Manohar Kumar Verma vs The State Of Bihar Through The ...
2022 Latest Caselaw 5404 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.1252 of 2019
           Arising Out of PS. Case No.-56 Year-1995 Thana- VIGILANCE District- Patna
     ======================================================

Manohar Kumar Verma Son of Late Girish Nandan Prasad Resident of Village

- S.S. Enclave, Flat No.202, Ashiana Digha Road Near Rakhi Complex, Khajpura, B.V. College, Patna P.S.- Shashtri Nagar, Dist.- Patna.

... ... Petitioner Versus

1. The State of Bihar through The Director General, Vigilance Govt. Of Bihar, Patna

2. The Officer in Charge, Vigilance Police station, Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr. P.N. Shahi, Senior Advocate Mr.Ashok Kumar Mishra, Advocate For the Vigilance : Mr.Arvind Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD CAV JUDGMENT Date : 22-12-2022

Heard Mr. P.N. Shahi, learned Senior Counsel assisted

by Mr. Ashok Kumar Mishra, learned Counsel for the petitioner

and Mr. Arvind Kumar, learned Counsel for the Department of

Vigilance Investigation Bureau.

2. This writ application has been filed seeking the

following reliefs:-

"i. A writ in the nature of certiorari or any other appropriate writ/order or direction for quashing of the Entire criminal Proceeding pending against the petitioner in Special Case No. 13/95 arising out of Vigilance P.S. Case No. 56 /95 under Sections 409/120B IPC and under Sections of 13(2) 13(1) Prevention of Corruption Act pending in the court of Special Judge, Vigilance 1st, Patna.

ii. Any other appropriate writ/order or direction which your Lordships may deem fit and proper."

Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

Brief Facts of the Case:-

3. It is the case of the petitioner that as back as on

04.09.1995, Vigilance P.S. Case No. 56 of 1995 was registered

against him under Sections 409/120B IPC and Section 13(1)/13(2)

of the Prevention of Corruption Act (hereinafter referred to as 'PC

Act').

4. As per the prosecution story, the petitioner being

Assistant Electrical Engineer, Barauni lodged one Barauni P.S.

Case No. 204 of 1998 for the alleged theft of Transformer Oil

under Section 379 of the Indian Penal Code (in short 'IPC'). After

investigation of the said case, a final form was submitted stating

that the case was untrue and it was recommended to initiate

proceeding under Section 182 IPC against the informant. It was

found by the investigating agency that the valve and oil of the

transformer was not stolen and transformers were supplied by the

company with 10% extra oil. The agency took a view that with ill

intention and to get personal benefit, Barauni P.S. Case No. 204 of

1988 was lodged after much delay.

5. After lodging of the FIR on 05.09.1995, a charge-

sheet was filed against the petitioner on 05.08.1999. The learned

court took cognizance of the offence on 16.08.1999. In the charge-

sheet, altogether 21 persons have been named as witnesses. The Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

petitioner surrendered in the learned court below in connection

with this case and was granted bail by this Court on 23.07.1997. It

is the specific statement of the petitioner in paragraph '10' of the

writ application that since 17.06.1997, the petitioner is regularly

appearing in the trial court.

6. Learned Senior Counsel for the petitioner has

submitted before this Court that in this case, charges were framed

as back as on 21.08.2002 but the trial has yet not been concluded.

The last witness examined in the trial was on 28.07.2017. The

villagers Shri Sachidanand Rai and Vidyanand Rai who were made

witnesses in the case to support the prosecution case have turned

hostile.

7. Learned Senior Counsel further submits that on

28.01.2009, a petition was filed in the learned trial court on behalf

of the petitioner to close the prosecution evidence on the ground

that after six years of framing of charge only 4 prosecution

witnesses were examined. Thereafter, summons, bailable warrant

of arrests and non-bailable warrant of arrests were issued and all

processes were issued by the learned trial court for appearance of

the witnesses. Out of 21 prosecution witnesses, 19 prosecution

witnesses are official witnesses. Except PW-8 and PW-9, who are

the villagers, all other prosecution witnesses are only the formal Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

and official witnesses. It is submitted that the huge delay in

conclusion of trial has caused serious prejudice to the petitioner.

