CRIMINAL MISC. M NO.46848 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 07, 2008 Pritam Singh .....Petitioner VERSUS State of Punjab and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Amar Vivek & Ms. Rachna Arora, Advocates, for the petitioner. Mr. Mehardeep Singh, AAG, Punjab, for the State. **** RANJIT SINGH, J. The petitioner, who is 72 years old, has filed this petition for quashing of FIR No.62, dated 25.11.2001, registered under Sections 13(1) read with 13(2) of the Prevention of Corruption Act, 1988 read with Section 120-B IPC. The petitioner, who retired from service on 31.8.1994, has been saddled with criminal liability for something which he allegedly did during his service period between the years 1991 and 1993. At the time of retirement, the petitioner was never made aware that CRIMINAL MISC. M NO.46848 OF 2007 :{ 2 }: there was some allegation standing against him. He must have learnt to his shock, when after over 7 years of his retirement, he was named in the present FIR. The Investigating agency has not been very kind to him even subsequent thereto. They nearly took five years to present the challan in this case, which was done on 6.11.2006. Thereafter charge was framed against the petitioner on 15.10.2007. The petitioner has, thus, filed this petition for quashing of the FIR on the ground that delay in itself would be so fatal and would come to his rescue being violative of fundamental right of life and liberty contained in Article 21 of the Constitution of India. The facts, as can be discerned from the FIR, Annexure P- 4, are that PWD Department, had purchased HDPE pipes for supply of water between years 1991 to 1993. These pipes were supplied to 10 villages of District Hoshiarpur for enabling water supply and were valued at Rs.29 lacs. The scheme of water supply had been named as `Nanda Dher Water Supply Scheme'. These pipes were inspected by Directorate of Inspection, New Delhi. The consignee, PWD Department, Punjab, did not inspect the pipes. The payment for purchase of these pipes were made. It is alleged that the pipes starting leaking after sometime of the purchase and these were found to be of sub-standard. The details of the HDPE pipes purchased between the years 1991 and 1993 were statedly of 63 mm and 50 mm dimension. The responsibility of the quality of these pipes, as per the allegation, rested with Directorate of Inspection, New Delhi. These pipes were purchased from M/s Himalayan Pipe Industry, Raipur Solan and M/s Chemi Plastic Industry, Parwanoo, Himachal Pradesh. It is alleged that owners of these firms colluded with CRIMINAL MISC. M NO.46848 OF 2007 :{ 3 }: Assistant Inspectorate Officers from Directorate of Inspection, New Delhi i.e. Petitioner and one Sh.Dubey. Alleging fraud on the part of these persons and the fact that even employees of PWD Department had also connived with them, the present FIR was lodged by the Vigilance Department. It is accordingly alleged that action of the petitioner and his co-accused had caused loss to the Government and, thus, they are blamed for offences under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act read with Section 120B IPC. Counsel for the petitioner points out that name of Sh.Dubey actually is wrongly mentioned and in fact the Officer who was being referred to as Mr.Dubey is Mr.Narayan Kant Upadyaya. Notice in this case was issued. Reply has been filed on behalf of the State. It is disclosed in the reply that FIR was registered on 25.11.2001 at Police Station, Vigilance Bureau, Jalandhar, against the petitioner and others. No reasons have been disclosed as to why the authorities had to take 8 years of the incident to register this FIR. Thereafter, the delay in filing the challan has been explained on the ground that SSP, Vigilance Bureau, Jalandhar, had forwarded the case for obtaining sanction for prosecution for conducting the trial of the abovesaid accused persons. It may need a mention here that for prosecuting the petitioner, there was no need of sanction. Obviously, this sanction was being sought for prosecution of co- accused of the petitioner, namely Mr.N.K.Upadhaya. The petitioner, as such, can not be held responsible for the delay starting from the year 2001 to the date of filling of challan on 6.11.2006. He would rather says that if he had been in service, then sanction for his CRIMINAL MISC. M NO.46848 OF 2007 :{ 4 }: prosecution was bound to be denied. Though the petitioner has filed this petition raising number of grounds but ultimately has confined his prayer for quashing of the petition mainly on the ground of delay. Counsel submits that delay in itself would be fatal to the prosecution and would lead to violate the right of speedy trial guaranteed to the petitioner under Article 21 of the Constitution of India being part of his right to life and personal liberty. The fact that the petitioner had carried out this inspection at the time of supply of these pipes is not in serious dispute. There is also not much dispute about the fact that the pipes were supplied between the period 1991 and 1993. The petitioner had retired from service on 31.8.1994 after one year of service after the date of the allegations. It is urged with some justification that if there was