1996 (3) CRIMES 92 MADRAS HIGH COURT

 

( Rengasamy, J )

K. Veeraswami ............ Petitioner.

Versus

Union of India .............. Respondent

Crl. O. P. No. 1992 of 1992 Decided on 4-4-1995

( i ) Prevention of Corruption Act, 1947 - Section 5(1) (e) - Criminal Procedure Code, 1973 - Section 482 - Petition to quash charge - sheet & proceedings on ground of absence of mensrea for not accounting the alleged disproportionate assests - Opportunity had been given to petitioner to explain the pecuniary sources for his properties - prosecution fournd explanation not satisfactory - point of meansea or criminal intention for failure to account assets can not be argued. { Para -9 }

( ii ) Prevention of Corruption Act, 1947 - Sections 5(1) (e) - Petition to quash charge sheet & proceedings - Variances in the misconduct alleged in the police report from that of the F.I.R. - Plea by petitioner that permission would not have been granted for investigation had allegations in F.I.R. been not so serious - No sanction was necessary when petitioner was not in service when charge-sheet was filed hence contention that permission was obtained by giving distroted version could not be a ground to quash proceedings - sanction u/s 6(1) of the Act was required only when court was taking cognizance of offence. {Paras9,10 & 11 }

( iii ) Prevention of Corruption Act, 1947 - Section 5(1) (e) - Constitution of India, 1950 - Arts. 19 & 21 - Petition to quash charge - sheet & proceeding on ground that 17 years had passed & proceedings were still at initial stage - circumstances showing that after filling of charge - sheet in 1977 absolutely there was no delay on part of prosecution - Delay was only due to pendence of appeal before Supreme Court which could not be said to be a deliberate - When delay was due to inevitable circumstances, remedy can not be to quash proceedings itself. { Paras 12 & 13 }

Result : Petition dismissed.

Cases referred :

(1) Manipur Administration v. Thok Chon Dira Singh ; 1957 (7) SCR 124.

(2) Lakhani v. Union of India ; AIR 1976 SC 908.

(3) B. M. Lakhani v. Malkapur Municipality ; AIR 1970 SC 1002.

(4) State of Rajasthan v. Tarachand ; 1973 Cr. LJ 1396.

(5) State v. Sundararajan ; 1992 (3) Crimes 949.

(6) Supt. & Remembrancer, W. B. v. Mohan Singh ; AIR 1975 SC 1002.

(7) State of Orissa v. Ramachander ; AIR 1979 SC 87.

(8) State of Maharashtra v. Major Hans George ; AIR 1965 SC 722.

(9) S. A. Venkataraman v. State ; AIR 1958 SC 107.

(10) State of Uttar Pradesh v. Kapil Deo; 1972 Crl L.J. 1214.

(11) Santosh De v. Achana Guha ; AIR 1994 SC 1229 ; (Distinguished ).

(12) A. R. Antulay v. R. S. Nayak ; AIR 1992 SC 1701.

Counsel for the parties :

For the Petitioner : N. Natarajan, Sr. Advocate with Titus Jesudoss, Advocate.

For the Respondent : Altaf Ahmed, Addl. Solicitor General of India.

IMPORTANT POINT

Where accused was not in service on the date when police report was filed, no sanction u/s 6 (1) (c) of Prevention of Corruption Act, 1947 was necessary.

JUDGMENT

Rengasamy , J :- This petition is filed under S. 482 Code of Criminal Procedure to quash the C. C. No. 46 of 1977 on the file of the Special Judge, Madras.

