//
you're reading...
legal issues

Extra-ordinary delay even charge sheet not filed due to Non- Availability of original records of misappropriation – for the same offence the accused was exonerated in departmental proceedings – FIR is quashed = It is not disputed by the respondent that the departmental proceeding was initiated against the appellant with regard to identical charges made in the FIR. It was alleged that as per CAG Inquiry Report dated 15th December, 2008 Rs.4,39,617/- has been misappropriated by the appellant, all the copies of original bills and documents are available in the office of CAG and the original documents are available in the office of the Directorate, State Literacy Programme. In the departmental proceeding identical allegation was made that as per the Inquiry Officer Report, an embezzlement of Rs.4,39,617/- was found to be done by the appellant. 32. During the investigation inspite of several requests made by the Investigating Agency (Police), the records in respect of allegation were not produced. No evidence came against the appellant-Lokesh Kumar Jain, from the file of the education department. As the case was pending since long and there was no possibility of availability of record in the near future, FR No.67/2000 against the appellant was filed before the CJM, Dausa. The CJM, Dausa by his order dated 18th November, 2000 on perusal of Final Report, in exercise of power conferred under Section 156(3) Cr.PC directed the SHO, Dausa to re-investigate the case with the assistance of complainant and to procure the original records. Inspite of order dated 18th November, 2000, for nine years, records were not made available, as apparent from the Inquiry Report dated 15th December,2008. There is nothing on the record, even by way of counter affidavit filed before this Court to show that record has now been traced to make it available to the Investigating Agency. There is no probability of finding out original documents or evidence mentioned in the counter affidavit. Though, delay has been alleged on the part of the appellant, there is nothing on the record to suggest that the appellant caused delay in the matter of investigation. On the other hand, the silence on the part of the respondent regarding availability of the original record or other evidence before the Investigating Agency shows that the delay caused due to inaction on the part of the respondent. Therefore, in our view, keeping investigation pending for further period will be futile as the respondent including Directorate for the State Literacy Programme is not sure whether original records can be procured for investigation and to bring home the charges. Considering the fact that delay in the present case is caused by the respondent, the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution is thereby violated and as the appellant has already been exonerated in the departmental proceedings for identical charges, keeping the case pending against the appellant for investigation, is unwarranted, the FIR deserves to be quashed. 34. In the result, the appeal is allowed and the FIR No.10/2000 lodged in Police Station, Dausa as against the appellant is hereby quashed.

  published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40537  

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 888 OF 2013
(ARISING OUT OF SLP(Crl.)NO.4513 OF 2012)

LOKESH KUMAR JAIN … APPELLANT

VERUS

STATE OF RAJASTHAN … RESPONDENT

J U D G M E N T
1

SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted. This appeal has been preferred by the appellant
against the order dated 2nd March, 2012 passed by the Rajasthan High Court,
Jaipur Bench in S.B. Criminal Miscellaneous Petition No.605 of 2006 titled
Lokesh Kumar Jain v. State of Rajasthan. By the impugned order, the High
Court refused to quash the FIR No.10/2000 lodged against the appellant
under Section 409 IPC at Police Station, Dausa. The petition under Section
482 Cr.PC was disposed of by the High Court with the following observation:

“This criminal misc. petition has been filed under section
482 Cr.PC for quashing of FIR No.10/2000 registered at Police
Station, Dausa.

This Court has asked the learned counsel for the petitioner
whether challan has been filed or not. He replied that still challan
has not been filed and the matter is under investigation.

If it is to, the petitioner is permitted to file
representation/documents on the basis of the judgment of the Hon’ble
Supreme Court or any other Court, the I.O. Should investigate the
matter on the basis of the judgment/documents/representation so filed
by the petitioner and thereafter shall file progress before
the court concerned.

Accordingly, the petition is disposed of.”

 
In order to appreciate the rival stands of the parties, it would be
necessary to notice the background facts in a greater detail.

The appellant was posted as Lower Division Clerk (for short, ‘LDC’) during
the period November, 1996 to November,1997 in the Office of District
Literacy Education Officer, Dausa. On 4th January, 2000, the District
Literacy Education Officer, Dausa registered a First Information Report
(for short, ‘FIR’) in Police Station, Dausa alleging therein that when the
appellant was posted as LDC-cum-Cashier, a financial irregularity was
committed by him. As per the report of Auditor General, an embezzlement of
Rs.4,39,617/- has been discovered. The original copies of the bills and
documents were available in the office of the Auditor General and in the
office of Directorate for the State Literacy Programme. Therefore, on the
basis of report given by the Auditor General, the FIR was filed.

