Judgment:
ORDER
Jagannadha Raju, J.
1. This petition is filed under Section 482 Cr.P.C. to quash the proceedings in C.C.No. 45 of 1988 on the file of the Principal Special Judge for SPE & ACB cases at Hyderabad. This petition is filed by A. 1 in the case. The facts relevant for decision of this petition are as follows:
2. The petitioner was working as a permanent officer of Nagarjuna Grameena Bank which was incorporated under the Regional Rural Banks Act, 1976. While he was working as a Branch Manager at Gattuppal Branch, the Chairman of the bank suspended the petitioner on 1-12-1981 for certain alleged irregularities said to have been committed by the petitioner while he was the Branch Manager. While he was undergoing suspension, he met with a serious car accident and received injuries which resulted in his left leg being amputated. While things stood thus, an F.I.R. was registered against him and three others on 16-12-1981 in F.I.R. G.No. 3/CDE/81. The time of the alleged crime was shown as prior to February, 1981. The offences for which the F.I.R. is registered are Sections 161, 165, 409 and 420 I.P.C. The investigation was completed and the charge-sheet was filed on 30-6-1988. The court framed the charges on 22-8-1990 though the sanction order was passed by the Government of Andhra Pradesh on 2-4-1988. The gravamen of the charge is that he misappropriated funds of Nagarjuna Grameena Bank to a tune of Rs. 65,500/- by disbursing lesser amounts to the beneficiaries for purchase of sheep under what is popularly called 'sheep loans'.
3. There is abnormal delay in the investigation of the case, in passing the sanction order for prosecution and in framing the charges. The abnormal delay has greatly prejudiced the accused in conducting an effective defence. The very charges are frivolous and false. The documents filed in the court clearly show that there is no credible material to prove any offence against the accused. The trial is dragging on for years together and the petitioner is put to harassment. He has been subsisting on subsistence allowance and his life has become miserable because of the subsequent accident and amputation of his leg. If the prosecution is allowed to be continued, it would result in the miscarriage of justice. The petitioner's valuable right to life and liberty is curtailed in the sense that he is denied a fair and speedy trial. For these reasons, the court may be pleased to quash the proceedings in C.C.No. 45 of 1988.
4. Sri R.S. Reddy, the learned counsel appearing for the petitioner contended that there is inordinate delay in conducting the prosecution and this delay has caused prejudice to the accused in conducting his defence because bank records will be destroyed after five years, or maximum eight years and there is absolutely no scope to verify the bank records. According to him, there is unjustified delay and harassment in conducting of the case. He relies heavily upon a decision in Dr. N.V. Raghava Reddy v. A.C.B. Tirupathi (1 Supra), a case where on the mere ground of delay in prosecution, the criminal proceedings were quashed. During the course of the arguments, the standing counsel and the court brought to the notice of the advocate for the petitioner the recent judgment of this court dated 14-6-1991 in Cr. Petition 174 of 1991 which has taken the view that the statement of law in Dr. N.V. Raghava Reddy v. A.C.B. Tirupathi, 1991 (1) APLJ 175 (supra) is not a correct statement of law and that it overlooks several Supreme Court decisions and that the case has necessarily to be decided on the basis of the later judgments of this court and the judgments of the Supreme Court in State of Maharashtra v. Champalal, : 1981CriLJ1273 and State of Andhra Pradesh v. P.V. Pavithran, AIR 1991 SC 1266.
Then the advocate requested for a short adjournment to enable him to study in the light of the latest judgment of this court.
5. After thorough study, he has come forward with Crl. M.P.No. 1508 of 1991 stating that as the court took a contrary view from the decision in DR. N. V. Raghava Reddy v. A.C.B. Tirupathi (1 Supra) and as the judgment of Justice Y. Bhaskar Rao receives support from some other decisions of this court, this court may refer the matter to a Division Bench so that the controversy may be resolved and the law settled once for all. After filing the petition Crl. M.P.No. 1508 of 1991, very elaborate arguments were addressed. Sri R.S. Reddy contends that the view expressed by Justice Bhaskar Rao in DR. N. V. Raghava Reddy v. A.C.B. Tirupathi (1 Supra) still holds the field and that decision receives ample support from various other judgments of this court. He relied upon Balachand Varma v. State of A .P., 1985 (2) ALT 433, a decision rendered by Justice M. Jagannadha Rao and C. Sivakumar v. State of A.P., 1990 (2) ALT 188, a decision rendered by Justice N.D. Patnaik. He finally argued that if the court feels doubt, the matter may be referred to a Division Bench as the judgment of this court dated 14-6-1991 in Criminal Petition No. 174 of 1991 is in conflict with the decision in Dr. N.V. Raghava Reddy v. A.C.B. Tirupathi (1 Supra).