(2) The petitioner is the former Chief Justice of this Court from 1.5.69 and retired with effect from 8.4.76. The First Information Report was registered against him for the offence under Section 5(2) read with Sections 5(1)(b), 5(1)(b) and 5(1)(e) of Prevention of Corruption Act, hereinafter referred to as Act 1947, by the Central Bureau of Investigation (C.B.I.) Police, New Delhi, on 24.2.76. There fore he went on leave preparatory for retirement, on 9-3-1976 and retired on 8-4-76. charge sheet was filed against him before the Special Judge, Mardas on 15-12-77 in C.C. No. 46/1977 for the offences under Section 5(1)(e) of the Act 1947. Thereafter, the petitioner filed petition under Section 482, Code of Criminal Procedure in Crl. M. P. No. 265/78 to quash th eproceedings in C.C.No. 46/77 on certain grounds. Reported in K. Veerasami v. Union of India (1979 L. W. Crl. 64(SN).The Full Bench of this Court, elaborately considering the grouonds raised by the petitioner for quashing the proceedings, has dismissed it. Against that order of dismissal, the petitioner preferred an appeal before the Supreme Court in C.A No. 400/79. The Constitution Bench of the Supreme Court consisting of 5 Judges upheld the view of this Court by dismissing the appeal and directed for early disposal of the criminal case pending before the Special Judge, Madras. The petitioner thereafter has come forward again with this petition under Section 482 Code of Criminal Procedure to quash the C.C.No. 46/77 on the following grounds:-

[1] The police report under Section 173 Cr. P.C. has emerged as a fabrication of false allegation two years after the First. Information Report without giving any opportunity to the petitioner to account for the alleged disproportionate assets, which is violative of Articles 14, 19 and 21 of the Constitution of India.

[2] The comparision of the First Information Reposrt with police report shows the abuse of process of law by the investigating machinery.

[3] There is lot of variance between the First Information Reposrt and the report with regard to the alleged investment and the income.

[4] In the First Information Report, the income is deflated and the assets and expenses are inflated.

[5] No offence of criminal misconduct is made out within the meaning of Section 5(1)(e) of the Act 1947

[6] There are no materials ex facie to support the corruption charge.

[7] The inability to account for the disproportionate asset is not an ipso facto proof for criminal misconduct.

[8] Unless the inability to account the income is involved with mens re of moral turpitude, it will not be an offence and the police report does not disclose such an element.

[9] As long as inability to account is not inconsistent with integrity and the absence of moral turpitude, offence under Section 5(1)(e) of the Act of 1947, is not made out.

[10] Within the meaning of Section 5(1)(e) of the Act, enjoined under S. 214 of Cr.P.C. police report does not disclose the offence.

[11] Each item or any variation of the rest of the items in the police reposrt for showing the disproportionate property before accusation and only when he was unable to satisfactorily account, he could be prosecuted.

[12] The accused of offence should have been first called upon to account for the alleged disporportionate property before accusation and only when he was unable to satisfactorily account, he could be prosecuted.

[13] As the inability to satisfactorily account the property is a test to the criminal misconduct, it has got first to be proved by the prosecution. As that being not the allegation, the offence is not made out.

[14] Without giving opportunity to satisfactorily account the pecuniary sources, making assertion of allegation in the First Information Report or police report does not attract the offence.

[15] As Section 5(1)(e) of the Act, 1947 also is not requiring such opportunity being given to explain the pecuniary sources, it is unreasonable, arbitrary and violative of the principles of natural justice under Articles 14, 19 and 21 of the Constitution.

[16] As the First Information Report or the police report lacks of factual averments, namely the essential ingredients of the offence, the prosecution has to be quashed.

[17] As criminal misconduct is not defined by the Act 1947, none can be punished except for a legally defined offence and as the First Information Report and the police report disclose no such wrong, the prosecution is illegal.

[18] As the misconduct is a term that implies wrongful intention, the misconduct would mean improper conduct and that being so, inability to account which will amount to criminal misconduct, alone will constitute the offence.

[19] Neither the First Information Report nor the police report shows any criminal misconduct involving moral turpitude and the mere inability to satisfactorily account, does not, ipso fact an offence under S. 5(1)(e) of the Act, in the asence of allegationand proof of correct motive or intention.

