 19 of 1980 of the Court of the learned Special Judge, Sambalpur.
3. At the time of framing charges it was urged on behalf of the petitioner that for misappropriation of a sum of Rs.3851.60 on 15.5.1967 on the basis of audit report No. 10 of 1973-74 he was convicted and sentenced for offences under Section 5 (1)(c) read with Section 5(2) of the Act and under Sections 409 and 477A I. P. C. by learned Special Judge in T. R. Case No 7 of 1975, which order was confirmed by the High Court and the matter is now pending in the Supreme Court in appeal. The petitioner could have been prosecuted for the alleged misappropriation of the sum of Rs. 2360/-on 15.5.1967 which came to light by audit report No 10 of 1973-74 in the earlier T. R. Case No. 7 of 1975. But instead of prosecuting him earlier and although F. I. R. was lodged as early as 18.3.1975, charge-sheet was submitted against him on 26.11.1980 Therefore, he was prosecuted for an alleged offence committed about 14 years ago which was unjust and improper. The case was covered by Section 300 of the Code and so he could not be prosecuted for the second time.
On behalf of the prosecution it was pointed cut that on the alleged date of misappropriation, namely, 15.5.1967 there were two entries. The case which ended in conviction of the petitioner related to misappropriation of Rs. 3,851.60 2nd this case related to the alleged misappropriation of Rs. 2360/-. So in respect of two entries in 'the books of accounts, the petitioner committed two distinct offences and so he was lable to be prosecuted separately for each distinct offence. Accordingly Section 300 of the Code was not a bar to the prosecution of the petitioner.
4. The learned Special Judge discharged accused Ajodya Prasad Misra. because, there was no prima facie case against him for the alleged misappropriation. He repelled the cotention of the petitioner and held that trial of the petitioner in T. R. Case No.7 of 1975 was based on a different set of facts. During trial of that case the prosecution had no knowledge that the petitioner had also misappropriated a sum of Rs. 2360/-, because audit report No. 10 of 1973-74 did not specifically mention that the aforesaid amount had been misappropriated. Therefore, misappropriation of the sum of Rs 2360/-on 15.5.1967 which came to right later constituted a distinct offence unconnected with the earlier offence and so Section 300 of the Code was not a bar. Accordingly he farmed charges against accused Sudhir Chandra Misra and the petitioner for offences under Section 5(1) (c) read with Section 5(2) of the Act and under Section 409 read with Section 109, I. P. C.
5. Mr. P K. Misra, learned counsel for the petitioner contended that misappropriation of specific amounts by the petitioner on 15.5.1967 out of the total amount of Rs. 27, 187. 86 withdrawn from the Treasury by Bill No. 427 came to light when an Auditor audited the books of accounts of the District Veterinary Office, Bolangir, for the period 1966-67 and 1967 68 from 14.8.1973 to 17.11.1973 and submitted audit report No. 10 of 1973-74. From the said report it appeared that the petitioner had taken a sum of Rs. 3851.60 on 15.5.1967 for payment to different employees, but instead of doing so, he had misappropriated the entire amount. On the basis of this fact T. R. Case No. 7 of 1975 was instituted against him and he was ultimately convicted and sentenced. On the same day, namely, 15.5.1967, it was alleged that he had taken another sum of Rs. 236O/- on the basis of a Kutcha receipt and it was suspected that he had misappropriated this amount. According to him, therefore, audit report No. 10 of 1973-74 discleared suspected misappropriation by the petitioner two specific sums, namely, Rs. 3851. 60 and Rs. 2360/- on 15.5.1967. He, therefore, urged tat the prosecution had specific knowledge of the alleged misappropriation of the sum of Rs. 2360/- when the first case was instituted against the petitioner on the basis of audit report No. 10 of 1973-74 and so the observation of the learned Special Judge that the prosecution had no knowledge cannot be accepted. This contention seems to be correct. Although the audit report is not available in the record, yet the statement of the Auditor, Naba Kishore Sahu under Section 162 of the Code is available. A plain reading thereof will show that the sum of Rs. 2360/- was withdrawn by the petitioner by a Kutcha receipt and the amount had not been realised from him nor had he adjusted the same with actual payee vouchers. The said amount also did not pass through the advance ledger. These facts were also stated in audit report No. 10 of 1973-74 The audit report was with the prosecutor with the aforesaid facts mentioned therein in detail. This being the position, it is strange that the prosecution has come out with an unbelievable story that it did not suspect the alleged misappropriation of the sum of Rs. 2360/- by the petitioner who had taken advance of the aforesaid amount on a Kutcha receipt and did not either redeposit the amount for adjust the same by production of fully vouched receipts. From these facts it is quite apparent that when the prosecution for the earlier case ( T. R. Case No. 7 of 1975 ) for misappropriation of the sum of Rs. 3851 60 was launched against the petitioner, it was also within the knowledge of the prosecution that the petitioner might have similarly misappropriated the sum of Rs. 2360/-. For some unexplicable reason, no action was. taken by the prosecution to include the alleged misappropriation of the sum of Rs. 2360/- in the earlier case and it waited till 18. 3. 1975 to lodge F. I. R.