some defect in these pipes relatable to the act of inspection carried out by the petitioner, it would have definitely surfaced something immediately after 1993, once these pipes after purchase, were put to use. The petitioner was available, being in service, for being proceeded against nearly for a period of one year, when he retired on 31.8.1994. Still the investigating agency would take 7 more years to register this FIR would in itself speak and stand in favour of the petitioner, once he makes a grievance of his prosecution on the ground that delay has resulted in violation of his fundamental right to have speedy trial. Another aspect, which has been highlighted by counsel for the petitioner is that FIR makes allegation against the petitioner as well as against Mr.Dube alias Mr.N.K.Upadyaya. Both the petitioner as well as Mr.Upadyaya have been saddled with the same CRIMINAL MISC. M NO.46848 OF 2007 :{ 5 }: responsibility and assigned the same role in this FIR. Counsel would refer to orders, Annexures R-1 to R-3 (attached with connected Criminal Revision No.1786 of 2007) to urge that the Department itself has declined to grant sanction for prosecution of Mr.Upadyaya by passing a speaking order. He would rightly question the action of the prosecution to proceed against the petitioner and says that should the petitioner suffer only because he has retired? Had the petitioner been in service, obviously the Department like the case of Mr.Upadyaya, would have refused sanction for his prosecution as well. Now sanction for prosecution of the petitioner is not needed as he has retired, he can not be put to prejudice on that ground alone. If allowed, says the counsel, it would be nothing but discriminatory in nature. It is, thus, required to be appreciated in the light of these facts if the prosecution of the petitioner after so much of a delay, which in any manner, is not attributed on the part of the petitioner, would lead to violation of his fundamental right under Article 21 of the Constitution of India or not. Another aspect, which would require consideration would be that sanction in this case has been ultimately declined. The petitioner can not merely be made to suffer because the sanction in his case would not n ow be needed as he has already retired. Rather, he would have been at advantage in case he would have been in service as on the same consideration, sanction for his prosecution would not have been forth-coming. There is, thus, no justification for delay in proceeding against the petitioner even after registration of an FIR, which is for obtaining sanction for co-accused which is declined. The petitioner can not be made to suffer for delay CRIMINAL MISC. M NO.46848 OF 2007 :{ 6 }: on the part of prosecution either in obtaining sanction for co-accused, which in any case was not needed for the petitioner. There is otherwise no justification forthcoming on the part of the respondents to explain this inordinate delay in prosecuting the petitioner. Counsel for the petitioner has referred to Mahendra Lal Das Vs. State of Bihar, 2001 AIR (SC) 2989 in support of his submission. Hon'ble Supreme Court, while commenting about right to speedy trial under Article 21 of the Constitution of India has observed as under:- “It is true that interference by the court at the investigation stage is not called for. However, it is equally true that the investigating agency cannot be given the latitude of protracting the conclusion of the investigation without any limit of time. This Court in Abdul Rehman Antulay and others v. R.S.Nayak and another, 1992 (1) SCC 225 while interpreting the scope of Article 21 of the Constitution held that every citizen has a right of speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest also. It is in the interest of all concerned that guilt or innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. While determining the alleged delay, the court has to decide each case on its fact having regard to all attending circumstances including nature of offence, number of CRIMINAL MISC. M NO.46848 OF 2007 :{ 7 }: 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. Inordinate long delay can be taken as a preventive proof of prejudice.” The Hon'ble Supreme Court in this case has rightly observed that speedy justice is the mandate of the Constitution being in the interest of the accused as well as of the Society. It is also observed that the cases relating to corruption are to be dealt with swiftly, promptly and without delay. The delay, if any, may call for an action against the person who is responsible for causing such a delay but in case the delay is not found attributable to the act of accused person, he can not be made to suffer due to the lethargy on the part of the prosecution agency. Counsel also refers to the case of Faqir Singh Vs. State of Punjab, 2007 (2) RCR (Criminal) 212 where the ratio of law laid down in the cases of Mahendra Lal Das (supra), and Ramanand Chaudhary Vs. State of Bihar and others, (2002) 1 Supreme Court Cases 153. were followed. Reliance is also placed on an observation made in the case of Des Raj Singal, Ex.Chief Engineer, Punjab Vs. State of Punjab, 1986 (1) RCR (Criminal) 66 to urge that where prosecution is not launched after