Earlier, the petitioner faced a departmental proceeding in which

vide resolution no. 602 dated 12.05.1997 he was dismissed from

service. The said punishment was challenged in this Court in

CWJC No. 1924 of 1998. This Court vide its order dated

15.07.2015 passed in CWJC No. 1924 of 1998 quashed the

punishment order with all consequential benefits. The Hon'ble

High Court directed the respondents to reinstate the petitioner

forthwith with all consequential benefits.

8. Learned Senior counsel submits that the petitioner has

retired from service on 30.11.2019 but because of the pendency of

the Vigilance case, he has been allowed only 90% of the gratuity

and 90% for pension. Reliance has been placed on the judgments

of the Hon'ble Supreme Court in the cases of Hussainara

Khatoon (I) vs. Home Secy., State of Bihar reported in (1980) 1

SCC 81, Abdul Rehman Antulay v. R. S. Nayak reported in

(1992) 1 SCC 225, Vakil Prasad Singh Vs. State of Bihar

reported in (2009) 3 SCC 355, Mahendra Lal Das vs. State of

Bihar & Ors. reported in AIR 2001 SC 2989 and Bishwanath

Prasad Singh vs. State of Bihar reported in 1994 Supp. (3) SCC

97 to submit that speedy trial has been recognized as a Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

fundamental right to an accused and such rights have been found

embodied under Article 21 of the Constitution of India. It is

submitted that the Hon'ble Supreme Court has in the case of Vakil

Prasad Singh (Supra) quashed the criminal prosecution when the

prosecution failed to complete the investigation even after 7 ½

years of the order of re-investigation of the case.

9. Learned Senior Counsel lastly submits that in this

case, an extraordinary period of over 27 years have lapsed and the

petitioner has faced the turmoils of his life during all these years

while facing the criminal case. At this stage, therefore, the

prosecution is liable to be quashed.

Submissions on behalf of the Vigilance:-

10. On the other hand, Mr. Arvind Kumar, learned

counsel for the Vigilance Investigation Bureau submits that the

order passed by the Hon'ble High Court in CWJC No. 1924 of

1998 is not binding in the criminal proceeding. It is submitted that

exoneration in the departmental proceeding ipso-facto would not

lead to exoneration or acquittal in the criminal case. It is submitted

that the petitioner has filed a petition on 27.04.2019 before the

learned trial court for closure of the evidence of the prosecution

but this fact has not been disclosed in the writ petition. A

statement has been made in the counter affidavit that the record Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

of the case has been transferred to the Special Court, Bhagalpur by

order of this Hon'ble Court and the Vigilance undertakes that he

will produce the remaining prosecution witnesses before the trial

court as soon as available. The counter affidavit has been filed on

or about 19th October, 2020 as it appears from the materials

available on the record. Till hearing of this writ application,

however, the fact remains that no other witness could be examined

on behalf of the prosecution.

Consideration:-

11. This Court has heard learned Senior Counsel for the

petitioner as well as learned counsel for the Vigilance Investigation

Bureau. The admitted position is that in this case, the charges were

framed as back as on 21.08.2002, therefore, at the time of hearing

of the writ petition, more than 20 years had gone after framing of

the charge. The specific case of the petitioner is that during all this

period, he has been putting his appearance but the prosecution

could not produce witnesses as a result whereof the case has

remained pending so far.

12. In such circumstance, the question which arises for

consideration before this Court is as to whether the delay in completion

of trial in this case is such that it may be taken to have prejudiced the

fundamental right guaranteed to the petitioner by way of Right to Speedy Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

Trial under Article 21 of the Constitution of India and further whether

such breach has caused serious prejudice to the petitioner.

13. In the case of Hussainara Khatoon (Supra), the

Hon'ble Supreme Court has observed as under:-

"We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248]. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that article that some semblance of a procedure should be prescribed by law, but that the procedure should be "reasonable, fair and just". If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release..........."

14. In the case of Abdul Rehman Antulay (Supra), again

the Hon'ble Supreme Court considered a similar issue and held as

under:-

"The learned Judge, however, posed a question which he left to be answered at a later stage. The question posed was: What is the consequence of denial of this right? Does it necessarily entail the consequence of quashing of charges/trial? That question we shall consider separately but what is of significance is, this decision does establish the following propositions: (1) Right to speedy trial is implicit in the broad sweep and content of Article 21.