[20] As the gist of Section 5(1)(e) of the Act mentions only the inability of satisfactorily account, de hors intent in the nature of corruption, it is liable to be struck down as invalid as it would be violative of Article 14 of the Constitution.

[21] Each item in the police report to arrive at disproportion is consistent with the proprity and so too, such items in combination or totality and so, there will be no offence under Section 5(1)(e) of the Act.

[22] The inability to account satisfactorily by itself is innocuous and does not attract the offence in the absence of evil or corrupt intention.

[23] Starting of a tril after the delay of 16 years is an abuse of process of Court and is violative of Section 309 Code of Criminal Procedure and of the fundamental rights to speedy trial.

(3) The petitioner, therefore, seeks to quash the C.C.No.46/77 for the abovesaid reasons.

(4) The respondents filed counter stating as follows:-

The plea relating to these matters has been baken in Crl. M.P.No. 265/78 in this Court which was considered by the Full Bench of this Court and after the dismissal of the petition, the Supreme Court also has dismissed the criminal appeal of the petitioner and the petitioner is not estopped from taking this plea once again in this petition, that the petitioner has stated that subsequent to the dismissal of the criminal appeal, he has filed the writ petition to quash the proceedings on the ground of delay, which is another attempt to delay the trial and frustrate the justice. All these attempts of the petitioner are the abuse of process of law to delay the trial further. The principles set out by the Supreme Court in Abdul Rehman Autulay v. R. S. Nayak, (AIR 1992 S. C. 1701) goes against the petitioner. Though originally the First Information Report referred to the pecuniary benefits from the date of his assuming office, after investigation the period was selected as 1-4-1969 to 21-6-76 and it is left to the Investigating Agency to select the period when the disproportionate assets were found, for the particular period. During the investigation, the petitioner was given an opportunity to satsisfactorily account for the disproportionate assets which he possessed and as he had failed to do so, the police report wasfiled under Section 173, Code of Criminal Procedure. The police report has been filed on the basis of evidence collected during the investigation. The police report has been filed on the basis of evidence collected during the investigation. The income is not deflated as alleged. When the prosecution alleges possession of disproportionate assets by a diligent investigation, the onus shifts to the accused person to satifactorily account for the same. Inspite of the opportunity given to the petitioner during the-investigation stage, he failed to discharge the burden. The police report clearly makes out the offence under Section 5(1)(e) of the Act, Section 5(1)(e) of the Act is not violative of Article 14 of the Constitution. It is not an arbitrary and unreasonable law. The mens rea is mere possession of disproportionate assets and the only mode of rebutting it is by satisfactory explanation by the accused. The petitioner himself was the sole casue for the delay in the trial and he has no right to complain regarding the same. He did not approach the Court with clean hands and therefore he is not entitled to the relief prayed for. The present attempt by the petitioner is further abuse of process of law and hence the petition has to be dismissed.

(5) Even though in the petition, the petitioner has raised as many as 23 grounds, some of them are repetition of the same points, the learned Senior Counsel Mr. Natarajan, appearing for the petitioner, argued only two points among theses points and they are the absence of mens rea for not accounting the alleged disporoportionate assets and the delay of 16 years in the pendence of the criminal proceedings against the pebtioner. Two other grounds, not found in the petition, also were raised by the learned Senior Counsel and they are, the disparity between the allegations in the First Information Report and the police report, that if the allegations now found in the police report alone were given int he First Information Report, the Chief Justice of India, would not have permitted for the investigation and the second ground being a mistake in the order of the Supreme Court treating that the petitioner was not in service on 24-2-76, the day on which the First Information Report was filed, and on account of this factual error, the requirement of sanction for filing the First Information Report was failed to be considered by the Supreme Court, for which reason the proceeding is sought to be quashed. From the above points raised by the learned Senior Counsel, Mr. Natarajan, the following questions would arise for consideration;

( i ) Whether the failure to account the alleged disproportionate income by itself, without mens rea, will make out an offence?

