CRM-M-16846 of 2011 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM-M-16846 of 2011 (O&M) Date of Decision: 02.11.2011 Rajinder Singh Cheema and others . . .Petitioners Versus State of Punjab and another . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Sunil Chadha, Advocate, for the petitioners. Mr.A.S. Rai, DAG, Punjab. ***** RAKESH KUMAR JAIN, J. The petitioners have invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.) for the purpose of seeking quashing of FIR No.105 dated 2.4.1997 registered under Sections 7 & 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) and Sections 217, 218, 201, 419, 420 & 120-B of the Indian Penal Code, 1860 (for short ‘IPC’) as well as all subsequent proceedings arising therefrom including the final report (challan) dated 02.10.2006 (Annexure P-7) on the ground of being an abuse of the process of law. This case has chequered history. The allegations against the petitioners are that petitioner No.1 while being posted as Deputy Superintendent of Police Sadar, Ludhiana had recommended cancellation of FIR No.289 dated 14.8.1996 registered with Police Station Sadar, Ludhiana under Sections 302, 148 & 149 IPC in respect of murder of Dalal Chander (labourer) and petitioner No.2 while being posted as Superintendent of Police, Operation and acting as Senior CRM-M-16846 of 2011 (O&M) - 2 - Superintendent of Police, Ludhiana issued an order to SHO, Sadar, Ludhiana to enter the untraced report in respect of the aforesaid FIR No.289 and petitioner No.3 while being posted as SHO, P.S. Jodhewal, Ludhiana had moved an application for declaring the said FIR No.289 as untraced and the petitioners in furtherance of their common object of declaring the FIR No.289 as untraced had received illegal gratification and had tampered the record. Learned counsel for the petitioners has submitted that the petitioners had filed a representation about their false implication in the present case to the Director General of Police, Punjab who ordered an enquiry by the Inspector General of Police (Zonal), Jalandhar. In the two separate reports (Annexures P-2 and P-3) forwarded to the Director General of Police, Punjab, the petitioners were declared to be innocent. The Director General of Police, Punjab got the said reports verified from the Additional Director General of Police (Crime), Punjab, who vide his office memo No.2202 dated 28.5.1999 wrote to the Inspector General of Police (Zonal) that the petitioners are innocent and may be discharged from the present FIR. Even vide order dated 15.3.2000 (Annexure P-4) the departmental action directed to be initiated against petitioner No.3 in the verification report (Annexure P-3) was dropped having been found to be without any substance. The petitioners have sought the quashing of the FIR alleging therein that on the basis of same statement of the prosecution witnesses in FIR No.289 dated 14.8.1996 in respect of murder of Dalal Chander, which was made the basis for recommending/approving cancellation report, the accused named therein were tried and acquitted by the Court of learned Sessions Judge, Ludhiana on 27.3.1999 (Annexure P-8) and the said order of acquittal has attained finality as it has not been challenged by anybody. The allegation against the petitioners that they were bribed to help the accused in FIR No.289, a separate FIR No.24 dated 2.2.1997 was registered against Rajinder Bhushan Maini and others under Section 8 of the Act but the Police had prepared a cancellation report on 24.8.1998 in respect of the said FIR. CRM-M-16846 of 2011 (O&M) - 3 - After the cancellation/untraced report submitted to the Court after having been recommended by Senior Superintendent of Police, Ludhiana, the learned Special Judge, Ludhiana vide his order dated 1.2.2002 (Annexure P-9) remitted the case to the Senior Superintendent of Police, Ludhiana to move for taking necessary sanction of the petitioners for their prosecution from the competent authority in accordance with law. It is alleged that the said order (Annexure P-9) having been passed behind the back of the petitioners is illegal and unsustainable. It is argued that there is no evidence available on record to prima facie establish any illegal gratification either demanded or paid to the petitioners for preparing/submitting untraced/cancellation report in the FIR No.289 as there is no recovery of any such amount of illegal gratification. It is further submitted that the FIR No.105 (Annexure P-1) was registered on 2.4.1997. The challan was prepared on 2.10.2006 yet the same has now been presented on 22.3.2011 without there being any explanation. In respect of the huge delay of 14 years in prosecution of the petitioners and flogging a dead horse, the petitioners have relied upon three judgments namely “Pankaj Kumar Vs. State of Maharashtra and Ors.” 2008(4) RCR (Criminal) 890 (SC), “Vakil Prasad Singh Vs. State of Bihar” 2009(1) RCR (Criminal) 802 (SC) and “Pritam Singh Vs. State of Punjab and another” 2009(1) RCR (Criminal) 497 (P&H). It is also submitted that respondent No.2, who did not appear despite notice has his own axe to grind against the petitioners. Notice of motion was issued on 01.06.2011 and on 1.8.2011 the learned trial Court was directed to adjourn the case pending before it beyond the date given by this Court as the date before the Court below was fixed for framing of charges. In response to the notice, respondent No.1 has filed its reply by way of an affidavit of Joginder Singh, PPS, Additional Deputy Commissioner of Police, City-III, Ludhiana City, Ludhiana dated 12.8.2011 in which it is averred