IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40948 of 2007 VYAS SHARMA S/O LATE SURITH SHARMA, RESIDENT OF VILLAGE DERSAIYA, P.O. HATI, P.S. KAKO, DISTT. JEHANABAD AT PRESENT INCHARGE DEPUTY COMMISSIONER OF EXCISE, JHARKHAND, RANCHI. Versus STATE OF BIHAR ----------- 5. 24.2.2010. Heard Shri Jitendra Singh, learned Senior Counsel appearing on behalf of the petitioner and Smt. Indu Bala Pandey, learned Additional Public Prosecutor on behalf of the State. 2. The petitioner invoking inherent jurisdiction of this Court under Section 482 of Cr.P.C. has prayed for quashing of order dated 1.11.2003 whereby learned Ist Class Judicial Magistrate had taken cognizance of the offence under Sections 406, 420, 467, 468, 471, 409 and 34 of the Indian Penal Code in Sachivalaya P.S. Case No.746 of 1988. The petitioner has further prayed for quashing of the entire proceeding in Sachivalaya P.S. Case No.746 of 1988 corresponding to Trial No.684 of 2004 pending in the court of Ist Class Judicial Magistrate, patna. 3. The ground for quashing of the entire proceeding including order taking - 2 - cognizance is mainly based on pendency of the proceeding since long and learned counsel for the petitioner has thrashed his argument that it is a case of violation of fundamental right enshrined under Section 21 of the Constitution of India of the petitioner. 4. At the very outset, it would be necessary to indicate certain facts for coming to just decision of the case. The case, as per F.I.R., is that some of the foreign liquor wholeseller of State of Bihar in the year 1982-83 and 1983-84 on the basis of foreged import permits obtained from other States and export permits were got issued from the Excise Department of State of Bihar. On the basis of forged and fictitious document, some of the dealers particularly M/S Shakti Distributor dealing in foreign liquor obtained export permits for the export of non duty paid foreign liquor consignments to other States, which did not reach its destination. Such foreign liquor of non duty paid consignments were sold in market for their unlawful and illegal gains and thus causing illegal and wrongful loss to the - 3 - State of Bihar to the tune of several lakhs. On the basis of such a big fraud F.I.R. vide Sachivalaya P.S. Case No.746 of 1988 was registered against accused persons. The petitioner was not initially named as accused in the F.I.R. 5. During investigation, involvement of petitioner surfaced. The petitioner at the relevant time i.e. during 1982-83 and 83-84 was posted as Excise Superintendent, Muzaffarpur. While investigation was going on, the same was transferred to the Crime Investigation Department (C.I.D.) and thereafter, C.I.D. investigated the case and in the month of November,1992 submitted charge sheet against 13 accused persons including petitioner. The petitioner and some others were shown absconder while submitting charge sheet by the C.I.D. Subsequent to the filing of the charge sheet after expiry of more than one year, the petitioner was granted anticipatory bail by this Court. It further appears from the materials available on record that subsequent to filing of the charge sheet, a petition was filed under - 4 - Section 173(8) of the Code of Criminal Procedure for further investigation and thereafter in the month of October,2002, supplementary charge sheet was submitted in the case keeping investigation pending against two accused persons. By the impugned order i.e. order dated 1.11.2003, Sri Md. Habibullah, learned Judicial Magistrate Ist Class, Patna after perusing the materials available on record and also examining the prosecution sanction issued by the competent authority for prosecuting the present petitioner and another accused took cognizance of the offences under Sections 406, 420, 467, 468, 471, 409, 34 of the Indian penal Code. While taking cognizance, the learned Magistrate also directed for issuance of non bailable warrant of arrest against co-accused Kamal Shahi @ Kamal Kishore Shahi, Smt. Shakuntala Sharma, Suresh Choudhary @ Suresh Kumar Choudhary and Nageshwar Ram and further ordered for issuance of summons for securing attendance of remaining accused persons. Since investigation against two accused persons - 5 - were still pending the learned court below also directed to open a separate record. One of the charge sheeted accused had since died, accordingly, his case was closed. 6. During course of hearing, Sri Jitendra Singh, Senior advocate making a prayer for quashing of entire proceeding submitted that in this case F.I.R. was firstly lodged in the year 1988 and alleged offence was committed during the period between 1982-84 and till date even trial has not commenced and as such the right of speedy trial of the petitioner has been violated. Of course, on merit of the case, he had not seriously argued but had simply submitted that the order of cognizance is also not tenable in the eye of law. In support of claim for quashing of the proceeding on the ground of delay, learned counsel for the petitioner has heavily relied on a recent judgment of the Hon’ble Supreme Court reported in 2009(1) PLJR (S.C)277, Wakil Prasad Singh Vs. State of Bihar. He submitted that keeping in view the pendency of the case since a long time is itself enough for - 6 - quashing of the entire criminal proceeding in the case. He submitted that in almost similar circumstances in Wakil Prasad Singh’s case (Supra), Hon’ble Supreme Court has quashed the criminal proceeding and as such the proceeding in hand requires same result. 