6. It was not disputed that the alleged misappropriation of the sum of Rs 2360/- took place on 15-5-1967. The F. I. R. was lodged on 18-3-1975 and after investigation for more than five years charge-sheet was submitted on 26.11.1980. Charge was framed about two years thereafter on 17-4-1982. Thus the petitioner was subjected to the agony of the charge of misappropriation for a period of more than ten years.
7. In an almost identical case a learned single Judge of this Court in a case reported in 1978 Crl. Law Journal 863, Gangedhar Panda v. The State of Orissa, gave the benefit of Section 300 of the Code and held that the items of defalcation were within the knowledge of the prosecution and there had been no explanation why those items were not included in the previous trial. In the absence of such explanation, it would not be conducive to proper administration of justice to continue a second trial as the petitioner would thereby be prejudiced and harassed even though a fresh trial was not legally barred. In 47 (1979) C. I. T. 126, P. Chirartjivi v. Principal, M. K.C.G. Medical College, Berhampur and another earned single Judge dealt with the question of a criminal proceeding, started after a long lapse of time and held that, to allow the criminal proceeding, to continue further after a long lapse of time of fourteen years from the date of alleged commission pf offence would amount to permitting a Court proceeding to degenerate into a weapon of harassment and would not, at the late stage, achieve any salutary public purpose. A learned single Judge of the Punjab and Haryana High Court in a case reported in 1981 Crl. Law journal 984, Prithvi Raj and Anr. v. State of Haryarna, took an identical view and did not allow a criminal proceeding to continue after a long lapse of about eleven years from the date of alleged commission of the offence.
8. In view of the aforesaid principles which are squarely applicable to the facts of this case, it is apparent that the criminal proceeding cannot be kept alive for more than ten years, particularly when, the alleged misappropriation of the sum of Rs. 2360/-was within the knowledge of the prosecution and no reasonable explanation is forthcoming as to why this item was not included in the earlier case which ended in conviction and sentence of the petitioner. After long lapse of time no useful public purpose will be served by allowing the criminal proceeding to continue. On the other hand, it will bring about harassment and agony to the petitioner. It will be more so, because, after framing of charge on 17.4.1982 almost four years have elapsed and it will take a few years more for final disposal of the criminal proceeding, leaving apart, further proceedings in higher Courts by way of appeal, revision or otherwise, if any. In the case reported in A. I. R. 1960 S. C. 866 D. P. Kapur v. State of Punjab, it was observed :
"...It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage it is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction."
9. In the ultimate analysis, I consider that if the criminal proceeding is allowed to continue any further against the petitioner, it will amount to abuse of the process of the Court and no salutary public purpose will be served. On the other hand, it will degenerate into a weapon of harassment and agony. It is therefore, a fit case where the criminal proceeding relating to the petitioner should be quashed in exercise of the powers conferred under Section 482 of the Code.
10. In the result, the petition is allowed and the charge in the criminal proceeding in T.R. Case No. 19 of 1980 against the petitioner in the Court of the Special judge, Sambalpur, is quashed.