Patna High Court
Arjun Kumar Singh And Ors vs The State Of Bihar Through The Director ... on 2 July, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.2593 of 2018
Arising Out of PS. Case No.-403 Year-2018 Thana- KATIHAR NAGAR District- Katihar
======================================================
1. Arjun Kumar Singh, son of Late Chandrika Singh. Resident of Flat
No.301,M.K. Residency,Vivekanand Marg, P.S. Sri Krishnapuri, Distt.
Patna, presently posted as the Executive Engineer, Rural works
Department,Works Division,Muzaffarpur West.
2. Bivash Kumar Gupta, son of Late Shivendra Prasad Sah @ Late Sri
Shivendra Prasad, Resident of Flat No.104,Shiva Enclave,Tarkeshwar
Path,Chiraiya Tand,P.O. -G.P.O.,P.S.Jakkanpur,Distt.-Patna,Presently
posted as Junior Engineer under Suspension, Water Resources
Department, Ganga Sone Flood Protection Division, Digha, Patna
3. Uday Kumar, son of Sri Ram Bilas Prasad, Resident of Kumar
Hardware,4M/136, Bhoot Nath Road, P.O.-Bahadurpur Housing
Colony,P.S. Agam Kuan,Patna Presently posted as Junior Engineer
under suspension,Water Resources Department,Flood Control and
Drainage Division, Kishanganj.
4. Vishwa Vallabh Kumar, son of Sri Ramchandra Prasad Jaiswal,
Resident of Saryug Devi Colony, Naya Tola, Mirchai Bari P.O. and
P.S.Mirchai Bari,Distt.-Katihar,Presently posted as Junior Engineer
Under suspension, Water Resources Department,Flood Control and
Drainage Division, Kishanganj
5. Sushil Kumar Pandey, son of Late Panchanand Pandey, Resident of
Village and P.O. Churamanpur,P.S. Buxar,Distt.-Buxar,retired
Executive Engineer,Water Resources,Department,Flood Control
Division, Salmari
6. Jitendra Prasad Singh, son of Late Ramji Singh, Resident of Flat
No.101,Shreya Apartment,Ara Garden Road,Jagdeo Path,P.O.
Veterinary College,P.S.Roopaspur,Distt.-Patna,Presenty working as
Superintending Engineer,Water Resources Department,Flood Control
Circle Gopalganj.
... ... Petitioners
Versus
1. The State Of Bihar through the Director General of Police, Bihar,
Patna
2. The Superintendent of Police, Katihar, Distt.-Katihar
3. The Station Head Officer, Katihar Town Sahayak Police-Station,
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
2/25
Distt.-Katihar
4. The Executive Engineer,Water Resources Department, Flood Control
Division Katihar
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr.Ranjan Kumar Jha, Advocate
Mr.Sanjeev Kumar, Advocate
For the Respondent/s : Mr.Kunal Tiwary, AC to GA-II
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
C.A.V. JUDGMENT
Date : 02-07-2025
Heard Mr. Ranjan Kumar Jha, learned counsel
appearing for the petitioners and Mr. Kunal Tiwary, learned
AC to GA-II, for the State.
2. The present writ application preferred by
aforementioned six petitioners under section 226 and 227 of
the Constitution of India, with following prayers and for
reliefs:
"(I) For quashing the prosecution of the petitioners in
connection with Katihar Town (Sahayak) P.S. Case
No.403 of 2018 dated 25.06.2018 in respect whereof a
written report was filed by the Respondent no.4 before
the Respondent no.3 on 25.06.2018, attributing
offences under Section 409/34 of the Indian Penal Code
on the ground that since the petitioners were not at all
connected with preparation and approval of the
estimate of the scheme in question even if a wrong
provision was made in the estimate of aforesaid
scheme, the petitioners had committed no offence, if
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
3/25
they had executed the work strictly in accordance with
the estimate prepared by other accused persons and
approved by the Chief Engineer.
(II) For issuance any other appropriate
writ/writs,order/orders, direction/directions for which
the writ petitioners would be found entitled under the
facts and circumstances of the case."
Substantial Question of Law involved in
the present writ application.