( ii ) Whether the variance between the First Information Report and the Police report relating to the income, investment etc. has casued any prejudice against the petitioner, in the matter of permission from the Chief Justice of India for investigation ?

( iii ) Whether the mistake in the order of the Supreme Court, treating the petitioner as a retired person on the date of the registration of the First Information Report, has effected his right to invite the decision on the question whether sanction was required for filing the First Information Report ?

( iv ) Whether the delay of more than 16 years is violative of his fundamental right to speedy trial requiring the quashing of the proceedings ?

(6) The learned Additional Solicitor General Mr. Altaf Ahmed, raised objection for this petition under s. 482 Cr. P. C. on the ground that when already the petitioner had filed a similar petition to quash the criminal proceedings viz., C.C.No.46/77 on certain grounds, including some of the grounds now raised, and the Full Bench of this Court has rejected the plea of the petitioner and the same also was confirmed by the Constitution Bench of the Supreme Court, the petitioner is not entitled to once again maintain this petition as he barred under the principles of issue-estoppel as held in series of cases by the Apex Court and other High Courts and therefore, according to the learned Additional Solicitor General, except the point relating tothe delay, which has occurred subsequent to the fileing of the previous petiton, other points cannot be cnsidered again. The learned Additional Solicitor General takes support from the decision of th eApex Court in Manipur Administration v. Thok Chon Dira Singh, { 1. 1954 (7) SCR 124. } holding that the rule of issue restoppel precludes evidence being let to prove a fact in issue as regards which evidence had already been let and a specific finging recorded at an earlier trial before the Court of Competent Jurisdiction. He also relied upon the decision in Lakhani v. Union of India, { 2. AIR 1976 SC 908 } repeating that when the petitioners earlier writ petition impugning his detention was dismissed and his contention challenging the validity of detention was rejected, in a subsequent writ petition the petitioner cannot be permitted to re-agitate the same contentions unde the principles of resjudicate. The learned Additional Solicitor General also relied upon in B.M. Lakhani v. Malkapur Municipality, { 3. AIR 1970 SC 1002.} wherein the Supreme Court has held that when a question was concluded by a judgment of the Supreme Court, that decision is binding on the High Court and the High Court cannot ignore it ont he basis, that the relevant provisions were not brought tot he notice of the Supreme Court. In State of Rajasthan v. Tarachand, { 4. 1973 Cr.LJ 1396. } also, the Supreme Court has held that when the earlier Division Bench has given a finding, the smae is binding in subsequent proceedings of the same case. The Division Bench of this Court in State v. Sundararajan , { 5. 1992(3) Crimes 949.} has held that under doctrine of issue estoppel, when an issue offact has been tried by a Compentent Court on a former occasion and has reached its finality already, there exists no need to reconsider the matter again in an appeal against acquittal.

(7) On the ratio of these decisions, it was argued by the learned Additional Solicitor General that all the points except the one relating to the delay were available to the petitioner even when he filed the previous petition Crl. M.P.No. 265/78 and even if he had not raised all these points now raised, when the Bench of this Court has found that the proceedings in C.C.No. 46/77 is maintainable and cannot be quashed, the same is binding on the petitioner, that oo when the Supreme Court also has affirmed the order of dismissal of the petition filed by the petitioner and therefore, this petition is abuse of process of the Court.

