P.D. Sharma vs Union Of India & Anr.
2000 Latest Caselaw 763 Del

ORDER

Usha Mehra, J.

1. Petitioner has assailed the proceedings pending against him before the Additional Chief Metropolitan Magistrate (in short the A.C.M.M.) titled as State Vs. Surender & Ors., emanating from case FIR No. 700/84, P.S. Daryaganj, which was registered on 14th September, 1984.

2. In order to appreciate the challenge let us have a quick glance to the facts of this case. It is the case of the prosecution that a secret information was received that the furnace oil Tankers which come to Indra Prastha Power Station, Ring Road from Shakur Basti Depot of Burma Shell (Bharat Petroleum) are not entirely emptied by the accused persons. They in collusion with the staff of the power house take away large quantity of furnace oil which they in turn sell in the black market. On receipt of this information, raid was conducted. During aid it transpired that two Tankers came to Indra Prastha Power Station. On checking up it was found that after these Tankers emptied the further oil in Tanker No. DEG-3658, chamber No.1 contained 75 litres, chamber No.2 contained 30 litres and chamber No.3 contained 10 litres of furnace oil which had not been emptied. In Tanker No. HRG-2025, chamber No.1 contained 625 litres, chamber No.2 contained 50 litres of furnace oil which had not been emptied. Samples were taken of the furnace oil recovered. On further investigation it was found that Trilok Singh Negi and Avinash Chander were actually deputed to check the tankers after delivery of the oil and to ensure that the tanker had been fully emptied. But they in connivance with Girdhari lal, Padam Dev Sharma and Shiv Raj Singh, who were on security duty at the gate of Inder Prastha Power Station, had not only committed cheating, theft and defrauded the office by allowing tankers to carry unimpaired furnace oil.

3. It was on the basis of this raid that case against Padam Dev Sharma and others was registered vide FIR No. 700/84 dated 14th September, 1984 at Police Station Daryaganj under Section 407/34 IPC and under Section 7/10/55 Essential Commodities Act. Charge sheet was filed against accused persons under Section 7 of the Essential ommodities Act and under Section 407/409/411 read with Section 120-B IPC on 2nd July, 1986. On 9th September, 1994 Additional Sessions Judge on a petition filed by the accused held that no offence under Section 7 of the Essential Commodities Act was made out against the accused persons. However, by the impugned order dated 9th September, 1994, he held that prima facie case under Section 120-B read with section 407 IPC was made out against all the accused persons and further prima facie offence under Section 407 IPC was made out against accused Surender, Rajbeer Singh, Subhash Chander, Ramesh Dev and Ved Pal. After the decision dated 9th September, 1994 the learned Additional Sessions Judge sent the case back to the Court of learned ACMM, Delhi. The ACMM instead of framing the charge as per the order of Additional Sessions Judge. Delhi, dated 9th September, 1994, had been adjourning the case for framing of the charge. Many a time adjournment was sought by the prosecution. However, at last on 29th January, 2000 the charge under Section 120-B, 407 IPC was framed and the case had been listed for prosecution's evidence on 11th July, 2000.

4. Grievance of the petitioner is that 16 years have elapsed but not a single witness has been examined by the prosecution. In view of the above facts, we have to see whether delay in disposal of the criminal case for such a long time was due to the fault of the prosecution. It is the case of the petitioner that prosecution had taken dates to address arguments on charge. Moreover, Public Prosecutor knew about the order of the learned Additional Sessions Judge dated 9th September, 1994 yet did not insist the Court to frame the charges as observed by the learned Additional Sessions Judge. This shows Public Prosecutor never bothered for the expeditious disposal of the case.

5. Counsel for the petitioner in order to support his contention placed reliance on the decision of this Court in the case of K.K. Bhardwaj Vs. Union of India, Crl.W.No. 915/99 decided on 17th December, 1999 wherein in similar circumstances the Court observed that to allow the trial to drag beyond a reasonable period of time would amount to violation of Article 21 of the Constitution. Therefore, proceedings before the Trial Court were ordered to be quashed. This Court in similar circumstances quashed the proceedings in the case of S.K. Gupta Vs. Union of India, Crl. W. No. 74/2000 decided on 1st February, 2000. Counsel for the petitioner then also placed reliance on the decision of Supreme Court in the case of Santosh De Vs. Archna Gupta, , wherein the Apex Court while dealing with the effect of delay of the trial observed that:

"The most glaring circumstance in the case is the delay in commencing the trial."