"(1) WHETHER, the prosecution of the petitioners in
the instant case would be misuse of the process of the
court and ,therefore, it is liable to be quashed qua the
petitioners ?
(II) WHETHER, if it is not the allegation that the
petitioners have any role in preparation of estimate for
any wrong provision made in the estimate by the
others can be a ground for prosecution of the
petitioners ?
(III) WHETHER, if after the irregularity in respect of
item no.9 of the scheme in question was pointed out
by the Flying Squad and on the basis of its
recommendation, the payment made to the contractor
in item no.9 of the estimate was already recovered and
was credited to the government account, the
department and/or the informant had any occasion to
lodge First Information Report against the petitioners ?
(IV) Whether the prosecution of the petitioners is
otherwise bad in law?"
Prayer of the petitioners in the present writ
application may reads as under:
"It is, therefore, prayed that to admit this application,
issue Rule NISI, calling upon the Respondents to show
cause as to why this application be not admitted or
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
4/25
disposed of at the time of Admission Stage itself and on
return of the Rule, if no sufficient cause is shown,make
the Rule absolute, allow this application and after hearing
the parties be further pleased to quash the prosecution of
the petitioners in connection with Katihar Town
(Sahayak) P.S. Case No.403 of 2018 dated 25.06.2018
pending in the court of the learned Chief Judicial
Magistrate, Katihar
AND/OR
Pass such other order or orders as this court may deem
fit and proper in the facts and circumstances of the case.
AND
During the pendency of this writ application, the further
proceeding of Katihar Town (Sahayak) P.S. Case No.403
of 2018 dated 25.06.2018 pending in the court of the
learned Chief Judicial Magistrate, Katihar the petitioners
may kindly be stayed."
Facts of the case with date of events
Sl.No Date Events
.
1. A decision was taken by the Water Resources
Department for raising and strengthening of
Mahananda River Right and Left Embankment with
other allied works for protection of public at large
which was being affected by the flood of river
Mahananda. The said scheme was being sponsored
by Ganga Flood Control Commission (Government
of India).
2. The Water Resources Department, Bihar was
notified as the Nodal Agency to implement the
aforesaid scheme of Government of India. The
Flood Control Division, Katihar was declared as
Nodal Division for the aforesaid scheme.
3. 06.04.2010
The estimate was prepared by the Flood Control
(Anne-P-1) Division, Katihar which was signed by Sri Jai
Prakash Chaudhary and Sri Ram Ekbal Sinha in the
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
capacity of Junior Engineers. It was signed by Sri
Mukhlal Ram and Sri Subhash Rai in the capacity of
Assistant Engineer and by Sri Upendra and Sri Mod
Narayan Chaudhary in the capacity of Executive
Engineer and Engineer respectively.
4. The petitioners were not associated with the
preparation of estimate of said scheme in any
manner whatsoever.
5. The administrative approval of the scheme was
approved by the Government of Bihar after
concurrence of G.F.C.C.(Wing of Central
Government).
6. The estimate of the scheme so prepared was
approved by the Chief Engineer.
7. A tender notice was issued for selection of
Contractor.
8. After following the procedure for finalizing the
contract, the Tender Committee of the department
constituted in the headquarter had awarded the
contract of said scheme to M/s G.S. Co.
Infrastructure Private Ltd. of Chandigarh.
9. After the work was allotted to the aforesaid
company, the company proceeded with the work
under the supervision of the petitioners and it was
successfully discharging its contractual obligation in
view of the provisions made in the estimate.
10. While the work was in progress, it was supervised by
the Quality Control Division of the Department and
Senior Engineers on times without number and no
fault was found either with the work done by the
contractor or with the estimate.
11. June, 2013 The work was complete in June, 2013.
12. On receipt of some complaints, a Flying Squad was
appointed to enquire and report on the complaint.
13. 25.07.2016 The Flying Squad reported irregularities with respect
(Anne-P-2) to item no.9 of the estimate.
14. 23.03.2017 The money paid to the contractor under item no.9 of
(Anne-P-3) the estimate was recovered from the contractor and
it was credited to the government account.
15. 07.07.2017 The Executive Engineer Flood Control Division,
(Anne-P-4) Katihar informed the department about the recovery
and closure of agreement with the Contractor.