(8) On the other hand, the learned Senior Counsel Mr. Natarajan appearing for the petitioner relied upon the decision of the Apex. Court in Superintendent and Remembrancer, West Bengal v. Mohan Singh, { 6. AIR 1975 SC 1002. } wherein the Apex Court has observed that the rejection of a prior application for quashing is not a bar for subsequent application for the same relief, as quashing does not amount to review to in the later decision State of Orissa v. Ramachander, { 7. AIR 1979 SC 87. } also. While referring to the powers of review of its own judgment, it was observed in these decisions that the inherent powers of the High Court to quash the criminal proceedings cannot be a revision or a review and therefore, the second petition to quash the proceedings will not amount to revision of its own order. In the case relies upon by the learned Senior Counsel for the petitioner, (Superintendent & Remembrancer, West Bengal v. Mohansingh, even though the first application for quashing was dismissed, it was established in the second application that there was no prima facie case for prosecution and therefore, thoguh it was a second application, the Court had to interefere by quashing the proceedings. But in this case, as rightly contended bythe learned Additional Solicitor general, among the points raised now, except the one relating to the delay, they were available to the petitioner even at the time of the earlier petition. However, the ground relating to mens rea for the failure to account the income has been raised only now in this petition. The learned Senior Counsel for the petitioner argued that as held in State of Maharastra v. Mayor Hans George, { 8. AIR 1965 SC 722.} mens rea is an essential ingredient of the offence and if a person alleged to be in possession of the disproportionate assets had no criminal intention or necessary mens rea, for his failure to satisfactorily account, the mere failure by itself will not attract the crime of criminal misconduct and in this case, the mens rea is not made out from the police report and therefore, the proceedings are illegal. The contention of the petitioner looks as though no opportunity given to him to explain the assets in his possession and without such opportunity, the proceedings are illegal against him. On the other hand, in the counter filed bythe respondent C.B.I., it is specifically mentioned in paragraph 21 that the petitioner was examined and his detailed statement was recordedduring the investigation and he could not satisfactorily account for the disproportionate assets. It is also stated that keeping in view of the status of the petitioner, he was examined at his residence on the dates, which were convenient to him and inspite of this opportunity, he did not satisfactorily account to the disproportionate assets in his possession. As a matter of fact in paragraph 13(F) at page 12 of the affidavit of the petitioner in the previous Crl. M.P. No. 265/78, it has been stated that the statement of account was furnished by him voluntarily to the Investigating Officer and his income to the turne of Rs. 12 lakhs for the period from 1955 to February 1976 was accounted. Therefore, the petitioner himself would admit that he was asked to explain by the Investigating agency, during the investigation stage, to account for the assets in his possession and only after taking into consideration of his explanations, the charge-sheet has been filed against him.

(9) Section 5(1)(e) of the Prevention of Corruption Act reads as follows:-

" 5. Criminal misconduct-(1) A public servant is said to commit the offence of criminal misconduct :-

(e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."

Therefore, when the public servant was unable to satisfactorily account for the property in his possession which is found to be disproportionate to his known sources, it is considered to be a criminal misconduct on the part of the public servant. As mentioned above, the petitioner has accounted his income to the Investigating Officer but the Investigating Agency would allege that the petitioner could not account for all the assets in his possession. Therefore, in this case when it is shown that opportunity was given to the petitioner to explain the pecuniary sources for his properties and the prosecution has found that the explanation is not satisfactory, it cannot be argued that there is no mens rea and criminal intention for the failure to account the asset as though it is not attracting the penal Section 5 of the Act, 1947. Further in paragraph 2 of the affidavit filed by the petitioner in Crl. M.P.No. 265/78, he has challenged the validity of this section on the ground that it is violative of Article 14 of the Constitution and the Bench of this Court in the said proceedings had considered in detail the question whether the ingredients of the offence under Section 5(1)(e) of the act, 1947 are present in the instant case and are the proceedings vitiated by mala fides, since the First Information Report was recorded for collateral purpose against the petitioner. Having invited the findings on these points from the Full Bench of this Court, it is futile to argue again, that the prosecution under Section 5(1)(e) of the Act is not sustainable.

