Guru Dev Singh vs State Of U.P. And Anr.
2018 Latest Caselaw 2639 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 30.8.2018
 
Delivered on 18.09.2018
 
Court No. - 1
 
Case :- APPLICATION U/S 482 No. - 6411 of 2018
 

 
Applicant :- Guru Dev Singh
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Swapnil Kumar,Dileep Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Dilip Kumar, Advocate assisted by Sri Swapnil Kumar, learned counsel for the applicant and Sri G.P. Singh, learned brief holder for the State and perused the record.

2. This Criminal Misc. Application u/s 482 Cr.P.C. has been moved with a prayer to quash the charge sheet dated 30.12.2017 in Case Crime No. 171 of 2002, under Sections 193, 409, 420, 465, 468, 471, 477-A/120-B IPC read with Section 13(2) and 13(1) of Prevention of Corruption Act, P.S. Chaubepur, District Varanasi and the entire proceedings of Misc. Case No. 1 of 2018 (State of U.P. vs. Guru Dev Singh and another) pending in the court of Special Judge (Anti-Corruption), Varanasi and also the cognizance order dated 6.1.2018 passed by Special Judge, Varanasi, summoning the applicant to face trial under the aforementioned Sections.

3. In brief the facts of the case are that the opposite party no. 2, Loknath Verma, Inspector, Vigilance Department, Varanasi, had lodged an F.I.R. on 18.6.2002 at P.S. Chaubepur, District- Varanasi under the aforementioned sections alleging that in the establishment of 400KV Sub-station, Sarnath, Varanasi, in the year 1992, in pursuance of criminal conspiracy hatched by the accused-applicant- Guru Dev Singh along with other co-accused named in the F.I.R. caused financial loss to the public exchequer to the tune of Rs. 12,46,969.55/-. Soon after the lodging of the said F.I.R, Crl. Misc. Writ Petition No. 3427 of 2002 (Guru Dev Singh Vs. Loknath Verma, Inspector and others) was preferred by the accused-applicant before this Court in which his arrest was stayed vide order dated 11.7.2002. The investigation proceeded in pursuance of the said F.I.R. and in parcha no. 16 dated 25.9.2006, it was recorded that no material was found showing involvement of the accused-applicant and other accused in the alleged offence and accordingly final report was submitted, which was approved by the State Government. The said writ petition was dismissed as not pressed on 8.3.2007 as regards the present accused-applicant. The final report dated 23.2.2017 was submitted in court below which was registered as F.R. No. 1 of 2007, (State of U.P. vs. Guru Dev Singh and others) and upon its consideration the same was rejected by the learned Special Judge (Anti-Corruption), Varanasi vide order dated 26.2.2014 directing for further investigation in the matter. In the meantime one of the co-accused Surendra Kumar Jain was arrested and apprehending his arrest, the applicant thereafter preferred Crl. Misc. Writ Petition No. 28522 of 2017 before High Court in which vide order dated 21.12.2017, his arrest was again stayed. However, the Investigating Officer continued re-investigation in place of further investigation against law. The Investigating Officer in S.C.D. No. II dated 7.9.2015 incorporated the order of learned Special Judge (Anti Corruption), Varanasi vide order dated 26.2.2014, the estimate report, contents of advertisement inviting tenders as published in two newspapers, receipt of three tenders, comparative chart of three tenders prepared under the signature of Executive Engineer, Superintending Engineer and Chief Engineer, minutes of the meeting dated 18.12.1991 of the High Power Committee (applicant not being its member), decision of the Committee to call for fresh minimum rates and extension of validity of tender period, comparative chart of new rates submitted by the tenderers and acceptance by High Power Committee of the tender of M/s Awadh Trading Company having quoted the lowest rates, complaint of one of the participants, who had submitted tender namely Gupta Brothers and the contract entered into with M/s Awadh Trading Company. Ultimately, the Investigating Officer concluded in Parcha No. SCD- XVI that Surendra Kumar Jain, Guru Dev Singh (applicant), Raghu Nandan Lal, Satyendra Bahadur Srivastava, Rajendra Awasthi, Upendra Kumar Singh and Yadu Nath, had together caused financial loss to the tune of Rs. 12,46,969.55/- by illegally making payment to Hasan Haidar, owner of M/s Awadh Trading Company, Faizabad. The Investigating Officer filed charge sheet no. 4 dated 30.12.2017 in the court of Special Judge (Anti Corruption), Varanasi only against Surendra Kumar Jain and the applicant under the aforementioned sections stating that the investigation against the co-accused was still in progress. The Special Judge (Anti Corruption) vide order dated 6.1.2018 took cognizance and summoned the applicant under the aforementioned sections to face trial and thereby committed error because the same was not permissible as further investigation was going on.