6. On behalf of the State Sri N. Harisesha Reddy contends that the decision of Balchand Varma v. State of A.P. (4 Supra), and C. Siva Kumar v. State of A.P. (5 Supra) are cases which are distinguishable and they are not applicable to the facts of our case. Each case will have to be judged on the facts of that case. In those two decisions, the courts found that there was deliberate harassment and deliberate delay in conducting the prosecution cases. A reading of the full reports in those decisions clearly show that the prosecution was not quashed merely on the ground of delay but on various other grounds. Mr. Harisesha Reddy further contends that relying upon Raghubir Singh v. State of Bihar, 1987 SC 149 that the court will have to see whether the delay in conducting the prosecution is intentional or deliberate. The mere delay in conducting the prosecution is not by itself a ground for quashing the prosecution case. Mr. Harisesha Reddy further stated that the prosecution is ready to get on with the case expeditiously and on day-to-day basis. It is the petitioner that has obtained stay of further proceedings and held up the trial of the case. Mr. Harisesha Reddy points out that much of the delay is the result of the accused not co-operating with the court and their absenting from the court on several occasions and their not being ready to face the trial.
7. The points that arise for consideration in this case are.
(1) Whether there is any conflict between the decisions reported in Balchand Varma v. State of A.P. (4 Supra), Dr. N.V. Raghava Reddy v. A.C.B. Tirupathi (1 Supra) and the judgment dated 14-6-1991 in Crl. Petition No. 174 of 1991 warranting a reference to a Division Bench.
(2) Whether the prosecution case is liable to be quashed on the particular facts of this case?
8. Point No. 1:- In the judgment dated 14-6-1991 pronounced by me in Crl. Petition No. 174 of 1991, I have discussed in elaborate detail the process of reasoning adopted by Mr. Justice Bhaskar Rao in DR. N.V. Raghava Reddy v. A.C.B. Tirupathy (1 supra) and pointed out that though the learned judge referred to several decisions of the Supreme Court, His Lordship did not refer to the basis and the rationale on which the court granted relief in those decisions and His Lordship referred to the factum of delay and gave relief to Dr. N.V. Raghava Reddy who never suffered a single day's imprisonment I have clearly pointed out that the rationale of the Supreme Court decisions in Hussainare Khatoon v. State of Bihar, : 1979CriLJ1036 , Hussainare Khatoon v. State of Bihar, AIR 1989 SC 1369 and Sheela Barse v. Union of India, : [1986]3SCR562 would certainly apply in cases of long periods of imprisonment and detention as under-trial prisoners because in such instances Article 21 of the Constitution is violated. I have also indicated that the rationale of those decisions would not apply to cases where the parties were not under detention or in jail custody because their liberty is not curtailed. I have also referred to the other line of cases State of Maharashtra v. Champalal (2 supra) and State of A.P. v. P.V. Pavithran (3 supra) and quoting elaborately from the judgment of his Lordship Justice Chinnappa Reddy pointed out that a delayed trial is not necessarily an unfair trial. The delay may be due to several factors, sometimes delay may be occasioned by tactics from the conduct of the accused, sometimes delay might not have caused any prejudice whatsoever to the accused. Referring to P.V. Pavithran's case (3 supra), I have pointed out that, as observed by the Supreme Court, no general and wide proposition of law can be formulated that whenever there is an inordinate delay on the part of the investigating agency in completing the investigation, such delay, ipso facto, does not provide a ground for quashing the first Information Report or the proceedings arising there from.
9. After referring to Champalal's case (2 supra) and Pavithran's case (3 supra), reference was also made to Mangilal v. State of Rajasthan, 1990 (1) Crimes 337 a case arising under Section 482 Cr.P.C. where the pendency of the case for 25 years was not considered as a ground for quashing the proceedings. I have clearly indicated that judged in the light of the Supreme Court decisions, the decision of Justice Y. Bhaskar Rao in Dr. N.V. Raghava Reddy v. A.C.B. Tirupathy (1 supra) is not a correct statement of law.