16. The show cause notices were issued to the
petitioners and the petitioners filed their response
wherein they had categorically stated that they were
not connected with the preparation of estimate in
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
any manner whatsoever and therefore, they should
not be penalized for an irregularities even since it
was not done by them.
17. When the aforesaid File was placed before the
Internal Vigilance Wing of the Water Resources
Department, it was opined by Vigilance Wing of the
department that if this irregularity would not have
been detected by the Flying Squad, the government
had suffered a financial loss of public money.
18. A direction was issued by the department to lodge
the First Information Report.
19. 25.06.2018 The Respondent no.4 filed a written report before
(Anne-P-6) the Respondent no.3 upon which the Respondent
no.3 instituted a formal First Information Report
and registered a case being Katihar Town (Sahayak)
P.S. Case No. 403 of 2018 for the offences under
Sections 409/34 of the Indian Penal Code.
3. Mr. Ranjan Kumar Jha, learned counsel appearing
for the petitioners submitted that in the year 2010, the
petitioner no. 1 was posted as an Assistant Engineer in the
Flood Control Division, Salmari of the Water Resource
Department., Bihar. The petitioner no. 2 was posted in the
capacity of Junior Engineer (JE), whereas petitioner nos. 5
and 6 were posted there in the capacity of Executive Engineer
and Assistant Engineer, respectively, in the same Division. It
is further submitted that so far as petitioner nos. 3 and 4 are
concerned, they were posted as JEs in the Flood Control
Division, Katihar, at the relevant time.
4. It is submitted by Mr. Jha that in the year 2010, a
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
decision was taken by the Water Resource Department for
raising and strengthening the height of the right and left
embankments of the Mahananda River crossing the district of
Katihar with other allied works for the protection of the public
at large, which was being affected by the flood of the river
Mahananda. The exercise was taken under the Flood
Management Scheme (in short, 'FMS'), Phase-1, which was
sponsored by the Govt. of India. It is submitted that the
Water Resources Department, Bihar was notified as its Nodal
Agency to implement the aforesaid scheme of the Govt. of
India.
5. It is further submitted that for the aforesaid
exercise, an estimate was drawn and prepared by the Flood
Control Division (in short, 'FCD'), Katihar, without any
participation of petitioner nos. 3 & 4 despite of their posting
over there. It is pointed out that the prepared estimate, as
aforesaid, was signed by Sri Jai Prakash Choudhary and Sri
Ram Ekbal Sinha, in the capacity of Junior Engineers. The
document was further endorsed by Sri Mukhlal Ram and Sri
Subhash Rai in their official capacity as Assistant Engineers,
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
and was subsequently approved and signed by Sri Upendra
and Sri Mod Nrayan Chaudhary in their capacity as Executive
Engineer and Superintending Engineer respectively. The
aforesaid estimate/cost of scheme dated 06.04.02010 is
annexed with the petition as Annexure 'P-1'.
6. It is further submitted by Mr. Jha that the
aforesaid scheme was sent for technical sanction to the Chief
Engineer of the Department, which was also technically
sanctioned by him. The aforesaid estimate was forwaeded to
the Government of India for investment clearance through the
G.F.C.C. In pursuance thereof, a tender notice was issued for
the selection of a contractor , and upon completion of the
requisite procedure for finalization of the contract, the Tender
Committee of the Department, constituted at the
Headquarters, awarded the contract pertaining to the said
scheme to M/S 16 G.S. Co. Infrastructure Private Limited of
Chnadigarh (hereinafter referred to as the "Company"). It is
pointed out that at the time of the award of the contract to the
aforesaid contractor, the estimate of the scheme was verified
by the tender committee, rate-wise and item-wise, but no
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
fault was found thereof.
7. In the aforesaid context, it is further submitted
that the Company commenced execution of the assigned
work, as detailed hereinabove, under the supervision of the
petitioners, and wass duly discharging its contractual
obligations in accordance with the provisions stipulated in the
sanctioned estimate. Since the work was being executed in
accordance with the specifications laid down in the sanctioned
estimate, the petitioners, in their respective official capacities
prepared the Measurement Book reflecting the work carried
out by the Contractor, strictly within the scope and provisions
of the said estimate.