On the basis of report submitted by the complainant, the Police lodged FIR
No.10/2000 of the incident alleged to have taken place in the year 1996-
1997, implicating appellant as an accused. After making investigation, the
Police submitted a final report in the matter on 2nd June,2000 before the
Chief Judicial Magistrate, Dausa (hereinafter referred to as the, “CJM,
Dausa”)

During the pendency of the matter before the CJM, Dausa, the complainant
filed an application on 18th November, 2000 before the CJM, Dausa
requesting therein to send back the matter to the Police for further
investigation. The CJM, Dausa vide order dated 18th November, 2000, sent
back the matter to the Police under Section 156(3) of Cr.PC. Since then the
matter remained pending with the police. According to the appellant, he
met as well as represented on a number of times to the Police Authorities
and the Departmental Authorities but still no action has been taken by the
Authorities. Neither final report is submitted nor the challan is being
filed and the matter is pending since then. Earlier in the final report,
it was stated that the Police informed that the original copies of the
bills and another documents are not available, therefore, no investigation
could be made.

Having waited for more than six years, the appellant preferred a petition
under Section 482 Cr.PC before the Rajasthan High Court being Criminal
Miscellaneous Petition No.605/2006 to set aside the FIR No.10/2000
registered at Police Station, Dausa.

In the meantime, a Departmental Inquiry was initiated against the appellant
for the same charges in which the Inquiry Officer after inquiry submitted
his report on 15th December,2008 exonerating the appellant from the
charges.

The High Court by impugned order dated 2nd March, 2012 chose not to
interfere with the FIR and again left the matter in the hands of the
authorities. Hence, the special leave petition was filed by the appellant
before this Court.

Learned counsel for the appellant challenged the decision of the High Court
on the following grounds:

(a) Since the date of order passed by the CJM, Dausa the appellant
has been suffering the harassment of investigation for more than 13
years which is not completed till date because of lack of supply of
documents.

(b) After filing the closure report way back in the year 2000 no
effective investigation has taken place.

(c) If investigation is allowed to continue even in absence of
document, it will be futile and can only cause harassment to the
appellant, serving no purpose as even in the departmental inquiry for
said charges conducted against the appellant in the year 2009, the
appellant was exonerated as none of the charges which also form the
basis of the present FIR could be proved against the appellant.

He also relied on decisions of this Court which will be discussed in the
following paragraphs of this judgment.

The State of Rajasthan has filed counter affidavit. According to them, the
investigation is still continuing and the appellant himself is delaying the
same due to non-cooperative attitude adopted by him. In any case, from the
investigation carried out till now, offence under Section 409 IPC is
clearly made out against the appellant and on this ground alone, the
petition seeking quashing of FIR is liable to be dismissed and the legal
process deserves to be taken to a logical end.

12. Though the aforesaid stand has been taken by the respondent in their
counter affidavit, the respondent is silent about the documents i.e.
whether they have been made available to the Police for further
investigation. Further no specific instance was shown to suggest that the
appellant failed to cooperate with the Investigating Agency on any
particular date.
2

13. Before deciding the question whether under the given circumstances
the High Court should have exercised its inherent powers under Section 482
Cr.PC to prevent abuse of process of any court or otherwise to secure the
ends of justice, it will be desirable to notice some of the decisions of
this Court relating to categories of cases wherein extraordinary power
under Section 482 Cr.PC could be exercised by the High Court to prevent
abuse of process of the Court.
3

14. In State of Haryana v. Bhajan Lal, 1992 (Suppl.) 1 SCC 335 this Court
while formulating the categories of cases by way of illustration, wherein
the extraordinary power under the aforestated provisions could be exercised
by the High Court to prevent abuse of process of the Court and observed as
follows:-

“102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and accepted
in their entirety do not prima facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do not
disclose the commission of any offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent person can
ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.”
15. Need for speedy investigation and trial as both are mandated by the
letter and spirit of the provisions of Cr.PC have been emphasized by this
Court in numerous cases.