6. That case was committed to the Court of Sessions on 15th July, 1974. Charges came to be framed only on 13th April, 1983 i.e. after a lapse of about eight years. No explanation was rendered for this delay. High Court only observed that the delay was on account of the default of the prosecution. It was not a delay what is called 'systematic delays'. Therefore, on the basis of unexplained delay of eight years the FIR was quashed. In similar circumstances, Division Bench of Himachal Pradesh High Court in the case of Manjit Singh Vs. State of H.P., Crl. W. No. 15/95, decided on 1.1.1996 held that since the incident occurred 16 years back and investigation continued leisurely, proceedings are required to be quashed.

7. Relying on the above judgments, Mr. H.K. Chaturvedi, counsel for the petitioner contended that in this case also since the charge sheet was filed in July, 1986 and the Additional Sessions Judge disposed, of the petition holding that no offence under Section 7 of the Essential Commodities Act was made out and prima facie ordered that charges be framed under Section 120-B read with Section 407 IPC against one set of accused and under Section 407 against other set of accused persons, still inspite of the order of the learned Additional Sessions Judge charges were not framed till 21st January, 2000. There is thus apparently delay of six years in framing of the charges and from January, 2000 date is given 11th July, 2000 and not a single witness has been examined till date, though three accused persons have died during the pendency of these proceedings.

8. We had the opportunity to peruse the Trial Court record as well and on perusal found that the delay of the proceedings couldn't cannot be attributed to the petitioner/accused. Mr. Ahluwalia, counsel for the State on the other hand contended that the delay of proceedings could also not be attributed solely to the State. State took adjournments only on two to three occasions. We find no force in this submission of Mr. Ahluwalia. Admittedly it is not the case of the prosecution that delay was on account of any default of the accused nor the accused was responsible for the delay of the proceedings. Therefore, it cannot be said that the petitioner is taking advantage of his own wrong. The fact remains that the prosecution was fully aware of the order passed by the learned Additional Sessions Judge dated 9th September, 1994 thereby holding that no case under Section 7 of the Essential Commodities Act was made out. Learned Additional Sessions Judge found prima facie case made out under Section 120-B read with Section 407 IPC against one set of accused and against other set of accused under Section 407 IPC only. Learned ACMM after receipt of the file from Additional Sessions Judge was only to frame the charge which was a mere formality. Inspite of the same the Public Prosecutor did not care to point out to the learned ACMM to complete the formality by framing the charge and fix the date of evidence. Why the prosecutor did not point out to the learned ACMM that Additional Sessions Judge has already prima facie given decision for framing of charge? Why he could not get the charges framed in September, 1994? Public Prosecutor took it leisurely that is why it took nearly six years to formally frame the charge. The proceedings thus dragged on because of the indifferent attitude of the prosecution. Therefore, it cannot be said that the prosecution is not to be blamed for this delay, may be part of the delay was on account of the system itself. In such circumstances, the delay cannot be attributed to the accused, the petitioner herein. In the absence of any explanation it shows laxity on the part of the prosecution in proceeding with the case for which the petitioner cannot be blamed.

9. Three of the accused have already died during the pendency of the case which has been pending for the last 16 years and not a single witness examined. We are not sure as to how many witnesses will be available now and how many have passed away and how many have changed addresses and not available at the given address.

10. From the facts which have come on record it can safely be said that undue delay has in fact vitiated the trial due to violation of Article 21(4) of the Constitution. n the facts and circumstances of this case we are of the view that right of speedy trial has in fact been infringed.

11. Therefore, taking into consideration all the attending circumstances including the nature of offence, number of accused who are alive and who are dead and the witnesses to be examined, we find that in the facts of this case we must have realistic andractical approach and order for quashing of the proceedings.

12. We find it a fit case where proceedings must be quashed. Accordingly, FIR No. 700/84 dated 14th September, 1984 Police Station Daryaganj and the proceedings pending before the learned A.C.M.M. Tis Hazari Courts emanating from the said FIR are quashed.

Petition stands disposed.