Criminal Application No.1754 of 2000,Criminal Writ Petition No.312 of 2000

15th December, 2004

Petitioner Counsel: Shri. A. B. CHOUDHARY
Respondent Counsel: Shri. S. G. LONEY

Cases Cited:
Hussainara Khatoon Vs. Home Secretary, State of Bihar, AIR 1979 SC 1360 [Para 9]
A. R. Antulay Vs. R. S. Nayak, AIR 1992 SC 1701 [Para 9]
Rajdeo Sharma Vs. State of Bihar, AIR 1998 SC 3281 [Para 9]
Rajdeo Sharma Vs. State of Bihar, AIR 1999 SC 3524 [Para 9]
Seeta Hemchandra Shashittal Vs. State of Maharashtra, 2001 ALL MR (Cri) 582 (S.C.)=AIR 2001 SC 1246 [Para 10]
Mahendra Lal Das Vs. State of Bihar, 2001 ALL MR (Cri) 2403 (S.C.)=AIR 2001 SC 2989 [Para 11]
Raj Kishor Roy Vs. Kamleshwar Pandey, 2002 Cri.L.J. 3780 (SC) [Para 12]

JUDGMENT

JUDGMENT :- The petitioners have challenged the common order of the Special Judge, Nagpur rejecting their applications for discharge dated 21-12-1999 and 16-3-2000 respectively on 28-7-2000.

2. A brief resume of the facts leading to the present petitions can be stated as under :

In 1989 petitioner Kishore s/o Joseph Job was serving as Police Sub-Inspector in Special Branch, Foreigners Registration Office and Passport Branch, Nagpur. Petitioner Madhukar s/o Laxman Jadhao was serving as Police Constable in the said Branch. On 19-4-1989 one Allamoddin Rahemoddin, a Pakistani National, had come to the Foreigners Registration Office and asked the staff to take entry of his arrival. He was asked to bring two passport size photographs. On 20-4-1989 he came back to the said office along with the photographs. Some printed forms were given to him and after they were filled in by him, passport was prepared. He was asked to come on the next day for collecting the passport. On 21-4-1989 he again came to the said office for collecting his passport.

3. It is alleged that on 21-4-1989 petitioner Job told Allamoddin that he did not promptly report his arrival, there was delay in reporting the same, that he will be prosecuted for delayed reporting and if he does not want to be prosecuted, he will have to pay Rs.200/-. Allamoddin agred to pay Rs.200/- by 4 to 5 p.m. Allamoddin straightway went to Anti-Corruption Bureau and lodged complaint against petitioner Job. On the same day a trap was laid. It is alleged that the amount was handed over to petitioner Jadhao. However, the tainted notes were collected from varandah where they were lying on the ground. Thereafter Crime No.304 of 1989 under sections 7, 12, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act was registered at Police Station, Sadar. After investigation charge-sheet was presented before the Special Judge, Nagpur on 26-3-1999. It was registered as Special Case No.7 of 1999.

4. The petitioners have prayed for quashing the prosecution against them and discharging them mainly on the ground that there had been inordinate and unexplained delay in filing of the charge-sheet whereby their fundamental right of speedy trial guaranteed under Article 21 of the Constitution of India has been violated.

5. Shri. A. B. Choudhary, Advocate and Shri. A. C. Dharmadhikari, Advocate the learned counsel for the petitioners, vehemently urged that the alleged offence took place on 21-4-1989, whereas the charge-sheet was filed on 26-3-1999 i.e. almost 10 years from the date of the alleged offence. Because of this inordinate delay in filing the charge-sheet the petitioners have lost their opportunities for promotions. It has caused grave prejudice to the petitioners. Shri. Choudhary and Shri. Dharmadhikari further submitted that the delay in filing charge-sheet has not been explained by the prosecution and that the Special Judge should have discharged the petitioners on this ground.

6. Shri. S. G. Loney, the learned APP appearing on behalf of the State, on the other hand, submitted that there has been no delay on the part of the prosecution in filing the charge-sheet. Shri. Loney pointed out that initially the Competent Authority namely the Commissioner of Police, Nagpur by his letter dated 8-10-1991 refused to accord sanction to prosecute the petitioners. Hence the prosecution had to move the Competent Authority for reconsideration of the matter. In the meanwhile, petitioner Job was promoted and thus it was the State Government which was competent to accord sanction. Hence the State Government was moved by the investigating authority. The Commissioner of Police, Nagpur accorded sanction to prosecute petitioner Jadhao on 27-3-1996. The investigating agency gave several reminders to the State Government in respect of according sanction to prosecute petitioner Job. The State Government accorded sanction to prosecute petitioner Job on 13-1-1999. Soon thereafter i.e. on 26-3-1999 charge-sheet against both the petitioners was filed. Thus the investigating agency is not responsible for causing the delay, if any, in filing the charge-sheet. The delay is not such as to violate the fundamental right of the petitioners for speedy trial guaranteed under Article 21 of the Constitution of India. Shri. Loney submitted that the Trial Judge rightly rejected the applications for discharge moved by the petitioners and that the present petitions are liable to be dismissed.