16. In Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC
81 this Court observed that Article 21 confers a fundamental right on every
person not to be deprived of his life or liberty except according to
procedure established by law; that such procedure is not some semblance of
a procedure but the procedure should be “reasonable, fair and just”; and
therefrom flows, without doubt, the right to speedy trial. This Court
further observed that:

“8. In regard to the exercise of the judicial power to release a
prisoner awaiting trial on bail or on the execution of a personal bond
without sureties for his appearance, I have to say this briefly. There
is an amplitude of power in this regard within the existing provisions
of the Code of Criminal Procedure, and it is for the courts to fully
acquaint themselves with the nature and extent of their discretion in
exercising it. I think it is no longer possible to countenance a
mechanical exercise of the power. What should be the amount of
security required or the monetary obligation demanded in a bond is a
matter calling for the careful consideration of several factors. The
entire object being only to ensure that the undertrial does not flee
or hide himself from trial, all the relevant considerations which
enter into the determination of that question must be taken into
account. A synoptic impression of what the considerations could be may
be drawn from the following provision in the United States Bail Reform
Act of 1966:
“In determining which conditions of releases will reasonably assure
appearance, the judicial officer shall, on the basis of available
information, take into account the nature and circumstances of the
offence charged, the weight of the evidence against the accused,
the accused’s family ties, employment, financial resources,
character and mental condition, the length of his residence in the
community, his record of convictions, and his record of appearance
at court proceedings or of flight to avoid prosecution or failure
to appear at court proceedings.”
These are considerations which should be kept in mind when determining
the amount of the security or monetary obligation. Perhaps, if this is
done the abuses attendant on the prevailing system of pre-trial
release in India could be avoided or, in any event, greatly reduced.”

 
17. In Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225, the Court
formulated as many as 11 propositions with a note of caution that these
were not to be treated as exhaustive and were meant only to serve as
guidelines.

86. In view of the above discussion, the following propositions emerge,
meant to serve as guidelines. We must forewarn that these propositions
are not exhaustive. It is difficult to foresee all situations. Nor is
it possible to lay down any hard and fast rules. These propositions
are:
(1) Fair, just and reasonable procedure implicit in Article 21 of the
Constitution creates a right in the accused to be tried speedily.
Right to speedy trial is the right of the accused. The fact that a
speedy trial is also in public interest or that it serves the social
interest also, does not make it any the less the right of the accused.
It is in the interest of all concerned that the guilt or innocence of
the accused is determined as quickly as possible in the circumstances.
(2) Right to speedy trial flowing from Article 21 encompasses all the
stages, namely the stage of investigation, inquiry, trial, appeal,
revision and re-trial. That is how, this Court has understood this
right and there is no reason to take a restricted view.
(3) The concerns underlying the right to speedy trial from the point of
view of the accused are:
(a) the period of remand and pre-conviction detention should be as
short as possible. In other words, the accused should not be subjected
to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and
peace, resulting from an unduly prolonged investigation, inquiry or
trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the
accused to defend himself, whether on account of death, disappearance
or non-availability of witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that it is usually the
accused who is interested in delaying the proceedings. As is often
pointed out, “delay is a known defence tactic”. Since the burden of
proving the guilt of the accused lies upon the prosecution, delay
ordinarily prejudices the prosecution. Non-availability of witnesses,
disappearance of evidence by lapse of time really work against the
interest of the prosecution. Of course, there may be cases where the
prosecution, for whatever reason, also delays the proceedings.
Therefore, in every case, where the right to speedy trial is alleged
to have been infringed, the first question to be put and answered is —
who is responsible for the delay? Proceedings taken by either party in
good faith, to vindicate their rights and interest, as perceived by
them, cannot be treated as delaying tactics nor can the time taken in
pursuing such proceedings be counted towards delay. It goes without
saying that frivolous proceedings or proceedings taken merely for
delaying the day of reckoning cannot be treated as proceedings taken
in good faith. The mere fact that an application/petition is admitted
and an order of stay granted by a superior court is by itself no proof
that the proceeding is not frivolous. Very often these stays are
obtained on ex parte representation.
(5) While determining whether undue delay has occurred (resulting in
violation of Right to Speedy Trial) one must have regard to all the
attendant circumstances, including nature of offence, number of
accused and witnesses, the workload of the court concerned, prevailing
local conditions and so on — what is called, the systemic delays. It
is true that it is the obligation of the State to ensure a speedy
trial and State includes judiciary as well, but a realistic and
practical approach should be adopted in such matters instead of a
pedantic one.

