TMI Blog2013 (7) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... asked the learned Counsel for the Petitioner whether challan has been filed or not. He replied that still challan has not been filed and the matter is under investigation. If it is to, the Petitioner is permitted to file representation/documents on the basis of the judgment of the Hon'ble Supreme Court or any other Court, the I.O. Should investigate the matter on the basis of the judgment/documents/representation so filed by the Petitioner and thereafter shall file progress before the court concerned. Accordingly, the petition is disposed of. 2. In order to appreciate the rival stands of the parties, it would be necessary to notice the background facts in a greater detail. 3. The Appellant was posted as Lower Division Clerk (for short, 'LDC') during the period November, 1996 to November, 1997 in the Office of District Literacy Education Officer, Dausa. On 4th January, 2000, the District Literacy Education Officer, Dausa registered a First Information Report (for short, 'FIR') in Police Station, Dausa alleging therein that when the Appellant was posted as LDC-cum-Cashier, a financial irregularity was committed by him. As per the report of Auditor G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged the decision of the High Court on the following grounds: (a) Since the date of order passed by the CJM, Dausa the Appellant has been suffering the harassment of investigation for more than 13 years which is not completed till date because of lack of supply of documents. (b) After filing the closure report way back in the year 2000 no effective investigation has taken place. (c) If investigation is allowed to continue even in absence of document, it will be futile and can only cause harassment to the Appellant, serving no purpose as even in the departmental inquiry for said charges conducted against the Appellant in the year 2009, the Appellant was exonerated as none of the charges which also form the basis of the present FIR could be proved against the Appellant. 10. He also relied on decisions of this Court which will be discussed in the following paragraphs of this judgment. 11. The State of Rajasthan has filed counter affidavit. According to them, the investigation is still continuing and the Appellant himself is delaying the same due to non-cooperative attitude adopted by him. In any case, from the investigation carried out till now, offence under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 concerned Act (under whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. These are considerations which should be kept in mind when determining the amount of the security or monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing system of pre-trial release in India could be avoided or, in any event, greatly reduced. 17. In Abdul Rehman Antulay v. R.S. Nayak m(1992) 1 SCC 225, the Court formulated as many as 11 propositions with a note of caution that these were not to be treated as exhaustive and were meant only to serve as guidelines. 86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: (1) Fair, just and reasonable procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation. (5) 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 offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on--what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. In Barker it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate . The same idea has been stated by White, J. in U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved merely to shift the burden of proving justification on to the shoulders of the prosecution. 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. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. (11) 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 High Court must, however, be disposed of on a priority basis. 18. Seven learned Judges of this Court in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578, considered the validity of the ratio laid down in Common Cause case (I) as modified in Common Cause case (II) and Raj Deo Sharma (I) and (II) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. (5) The criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482 Code of Criminal Procedure and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary--quantitatively and qualitatively--by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act. 19. This Court in Vakil Prasad Singh v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecuting the accused is required and if so, whether it has been granted or not and that the case was pending for about 17 years and the proceedings against the Appellant was quashed. 22. To find out the factual scenario, we have noticed the background in a greater detail as mentioned hereunder: 23. On 4th January, 2000, the following allegation was made by the complainant-District Literacy Education Mission Officer, Dausa in the FIR, the relevant portion of which is quoted below: First Information Report Office of literacy and continuous education mission, Dausa File No. 672 dated 4.1.2000 To, The SHO Police Station: Dausa Subject: Regarding misappropriation of the amount of pending Bill for the period 11.96-11.97 by Sh. Lokesh Jain LDC(Cashier), In reference to the above subject, it is requested that Sh. Lokesh Jain, Lower Division Clerk (Cashier) presently under suspension while working on the post of cashier has committed financial irregularities for which financial department and office of CAG conducted an enquiry which is annexed herewith. As per the enquiry report ₹ 4,39,617 has been misappropriated, all the copies of the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1162, a complaint was also given in this regard, C.O. Has also written to the department to produce the record but they showed their inability to produce the same. The present case, several requests were made for production of record but the same was not produced. No evidence came against Sh. Lokesh Jain, from the file of the education department. The case has been pending since long and there is no probability of availability of record in the near future. Further investigation will be taken on the receipt of the records from the concerned departments. Hence FR No. 67/2000 is being filed for kind perusal and acceptance because of insufficient evidence. 25. On perusal of Final Report, the CJM, Dausa passed the following order: Before the Chief Judicial Magistrate District: Dausa, Dausa Complainant: Murari Lal FIR No. 10/2000 18.11.2000 Present App. Present complainant: Sh Murari Lal Sharma In this case final report has been filed with the averment that the original record has not been supplied to the SHO and hence investigation cannot be carried out. The complainant Murari Lal is present and he is ready to cooperate with the police officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters in the presence of the prosecution party and for the purpose of the presenting the written argument the case was fixed for 29-07-2009. The defence appearing along with the assistant has filed his written argument which was taken on record. The prosecution party and the defence party were given one last and final opportunity to present the witness/evidence/documents in accordance with the principle of natural justice. On the date fixed neither the prosecution nor the defence has filed their witness/evidence/documents. According to the notification, following offence was alleged against Shri Jain on 22-12-2007: 1. That you Shri Lokesh Kumar Jain (Cashier) being in the office of the District Education and Education officer Dausa from 20-11-1995 to 13-11-1997, was given the work of accountant. According the inquiry report of 11/96 to 11/97, an embezzlement of ₹ 4,39,617/- was found to be done by you. The details of the allegation is depicted as follows: a) Bills of F.V.C. Amounting to ₹ 65,330/- is found to be entered in the Bill Register but after the passing of the bill from the treasury, the entry of which was not found in the encashment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Jain because in ordinary course of business it is not possible for single person to execute the entire work that is to say generation of bills, getting it passed and withdrawing the same. Hence the second part of offence is not proved against Shri Lokesh Kumar Jain for want of cogent and sufficient proof. 3. Embezzlement of the amount of ₹ 78,179/- by withdrawing the bills of the other department in the head of Literacy and Education in the Budget. The prosecution has filed the evidence of (P-2) (P-3) in respect of the offence. According to the evidence, the payment was made for the purpose of making the payment of the bills of said Sparsh Vidyalaya RAMAVI Dhigariya but in the budget the same is under the head of Literacy and Education department. The entire part of the offence is completely disputed. There is withdrawal of the bills of the other department in the head of Literacy and Education in the Budget but it is not clear as to who has received the payments. Merely on the basis of the Treasury office regarding the fact of expenditure and receiving the payments does not prove the delinquent officer to be the guilty of the offence. It is possible that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in the office of CAG and the original documents are available in the office of the Directorate, State Literacy Programme. 31. In the departmental proceeding identical allegation was made that as per the Inquiry Officer Report, an embezzlement of ₹ 4,39,617/- was found to be done by the Appellant. 32. During the investigation inspite of several requests made by the Investigating Agency (Police), the records in respect of allegation were not produced. No evidence came against the Appellant-Lokesh Kumar Jain, from the file of the education department. As the case was pending since long and there was no possibility of availability of record in the near future, FR No. 67/2000 against the Appellant was filed before the CJM, Dausa. The CJM, Dausa by his order dated 18th November, 2000 on perusal of Final Report, in exercise of power conferred under Section 156(3) Code of Criminal Procedure directed the SHO, Dausa to re-investigate the case with the assistance of complainant and to procure the original records. Inspite of order dated 18th November, 2000, for nine years, records were not made available, as apparent from the Inquiry Report dated 15th December, 2008. 33. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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