considerable delay and delay continues, then the Superior Court has jurisdiction to interfere and quash the prosecution. As already noticed, the petitioner is 72 years old and has retired from the service much before he was saddled with present CRIMINAL MISC. M NO.46848 OF 2007 :{ 8 }: prosecution. The allegation, leading to charges pertained to years 1991 to 1993. The FIR was lodged nearly after 8 years on 25.11.2001. This was after 7 years of retirement of the petitioner. The investigation took another five years and challan was presented on 6.11.2006. Another year went by for framing charges and, thus, in all the petitioner has faced this agony of protracted investigation and prosecution for almost 15 years. The case is still at the stage of framing of charges. This delay is not attributable to the petitioner in any manner. The delay in conclusion of a criminal trial in itself has been found to be sufficient ground leading to violation of the right of life and liberty as enshrined under Article 21 of the Constitution of India. As already noticed, right to speedy trial encompasses all the stages namely, investigation, enquiry, trial and appeal etc. Article 21 of the Constitution provides that no person shall be deprived of his life or his personal liberty except according to procedure established by law. One need not strain oneself to find the sweep of Article 21 of the Constitution in general but have to see whether right to speedy trial would be covered under the clause `life and liberty' as provided under Article 21. Initially, the Supreme court in cases like “Common Cause” A Registered Society versus Union of India, 1996 SCC 775, Raj Deo Sharma (I) Versus State of Bihar, (1998) 7 SCC 507, and Raj Deo Sharma (II) Versus State of Bihar, 1999 SCC (Crl.) 1324, had laid down that long periods itself operates as engine of oppression and ultimately issued direction for automatic termination of criminal proceedings after lapse of different periods as mentioned in the cases noted above. The view regarding automatic termination of criminal proceedings after lapse of period though did not find CRIMINAL MISC. M NO.46848 OF 2007 :{ 9 }: favour with the Supreme Court in a Constitution Bench decision reported in P.Ramachandra Rao Versus State of Karnataka, AIR 2002 SC 1856, yet right to speedy trial as one of the limb of Article 21 was duly recognized by this decision. Noticing the same, the Supreme court held as under:- “xx xx The Courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expenses and strain which a person proceeded against in criminal laws has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of country in holding the right to speedy trial a manifestation for fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial- In short everything commencing with an accusation and expiring with the final verdict-the two being respectively the terminus a quo and terminus ad quem – of the journey which an accused must necessarily undertake once faced with an implication.” Going further, the Supreme Court also held that Article 21 of the Constitution has persuaded the said Court in devising solution which go to the extend of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and arm of law shall lose its hold. Though laying down the bar of limitation, as held in the earlier decisions was not approved, the right of speedy trial was CRIMINAL MISC. M NO.46848 OF 2007 :{ 10 }: certainly recognized as limb of life and liberty clause of Article 21 of the Constitution. The Court also observed that while idea was to speed up the trial in criminal cases to prevent the prosecution from becoming persecution of the persons arrayed in a criminal trial, having regard to the protection guaranteed under Article 21 of the Constitution, it can be said that prolonged and protracted trial on account of any reason and mainly on the ground of lethargy of prosecution of the State machinery totally cannot be permitted. There is another reason in this case for which the prosecution against the petitioner must come to an end. The petitioner is facing prosecution only because of his retirement. As already noticed, the co-accused of the petitioner, with identical allegations, namely, Narayan Kant Upadhaya, has been excused from this prosecution, when sanction for his prosecution was declined. This would be sound rather discriminatory to the petitioner. Is he to be tried because he is no more in the service, when the person in service is not being prosecuted? It is observed while declining sanction that there is no ground or reason to direct prosecution. Allowing the prosecution to continue against the petitioner would, thus, be unfair apart from being unconstitutional, being in violation of Article 21 of the Constitution of India of speedy trial. Keeping in view the totality of facts and circumstances and the law, the present petition is allowed. The FIR No.62, dated 25.11.2001, under Sections 13(1) read with Section 13(2) of the Prevention of corruption Act, 1988 and Section 120-B IPC, registered at Police Station Vigilance Bureau, Jalandhar, against the petitioner CRIMINAL MISC. M NO.46848 OF 2007 :{ 11 }: and subsequent proceedings thereto are quashed. November 07,2008 ( RANJIT SINGH ) khurmi JUDGE