8. It is pointed out that only after satisfactory work,
the payment was made to the contractor after approval of the
department, and no fault was found at any level. The work, as
aforesaid, was completed in the year 2013, and thereafter,
certain complaints were received against the contractor and
department, pursuant to which a Flying Squad was constituted
to verify the allegation raised through different complaints.
9. It is submitted by Mr. Jha, that Flying Squad Circle
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
No. 1 of the Water Resource Department conducted an
enquiry and submitted its report to the Principal Secretary of
the Department on 25.07.2016, pointing out certain
irregularities with respect to item no. 9 of the estimate, which
was not technically required to be provided for a scheme of
raising, strengthening and brick soling of an embankment,
and, therefore, it was recommended for recovery of the
amount already paid to the contractor under item no. 9 of the
estimate, which is evident from the report dated 25.07.2016
annexed with the present petition as Annexure 'P-2'.
10. It is also submitted by Mr. Jha that in view of the
recommendation of the Flying Squad, corrective measures
were immediately taken and money paid to the contractor
under item no. 9 of the estimate was recovered from the
contractor and was credited to the account of the department
on 23.03.2017. Thus, no amount of government money was
misappropriated by the petitioners, which is evident from the
copy of the transfer entry order dated 23.03.02017, annexed
as Annexure 'P-3' with the petition.
11. It is also submitted that with the aforesaid
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
recovery, the Flood Control Department, Katihar, informed
the department about the recovery and closure of the
agreement with the contractor vide letter no. 708 dated
07.07.2017, which is annexed as Annexure 'P-4' with the
present writ application.
12. It is pointed out that, surprisingly, vide letter no.
647 dated 08.05.2017 and letter no. 380 dated 08.03.2017,
a show cause notice was issued to the petitioner nos. 1 and 2,
whereafter petitioner nos. 1 and 2 filed their response on
27.11.2017 and 02.05.2018 respectively, wherein both these
petitioners categorically stated that they were not connected
with the preparation of estimate in any manner, as submitted
aforesaid, and they are not concerned with any irregularities.
The same reply was also filed by petitioner no. 6. Petitioner
no. 5 already retired by that time, i.e. in the year 2012 itself;
therefore, no show cause notice was received by him.
13. It is submitted that when the aforesaid matter
was placed before the Internal Vigilance Wing of the Water
Resource Department, it was opined by the Vigilance Wing of
the Department that if this irregularity had not been detected
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
by the Flying Squad, the government would have suffered a
financial loss of public money and merely on the basis of
opinion and assumption, Departmental Vigilance Wing, issued
a direction to lodge the present First Information Report, in
response of which the respondent no. 4 filed a written
information/report before respondent no. 3 on 25.06.2018
alleging attempt to cause wrongful loss to the State but
without attributing any specific allegation against any of the
accused persons named by him in his written report,
whereafter, respondent no. 3, who is the SHO Katihar Town,
lodged the present FIR being Katihar Town (Sahayak) P.S.
Case No. 403 of 2018 dated 25.06.2018 for the offences
punishable under Sections 409/34 of the I.P.C., which is also
annexed with the present petition as Annexure 'P-6'
(Prayed to quash).
14. It is submitted that the allegation, as discussed
aforesaid, does not constitute a prima-facie case qua attempt
for the offence punishable under section 409 of the I.P.C.
and, therefore, the FIR in issue be quashed and set aside in
view of legal report of Hon'ble Supreme Court as available
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
through State of Haryana v. Bhajan Lal and Others.
reported in 1999 Supp (1) SCC 335.
15. While concluding the argument, it is further
submitted by Mr. Jha that, besides the aforesaid discussed
merit, as available for quashing of the present FIR, another
important ground to quash the FIR in issue is the delay in
investigation, which is pending for the last seven (7) years
against petitioners, as the FIR in issue was lodged on
25.06.2018. In support of his submission, Mr. Jha relied upon
the legal report of the Hon'ble Supreme Court as available
through Pankaj Kumar Vs. State of Maharashtra & Ors.
reported in (2008) 16 SCC 117; Biswanath Prasad
Singh Vs. State of Bihar reported in 1994 Supp (3) SCC
97; Santosh De Vs. Archna Guha and others reported in
1994 Supp (3) SCC 735 and N. Raghavender Vs. State
of Andhra Pradesh reported in (20210 18 SCC 70.