(6) Each and every delay does not necessarily prejudice the accused. Some
delays may indeed work to his advantage. As has been observed by
Powell, J. in Barker “it cannot be said how long a delay is too long
in a system where justice is supposed to be swift but deliberate”. The
same idea has been stated by White, J. in U.S. v. Ewell in the
following words:
‘… the Sixth Amendment right to a speedy trial is necessarily relative,
is consistent with delays, and has orderly expedition, rather than
mere speed, as its essential ingredients; and whether delay in
completing a prosecution amounts to an unconstitutional deprivation of
rights depends upon all the circumstances.’
However, inordinately long delay may be taken as presumptive proof of
prejudice. In this context, the fact of incarceration of accused will
also be a relevant fact. The prosecution should not be allowed to
become a persecution. But when does the prosecution become
persecution, again depends upon the facts of a given case.
(7) We cannot recognize or give effect to, what is called the ‘demand’
rule. An accused cannot try himself; he is tried by the court at the
behest of the prosecution. Hence, an accused’s plea of denial of
speedy trial cannot be defeated by saying that the accused did at no
time demand a speedy trial. If in a given case, he did make such a
demand and yet he was not tried speedily, it would be a plus point in
his favour, but the mere non-asking for a speedy trial cannot be put
against the accused. Even in USA, the relevance of demand rule has
been substantially watered down in Barker and other succeeding cases.

(8) Ultimately, the court has to balance and weigh the several relevant
factors — ‘balancing test’ or ‘balancing process’ — and determine in
each case whether the right to speedy trial has been denied in a given
case.
(9) Ordinarily speaking, where the court comes to the conclusion that
right to speedy trial of an accused has been infringed the charges or
the conviction, as the case may be, shall be quashed. But this is not
the only course open. The nature of the offence and other
circumstances in a given case may be such that quashing of proceedings
may not be in the interest of justice. In such a case, it is open to
the court to make such other appropriate order — including an order to
conclude the trial within a fixed time where the trial is not
concluded or reducing the sentence where the trial has concluded — as
may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for
trial of offences. Any such rule is bound to be qualified one. Such
rule cannot also be evolved merely to shift the burden of proving
justification on to the shoulders of the prosecution. In every case of
complaint of denial of right to speedy trial, it is primarily for the
prosecution to justify and explain the delay. At the same time, it is
the duty of the court to weigh all the circumstances of a given case
before pronouncing upon the complaint. The Supreme Court of USA too
has repeatedly refused to fix any such outer time-limit in spite of
the Sixth Amendment. Nor do we think that not fixing any such outer
limit ineffectuates the guarantee of right to speedy trial.

(11) An objection based on denial of right to speedy trial and for relief
on that account, should first be addressed to the High Court. Even if
the High Court entertains such a plea, ordinarily it should not stay
the proceedings, except in a case of grave and exceptional nature.
Such proceedings in High Court must, however, be disposed of on a
priority basis.”
18. Seven learned Judges of this Court in P. Ramachandra Rao v. State of
Karnataka, (2002) 4 SCC 578, considered the validity of the ratio laid down
in Common Cause case (I) as modified in Common Cause case (II) and Raj Deo
Sharma (I) and (II) cases wherein this Court prescribed periods of
limitation beyond which the trial of a criminal case or a criminal
proceeding cannot continue and directed to close the proceeding by an order
acquitting or discharging the accused in such cases. In the said case of P.
Ramachandra Rao(supra) after exhaustive consideration of the authority on
the subject this Court held:

“29. For all the foregoing reasons, we are of the opinion that in
Common Cause case (I) [as modified in Common Cause (II)] and Raj Deo
Sharma (I) and (II) the Court could not have prescribed periods of
limitation beyond which the trial of a criminal case or a criminal
proceeding cannot continue and must mandatorily be closed followed by
an order acquitting or discharging the accused. In conclusion we hold:
(1) The dictum in A.R. Antulay case is correct and still holds the
field.
(2) The propositions emerging from Article 21 of the Constitution and
expounding the right to speedy trial laid down as guidelines in A.R.
Antulay case adequately take care of right to speedy trial. We uphold
and reaffirm the said propositions.
(3) The guidelines laid down in A.R. Antulay case are not exhaustive
but only illustrative. They are not intended to operate as hard-and-
fast rules or to be applied like a straitjacket formula. Their
applicability would depend on the fact situation of each case. It is
difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible
to draw or prescribe an outer limit for conclusion of all criminal
proceedings. The time-limits or bars of limitation prescribed in the
several directions made in Common Cause (I), Raj Deo Sharma (I) and
Raj Deo Sharma (II) could not have been so prescribed or drawn and are
not good law. The criminal courts are not obliged to terminate trial
or criminal proceedings merely on account of lapse of time, as
prescribed by the directions made in Common Cause case (I), Raj Deo
Sharma case (I) and (II). At the most the periods of time prescribed
in those decisions can be taken by the courts seized of the trial or
proceedings to act as reminders when they may be persuaded to apply
their judicial mind to the facts and circumstances of the case before
them and determine by taking into consideration the several relevant
factors as pointed out in A.R. Antulay case and decide whether the
trial or proceedings have become so inordinately delayed as to be
called oppressive and unwarranted. Such time-limits cannot and will
not by themselves be treated by any court as a bar to further
continuance of the trial or proceedings and as mandatorily obliging
the court to terminate the same and acquit or discharge the accused.
(5) The criminal courts should exercise their available powers, such
as those under Sections 309, 311 and 258 of the Code of Criminal
Procedure to effectuate the right to speedy trial. A watchful and
diligent trial Judge can prove to be a better protector of such right
than any guidelines. In appropriate cases, jurisdiction of the High
Court under Section 482 CrPC and Articles 226 and 227 of the
Constitution can be invoked seeking appropriate relief or suitable
directions.
(6) This is an appropriate occasion to remind the Union of India and
the State Governments of their constitutional obligation to strengthen
the judiciary — quantitatively and qualitatively — by providing
requisite funds, manpower and infrastructure. We hope and trust that
the Governments shall act.”
19. This Court in Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355
considered the question of quashing of criminal proceedings due to delay,
when warranted. Referring to earlier decisions of this Court on the issue,
this Court held that speedy investigation and trial, both are enshrined in
Cr.PC. The right to speedy trial is guaranteed under Article 21 and the
same is applicable not only to actual proceedings in court but also
includes within its sweep the preceding police investigations as well.

20. In Vakil Prasad Singh(supra) one search operation was conducted by
the office of Superintendent of Police, Crime Investigation Department
(Vigilance), Muzaffarpur, on the basis of a complaint lodged by a civil
contractor against the accused, an Assistant Engineer in the Bihar State
Electricity Board (Civil) Muzaffarpur, for allegedly demanding a sum of
Rs.1000 as illegal gratification for release of payment for the civil work
executed by him. The case was instituted on 8th April, 1981 and the charge-
sheet for aforesaid offences was filed against the accused on 28th
February, 1982. The Magistrate took cognizance on 9th December,1982 but
nothing substantial happened. The accused filed a petition under Section
482 Cr.PC before the Patna High Court against the order passed by the
Special Judge, Muzaffarpur taking cognizance of the said offences, on the
ground that the Inspector of Police, who had conducted the investigations,
on the basis whereof the charge-sheet was filed, had no jurisdiction to do
so. Accepting the plea, the High Court by its order dated 7th December,
1990 quashed the order of the Magistrate taking cognizance and directed the
prosecution to complete the investigation within three months. However, no
further progress was made and the matter rested there till 1998, when the
accused filed another petition under Section 482 Cr.PC, giving rise to the
appeal before this Court.

21. Having noticed the ratio laid down by this Court in number of cases
including State of Haryana v. Bhajan Lal (supra), Hussainara Khatoon
(supra), Abdul Rehman Antulay (supra) etc. and the relevant facts of Vakil
Prasad Singh (supra) case, this Court was of the view that it was a fit
case where the High Court should have exercised its power under Section 482
Cr.PC as the State was not sure as to whether a sanction for prosecuting
the accused is required and if so, whether it has been granted or not and
that the case was pending for about 17 years and the proceedings against
the appellant was quashed.

22. To find out the factual scenario, we have noticed the background in a
greater detail as mentioned hereunder:

23. On 4th January, 2000, the following allegation was made by the
complainant-District Literacy & Education Mission Officer, Dausa in the
FIR, the relevant portion of which is quoted below:

“First Information Report

Office of literacy and continuous education mission, Dausa File
No.672 dated 4.1.2000

To,

The SHO

Police Station: Dausa

Subject: Regarding misappropriation of the amount of pending Bill for
the period 11.96-11.97 by Sh.Lokesh Jain LDC(Cashier),

In reference to the above subject, it is requested that Sh. Lokesh
Jain, Lower Division Clerk (Cashier) presently under suspension while
working on the post of cashier has committed financial irregularities
for which financial department and office of CAG conducted an enquiry
which is annexed herewith.