(2) That unless the procedure prescribed by law ensures a speedy trial it cannot be said to be reasonable, fair or just. Expeditious trial and freedom from detention are part of human rights and basic freedoms and that a judicial system which allow incarceration of men and Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

women for long periods of time without trial must be held to be denying human rights to such undertrials."

15. The Bishwanath Prasad Singh (Supra) went to the

Hon'ble Supreme Court against the order of the Patna High Court in

dismissing the writ petition filed by the appellant-accused seeking to

have the criminal proceedings launched against him quashed on the

ground of violation of his right to speedy trial. In the said case the

appellant was suspended pending inquiry due to allegation of

shortage of fertilizer worth Rs. 1,15,000/- during his posting as

Depot Manager under the Bihar State Cooperative Marketing Union

at Sitamarhi, he was suspended on 2-7-1977 and later he was

dismissed from service and the provident fund and gratuity due to

him was also forfeited. The appellant had crossed the age of

superannuation when the Special Leave Petition was filed and the

investigation remained pending for more than five years but

chargesheeet had been filed on 09.02.1983 and thereafter, the

prosecution evidence was adduced and charges were framed by the

court under Sections 408 and 428 of the Indian Penal code and

Section 7 of the Essential Commodities Act. In these backgrounds

the Hon'ble Supreme Court took note of the fact that there was no

explanation coming for the extra ordinary delay of more than five

years in completion of investigation. The Hon'ble Apex Court

observed: "Maybe, this being a case of misappropriation of public Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

funds, the investigation may have taken a longer time but it cannot

certainly take more than five years, having regard to the facts and

circumstances of the case." The Apex Court took a view that calling

upon the appellant now to enter upon defence, after 16 years is bound to

cause prejudice to him.

16. In the case of Vakil Prasad Singh (supra), the Hon'ble

Supreme Court considered the scope of right to speedy trial enshrined

under Article 21 of the Constitution of India in the matter of quashment

of the criminal proceeding due to delay even in serious cases. Their

Lordships having discussed the case laws on the subject recorded in

paragraphs '19', '20' and '24' as under:-

"19.The exposition of Article 21 in Hussainara Khatoon (1) case5 was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak6. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines." "20. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: (A.R. Antulay case6, SCC pp. 270-73, para 86)

(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;

(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial;

(iii) in every case, where the speedy trial is alleged to have been infringed, the first question to be put and answered is

-- who is responsible for the delay?;

(iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of

5 [ (1980) 1 SCC 81 : 1980 SCC (Cri) 23] 6 [ (1992) 1 SCC 225 : 1992 SCC (Cri) 93] Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on-- what is called, the systemic delays;

(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of the accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case;

(vi) ultimately, the court has to balance and weigh several relevant factors--'balancing test' or 'balancing process'-- and determine in each case whether the right to speedy trial has been denied;

(vii) ordinarily speaking, where the court comes to a conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;

(viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint;

(ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in the High Court must, however, be disposed of on a priority basis."

"24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions (sic prosecutions) 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 preceding police investigations 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 right to speedy trial is alleged to have been infringed, the Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

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."

17. In the case of Vakil Prasad Singh (supra) the

allegation against the appellant was that of demanding of a sum of

Rs. 1000/- as illegal gratification for release for the civil work

executed by him and in the trap laid to catch the culprit chemically

treated currency notes were said to have been recovered from

appellant's pocket. The FIR was lodged on or about 08.04.1981

and the chargesheet was filed on 28.02.1982 whereupon the

learned Magistrate took cognizance on 09.12.1982 but thereafter

nothing substantial happened till 06.07.1987 except for dismissal

of an application filed by the prosecution for re-investigation of

the case. This Court vide it's order dated 07.12.1990 had quashed

the order of the learned Magistrate taking cognizance with a

direction to the prosecution to complete the investigation within a

period of three months but thereafter no progress was made in the

case till the year 1998. Under these circumstances the appellant

had moved application under Section 482 Cr.P.C. in the High court

seeking quashing of the entire criminal proceeding against him on

the ground that the re-investigation in the matter had not been

initiated even after a lapse of seven-and-half years . It is only when

the matter was called out for final hearing in the High Court after Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

nine years i.e. on 11.05.2007. The High Court dismissed the

petition acknowledging that there had been substantial delay in

conclusion of proceedings against the appellant and some

prejudice may have been caused to the appellant in his

professional career on account of continuance of criminal case

against him but the learned Judge concluded that this reason by

itself was not sufficient to quash the entire criminal proceedings

against him, particularly keeping in view the seriousness of the

allegations.