16. Learned counsel appearing for the respondents,
filed a counter affidavit on 09.10.2020, submitted that the
petitioners, being technical persons, were posted thereof and
actively participated in the alleged payment to the company
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
for unwanted work mentioned at item no. 9 of the contract.
Being technical persons they must have pointed it out, but it is
fairly conceded that the extra payment qua item no. 9 was
immediately returned to the department by the company and
the allegation is only limited to an attempt to commit the
alleged offence. It is also submitted that the investigation of
this case is still pending qua petitioners.
17. This Court perused the material available on
record and canvassed the argument as advanced by the
learned counsel appearing for the parties. It would be
apposite to reproduce the FIR being Katihar Town (Sahayak)
P.S. Case No. 403 of 2018 dated 25.06.2018, for better
understanding of the factual aspects of this case, which is as
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Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
12 Jh t; izdkj pkS/kjh Lo dqoj izlkn xzke&lksgsyh iks0&censo xzke&ykyqpd caxkjh lsokfuo`r
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18. It would further be apposite to reproduce section
409 of the I.P.C. which reads as under:
"409. Criminal breach of trust by public
servant, or by banker, merchant or agent.--
Whoever, being in any manner entrusted with
property, or with any dominion over property in his
capacity of a public servant or in the way of his
business as a banker, merchant, factor, broker,
attorney or agent, commits criminal breach of trust in
respect of that property, shall be punished with
1[imprisonment for life], or with imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine."
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
19. Taking note of submissions and counter
submissions, and also upon perusal of the record, it transpires
that petitioners were not members of the estimate committee
in terms of the letter dated 25.07.2016. It also transpires that
estimate was approved at all higher levels including by the
Technical Committee. It is also an admitted position that the
payment was received by the Company, which has not been
arrayed as an accused in this case. The non- impleadment of
the Company, despite its receipt of the payment, raises
serious questions regarding the propriety and fairness of the
proceedings.
20. Admittedly, the payment for unwanted work out
of certain irregularities in item no. 9 as received by the
Company was returned to the department, which is apparent
through the letter dated 23.03.2017.
21. It is the settled position of law that to constitute
an offence under section 409 of the IPC, there must be
'entrustment' along with 'breach of trust'. It is an admitted
position that the work was under execution after approval
from the higher level, and the petitioners were only
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
monitoring the work on site in terms of the contractual
obligation of the Company, and, in view of the same, it cannot
be said that any entrustment of property was with them. The
gravamen of the offence of criminal misappropriation lies in
the presence of a dishonest intention in dealing with the
property belonging to another. There is no retention of
property even for a moment with the petitioners. This is a
case of extra payment by the department to the Company,
where even an estimate was not prepared by the petitioners,
which was immediately returned to the department when it
was brought to the knowledge of the Company. This may be a
case of irregular payment but cannot be said by any stretch of
prudent imagination as an attempt qua criminal breach of
trust. The allegation, as alleged in the FIR prima facie not
appear to constitute the legal ingredients of the alleged
offence under section 409 of the IPC qua petitioners.
22. It would be apposite to reproduce paras 41, 45 &
46 of N. Raghavender's case (supra), which reads as
under for ready reference:
"41. We may point out that in the case before us, neither
the trial court or the High Court has discussed the
ingredients of Sections 409, 420, or 477-AIPC, nor have
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
they made any effort to refer to the specific evidence
which may satisfy such ingredients. There is no
gainsaying that the role of the trial court and the High
Court is not just to decipher and bring to light the relevant
evidence, but also to apply the relevant laws to the factual
matrix before it. It further appears that the courts below
have interchanged and mixed up the allegations against
the appellant. While the charges were framed primarily
with respect to the issuance of the three loose cheques
and the alleged unlawful withdrawal of Rs 10 lakhs from
Account No. 282, the courts below have proceeded to
convict the appellant on the ground that he prematurely
and fraudulently enchased the two FDRs, which stood in
the name of B. Satyajit Reddy.