that when the cancellation report of the CRM-M-16846 of 2011 (O&M) - 4 - FIR (Annexure P-1) was submitted to the Court and was not accepted, the case was remitted back to the then Superintendent of Police, Ludhiana with the direction to move for taking necessary sanction for prosecution of the petitioners. It is further alleged that the sanction to prosecute the petitioners was received on 14.10.2005, 4.7.2006 and 1.7.2002 respectively and thereafter the necessary formalities were completed and the report under Section 173 Cr.PC. was presented to the Court of competent jurisdiction on 22.3.2011. During the course of hearing, learned counsel for the petitioner had pointed out that though the challan was prepared on 2.10.2006 but it has been presented on 22.3.2011 after a delay of 5 years without there being any explanation as the word ‘necessary formalities’ is not explained in the reply filed by the State. In this view of the matter, the State was directed to file affidavit of the concerned officer to disclose what were the necessary formalities which took such a long time in its completion for the purpose of presentation of challan? In view of the order passed by this Court on 2.9.2011, an affidavit of the same officer dated 19.9.2011 was filed in Court in which he has averred as under: - “That it is submitted that as a consequence thereof, the ADCP-IV carried out the inquiry and submitted his report to the DCP Ludhiana City dated 16.9.2011 with the observation that pursuant to receipt of sanction qua all the three accused, the SHO PS Jodhewal prepared the challan on 02.10.2006. When the challan was presented before learned Illaqa Magistrate, the learned Judge verbally directed that the accused be also produced at the time of presentation of challan. Every possible effort was made to produce the accused. Since, Balwant Singh Gill (petitioner No.2) was posted in South India, the challan CRM-M-16846 of 2011 (O&M) - 5 - could not be presented. Time to time, the letters and TPMs were being sent to Balwant Singh Gill asking him to come present till 2009. So far as the subsequent record is concerned, the same has been destroyed due to rain but still, whatever, record is available with regard to the efforts made to call Balwant Singh Gill, it clarifies that number of efforts were made to call Balwant Singh Gill. But Balwant Singh Gill did not come present despite calling repeatedly and on account of the same, the presentation of the challan was delayed. That it is submitted that in the end, the ADCP IV had further written that despite the fact that the accused had not come present despite calling repeatedly, the challan could have been presented as now also, the challan has been presented in their absence on 22.3.2011 with the delay of 5 years. Therefore, he found that all the SHOs who remained posted in PS Jodhewal, Ludhiana and the Incharge Police Post Sunder Nagar from 2006 to 22.3.2011 were negligent and responsible for the delay and recommended for taking appropriate action against them. True translated copy of the inquiry report is being annexed herewith as Annexure R- 1/T for the kind perusal of this Hon’ble Court. That it is pertinent to mention here that pursuant to receipt of the report of ADCP IV, the same was considered by the DCP CRM-M-16846 of 2011 (O&M) - 6 - Ludhiana, who while agreeing with the finding of the ADCP IV, directed to take action against all the SHOs of PS Jodhewal and Incharge PP Sunder Nagar, who remained posted from 2006 till 22.3.2011. The Show cause notices have already been served upon Inspector Gurbans Singh Bains No.22 P.R., Inspector Gursewak Singh No.10 T.P. S.I. Balwinder Singh No.253 B.R., S.I. Gurpreet Singh No.1384 P.A.P., Inspector Mandeep Singh No.26 P.R., Inspector Jaswinder Singh No.337 P.R., S.I. Raj Kumar No.64 J.R., ASI Shamsher Singh No.23, Ludhiana ASI Harbans Singh No.287, Ludhiana, SI Mukesh Kumar No.12, Ludhiana, SI Rajwant Singh No.457 P.R., ASI Davinder Sharma No.PRT 6 as to why the departmental action be not taken against them for delay in presentation of the challan. It is most respectfully submitted that the presentation of the challan was delayed on account of the reason that the accused Balwant Singh Gill (petitioner No.2) was not available, however, since, the absence of the accused can not be an impediment in presentation of the challan, all the officers who remained posted in PS Jodhewal and PP Sunder Nagar at the relevant point of time are being dealt with departmentally.” The petitioners had also filed counter-affidavit dated 27.9.2011 in which he has averred as under: CRM-M-16846 of 2011 (O&M) - 7 - “(i) From January 2006 till July 2008, deponent remained posted as DIG, CRPF, Bhubneshwar (Orissa). Thereafter, from July 2008 till October 31, 2009 i.e. the day on which he attained superannuation, deponent remained posted as DIG, CRPF, Jalandhar. (ii) Sanction to prosecute the deponent in the FIR (Annexure P- 1) was obtained on 4.7.2006 from the Government of India through Director General, CRPF. In this view of the matter, deponent could have been well served either through Director General, CRPF of Inspector General, CRPF, Chandigarh, so as to ensure deponent’s presence before the Court. (iii) Deponent never ever received any TPM or letter, as alleged in the affidavit dated 19.09.2011 and also the enquiry report dated 16.9.2011 (Annexure R-1/T). Furthermore, no such TPM or letter has even been attached along with the aforesaid affidavit and the enquiry report. (iv) One is at loss to understand that if now i.e. after a lapse of five years if the prosecution can