As per the enquiry report Rs.4,39,617 has been misappropriated, all
the copies of the original bill are present in the office of CAG and
the original documents are available in the office of Directorate
State Literacy and Education Mission.

Hence, it is requested that an FIR may be got registered on the basis
of the annexed enquiry report of the office of the CAG.

Enclosures enquiry 8 pages

Sd/-

District Literacy & Education

Mission Officer, Dausa”

24. After conducting investigation, the Investigation Agency submitted
Final Report on 2nd June,2000 before the CJM, Dausa, the relevant portion
of which reads as follows:

“Brief Facts of the case:

Respected Sir,

The facts of the present case are that on 4.1.2000 Sh. Murari
lal S/o Sh. Harmukh Prasad, caste: Brahmin, aged 56 years, R/o
Village: Oonch, P.S: Nandbai, District:Bharatpur presently posted as
district literacy and mission education officer, Dausa, presented in
the Police Station and filed one report against Sh. Lokesh Kumar Jain
(LDC) presently under suspension that Lokesh Jain while working as
cashier, committed certain financial irregularities which emerged
during an enquiry conducted by the office of the Controller and
Auditor General as per which misappropriation of Rs.4,39,619/- has
been reflected.

Copy of report is annexed; copies of the original document of
CAG and original document of state literacy and mission education
office are available. On the basis of the said report FIR No.10/2000
u/s 409 of IPC was registered and investigation witnesses were
recorded. Oral requests were made several times to the concerned
department for producing the requisite document pertaining to the case
but was ineffective subsequently on 13.4.2000. A notice was issued u/s
91 Cr.PC for making available of the requisite document but despite
that no record was made available.

Again on 21.4.2000 a notice u/s 91 Cr.PC was issued and
directions were given that in case of non-supply of document one sided
action will be taken. No document, no record was produced.

During the course of investigation pertaining to Lokesh Jain
(LDC) for the period 11.96 -11.97 statements of Sh. Kailash and Ram
Kishor Bairwa (Jr. accountant) who stated that during investigation
credit-debit record was not made available and they showed their
inability to produce the record before the I.O, No. T.P. 31162, a
complaint was also given in this regard, C.O. has also written to the
department to produce the record but they showed their inability to
produce the same.

The present case, several requests were made for production of
record but the same was not produced. No evidence came against Sh.
Lokesh Jain, from the file of the education department. The case has
been pending since long and there is no probability of availability of
record in the near future. Further investigation will be taken on the
receipt of the records from the concerned departments.

Hence FR No.67/2000 is being filed for kind perusal and
acceptance because of insufficient evidence.”

 
25. On perusal of Final Report, the CJM, Dausa passed the following
order:

“Before the Chief Judicial Magistrate

District: Dausa, Dausa

Complainant: Murari Lal

FIR No. 10/2000

18.11.2000

Present App.

Present complainant: Sh Murari Lal Sharma

In this case final report has been filed with the avernment that the
original record has not been supplied to the SHO and hence
investigation cannot be carried out. The complainant Murari Lal is
present and he is ready to cooperate with the police officers for
procuring the said records.

Hence u/s 156(3) Cr.PC the SHO Dausa is directed to re-investigate the
case with the assistance of Sh. Murari Lal literacy and mission
education officer to procure the original records. Final report is not
accepted, case diary is being returned.

Sd/- CJM

District: Dausa, Dausa”

26. Thereafter, nothing on the record suggest that after the order dated
18th November, 2000 passed by the CJM, Dausa the respondent produced the
original records before the Investigation Agency for further investigation.
27. At least for more than nine years neither original records could be
traced by the Authorities nor any relevant document could be found to
implicate the appellant, as evident from the Inquiry Report dated 15th
December,2008 submitted by the Inquiry Officer whereby the appellant was
exonerated over the identical charges for which criminal case was lodged.
The respondent inspite of repeated requests by the Inquiry Officer failed
to produce any records including originals from the Bank to establish the
guilt of the delinquent official, Sh.Lokesh Kumar Jain. The relevant
portions of Inquiry Report dated 15th December, 2008 are quoted hereunder:

“The prosecuting officer after the lapse of various dates has presented
the following documents:

a) Books of accounts, Encashment Register and Bill register (all
photocopies)

b) Letter dated 26-04-2004 issued by S.B.B.J. Bank Branch Dausa which
was addressed to the office of Literacy officer, Dausa.

c) Letter dated 21-11-2008 issued by the office of the treasurer of the
treasury.

d) Letter bearing CA/II/Dausa/176 dated 04-11-2008 issued by the office
of the chief auditor.