45. Section 409IPC pertains to criminal breach of trust by
a public servant or a banker, in respect of the property
entrusted to him. The onus is on the prosecution to prove
that the accused, a public servant or a banker was
entrusted with the property which he is duly bound to
account for and that he has committed criminal breach of
trust. (See Sadhupati Nageswara Rao v. State of A.P.
[Sadhupati Nageswara Rao v. State of A.P., (2012) 8
SCC 547 : (2012) 3 SCC (Cri) 979 : (2012) 2 SCC (L&S)
638] )
46. The entrustment of public property and dishonest
misappropriation or use thereof in the manner illustrated
under Section 405 are a sine qua non for making an
offence punishable under Section 409IPC. The expression
"criminal breach of trust" is defined under Section 405IPC
which provides, inter alia, that whoever being in any
manner entrusted with property or with any dominion over
a property, dishonestly misappropriates or converts to his
own use that property, or dishonestly uses or disposes of
that property contrary to law, or in violation of any law
prescribing the mode in which such trust is to be
discharged, or contravenes any legal contract, express or
implied, etc. shall be held to have committed criminal
breach of trust. Hence, to attract Section 405IPC, the
following ingredients must be satisfied:
46.1. Entrusting any person with property or with any
dominion over property.
46.2. That person has dishonestly misappropriated or
converted that property to his own use.
46.3. Or that person is dishonestly using or disposing of
that property or wilfully suffering any other person so to
do in violation of any direction of law or a legal contract."
23. As far second submission as raised by learned
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
counsel appearing for the petitioners I.e., qua inordinate delay
of investigation, it appears that admittedly the investigation of
this case is pending for last seven (7) years, which appears
prima facie the violation of the right of the speedy trial of
petitioners/accused as available under article 21 of the
Constitution of India.
24. It would further be apposite to reproduce the
para nos. 25 to 28 of the Pankaj Kumar Case (supra),
which reads as under:-
"25. Though, it is true that the plea with regard
to inordinate delay in investigations and trial has
been raised before us for the first time but we
feel that at this distant point of time, it would be
unfair to the appellant to remit the matter back
to the High Court for examining the said plea of
the appellant. Apart from the fact that it would
further protract the already delayed trial, no
fruitful purpose would be served as learned
counsel for the State very fairly stated before us
that he had no explanation to offer for the delay
in investigations and the reason why the trial did
not commence for eight long years. Nothing,
whatsoever, could be pointed out, far from being
established, to show that the delay was in any
way attributable to the appellant.
26. Moreover, having regard to the nature of the
accusations against the appellant, briefly referred
to above, who was a young boy of about eighteen
years of age in the year 1981, when the acts of
omission and commission were allegedly
committed by the concerns managed by his
parents, who have since died, we feel that the
extreme mental stress and strain of prolonged
investigation by the Anti-Corruption Bureau and
the sword of Damocles hanging perilously over
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
his head for over fifteen years must have
wrecked his entire career.
27. Be that as it may, the prosecution has failed
to show any exceptional circumstance, which
could possibly be taken into consideration for
condoning the prolongation of investigation and
the trial. The lackadaisical manner of
investigation spread over a period of four years
in a case of this type and inordinate delay of over
eight years (excluding the period when the record
of the trial court was in the High Court), is
manifestly clear.
28. Thus, on facts in hand, we are convinced
that the appellant has been denied his valuable
constitutional right to a speedy investigation and
trial and, therefore, criminal proceedings initiated
against him in the year 1987 and pending in the
Court of the Special Judge, Latur, deserve to be
quashed on this short ground alone."
25. In this context, it would be apposite to reproduce
the para no. 5 of the Biswanath Prasad Case (supra),
which reads as under:-
"5. It is true that the charges against the
appellant relate to misappropriation of public
funds. In such a case, we should take a more
stricter view as indicated in the Constitution
Bench decision in Abdul Rehman Antulay v. R.S.
Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93 :
AIR 1992 SC 1701] . But there are certain
circumstances in this case which induce us to
interfere in the matter. The most glaring one is
that even though the FIR was issued on 10-12-
1977, the charge-sheet was filed only on 5-2-
1983, i.e., after a lapse of 5 years. No
explanation is forthcoming for this extraordinary
delay. Maybe, this being a case of
misappropriation of public 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. Added to the said circumstance is the
fact that even though there was no stay in this
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
special leave petition/criminal appeal, the case
has not progressed much as stated above.
Moreover, the appellant has been dismissed
from service on these very allegations. His
provident fund and gratuity amounts have been
forfeited and he has crossed the age of
superannuation. Calling upon him now to enter
upon defence, after 16 years, in all the facts and
circumstances of the case, is bound to cause
prejudice to him."
26. It would further be apposite to reproduce the
para nos. 4, 6 and 18 of the Santosh De Case (supra),
which reads as under:-
"4. A few relevant facts may be stated. The
respondent was the Director of Mines,
Government of Bihar. A raid was conducted on
his premises and certain amount of cash and
jewellery recovered. On 27-3-1978, a
preliminary charge-sheet was filed under Section
5 of the Prevention of Corruption Act. The
substance of the charge was that the respondent
was in possession of assets beyond the known
sources of his income. On 15-12-1982, the
Government of Bihar refused to grant sanction
for prosecuting the respondent, which was
required under the provisions of the Prevention
of Corruption Act. For that reason -- or any
other, as the case may be -- no final charge-
sheet was filed. Yet the proceedings were kept
pending. It is in these circumstances that the
respondent approached the High Court by way of
a writ petition which was allowed. We are also
told that in the criminal appeal filed against the
judgment of the High Court, this Court made an
order on 23-11-1987 permitting the parties to
lead evidence with the restriction that no further
proceedings shall be taken in the matter. Taking
advantage of the said interim order, it appears,
sanction for prosecution was accorded by the
State Government on 29-3-1990 but it is stated
by the learned counsel for the respondent, no
statements of witnesses were recorded in the
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
case. Meanwhile, the respondent retired from
service on 30-11-1991.
6. In the facts and circumstances of this case, it
cannot be said that the delay in conduct of the
case has been caused by the accused-
respondent. From 1978 to 1986 and again from
November 1987 till this day, there has been no
progress in the case. Not a single witness has
been examined so far. In these circumstances,
following the principles enunciated in Abdul
Rehman Antulay v.R.S. Nayak [(1992) 1 SCC
225 : 1992 SCC (Cri) 93] , the judgment of the
High Court is affirmed and the criminal appeal is
dismissed.
18. While we appreciate that a serious criminal
offence might have taken place at the hands of
Respondents 1 to 9, we cannot be oblivious to
the fact that almost 17 years have elapsed since
the date of that occurrence and there are these
several delays pointed out earlier which remain
unexplained. We think that in the circumstances
the rights of Respondents 1 to 9 to a speedy trial
have been breached and no interference with the
judgment under appeal is called for. The appeal
is dismissed.
27. And in para 102 of the case of Bhajan Lal
(supra), the Hon'ble Apex Court has provided the guidelines,
which are being reproduced hereunder for a ready reference:
'102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced
above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the Act concerned (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is a
specific provision in the Code or the Act concerned,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.''
28. In view of the aforesaid discussion and by taking
note of the fact that the allegation as made in the FIR does
not constitute any prima facie offence punishable under
Patna High Court CR. WJC No.2593 of 2018 dt.02-07-2025
section 409 of the IPC qua petitioners, rather it only suggests
irregular payment to the Company, out of contractual
obligation, where petitioners not even appears to be a part of
estimate committee and, moreover, the payment made for
unwanted work as per the report of flying squad committee
immediately returned to the department by the
accused/company, therefore, FIR being Katihar Town
(Sahayak) P.S. Case No. 403 of 2018 dated 25.06.2018,
pending in the court of learned Chief Judicial Magistrate,
Katihar, is hereby quashed/set aside qua above-named
petitioners with consequential proceedings, if any.
29. Accordingly, the present writ application stands
allowed.
30. Let a copy of this judgment be sent to the learned
trial court/concerned court immediately.
(Chandra Shekhar Jha, J)
Rajeev/-
AFR/NAFR AFR
CAV DATE 18.06.2025
Uploading Date 02.07.2025
Transmission Date 02.07.2025