4. Learned counsel for the applicant has argued that as per the evidence collected by the Investigating Officer, Store Purchase Committee comprising V.S. Mathur, Member Transmission, Sri V.V. Jindal, Member Finance and Accounts, D.N. Tiwari, Joint Secretary (Finance), Government of U.P. Sri O.P. Gupta, Chief Engineer in its meeting dated 18.12.1991 had decided to get revised rate from the tenderers by extending the date of tender and, thereafter on submission of new rates, accepted the bid of M/s Awadh Trading Company, Faizabad which makes it clear that the applicant had no role in accepting the said bid and there was not an iota of evidence available against the accused-applicant showing his involvement in the alleged offence. It was in the domain of higher officials to accept the tenders and take the material decisions and accordingly the acceptance of tender of M/s Awadh Trading Company, Faizabad, was not a decision of the accused-applicant, rather the same was taken by the High Level Committee. Further it is argued that the estimate rates were worked out on the basis of departmental schedule of rates for material and labour components, over head charges and the charges in connection with transportation & handling etc. and that for purposes of inviting tenders, standard practice was adopted. Further it is argued that the process of investigation against the co-accused named in the F.I.R. was still going on and yet the charge sheet had been submitted against the applicant and Surendra Kumar Jain by mentioning their names in the charge sheet which was against law because due to incomplete process of investigation, the charge sheet should not have been submitted separately against accused-applicant. There is no sufficient evidence to prosecute the applicant, who discharged his duty on the post of Superintending Engineer in submitting the estimated expenses of the projects for inviting the tenders of the entire project including checkered plates. It was evident that submission of estimate was a collective opinion of Junior Engineer, Executive Engineer, Superintending Engineer and the same was not having any binding effect over High Level Purchase Committee with which the applicant had no concern. Therefore, it is evident that the charge sheet against the applicant is an outcome of biased and mala fide investigation without there being any material to establish that the applicant was instrumental in causing loss to the public exchequer as alleged. It is further argued that the applicant is 75 years of age and he retired long back in the year 2000 and now he is being prosecuted for an offence alleged to have taken place in the year 1991 i.e. about 26 years back which is nothing but a violation of Article 221 of the Constitution of India, which amounts to an abuse of process of court. He has no criminal history, hence the said charge sheet deserves to be quashed.

5. Per contra, from the side of learned A.G.A., it is argued by filing a short counter affidavit of Sri Hitesh C. Awasthi, Director, U.P., Vigilance Establishment, Lucknow, that the investigation has been concluded against the accused-applicant and other named persons by submitting charge sheet; against accused applicant and Surendra Kumar Jain, charge sheet was submitted on 30.12.2017, whereon cognizance has been taken by the concerned court the same day; against Upendra Kumar Singh, charge sheet was submitted on 26.1.2018 bearing charge sheet no. 4-A of 2017 and the cognizance was taken by the court concerned on 8.6.2018; against Raghunandan Lal, charge sheet was submitted on 2.4.2018 bearing charge sheet no. 4-B of 2017 and the cognizance was taken on 8.6.2018. Besides that accused Yadu Nath and Satyendra Bahadur Srivastava had expired on 24.12.2015 and 17.09.2011 respectively. However, regarding one person namely Hasan Haidar, who is contractor, it is mentioned that the further investigation which began on 15.4.2015, could not be concluded but now the same has been concluded and charge sheet has been submitted against him as absconder before the Competent Court.

6. In view of above arguments, we are of the view that it is apparent from the perusal of the record that a huge amount of Rs. 12,46,969.55/- is alleged to have been misappropriated in an organized manner by the present accused applicant along with other co-accused, who all appear to have worked in tandem in awarding contract to the M/s Awadh Trading Company for the purposes of establishing 400 KV Sub-station, at Sarnath, Varanasi. The prosecution has found sufficient evidence against them on record in revising the rates of tender in a manner so that the said Company gets the contract. The argument of learned counsel for the applicant that the charge sheet could not have been submitted initially in piece meal against the accused-applicant and one co-accused and the investigation could not have been kept pending against others simultaneously, does not appear to be correct in the light of settled position of law because nowhere it is prohibited that if the prosecution is able to gather entire evidence against certain accused while against the remaining accused still some evidences is required to be collected, in such a situation charge sheet may not be submitted against such an accused against whom, the prosecution has completed collection of evidence and yet keep the investigation pending against others. That view of the learned counsel seems to be erroneous as the same is not supported with law. Further the argument to the effect that the final report had been initially submitted against the accused, which has been erroneously set aside by the trial court and thereafter re-investigation has been ordered, while the Magistrate does not have power to pass any such order as only further investigation could have been ordered. In this regard, we are of the view that prosecution has made it clear that after rejection of the final report, in pursuance of the trial court's order, further investigation was being conducted and not re-investigation in pursuance thereof incriminating evidence could be gathered so far against the accused applicant only. Further we are of the view that at this stage when charge sheet has been submitted after collecting incriminating evidence, this court cannot examine the evidence which has been gathered by the prosecution because the same would require trial to be held for deciding the truthfulness of the evidence and to see whether the same was sufficient to hold the accused guilty of the offence or not.

