IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.353 of 2009 SHANKER PRASAD PODDAR Son of late Ram Gopal Poddar, resident of village/mohalla- Bettiah, P.S. Bettiah, District-Bettiah (West Champaran). . . . . Petitioner. Versus 1. THE STATE OF BIHAR through Executive Engineer National Rural Employment Programme, Saharsa. . . . . . Respondents. ----------- 3/ 01.07.2010 Heard learned counsel for the petitioner and the State. In the instant writ application, the petitioner prays for quashing the investigation of Saharasa P.S. case no. 34 of 2000, for the offence under Sections 409, 420 read with Section 120 B of the Indian Penal Code. In short, the First Information Report is that during the period 1993-94 to 1998-99, under various schemes totaling 77, the District Administration had sanctioned a sum of Rs. 2,96,51,817.55. The petitioner, Shanker Prasad Poddar, who was the then Executive Engineer, NREP, Saharsa gave the money to one Shivendra Narayan Singh, Assistant Engineer, as temporary advance for different schemes. A First Information Report was lodged by one Sone Lal Sah, Executive Engineer, NREP, Saharsa on 25.01.2000 for alleged misappropriation of money by the petitioner, the Assistant Engineer, Junior Engineer and others. The petitioner submits that charge-sheet was submitted against three accused persons in December, 2000, whereas investigation was kept pending against him. Now, though more than 10 years have gone by, still no charge-sheet has been submitted against him. He next contends that he has been made an accused in this - 2 - case at the behest of the District Magistrate, Saharsa. The earlier format of the First Information Report did not contain his name as an accused. Subsequently, on direction of District Magistrate, Saharsa, dated 11.01.2000 the name of the petitioner was included in the First Information Report, as an accused. The petitioner asserts that there has been no misappropriation, much less by him. The petitioner granted advance to Shivendra Narayan Singh, Assistant Engineer, NREP pursuant to decision of Committee for execution of work. However, Shivendra Narayan Singh faulted in giving the accounts, though most of the works were completed. In this context petitioner has relied upon Annexure-B of counter affidavit filed by Executive Engineer, NREP, which supports the aforesaid assertions that in fact the works were completed. The petitioner submits that he retired on 31.01.2002 and has been drawing his pension and other retiral benefits regularly. A counter affidavit has been filed on behalf of Superintendent of Police, Saharsa on 28.04.2010. In paragraph 6 of the counter affidavit, it has been stated that the petitioner gave certain amount to Shivendra Narayan Singh, as temporary advance against various projects. In paragraph 7 of the counter affidavit, it has been stated that the petitioner in violation of Government Rules and without verifying the progress of the work and without obtaining accounts, tendered advance to Shivendra Narayan Singh, which points towards his collusion of misdeeds. In paragraph 11 of the counter affidavit, it has been stated that sanction has been accorded against the petitioner - 3 - on 16.07.2003 by the Government. The petitioner has prayed for quashing the prosecution on two grounds. The first contention is that the main allegations are against Shivendra Narayan Singh and charge-sheet too has been submitted. The allegation against him is of giving advance to Shivendra Narayan Singh. In this respect he submits that he was duty bound to give advance, if the concerned committee so decided. If Shivendra Narayan Singh did not submit the accounts in time, the petitioner ought not to have been prosecuted. In 1998, he was even transferred to R.C.D., Head Quarter, Patna. Learned counsel submits that as nothing incriminating has been found against him, the police has not been able to submit charge-sheet against him all these years. The second ground urged by the petitioner is that even assuming that the prosecution case to be true, prolonged investigation would infringe Article 21 of the Constitution and on this ground alone, the prosecution ought to be quashed. In support of his submissions, learned counsel has relied upon a decision reported in the case of Vakil Prasad Singh Vs. State of Bihar, reported in AIR 2009 SC 1822. Counsel for the State submits that as per his talk with Superintendent of Police, Saharsa, it has come to the notice that petitioner has made two houses. In paragraph 10 of the counter affidavit, it has been stated that petitioner has not up till now appeared before the police. So far as the first point raised by the petitioner that there is no allegation against him and as such the institution of the First - 4 - Information Report is bad in law cannot be accepted at this stage, as prima facie allegation is there and investigation is pending. So far as the second point that prolonged investigation would infringe Article 21 of the Constitution, there seems force in the submissions of the petitioner, if he is not himself responsible for the delay. The Hon’ble Apex Court in case of Vakil Prasad Singh (Supra) after considering various cases on this point, namely Kurukshetra University & Anr. Vs. State of Haryana & Anr., State of Haryana & Ors. Vs. Bhajan Lal & Ors. Reported in AIR 1992 SC 604, Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr. reported in AIR 1992 SCW 1872 “Common Cause” A Registered Society Vs. Union of India (UOI) & Ors. reported in A.I.R. 1996 SCW 2279, a Seven-Judge Bench decision in case of P Ramachandra Rao Vs. State of Karnataka, reported in AIR 2002 SCW 1841, observed that prolong investigation would hit Article 21 of the Constitution and prosecution would be liable to be quashed on this ground in appropriate cases. The Hon’ble Supreme Court finding that the investigation in the aforesaid case continued for 17 years, without fault of the petitioner, quashed the criminal prosecution against the accused. It would appropriate to quote paragraph 15 of the aforesaid judgment: “It is, therefore, well settled that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court - 5 - but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial”. In the instant case, alleged misappropriation is of about three crores. The stand of the petitioner is that most of the projects have been completed, but as such accounts were not submitted by Shivendra Narayan Singh, the then Assistant Engineer, the instant criminal prosecution was instituted. The actual money had passed to Shivendra Narayan Singh, Assistant Engineer cannot. The petitioner was duty bound to tender advances in view of decision of committee. In such circumstances, though there is inordinate delay of 10 years in investigation, this Court by way of last chance gives one more indulgence to State to conclude the investigation within a period of three months. In case, the investigation does not conclude within - 6 - the stipulated time, it will be open to the petitioner to renew his prayer for quashing of the criminal prosecution. With the aforesaid liberty, this application is disposed of. Let a copy of this order be communicated to Superintendent of Police, Saharsa as well as to SC-7 by the office. Uday/ (Samarendra Pratap Singh, J.)