(10) The second point raised by the learned Senior Counsel is relating to the variance between the allegation in the First Information Report and the police report. According to the learned Senior Counsel for the petitioner the First Information Report dated 24-2-76, there are wild allegations against the petitioner such as purchase of residential flats and bungalow in Kodaikanal, a large farm in Thiruvanmiyur, investment of heavy amount and flating of a company by name Bharat Paper Mills, with an issue capital of about Rs. 5 Crores, investments in textile units at Thanjavur and a fertilizer unit at Neyveli and also buying of a foreign car, but all these allegations are absent in the police report filed under Section 173, Cr. P.C., making it patent that reckless allegations were made deliberately to malign his stature while he was in the high office. The learned Senior Counsel Mr. Natarajan argued that before the investigation had started, the Investigating Agency seemed to have taken the permission of the Chief Justice of India for proceeding with the investigation, that though the allegations in the First Information Report, which are not now mentioned in the police report, are false, only on the basis of such false allegations, the permission fromthe Chief Justice of India had been taken for proceeding withthe investigation, that had the present allegations in the police report were shown to the Chief Justice of India, he would not have given permission for investigation and by giving untrue and exaggerated versions, the Chief Justice of India was misled to give permission for investigation, the criminal proceedings now pending, which is the outcome of such investigation, shall not be allowed to continue as it has the mala fine origin. It is no doubt true that there are variances in the misconduct alleged in the police report, from that of the First Information Report, This argument now raised by the learned Senior Counsel Mr. Natarajan is only to show that had the present allegations in the police report were mentioned to the Chief Justice of India, the permission would not have been granted for investigation by the Chief Justice of India. But the Bench of this Court in Crl. M.P.No. 265/78 had gone into the question whether the permission was necessary to prosecute the petitioner herein. The Bench of this Court has found that the Court takes cognizance of the offence only when the police report under Section 173, Code of Criminal Procedure is filed, but as the petitioner retired even on 8-4-76 whereas the police report was filed on 15-12-77, there was no necessity for sanction for the offence under Section 5(1)(e) of the Act. In 143 of the typeset of theorder of the Full Bench of this Court, it reads :

"The resultant position is that applying all these rules, it has to be held that no sanction is necessary."

Again in page 145, it is observed :

"The petitioner having retired from service, he is not employed in connection withthe affairs of the Union or the State, and hence no sanction will be necessary. The case has become stronger for the learned Advocate General since under Section 5(1) of the Prevention of Corruption Act, the words 'in the discharge of his duty' came to be omitted by Act 40 of 1964."

Again in page 149 of the typeset, while referring to a decision of the Supreme Court in S.A. Venkataraman v. The State, {9.AIR 1958 SC 107.} the Bench of this Court has reproduced the observation therein as follows :-

"Thus in giving effect to the ordinary rneaning of the words used in Section 6, the conclusion is inevitable that at the time a Court is asked to take cognizance, not only the offence must have been committed by a public servant, but the person accused is still a public servant removable from his office by a Competent Authority before the provisions of Section 6 can apply.... Where, therefore, the accused have ceased to be public servants, at the time the Court takes cognizance of the offences alleged to have been committed by them as public servants, the provisions of Section 6 do not apply and the prosecution against them is not vitiated by the lack of a previous sanction by a Competent Authority."

When the Full Bench of the Court has dealt with so elaborately holding that as the petitioner was not in service on the date when the police report was filed, no sanction was necessary, there is no need for any sanction or permission either formthe Chief Justice of India or the Appointing Authority namely the President of India, the contention of the petitioner that the permission was obtained fraom the Chief Justice of India for investigation, misleading him by giving distorted version, cannot be a ground to quash the proceedings.

(11) The next ground raised by the learned Senior Counsel Mr. Natarajan also falls within the above ambit, though it relates to a mistake in the order of the Supreme Court as to the date of retirement of the petitioner. As against the order of th eBench of this Court dismissng his petition, the petitioner took the matter before the Supreme Court in Criminal Appeal No. 400 of 1979 and the Constitution Bench also dismissed his appeal on 25-7-91. In the concurrent judgment of His Lordship Justice A.C.Ray, in paragraph 13, he has observed that :

"13........In the present appeal, the appellant ceases to be a public servant as he resigned from the office. Therefore, at the time of filing the First Information Report, the appellant ceases to be a public servant and no sanction under Section 6(1)(c) of the said Act is necessary...."