7. Learned counsel for the applicant has relied upon the judgment in the case of Pankaj Kumar Vs. State of Maharashtra & Ors., 2008 (16) SCC 117. In this case, charge sheet was filed against 12 persons u/s 120-B, 409, 420, 465, 468, 471, 477-A, 101 and 34 IPC and Section 5(1)(c)(d) along with Section 5(c) of the P.C. Act, 1860. In addition thereto Sections 13(1)(c)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 were also invoked against the accused nos. 1 to 9. The first nine accused were employees of Government Milk Plant and the remaining three being the appellant and his father and mother (since deceased) were arraigned as accused nos. 11, 10 and 12 respectively. Accused no. 10 had two concerns supplying spare parts to the Milk plants. The allegations related to misappropriation of the huge amount during sale and purchase of the spare parts, etc. for the plants. The High Court had dismissed the writ petition filed by the appellant and his mother (since deceased) under Article 227 of the Constitution read with Section 482 Cr.P.C. seeking quashing of the charge sheet and being aggrieved by that, appeal was preferred before the Hon'ble Apex Court, allowing the appeal Hon'ble Apex Court held that it was settled that right to speedy trial in all criminal prosecutions is an alienable right under Article 21 of the Constitution, which is applicable not only to the actual proceedings in court but also includes within its sweep, the proceedings during police investigation 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 said right is infringed, the court has to perform balancing act upon taking into consideration all the attendant circumstances and determine in each case where such right has been denied and where the court comes to the conclusion that the said right had been infringed, the charge 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, the quashing of the proceedings may not 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, fit and equitable including fixation of time for the conclusion of trial.

8. Learned counsel for the applicant has also relied upon the judgment in the case of Moti Lal Sharaf Vs. State of Jammu & Kashmir & Another, 2006 (10) SCC 560. In this case not a single witness had been examined by the prosecution in last 26 years without there being any lapse on the part of the appellant. Although, appellant had taken the legal remedy available to him to protect his interest against illegal proceedings initiated against him by the respondents, but that by itself could not have been held to be a ground to harass and humiliate the appellant for more than a quarter century. The appellant had been facing the criminal prosecution for almost more than 2 and ½ decades, hence it was held by Hon'ble Apex Court that permitting the State to continue with the prosecution and trial any further would amount to abuse of process of law and consequently the criminal proceedings were quashed. Further it was held that the speedy trial is implicit in spectrum of Article 21 of the Constitution, which is one of the facets of the fundamental right to life and liberty. The speedy trial is necessitated to avoid oppression of the accused.

9. Learned counsel for the applicant has also relied upon the judgment in the case of Vakil Prasad Singh Vs. State of Bihar, 2009 (3) SCC 355. In this case, it was held that decided on touchstone of the broad principles enumerated by the Supreme Court in the present case, the appellant's constitutional right recognized under the Article 21 of the Constitution stands violated. There was no hesitation in holding that at least for the period from 7.12.1990 till 28.2.2007, there was no explanation whatsoever for delay in investigation. Even the direction issued by the High Court did not have any effect on the prosecution and they slept over the matter for almost 17 years. Nothing could be pointed out by the State to show that the delay in investigation or trial was in any way attributable to the appellant and thus prosecution was found to have failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in the investigation and trial.

10. It is apparent from the above law cited by the learned counsel for the applicant that delay in investigation or trial of a case would violate the fundamental right of accused to get the expeditious conclusion investigation/trial of the case and, in case such kind of delay is found by the court, the proceedings may be quashed. It has to been seen as to whether in the present case, in the facts and circumstances of the case whether it would be appropriate to give benefit of the above rulings to the applicant or not. In the instant case, it has come on record that the matter pertains to the year 1992, in which F.I.R. was lodged on 18.6.2002 and soon thereafter the accused-applicant preferred a writ petition before this Court in which his arrest was stayed on 11.7.2002, however, investigation proceeded and later on final report was submitted and after rejection of the same in pursuance of the direction of further investigation in the matter, the charge sheet has been submitted in the year 2017. It is apparent therefore that though lot of time has been consumed in finally submitting the charge sheet against the accused-applicant but it is also apparent that matter involves financial loss to the exchequer to the tune of Rs. 12,46,969.55/-, which is a huge amount and delay appears to have taken place due to procedural and systematic delays. In view of above, this Court does not find it appropriate to give benefit to the accused-applicant. In these circumstances, we do not find any reasonable ground to quash the charge sheet only on the ground of delay.

11. In above conspectus, we are of the view that there is no force in the argument of learned counsel for the applicant and the present application under Section 482 Cr.P.C. deserves to be dismissed and is, accordingly, dismissed.

(Dinesh Kumar Singh-I, J.)           (Ramesh Sinha, J.)
 
Order Date :- 18.09.2018/A.P. Pandey