Moti Lal Saraf vs State Of Jammu & Kashmir & Another

Brief facts necessary to dispose of this appeal are as follows.

The appellant was working as a Manager in the State Bank of India, Sumbal, Kashmir in the year 1980. An FIR No. 34 of 1980 under Section 5(2) of the Jammu & Kashmir Prevention of Corruption Act (for short, 'the J & K PC Act') was registered against the appellant, pursuant to which the appellant was arrested on the allegation that he had received a sum of Rs.700/- as illegal gratification, though the amount as alleged was not recovered from him, but from one Gulam Quadir.

On 30.4.1981 a challan under Section 173 Cr.P.C. came to be filed against the appellant before the court of Special Judge, Anti Corruption, Srinagar, Kashmir under Section 5(2) of the J & K PC Act. The appellant challenged the legality of the proceedings of the Court before the High Court of Jammu & Kashmir in Criminal Petition No. 41 of 1982 on the ground that he was not a public servant within the meaning of Section 21 of the Ranbir Penal Code (for short, 'RPC'), as such, he could not be tried under the provisions of the J & K PC Act.

The High Court came to a definite finding that under the service rules of the State Bank of India, the supervisory staff was not the General Manager (Operations). The appellant at the time of the commission of the alleged offence was a Branch Manager and he could be removed from the service by the appointing authority or by an authority which was superior to the appointing authority. That being so, the sanction given by the General Manager (Operations) for prosecution of the appellant on 26.5.1981 was given by an incompetent person who had no jurisdiction or competence to remove the appellant from the service. The sanctioning authority was not even the appellant's appointing authority. However, under Section 6 of the J & K PC Act which provides for initiation of prosecution, there must be a sanction issued by a person who was empowered to remove such an official from service.

The appellant, however, was dismissed from service in the departmental proceedings initiated against him, and later, in appeal, the dismissal was converted into removal from the service.

It may be pertinent to mention that the respondents again filed a challan against the appellant before the Court of a Special Judge, Anti Corruption, Srinagar on 25.7.1986, on the same set of facts that the appellant was no more in service and the sanction for prosecution was not required now.

The chronic militancy in Srinagar led to mass migration of the minority community. The appellant being a member of the minority community migrated to Jammu on 23.9.1998. The appellant filed a petition before the High Court of Jammu & Kashmir at Jammu seeking transfer of the case from the Court of the Special Judge, Anti Corruption, Srinagar to the Court of the Special Judge, Anti Corruption, Jammu. The High Court vide its order dated 23.9.1998 transferred the case. The appellant filed an application before the trial court for quashing of the trial on the plea that the appellant could not be prosecuted without sanction.

It was further submitted that it was astonishing that without challenging the validity of the order passed by the Special Judge, Jammu a challan was filed against the appellant on the same set of facts before the Special Judge, Anti Corruption, Jammu on 12.8.2000, by the respondent. By virtue of order dated 12.8.2000 the appellant again came under judicial restraint and was asked to produce sureties for his presence in the Court.

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.

In Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575, it was recognized that the Sixth Amendment guarantee of the right to a speedy trial is essential to protect at least three basic demands of criminal justice: (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.

It is the bounden duty of the court and the prosecution to prevent unreasonable delay.

The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch.

In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Governments and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.

In the instant case not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law. Consequently, the criminal proceedings are quashed. The appeal is accordingly allowed and disposed of.