According to the aforesaid documents, the photocopies of the original
documents was shown to the alleged officer. After the perusal of the
photocopies, the alleged officer denying the same has again filed the
application on 12-01-2009 and demanded that he might be allowed to
peruse the original records. The objections were raised by the alleged
officer and the prosecuting officer was given strict direction to
present the original record and evidence. On the next several dates
also the prosecuting officer failed to produce any other original
record.

On 24-07-2009, the alleged officer along with the assistant perused the
case and the related document and letters in the presence of the
prosecution party and for the purpose of the presenting the written
argument the case was fixed for 29-07-2009. The defence appearing along
with the assistant has filed his written argument which was taken on
record.

The prosecution party and the defence party were given one last and
final opportunity to present the witness/evidence/documents in
accordance with the principle of natural justice. On the date fixed
neither the prosecution nor the defence has filed their
witness/evidence/documents.

According to the notification, following offence was alleged against
Shri Jain on 22-12-2007:

1. That you Shri Lokesh Kumar Jain (Cashier) being in the office of the
District Education and Education officer Dausa from 20-11-1995 to 13-11-
1997, was given the work of accountant.

According the inquiry report of 11/96 to 11/97, an embezzlement of
Rs.4,39,617/- was found to be done by you.

The details of the allegation is depicted as follows:

a) Bills of F.V.C. amounting to Rs.65,330/- is found to be entered in
the Bill Register but after the passing of the bill from the treasury,
the entry of which was not found in the encashment register and books
of account.

There is no entry of any bill of F.V.C. in the aforesaid manner in the
photocopy of the records (Cash book, Encashment Register) filed by the
prosecution in respect of the offence alleged. From the bare perusal
it becomes clear that the bill which is entered, the earlier entry
record of which is entered according to the rules. The letter of both
the agencies were produced in respect of the withdrawal of various
bills of F.V.C. amounting to Rs.65,330/- (P-1) from the banks and in
respect of passing from the treasury and the said bills are also found
to be mentioned in the bill register (P-2) (P-3). The entries of the
bills are not available in the other records apart from the Bill
Register. On the basis of the documents produced (P-2) (P-3) by the
prosecution, the original bill which was to be obtained from the office
of the Chief Auditor, was not received (P-4).

Hence it is not clear that which person has withdrawn the said bills
from the bank nor the original bill is there on record, looking into
the pages of which conclusion could be drawn that who has withdrawn the
amount of the said bills from the bank.

In the light of the said evidence (P-2) (P-3) the first part of the
offence (1), the offence of embezzlement of amount by withdrawing the
amount of said bills from the banks could not establish the guilt of
the Delinquent Officer Shri Lokesh Kumar Jain. Hence the part of the
offence is not established in respect of the accused.

2. The entry of the Bills of F.V.C. amounting to Rs.2,96,100/- is
found in the Bill Register, Encashment Register and Books of account:-

In respect of the said offence, the original bill or the carbon copy of
the said bills is not filed by the prosecution. On the basis of the
documents P-1 and P-2 filed by the State, the delinquent member could
not be held guilty for the withdrawal of the amount of the said bills.
The said offence merely on the basis of the letters of the bank and
Treasury could not be regarded as cogent evidence. The entries of the
bills are not available on any record of the related office. In the
inquiry, the original bills are not available with the Assistant Agency
Treasury nor the carbon copies of the bills are available in the
office. In the said facts and circumstances, it could not be
established that the said bills are withdrawn by Shri Lokesh Kumar Jain
because in ordinary course of business it is not possible for single
person to execute the entire work that is to say generation of bills,
getting it passed and withdrawing the same.

Hence the second part of offence is not proved against Shri Lokesh
Kumar Jain for want of cogent and sufficient proof.

3. Embezzlement of the amount of Rs.78,179/- by withdrawing the
bills of the other department in the head of Literacy and Education in
the Budget.

The prosecution has filed the evidence of (P-2) (P-3) in respect of the
offence. According to the evidence, the payment was made for the
purpose of making the payment of the bills of said Sparsh Vidyalaya
RAMAVI Dhigariya but in the budget the same is under the head of
Literacy and Education department.