The learned Senior Counsel Mr. Natarajan contended that the fact is otherwise, as the petitioner was in service on 24-2-76 when the First Infomation Report was registered but only on 15-12-77, when the charge-sheet was filed, he ceased to be in office, however as the Supreme Court factually erred in thinking that the petitioner was not in service even on the day when the First Information Report was filed and on account of that there was no sanction necessary under Section 6(1)(c) of the Act, this factual error in the order has prejudiced the petitioner very much as the Supreme Court had failed to consider the question whether any sanction was necessary ont he date of the filing to the First Information Report and as this question could not be decided by the Supreme Court on a wrong impression as to certain dates, the proceedings against him has to be quashed. It is true that the petitioner was in service ont he date of the registering of the First Information Report against him and therefore, the observation in paragraph 13 mentioned above is a mistake. But it is brought to my notice that the petitioner filed a review petition before the Supreme Court to rectify this mistake and the review petition also was dismissed. Any how this mistake was brought to the notice of the Supreme Court, but the Supreme Court seems to have felt that there was no need to make any further order on this matter. One thing must be borne in mind and that is the sanction under Section 6(1) of the Act is required only when a Court was taking cognizance of the offence. Only when the police report was filed, the Court takes cognizance of the offence. Therefore, the Bench of this Court in Crl. M.P.No.265/78 which I referred to above, has considered that no sanction was necessary in this case to prosecute the petitioner. As against the order of the Bench, the Supreme Court has not observed anywhere that this view of the Bench of this Court is prevailing even though there is a mistake in theorder of the Supreme Court relating' to the date of leaving of the service by the petitioner, the resultant of which cannot be said to be a prejudice leading to the miscarriage of justice when expecially the Supreme Court also had refused to make any further order when this mistake was brought to its notice, probably as it felt that it was innocuous. Hence, the ground on the mistake in the order of the Supreme Court also has no substance.

(12) The last ground is with reference to the delay in the proceedings. It is argued for the petitioner that this proceeding was initiated in the year 1977 and for the last more than 17 years, it is still pending and even though the petitioner filed Crl.M.P.No.265/78 and thereafter C.A. No. 400/79 in the Supreme Court, the appeal in the Supreme Court was pending for nearly 11 years and this pendency for such a long time is violative of Articles 14, 19 and 21 of the Constitution and Section 309, Code of Criminal Procedure. According to the learned Senior Counsel, when the Constitution has guaranteed for speedy trial under Article 21 of the Constitution, pendency of the proceedings for such a long duration for more than 17 years is not only violative of Section 309 Code of Criminal Procedure and Article 21 of the Constitution, it also has deprived the petitioner of his ability to gather evidence in defence of the prosecution case and therefore, the proceedings has to be quashed. The learned Senior Counsel draws support from the view taken in State of Uttar Pradesh v. Kapil Deo {10. 1972 Crl.L.J. 1214.}, in which case as the proceedings was protracted for 20 years, the quashing by the High Court was justified. But inthat case, the delay was on the part of the prosecution as the copies of the statements of the witnesses were not furnished to the accused persons depriving the accused their right to cross-examine the witnesses of the prosecution and the failure to furnish copies of other documents which the prosecution intended also was found to be laches on the part of the prosecution, resulting very great inconvenience to the accused. Therefore, on account of the laches on thepart of the prosecution, the proceeding was quashed in that case. In Santhosh De v. Achana Guha {11. AIR 1994 SC 1229 : (Distinguished).}, which is also relied upon by the learned Senior Counsel Mr. Natarajan, the prosecution case was pending for 14 years and after the committal of the case to the Sessions Court not a single witness was examined. The charge-sheet itself was filed after a lapse of about 8 years from the date of committal of the case and it was found in that proceedings that the delay was entirely on account of the default of the prosecution, when the prosecution also did not explain the reason for such delay. Therefore, in that case, the Supreme Court held that inordinate delay in commencing the trial has infringed the right of the accused to speedy trial and the quashing of the criminal proceedings against the accused was justified.