present the challan in the absence of the petitioners, how can it lie in the mouth of the prosecution to say that the challan could not be presented for five years on account of deponent not being served. (v) Either in the affidavit dated 19.9.2011 or in the enquiry report dated 16.9.2011 (Annexure R-1/T) not even a word has been alleged in respect of other two petitioners i.e. petitioner no.1 and petitioner no.3 who remained posted with the Punjab police only from 2006 to 2011.” Learned counsel for the petitioners has further argued that it is a case where the petitioners have not only been falsely implicated but have been continuously harassed as the FIR which was registered in the year 1997 is hanging on their head as a Damocles sword and the CRM-M-16846 of 2011 (O&M) - 8 - challan has been presented after five years of its preparation without there being any plausible explanation for which even the enquiry has been ordered against the concerned police officials which is reflected in the affidavit dated 19.9.2011. On the other hand learned counsel for the State has submitted that the delay in prosecuting the petitioners is not by itself a ground to quash the FIR if the petitioners are found prima facie involved in a case of corruption. I have heard both the learned counsel for the parties and have perused the available record with their able assistance. Basically, the petitioners have been tried for helping the accused facing trial in FIR No.289. Admittedly, the accused who had faced trial in the FIR No.289 have already been acquitted vide order dated 27.3.1999 and the said order has become final between the parties. Moreover, in the FIR No.24 registered against Rajinder Bhushan Maini, who alleged to have bribed the petitioners to help the accused in the FIR No.289, a cancellation report has already been submitted on 24.8.1998. In the case of Pankaj Kumar (Supra), the Supreme Court has dealt with a matter in which a writ petition was filed before the Bombay High Court for seeking quashing of the chargesheet and consequential proceedings pending in the Court of Sub Judge, Latur. The allegations in the said case were that on 12.5.1988 an FIR was registered against one Sayyad Mohammad Sayyad Ibrahim and eight other persons, inter alia, alleging that during the period from 1st October, 1980 to 22nd February, 1982, while working as District Dairy Development Officer, Government Milk Scheme, Bhanara, Sayyad Mohammad Sayyad Ibrahim had conspired with the appellant and his father and had committed mis-appropriation of huge amounts in the purchase of spare parts etc., for the plant. The case was referred to the Anti Corruption Bureau for investigation which dragged on for over 3 years and ultimately on 22.2.1991, a charge-sheet was filed in the court of Special Judge, Latur against twelve persons for offences under the provisions of IPC and the Act. The first nine accused were the CRM-M-16846 of 2011 (O&M) - 9 - employees of the Government Milk Plant and the remaining three were the appellant and his father and mother. Besides other things, it was argued that in the said case Constitutional right of speedy investigation and trial has been violated. The Supreme Court had concluded that It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the police investigations as well. The right to speedy trial extends equally to all criminal persecutions 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 for conclusion of trial. In the case of Vakil Prasad Singh (Supra), the same observations were made. In the case of Pritam Singh (Supra), the allegations against the said petitioner was of purchasing sub standard HDPE pipes causing loss to the State. The FIR was lodged 7 years after retirement and the challan was presented 5 years thereafter. It was found by this Court that it is a violation of the right of speedy trial and hence the petition was allowed. I have also taken into consideration the entire facts and circumstances of the case and have found that not only the accused in the FIR No.289 have been acquitted in the year 1999 and the said judgment has become final having not been challenged further by the complainant or the State but also in the repeated enquiries under the CRM-M-16846 of 2011 (O&M) - 10 - order of DGP, Punjab the petitioners have been found to be innocent and have been subjected to continuous mental and physical harassment due to the pendency of the FIR from the year 1997 in which despite obtaining sanction the charge-sheet was not presented for more than 5 years without their being any explanation qua petitioners No.1 & 3 and there is no explanation of delay in respect of petitioner No.2 who has already retired from service. The 14 year ordeal of the petitioners at the hands of the prosecution agency and the absence of the complainant who has been made a party by name as respondent No.2 suggests that the petitioners have been implicated in this case so that they may remain tainted. Moreover, nothing has been brought on record to prima facie prove as to how much amount was taken by the petitioners as nothing has been recovered. Keeping in view the facts and circumstances and the violation of mandate of Article 21 which ensures a speedy investigation and trial, I find it to be a fit case for interference in exercise of the inherent jurisdiction of this Court in order to prevent the abuse of process of law and secure the hands of justice and thus the present petition is hereby allowed, FIR, charge-sheet and other proceedings arising therefrom are hereby accordingly quashed. (RAKESH KUMAR JAIN) NOVEMBER 02, 2011 JUDGE Vivek