18. In Mahendra Lal Das (supra) the appellant was an

Executive Engineer, Public Engineering Department, Mechanical

Division, Ranchi. He was being prosecuted for the offence under

Sections 5(2) read with Section 5(1)(e) of the Prevention of

Corruption Act, 1947 wherein it was alleged that the appellant was

in possession of disproportionate assets to the extent of Rs

50,600/-. The FIR was sought to be quashed mainly on the ground

that despite expiry of over 12 years, the respondent State had not

granted the sanction which amounted to the violation of his right

of life and liberty as enshrined in Article 21 of the Constitution of

India. The High Court dismissed the petition seeking quashing of

the FIR, on the ground that mere delay in granting the sanction has

not prejudiced the appellant in any manner particularly when he is Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

already on anticipatory bail. The Hon'ble Supreme Court held

that in this case the prosecution has miserably failed to explain the

delay of more than 13 years in granting sanction for prosecution of

the appellant and keeping in view the peculiar facts and

circumstances of the case, permitting further prosecution would

be a travesty of justice and a mere ritual or formality so far as the

prosecution agency is concerned, and unnecessary burden as

regards the court.

19. In the case of Superintendent of Police, Karnataka

Lokayukta and Another versus B. Srinivas reported in (2008) 8

SCC 580, the Hon'ble Supreme Court once again observed in

paragraph '10' as under:-

"10. There is no general and wide proposition of law formulated that whenever there is delay on the part of the investigating agency in completing the investigation, such a delay can be a ground for quashing the FIR. It would be difficult to formulate inflexible guidelines or rigid principles in determining as to whether the accused has been deprived of fair trial on account of delay or protracted investigation; it would depend on various factors including whether such a delay was reasonably long or caused deliberately or intentionally to hamper the defence of the accused or whether the delay was inevitable in the nature of things or whether it was due to dilatory tactics adopted by the accused. It would depend upon certain peculiar facts and circumstances of each case i.e. the volume of evidence collected by the investigating agency, the nature and gravity of the offence for which the accused has been charge-sheeted in a given case. The nexus between whole and some of the above factors is of considerable relevance.

Therefore, whether the accused has been deprived of fair trial on account of protracted investigation has to Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

come on facts. He has also to establish that he had no role in the delay. Every delay does not necessarily occur because of the accused."

20. It is crystal clear from the judgments of the Hon'ble

Apex Court that the right to speedy trial is an inalienable right

under Article 21 of the Constitution and this right is applicable to

the actual proceedings in court. It is not confined to any particular

category of cases, this right extends equally to all criminal

prosecution.

21. In the light of the judgments of the Hon'ble Supreme

Court, when this Court considers the facts of the present case, this

Court would come to a conclusion that in this case there is a huge

and inordinate delay and the respondent Department of Vigilance

Investigation Bureau has completely failed in explaining the

reasons for such huge delay. In fact, save and except to say that

they will produce further witnesses which also they have failed to

do during last 2 years, there is no explanation of the Department as

to why during this period of 20 years, the prosecution witnesses

could not be produced.

22. To this Court, it appears that the long delay in

conclusion of trial has definitely prejudiced the fundamental right

of the petitioner to get speedy justice and it has seriously prejudiced Patna High Court CR. WJC No.1252 of 2019 dt.22-12-2022

him inasmuch as even three years after his retirement from service

he has not received full gratuity and pension.

23. In the given facts and circumstances of the case, this

Court is of the considered opinion that it is a fit case in which the

criminal prosecution of the petitioner is required to be quashed. This

Court, therefore, allows the writ application in terms of the prayer

contained in paragraph 1(i) of the writ application.

24. This application is allowed.

(Rajeev Ranjan Prasad, J) Lekhi/-

Sushma/-

AFR/NAFR
CAV DATE                  18.11.2022
Uploading Date            23.12.2022
Transmission Date         23.12.2022