7. I have also heard learned counsel for the State. She submits that while taking cognizance, learned court below had not committed any error and there is no irregularity or illegality in the same. She further submitted that it is true that an accused has got right for speedy trial but at the same time in the facts and circumstances of the present case, it cannot be said that the right of petitioner has been violated to the extent of stretching the applicability of Article 21 of the Constitution of India. I have also examined the record. Earlier, while investigation was going on, the petitioner had approached the court by way of filing a petition for quashing of investigation of the case by way of filing Cr. Misc. No.22241 of 2000. The petition which was filed in the year 2000 regarding quashing of investigation - 7 - was finally dismissed as withdrawn on 13.11.2002 vide Annexure-1 to the petition. During the pendency of the present petition by order dated 24.12.2009, the petitioner was directed to file supplementary affidavit indicating therein the status of the case. In compliance with the said order, the petitioner filed supplementary affidavit enclosing therewith a copy of report which was sent to this Court by the court below. The learned Magistrate vide his letter no.6 dated 21.1.2009 has intimated this Court that in Sachivalaya P.S. Case No.746 of 1988 out of 12 accused persons, five including petitioner are in appearance and for securing attendance of rest of accused persons processes have been issued. It is evident that till date appearance of all the accused persons has not been secured and it appears that it is also one of the reasons for delay in initiation and conclusion of the trial. 8. I am of the view that since five accused persons had already appeared before the court below right course was to be adopted by the court below was to separate - 8 - the cases of remaining accused persons and thereafter steps should have been taken to frame charge and commence the trial keeping in view the fact that case is running since long. 9. I am in agreement with the submission of learned counsel for the petitioner that if there is un-explained delay in conclusion of the trial and also pendency of the case since long one can legally approach the court with a plea that his right of speedy trial has been infringed and if court is satisfied that really it is a delay without any explanation then court can intervene into the matter and also in the facts and circumstances of a particular case quash such proceeding. Law is settled on the point that if any right granted under part-3 of the Constitution of India, which speaks about fundamental right, are infringed then one can approach High Court or Supreme Court for enforcement of his right by way of invoking Article 226 or 32 respectively of the Constitution of India. So far as exercise of power under Section 482 of the Cr.P.C. is - 9 - concerned, it need not to be repeated that this power is to be exercised in rarest of the rare cases and that too in a case where there is no remedy available in the Code of Criminal Procedure only then inherent power of this Court can be invoked besides preventing abuse of the process of the court etc. In the case of Wakil Prasad Singh (Supra), Hon’ble Supreme Court has again reiterated the same view which was taken by the constitution Bench of the Hon’ble Supreme Court in A.R. Antule Vs. R.S. Nayak reported in 1992(1) PLJR (S.C)41. 10. I have examined the record of the present case and I am of the view that case of the petitioner is not exactly similar to the case of Wakil Prasad Singh (Supra). In the said case firstly investigation was conducted by an officer who was un-authorised to investigate the case and on the report submitted by such officer, the Magistrate had taken cognizance of the offence. Said order was challenged before the High Court and, accordingly, vide order dated 7th December,1990, the order of cognizance was - 10 - quashed with a direction to the prosecution to complete the investigation within a period of three months from receipt of the order by an officer of the rank of Deputy Superintendent of Police or any other officer duly authorized in this behalf. After the order of the High Court, no progress was made in the case and matter was kept pending for about seven years thereafter. In the said case, there was direct latches on the part of police official and as such the case remained pending for a longer period and the Hon’ble Supreme Court quashed proceeding in that case. So far as the present case is concerned, it stands entirely on different footing and learned counsel for the petitioner cannot get any assistance from the said case. 11. Again seven Judges Bench of Hon’ble Supreme Court had approved the law laid down in Antule’s case(Supra)in a case reported in 2002(3)PLJR(S.C)229(P. Ramchandra Rao Vs.State of Kerala).There is no dispute on the point that on the ground of pendency of a criminal proceeding for a very long - 11 - period same can be quashed keeping in view the fact that right of speedy trial has been infringed. However, while exercising such power, it is also required to be seen as to who is responsible for the delay. At this stage, it would be appropriate to quote paragraph-85(9) of judgment of Hon’ble Supreme Court in A.R. Antule’s case (Supra), which 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 to make such other appropriate order-including an order to - 12 - 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”. 12. In the present case as per F.I.R. the court is convinced that offence alleged against the offender which include petitioner is very serious offence in view of the fact that public servants conniving with private persons had committed fraud with the State and its poor citizen. In the said crime, the Government of Bihar was put to illegal loss of several lakhs. The public servant who are supposed to protect the interest of State exchequer had indulged in allowing the private accused persons, who are said to be liquor dealers, to syphon huge amount from the state exchequer. Moreover, due to non cooperation of the accused persons also the delay has occurred which is evident from the fact that initially while submitting charge sheet several accused persons - 13 - N.H./ including this petitioner were shown absconder and thereafter even till date about seven accused persons had not appeared. 13. In view of the facts and circumstances mentioned hereinabove, I am of the view that petitioner has not come out with a case to persuade the court to quash the proceeding on the ground of inordinate delay.For the ends of justice, it would be appropriate to direct the court below to immediately commence the trial and conclude the same expeditiously by way of separating cases of accused persons whose appearance has already been secured. Accordingly, I am not persuaded to quash the proceeding in the present case. However, I direct the court below to commence the trial of accused persons who are already in attendance and take every steps to conclude the trial as early as possible. 14. Accordingly, the present petition stands rejected. ( Rakesh Kumar,J.) - 14 -