10. I shall now deal with the two decisions relied upon by the petitioner's advocate as lending support to the view taken by Justice Y. Bhaskar Rao. Balchand Varma v. State of A.P. (4 supra) deals with a case where three criminal cases were pending from 1979 to 1985 without examining a single witness and the court held that it is a clear case of abuse of process of the court and the delay has resulted in manifest injustice to the petitioner and thus quashed the criminal proceedings. If we read the body of the judgment, we find that the accused in that case was consistently victimised and harassed by the management of the school in which he was working. He was suspended for the first time in 1976 and was removed from service in June, 1978. In a writ petition filed by him, the order of removal was quashed. Earlier the order of suspension was set aside by the High court. When he rejoined duty on 23-4-1979, he was allowed to work only for one week and he was again suspended in July, 1978. That order of suspension was set aside by the D.E.O. on 13-10-1980 and then he worked for about a month and again he was suspended on 2-1-1981. That order of suspension was also set aside by the D.E.O. on 3-4-1981 with directions to pay off the arrears and treating the petitioner as in service through out The management did not implement those directions of the D.E.O's order and then the accused filed a writ petition W.P.No. 5161 of 1982 and it was allowed. The writ appeal filed by the management ended in dismissal. In such a background, the management of the school filed a criminal complaint and the criminal proceedings were pending for six years without examining a single witness. In that background of facts and the continued harassment indulged in by the management. His Lordship Justice M. Jagannadha Rao came to the conclusion that the continuance of these three criminal cases from 1979 onwards for a period of over six years without the prosecution examining a single witness is a clear abuse of the process of law and has resulted in manifest injustice to the petitioner. His Lordship also observed that he is of the view that the prosecution has no interest in these cases and that the mere continuance of the aforesaid cases is causing irreparable loss and injury to the petitioner. Therefore, it is a preeminently fit case for quashing the criminal proceedings. In the present case on hand, we do not have any instance of the accused-officer being harassed and victimised. The decision in DR. N. Raghava Reddy's case (1 supra) does not receive any support from this decision. It cannot be said that this decision lends support to the view taken by Justice Y. Bhaskar Rao in DR. N. Raghava Reddy's case (1 supra)
11. C. Siva Kumar v. State of A.P. (5 supra) is a case where the criminal case was pending for 14 years before the Magistrate's court with no progress made except examining only one witness. In such circumstances, His Lordship felt that to make the accused still face the prosecution amounts to a harassment and abuse of the process of the court. The court clearly indicated in the judgment that unnecessary transfers of the case from one court to another court on various grounds contributed for the unnecessary procrastination of the case and continuous harassment of the accused. The learned judge clearly pointed out that during these 14 years, the case has undergone several (350) adjournments in about 7 courts and about 26 Magistrates have handled the case but only one witness was examined. For 156 days of hearing nothing took place. The court pointed out that the prosecution was not at all taking any interest in either producing the witnesses or completing their evidence. In such a background. His Lordship quashed the proceedings. The facts of that case and the Principle evolved by the learned judge does not, in any way, lend support to the decision of Justice Y. Bhaskar Rao in DR. N.V. Raghava Reddy's case (1 supra).
12. In my judgment in Crl. Petition No. 174 of 1991 dated 14-6-1991, I have referred to the judgment dated 25th April, 1991 in Crl. Petition No. 1986 of 1990 in Badri Narayana v. State of A.P. wherein His Lordship Justice N.D. Patnaik did not follow the decision of Justice Y. Bhaskar Rao rendered in Dr. N.V. Ragha Reddy's case (1 Supra). These things clearly indicate that apart from me, there are other judges who have taken a different view and who are not inclined to agree with the view taken by justice Y. Bhaskar Rao in DR. N.V. Raghava Reddy's case (1 supra).
13. After thorough consideration of the various decisions on this aspect, I am fully convinced that the view expressed by me in Crl. Petition No. 174 of 1991 is perfectly correct and that the decision rendered in N.V. Raghava Reddy v. A.C.B. Tirupathi (1 supra) is not a correct statement of law. In my considered opinion, there is no conflict of decisions. My judgment dated 14-6-1991 only pointed out how the earlier judgment in DR. N.V. Raghava Reddy v. A.C.B. Tirupathi (1 supra) went wrong as it ignored some of the later Supreme Court decisions and merely followed the factum of delay in the series of cases beginning with Hussainare Khatoon v. State of Bihar (7 supra), forgetting the fact that those decisions were rendered in habeas corpus petitions and in relation to the persons who were in detention. I do not find any justification for referring this matter to a Division bench for resolution of the so called conflict of decisions. In my view, there is no conflict of decisions.
14. Point No. 2:- The alleged offences were committed during the period 1980-81. The F.I.R. was registered on 16-12-1981. The charge-sheet was filed on 30-6-1988 after the sanction order was issued on 2-4-1988. Thus we find that there was delay in investigation of the case. From the records, it is clear that on 30-12-1985, the investigating authority sent a report to the Government requesting the Government to pass sanction orders for prosecuting the case. Thus we find that the time taken for investigation is from 16-12-1981 to 30-10-1985. Considering the nature of investigation involved and the large number of transactions of sheep loans involved, I do not find that there is any unjustified delay in investigation. There appears to be a slight delay in the second stage of the case, namely, the delay in passing sanction orders. Though the report from the investigating authority was received on 30-10-1985, the sanction orders were ultimately issued on 2-4-1988. The record reveals that there was some doubt as to who is the competent authority to issue sanction order and different for were approached and ultimately the State Government passed the sanction order on 2-4-1988. Judged in the light of the circumstances of the case, the delay of two years and six months in passing the sanction order appears to be justified because there is change of authorities to issue the sanction order.