(13) The learned Senior Counsel very much relies upon the decision in Abdul Rehman Autulay v. R. S. Nayak {12.AIR 1992 SC 1701.}, wherein the Supreme Court has laid down the propostions regarding the delay. The Supreme Court had observed in paragraph 54 as follows:-

"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 societal 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, inquirty, 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."

Nobody can justify the delay in the legal proceedings. But it must be understood whether such delay was due to the deliberate in-action on the part of the prosecution or due to the inevitalbe cricumstances beyoud the control of any one of the parties to the proceedings. In the above decision, the Supreme Court observes:

"54(5): While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial ) one must have regard to all the attendant nature of offence, number of accused and witnesses, the work-load of the Court concerned, prevailing local conditions and so on what is called the systematic delays. It is true that it is the obligation of the State to ensure a speedy trialand State includes judiciary as well, but a realistic and practial approach should be adopted in such matters instead of a pedantic one."

The Apex Court further observes that in every case of complaint of denial of a right to speedy trial, it is primarily for the prosecution to justify and explain the delay and it is the duty of the Court to weigh all the circumstances of a givencase before pronouncing upon the complaint. This expression of the Supreme Court compelling the prosecution to explain the delay indicates the delay on account of the prosecution. But in this case, nothing can be said against the prosecution for the delay though they took about one year and ten months for investigation, as they have examined more than 460 witnesses in differnet places. Therefore, it cannot be said that the prosecution had taken unreasonable time for investigation. After the filing of the chargesheet on 15-2-77 absolutely there was no delay on the part of the prosecution. It was the petitioner who filed Crl. M.P.No. 265/78 on 18-1-78 to quash the proceedings and when the Full Bench disposed of that petition in April, 1979, immediately, he filed that appeal before the S.C. in C.A.No. 400/79 whcih was disposed of on 25-7-91. Therefore, the delay was only in the disposal of the Criminal appeal of the petitioner in the Supreme Court where the proceeding was pending for about 11 years. It cannot be said that the delay in the deisposal of the appeal in the Supreme Court was caused bythe prosecution. As this case from its very nature, had the constitutional importance and due to the inevitable circumstances, including the work-load, it was disposed of only in July, 1991. For that reason alone, petitioner is not entitled to contend that the proceedings against him has to be quashed. In paragraph 53 of the above decision relied upon by the learned Counsel Mr. Natarajan, the Supreme Court expresses:

".......Counsel for accused argued on the basis of the observations in Sheela Barse (AIR 1986 SC 1773) and Strunk (1973(37) Law Ed.56), that the only consequence is quashing of charges and/or conviction, as the case may be. Normally, it may be so. But we do not think that is the only order open to Court. In a given case, the facts-including the nature of offence-may be such that quashing of chargesmay not be in the interest of justice. After all, every offence-more so economic offences, those relating to public officials and food adulterations - is an offence against society. It is really the society-the State-that prosecutes the offender."

Again in paragraph 54, in Point No. 9, the view of the Supreme Court is as follows :-

"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 tomake suchother appropriate order-including anorder 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..."

The above expression of the Supreme Court makes it very clear that the quashing is not the only rmedy even in the cases where there was infringement to the right of speedy trial whent heoffence alleged was such a nature of public importance. As mentioned above, as the delay in this case was only due to the pendency of the appeal before the Supreme Court, it cannot be said that it was deliberate. The Supreme Court also while disposing of the appeal, had directed for early disposal. However, the petitioner has again filed this petition immediately to quash the proceedings, on the ground of delay. When such delay was due to inevitable circumstances, the remedy cannot be to quash the proceedings itself.

(14) Considering all the grounds argued before me, as I find that the grounds urged have no consequential effect to annul the criminal proceedings against the petitioner, the only way open is to allow the law to have its own course in the criminal prosecution. The result of this petition will be for dismissal and accordingly it is dismissed.

________________ Petition Dismissed. ________________