7. It may be noted that sanction to prosecute the petitioners was not granted by the Commissioner of Police, Nagpur initially by reasoned order on 8-10-1991. Thereafter on 30-7-1992 the investigating agency moved the Commissioner of Police, Nagpur for reconsideration of the matter. The successor of the then Commissioner of Police, Nagpur granted sanction to prosecute on 27-3-1996. Thus he took four years for considering the matter of grant of sanction. In fact, the facts of the case are very short and the record is not at all voluminous. Still the successor of the Commissioner of Police, Nagpur took almost four years for reconsidering the matter. No provision was shown by the prosecution as to whether the successor of the Commissioner of Police, Nagpur had the power to review the decision of his predecessor.

8. The affidavit sworn in by Shri. L. M. Bawane, Police Inspector, Anti-Corporation Bureau, Nagpur shows that 3-4 letters were sent to the State Government for according sanction in 1992, one in 1993, one in 1994 and another in 1996. The affidavit sworn in by Shri. Satish Tripathi, the Principal Secretary (Appeal & Security) to the Government of Maharashtra, Home Department in support of the reply filed by the State shows that after investigating authority moved the State Government to accord sanction to prosecute petitioner Job, the relevant papers were not traceable and available in the Home Department. Hence all the correspondence and concerning papers were collected from Commissioner of Police, Nagpur and Anti-Corruption Bureau, Nagpur. Thereafter the proposal was examined by various departments, drafts were obtained and approved. Ultimately sanction to prosecute petitioner Job was granted on 13-1-1999. Para no.5 of the affidavit sworn in by Shri. Satish Tripathi itself shows that the delay on administrative ground could have been avoided and sanction could have been accorded earlier. It is thus obvious that though not the investigating agency, but the State Government was responsible for causing enormous delay in according sanction which led to ultimate delay in filing of the charge-sheet.

9. The importance of right to speedy trial has been stressed by the Apex Court in various judgments viz. Hussainara Khatoon Vs. Home Secretary, State of Bihar, AIR 1979 SC 1360, A. R. Antulay Vs. R. S. Nayak, AIR 1992 SC 1701, Rajdeo Sharma Vs. State of Bihar, AIR 1998 SC 3281 and Rajdeo Sharma Vs. State of Bihar, AIR 1999 SC 3524.

10. In Seeta Hemchandra Shashittal and another Vs. State of Maharashtra and others, AIR 2001 SC 1246 : [2001 ALL MR (Cri) 582 (S.C.)] the Supreme Court observed that :

"The delay taken for obtaining sanction from the Government cannot be attributed to the investigating officers. Considering the number of desks over which the matter had to pass, and the voluminous records to be studied at all levels, the Hon'ble Judge hesitate to hold that the said interval was so unreasonably long as to affect the fundamental right of the appellants."

In the same case the Apex Court reiterated a note of caution that

"a realistic and practical approach should be made regard being had to "all attending circumstances including the nature of the offences, the number of accused and witnesses etc." Each case, therefore, must be considered on its own facts, without being pedantically persuaded merely because delay had occasioned during investigation stage. What is to be found out by the Court is whether the delay involved in the investigation have impaired the fundamental rights of the appellants which is enshrined in Article 21 of the Constitution."

11. In Mahendra Lal Das Vs. State of Bihar and others, AIR 2001 SC 2989 : [2001 ALL MR (Cri) 2403 (S.C.)], the Apex Court observed as under :

"The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and re-trial. While determining the alleged delay, the Court has to decide each case on its facts having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work-load of the Court concerned, prevailing local conditions, etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case."

12. The learned APP submitted that according of sanction by the Competent Authority cannot be considered at this stage and that it should be left open to be decided at the time of conclusion of trial. In support of this submission he relied on Raj Kishor Roy Vs. Kamleshwar Pandey and another, 2002 Cri.L.J. 3780 (SC). In my opinion, this case is not at all attracted to the present case because in Raj Kishor Roy's case the point involved was want of sanction to prosecute which is not there in the present case.

13. In the present case, initially the Commissioner of Police, Nagpur had refused to accord sanction to prosecute the petitioners. It may be noted that the complainant in the present case is a Foreign National and though it is not impossible to secure his presence during trial as prosecution witness, it would be at enormous cost and delay. So far as, regards petitioner Jadhao is concerned, the Commissioner of Police took about four years to reconsider the matter for grant of sanction and as regards petitioner Job the State Government took more than six years to consider the matter. Obtaining of sanction to prosecute is also an important stage of the prosecution. It is immaterial whether the Competent Authority took time to consider the matter for according sanction or whether it was on the part of the Investigating Authority to approach and to persuade the Competent Authority for according sanction. After all it is the accused who is at the receiving end.

14. As pointed out earlier the officer of the State Government himself is not satisfied with the time consumed for according sanction. It is needless to say that the trial itself would require some more time particularly when the star prosecution witness namely the complainant is a foreign national. In view of these circumstances, no useful purpose would be served to put the petitioners on trial at such a belated stage. I am of the considered view that permitting the prosecution to proceed would be the travesty of justice and abuse of the process of the Court. Hence the prosecution needs to be quashed. I therefore, pass the following order :

15. The criminal application and criminal writ petition are allowed. The proceedings in Special Case No.7 of 1999 against the petitioners are quashed.

Applications and Petition allowed.