15. Coming to the third stage of the case, when the charge-sheet was filed on 30th June, 1988, the charges were framed only on 22-8-1990. The docket sheet of the court discloses that though the charge-sheet was filed on 30-6-1988, the case was actually taken on file and registered as a case on 13-7-1988. Till December, arguments before framing the charge could not be heard. Subsequently on several occasions, when the matter was posted for consideration, it was decided that it would be better for the accused to advance arguments regarding the charges to be framed after all the documents are filed. This is clear from the docket order dated 21-2-1989. The copies of the documents were supplied to the accused on 27-9-1989. At that stage, at the request of the accused, specially A.1 the present petitioner, the case underwent several adjournments. Ultimately after the hearing of the arguments on 7-8-1990, charges were framed on 22-8-1990. A perusal of the docket sheet clearly indicates that in this case, after the case was filed in the court, though there was some delay on the part of the prosecution in supplying the documents, the accused have equally contributed for the delay in framing the charges because they were not ready to get along with the arguments before framing the charges. In such a background, when the charges were ultimately framed on 22-8-1990, it cannot be said that there is any unjustified delay in the trial. If no progress is made, by not examining the witnesses, between 22-8-1990 and 16-12-1990 on which date, the present petitioner obtained stay of the proceedings from the High Court in Crl.M.P.No. 3402 of 1990.
16. The elaborate details given above clearly indicate that there is absolutely no delay on the part of the prosecution after the case was ready for trial. I have earlier indicated that excepting the delay in furnishing copies of documents, there does not appear to be any unjustified, deliberate or intentional delay on the part of the prosecution. When there is no unjustified or intentional delay on the part of the prosecution, the prosecution cannot be quashed on the ground of delay which tantamounts is to violation of Article 21 of the Constitution.
17. I shall now consider the arguments advanced by the advocate for the petitioner as to whether there is any prejudice caused to the accused due to the delay and whether there is any harassment of the petitioner. It should be remembered that the prosecution case relates to accused and other officers misappropriating funds while granting sheep loans to poor shepherds. Obviously, taking advantage of the illiterate and uneducated condition of the shepherds, these malpractices must have been indulged in. The shepherds are more sinned against than the accused officers who are now being prosecuted for misappropriation of funds. The moment the matters came to light, investigation was conducted and charge-sheet was filed. It is rather unfortunate that the present petitioner (A. 1) met with a car accident and was seriously injured and his leg had to be amputated. The criminal case and the prosecuting agency is, in no way, responsible for his suffering an injury in an accident. It cannot be said that in his physical handicapped condition, he is being harassed by prosecuting the case.
18. The last argument of Mr. R.S. Reddy is to the effect that under the rules framed, the bank records will be preserved for five years to eight years and as all the records will not be available at this distance of time, the accused is very much prejudiced in putting forth the effective defence. It is true that the bank records will normally be preserved as per rules for five years to eight years. But as the investigation process commenced and as the records were seized in 1981 itself, there is absolutely no possibility for the records being destroyed. They are required in the criminal case and they are in the custody of the police and the bank authorities and hence there is no question of their destruction. Assuming for a moment that some of the records are destroyed, then it is a disadvantage for the prosecution and it cannot be described as a disadvantage to the accused. In my considered opinion, the accused is not, in any way, prejudiced on the ground that as per the rules, the bank records would be destroyed after five years or eight years of preservation.
19. Judging the case of the accused on the facts of this particular case, I find that the mere delay in conducting the trial is no ground for quashing the case C.C. Section 45 of 1988. There is no unjustified delay at any stage and the delay has, in no way, prejudiced the accused. There is absolutely no harassment of the accused. The accused, who was never in detention as an undertrial prisoner in this case, cannot complained that his liberty is curtailed, and that the State violated Article 21 of the Constitution in his case. In my considered opinion, there is not even a denial of speedy trial in this case.
20. In the result, Crl. Petition No. 2186 of 1990 is dismissed. The Special Judge is directed to expeditiously dispose of the case C.C. No. 45 of 1988 on a top priority basis. The trial shall go on day-to-day basis.
21. Criminal M.P.No. 1508/91 is dismissed. I see no justification for referring the