The entire part of the offence is completely disputed. There is
withdrawal of the bills of the other department in the head of Literacy
and Education in the Budget but it is not clear as to who has received
the payments. Merely on the basis of the Treasury office regarding the
fact of expenditure and receiving the payments does not prove the
delinquent officer to be the guilty of the offence. It is possible
that error might have happened by the other assisting agency. It is
also impossible to pass the bill merely on the budget head. It could
not be ascertained, without looking to pages of the original records,
whether the guilty officer has obtained the payment of the bills from
the bank or not.

CONCLUSION:

On the basis of the records, evidence and documents presented in the
proceedings and upon the basis of written and oral arguments of both
the parties, the undersigned comes to the conclusion that who was made
the payment of amount of various bills alleged in the offence is
doubtful. All the said bills were passed by the Treasurer. The
original and carbon copies of the said entire bills is not available
with the department. Merely on the basis of the letters of the
Assisting Agencies the offence against the alleged officer is not found
to be established.

Sd/- Chitarmal Meena

Inquiry Officer and Principal Officer,

RAU Department Bhandarej, Dausa.”

 

28. In P.S. Rajya v. State of Bihar, (1996) 9 SCC 1, this Court noticed
that the appellant was exonerated in the departmental proceeding in the
light of report of the Central Vigilance Commission and concurred by the
Union Public Service Commission. The criminal case was pending since long,
in spite of the fact that the appellant was exonerated in the departmental
proceeding for same charge.

29. Having regard to the aforesaid fact, this Court held that if the
charges which is identical could not be established in a departmental
proceedings, one wonders what is there further to proceed against the
accused in criminal proceedings where standard of proof required to
establish the guilt is far higher than the standard of proof required to
establish the guilt in the departmental proceedings.

30. Having regard to the factual scenario, noted above, and for the
reasons stated below, we are of the opinion that the present case of the
appellant is one of the fit cases where the High Court should have
exercised its power under Section 482 Cr.PC. It is not disputed by the
respondent that the departmental proceeding was initiated against the
appellant with regard to identical charges made in the FIR. It was alleged
that as per CAG Inquiry Report dated 15th December, 2008 Rs.4,39,617/- has
been misappropriated by the appellant, all the copies of original bills and
documents are available in the office of CAG and the original documents are
available in the office of the Directorate, State Literacy Programme.

31. In the departmental proceeding identical allegation was made that as
per the Inquiry Officer Report, an embezzlement of Rs.4,39,617/- was found
to be done by the appellant.

32. During the investigation inspite of several requests made by the
Investigating Agency (Police), the records in respect of allegation were
not produced. No evidence came against the appellant-Lokesh Kumar Jain,
from the file of the education department. As the case was pending since
long and there was no possibility of availability of record in the near
future, FR No.67/2000 against the appellant was filed before the CJM,
Dausa. The CJM, Dausa by his order dated 18th November, 2000 on perusal of
Final Report, in exercise of power conferred under Section 156(3) Cr.PC
directed the SHO, Dausa to re-investigate the case with the assistance of
complainant and to procure the original records. Inspite of order dated
18th November, 2000, for nine years, records were not made available, as
apparent from the Inquiry Report dated 15th December,2008.

33. There is nothing on the record, even by way of counter affidavit
filed before this Court to show that record has now been traced to make it
available to the Investigating Agency. There is no probability of finding
out original documents or evidence mentioned in the counter affidavit.
Though, delay has been alleged on the part of the appellant, there is
nothing on the record to suggest that the appellant caused delay in the
matter of investigation. On the other hand, the silence on the part of the
respondent regarding availability of the original record or other evidence
before the Investigating Agency shows that the delay caused due to inaction
on the part of the respondent. Therefore, in our view, keeping
investigation pending for further period will be futile as the respondent
including Directorate for the State Literacy Programme is not sure whether
original records can be procured for investigation and to bring home the
charges. Considering the fact that delay in the present case is caused by
the respondent, the constitutional guarantee of a speedy investigation and
trial under Article 21 of the Constitution is thereby violated and as the
appellant has already been exonerated in the departmental proceedings for
identical charges, keeping the case pending against the appellant for
investigation, is unwarranted, the FIR deserves to be quashed.

34. In the result, the appeal is allowed and the FIR No.10/2000 lodged in
Police Station, Dausa as against the appellant is hereby quashed.

 

 

………………………………………………………………………….J.
(T.S. THAKUR)

 
……………………………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)

 
NEW DELHI,
JULY 9,2013

 

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,884,469 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: