Mangilal Vyas Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/758181
SubjectCriminal
CourtRajasthan High Court
Decided OnJan-29-1987
Judge Naveen Chandra Sharma, J.
Reported in1988CriLJ1188; 1987(1)WLN727; 1989WLN(UC)541
AppellantMangilal Vyas
RespondentState of Rajasthan
Cases ReferredW.B. v. Mohan Singh
Excerpt:
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penal code - sections 408 & 409--embezzlement is co-operative societies and criminal procedure code--section 482--coherent powers--accused awaiting trial and protracting it by taking one or other proceeding to high court--accused seeking quashing of criminal proceeding second time--speedy trial is required in interest of co-operative movement--held, quashing of proceedings it not in interest of justice;petition dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when.....
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ordernaveen chandra sharma, j.1. it is the grievance of mangilal vyas petitioner in criminal miscellaneous petitionsnos. 702 to 709 of 1986 under section 482, cr.p.c. that he is undergoing mental, physical and financial torture for the last 23 years, inasmuch as he has been prosecuted in no less than 11 criminal cases by the officer-in-charge of the concerned police station, for offences under section 408 or 409 ipc, on allegations of misappropriation or embezzlement of amounts which are alleged to have been committed during his short spell of appointment as a manager of jhunjhunu kendriya sahkari bank ltd., jhunjhunu (hereinafter, for short as 'the sahkari bank') from 17th feb., 1961 to 3rd june, '63', in respect of which on a complaint made to the registrar, co-operative societies, an.....
Judgment:
ORDER

Naveen Chandra Sharma, J.

1. It is the grievance of Mangilal Vyas petitioner in Criminal Miscellaneous PetitionsNos. 702 to 709 of 1986 Under Section 482, Cr.P.C. that he is undergoing mental, physical and financial torture for the last 23 years, inasmuch as he has been prosecuted in no less than 11 criminal cases by the Officer-in-charge of the concerned police station, for offences Under Section 408 or 409 IPC, on allegations of misappropriation or embezzlement of amounts which are alleged to have been committed during his short spell of appointment as a Manager of Jhunjhunu Kendriya Sahkari Bank Ltd., Jhunjhunu (hereinafter, for short as 'the Sahkari Bank') from 17th Feb., 1961 to 3rd June, '63', in respect of which on a complaint made to the Registrar, Co-operative Societies, an inquiry was ordered by the Registrar Under Section 41 of the Co-operative Societies Act to be held by the Collector, Jhunjhunu, with the assistance of the Special Auditors of Ajmer Zone and Assistant Registrar, Co-operative Societies, Jhunjhunu. The special audit parties gave their report to the Collector, Jhunjhunu. The Collector on 7th Apr., '63 forwarded the report to the Registrar, Co-operative Societies. Thereafter 11 criminal cases were launched against the petitioner one after the another. A list of these cases has been annexed by the petitioner to the petition. This list goes to show that the allegations against the petitioner were that he had embezzled various amounts received by him from different Sahkari Samities while he was holding the post of Manager of the Sahkari Bank during the period from 17th Feb., 1961 to the date of his suspension i.e. 3rd June '63. In one of such cases, in which there was allegation of embezzlement of about Rs. 33,300/- and which related to Badagaon Gram Sewa Sahkari Sangh Ltd. FIR was lodged on 1st May, '63, and the police filed a challan on 2nd June, '65, i.e. after two years. The proceedings in that case continued for more than 17 years without any progress; and on moving of an application Under Section 482 Cr.P.C. (S.B. Cr. Misc. Petition No. 161/82), the proceedings in Criminal case No. 3/79 pertaining to the said embezzlement were quashed by a learned Single Judge of this Court on 5th Dec, '85.

2. In another two cases relating to Lalpura Gram Sewa Sahkari Samiti and Khatipura Gram Sewa Sahkari Samiti there had been ultimate acquittal for the petitioner.

3. In the fourth case, in which there was allegation of embezzlement of Rs. 4,000/- concerning Patusari Bunkar Sahkari Samiti Ltd., the police gave a final report.

4. The rest eight criminal prosecutions are still pending against the petitioner in some cases for the last 20-22 years and in others, for the last about 16 years in the court of Judicial Magistrate or Chief Judicial Magistrate, Jhunjhunu.

5. Mr. Tibrewal the learned Counsel appearing for the petitioner in all these eight petitions, urges that the right to speedy public trial, is a fundamental right and that this cannot be allowed to be whittled down on any finical ground of the hoary origin of this right, and he urges that in all these cases, the fundamental right of the petitioner has been flagrantly violated, and therefore, this Court, in exercise of its inherent powers, should ensure his fundamental right by quashing the proceedings against him in all the eight criminal prosecutions which are pending against him still. He has relied upon a Full Bench decision of the Patna High Court in the case of Madheshwardhari Singh v. State of Bihar : AIR1986Pat324 . In that decision, the right to speedy criminal trial of prosecution was recognised by the Patna High Court as a fundamental right under Article 21 of the Constitution. Dealing with the question of outer time limit, the Full Bench of the Patna High Court referred to the judgment of the Supreme Court in S. Guin v. Grindlays Bank Ltd. : 1986CriLJ255 and observed that the fixation of outer time limit of 7 years must not be misunderstood or misconstrued to mean that a delay of less than seven years would not in any case amount to prejudice, and that indeed, what is sought to be laid down is the extreme outer limit whereafter grave prejudice to the accused must be presumed and the infraction of the constitutional right would be plainly established. His Lordship Sandhawalia, C.J. of the Patna High Court was really 'somewhat hesitant in spelling out even the aforesaid outer time limit, which perhaps, erred on the side of strictitude, what indeed was sought to be laid down was that beyond the period of seven years, the continuation of investigation and trial would bring in the weightiest presumption that the enshrined right of speedy public trial is violated and the prosecution should be halted in its tracks. This would per se be indicative of prejudice. Thereafter, the burden would automatically shift heavily on to the shoulders of the State to show that such grave delay was either entirely the handiwork of the accused himself or was occasioned by special and exceptional circumstances so as to merit condonation thereof.' The Full Bench of the Patna High Court referred to the decision of their Lordships of the Supreme Court in S. Gaun's case (supra) wherein, one Mahindra Narayan Chaudhury, Operation Manager of the Grindlays Bank Ltd., had filed a complaint against the appellants that they had, without reasonable cause, obstructed the officers of the Bank particularly, Shri G. Vaidya, from lawfully entering the premises of the branch of the Bank, and had obstructed the transaction of normal business at the said branch, and that therefore, they had committed an offence punishable Under Section 147 of the Penal Code. In that case, the prosecution further alleged that all of them were constructively liable for the offence Under Section 34 IPC. It was urged that the aforesaid act had been committed by the appellants pursuant to a call of strike given by the employees of the Bank. The Magistrate issued summonses to the appellants for offences punishable under Section 341, IPC and Under Section 36AD of the Banking Regulation Act, 1949. After trial, the Magistrate by his judgment dt. 27th June, 78, acquitted all the appellants. Against that judgment of acquittal, an appeal was filed by the Grindlays Bank Ltd. before the High Court of Calcutta. It took 6 years before that appeal could be decided by the High Court. The Calcutta High Court felt that the trial court had missed the essence of the offences with which the appellants had been charged and, therefore, there was failure of justice. The Calcutta High Court set aside the judgment of acquittal passed by the Magistrate and remanded the case for retrial. Aggrieved by that judgment of the Calcutta High Court, the appellants came before the Supreme Court, His Lordship Venkataramiah, J. while delivering the judgment on behalf of the Supreme Court, felt that whatever might have been the error committed by the Magistrate, in the circumstances of the case it was not just and proper for the High Court to have remanded that case for fresh trial, when the order of acquittal had been passed nearly 6 years before the judgment of the High Court. Their Lordships of the Supreme Court were of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, that was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers Under Section 482 Cr.P.C., even if for same reasons it came to the conclusion that the acquittal was wrong. It was held that a fresh trial nearly seven years after the alleged incident was bound to result in harassment and abuse of judicial process. Their Lordships also mentioned in their judgment that the termination of the criminal proceedings in that way would secure the ends of justice as it would bring about reconciliation between the management and the employees and also put an end to a stale criminal proceeding in which the public had no longer sufficient interest. From the decision in S. Guin's case (supra), it is difficult to infer that their Lordships of the Supreme Court intended to lay down an outer limit of seven years for concluding the trials other than the capital ones.

6. Relinace was also placed by the learned Counsel for the petitioner on the decision of a learned Single Judge of this Court in the case of petitioner himself in Criminal Misc. Petn. No. 161 of 1982, decided on 5th Dec, 85. In that case, Mangilal Vyas was the petitioner and a criminal case was launched against him by the police in pursuance of an FIR lodged on 1st May, 63, and a charge-sheet was filed against the petitioner and one Mangilal Raiger in the court of Judicial Magistrate, Jhunjhunu, Under Sections 477A, 465 & 468 IPC. The case was then committed to the Court of Sessions Judge, Jhunjhunu, on 31st jan, '68, and the charges were amended on 24th Apr., 73, and then the case was fixed for evidence of the prosecution. As not a single witness for the prosecution was examined, the petitioner, Mangilal Vyas made an application Under Section 561-A, in this Court which was registered as S.B. Cr. Misc. Application No. 315/1969. A revision petition was also filed against the order of the learned Sessions Judge, Jhunjhunu, on 3rd Feb., 1969. Both the application and the revision of by this Court on 2nd Feb., 1976 (illegible) and they were dismissed. Mangilal Vyas petitioner then filed another application Under Section 482 Cr.P.C. in this Court for quashing the proceedings on the ground that he had been facing the trial for about 8 years and there had been no progress in the case. That application was dismissed by this Court on 29th Feb., 78. Against that order of this Court, the petitioner then filed Criminal Appeal No. 417 of 1976, before the; Supreme Court, which was decided on 11th Aug., 1978, and the Supreme Court refused to exercise its power under Article 136 of the Constitution. Their Lordships of the Supreme Court, in that case, observed as under.

In view of the fact that the appellant has been placed under suspension since long and the progress of the case in question has been tarrying, we direct the Sessions Judge and the CJM, Jhunjhunu, to take up the cases against the appellant from day to day and dispose of the same with utmost despatch and expedition.

The petitioner appeared before the Sessions Judge, Jhunjhunu, but the file was received on 24th Oct., 78 from the High Court, and on that date, the learned Sessions Judge orderd for summoning of the witnesses listed at Nos. 3, 8, 9, 10, 11 to 14 and 15 to 17 on 17th Jan., 1978. On 16th Jan., 1979 witness Rameshwar listed at S. No. 9 in the list of witnesses was present and no other witnesses were present. An application was filed by the Public Prosecutor that Rameshwar was to prove rokar No. 1692 of the Society and the same was not available. Rameshwar was discharged and was ordered to be summoned after receipt of the record. The case was taken up again on 17th Jan., 79. On that date, two witnesses were present. A request was made by the learned Public Prosecutor that the documents to which the witnesses related were not available. The statements of the witnesses could not be recorded. The witnesses were discharged and it was ordered that they would be summoned after receipt of the record.

7. Mr. Tibrewal argued that neither the Sessions Judge, Jhunjhunu nor the CJM took up the case day to day as ordered by the Supreme Court, and that some of the witnesses were present, but, they could not be examined, as the concerned record was not with the Public Prosecutor or available in the court. According to him, thereafter, no attempt was made to see that simultaneously with the summoning of the witnesses, the concerned record was also summoned. Thereafter, the petitioner Mangilal Vyas filed the Cr. Misc. App. 161/82 before this Court alleging that not a single witness of the prosecuton was examined. In view of the fact that the case jvas not taken up day to day and that the CJM (fiealt with the case in a very casual manner and there had been no progress even after the order of the Supreme Court, Justice M.B. Sharma, who decided the criminal miscellaneous application, held that it would be abuse of the process of the court if the proceedings in the case out of which the miscellaneous application had arisen, was allowed to continue. He, therefore, quashed the proceedings in Criminal case No. 3/79 (pending in the court of CJM, Jhunjhunu) against the accused petitioner and the co-accused Mangilal Raigar even though he had not come to this Court. Mr. Tibrewal strongly relied upon this decision, and more so, because it was delivered in the case of the petitioner.

8. So far as the Supreme Court decision in the case of S. Guin (supra) is concerned the offence of which the appellant therein had been charged was not a serious offence inasumch as the allegations were that obstructive acts were committed by the appellants pursuant to a call of strike given by the employees of the Bank. The nature of the offence as alleged against the appellants in that case was not grave. The appellants in that case had been acquitted by the Magistrate on 27th June, 78. Thereafter, an appeal against the order of acquittal was filed in the Calcutta High Court by the Bank Authorities. The High Court felt that the trial court had missed the essence of the offences with which the appellants has been charged, and therefore, there was failure of justice. Hence, it set aside the judgment of acquittal passed by the Magistrate and remanded the case for retrial for the offences punishable Under Section 341 r/w. Section 34 or Section 149, IPC. Against the verdict of the High Court, the appellants went in appeal before the Supreme Court. Their Lordships of the Supreme Court in that ease observed that whatever might have been the error committed by the Magistrate, in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial when the order of acquittal had been passed nearly six years before the judgment of the High Court, wherein it was further observed that pendency of criminal proceedings for six years before the High Court itself was a regrettable feature of that case, and that, in addition to that, the order directing retrial had resulted in serious prejudice to the appellants. Their Lordships were of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, that was a case in which the High Court should have directed dropping of the proceedings in the exercise of its inherent powers Under Section 482, Cr.P.C. even if for some reason it came to the conclusion that the acquittal was wrong. It was further held therein that the High Court should have dismissed the appeal before it even if it disagreed with the view taken by the trial court with regard to the gist of the offences punishable Under Section 341, IPC, having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants and the difficulties that might have to be encountered in securing the presence of witnesses in case of that nature nearly 7 years after the incident. In the opinion of their Lordships, termination of the criminal proceedings in that way would secure the ends of justice as it would bring about reconciliation between the management and the employees and also put an end to a stale criminal proceeding in which the public had no longer sufficient interest. I agree that there should be speedy public trial of criminal prosecution of all offences irrespective of the fact that the proceedings are trial or an appeal against acquittal. A citizen cannot, for his whole life be kept under mental torture of facing criminal trial with no fault on his part of delaying the trial.

9. Their Lordships of the Supreme Court in State of U.P. v. Kapil Deo Shukla : 1972CriLJ1214 , did not interfere in the order of the Allahabad High Court quashing the criminal proceedings pending against the respondent in the court of Additional Sessions Judge, Allahabad, on charges Under Sections 408, 477A IPC and against dismissal of an application for recalling the order of the High Court. In that case, respondent Kapil Deo was an employee in the then Imperial Bank of India at Allahabad. An FIR was lodged against him on 9th Aug., 46, whereupon the police commenced their investigation. On the completion of the investigation committal proceedings started before the City Magistrate. Those proceedings ended in 1949. The committing Magistrate ordered that the respondent should be tried by the Sessions Court at Allahabad Under Sections 408 & 477A IPC. The respondent accordingly was tried by the Sessions Judge with the aid of Jury in 1950 and was acquitted. On an appeal filed by the State, the High Court by its judgment dt. 12th Aug., 53, set aside the order of acquittal and convicted the respondent Under Sections 408 & 477A, IPC, and imposed sentence of four years' rigorous imprisonment and a fine of Rs. 10,000/-, out of which Rs. 7,000/- were directed to be paid to the Imperial Bank as compensation. Kapil Deo thereupon filed an appeal before the Supreme Court against the conviction and the sentence passed against him by the High Court. His contention was that the memorandum of appeal filed by the State of U.P. in the High Court was not a valid memorandum Under Section 419, CPC. His second contention was that although the entire trial turned on the question as to who was the author of the documents alleged to have been forged and the said documents were all in the English language, it was found as a fact that out of the five jurors, three only had sufficient knowledge of that language, while the fourth knew a very little of it and could not read the documents produced in the case, and the fifth also had no sufficient knowledge of Englich as he could understand letters written in English with some difficulty but could not read English newspapers. The Supreme Court on 14th Oct., 57, allowed the appeal of Kapil Deo and set aside the order of conviction and sentence passed by the High Court. In doing so the Supreme Court, however, observed that it was unfortunate that the prosecution which had been pending so long in respect of an offence which was said to have been committed about 11 years ago, should end like that. However, it was left open to the State Government, if it was so advised to take steps for retrial, and send the case back to Allahabad High Court for proper directions as to whether the retrial should be by a competent Jury or by a Court of Session without a Jury. In April, 1958, the HighCourt' on an application by the State Government Under Section 562-A, Cr. P.C. ordered retrial of the respondent and directed a non-bailable warrant of arrest to be issued against him. Thereupon, the Sessions Judge, Allahabad, made a reference to High Court for directions as to whether the respondent should be tried by him along with a jury. The Allahabad High Court on 17th Sept., 1959, directed that the trial must take place according to law then prevailing and that therefore, the accused should be tried by the Sessions Judge without the help of the Jury. In 1962, however, another division bench of the very same High Court in Ramswarup v. State : AIR1962All58 took a different view and held that a trial is said to commence from the date when a charge is framed against an accused, and that amendment would not apply to or affect any trial before a Court of Session, either by Jury or with the aid of assessors, which was pending at the date of the commencement of the AmendmentAct, and that therefore, such a trial, if proceeded with without the Jury or the assessor, as the case may be, would be null and void. Thus, contrary to whatever was said in the said order dt. 17th Sept. '59, the High Court held that though a trial by jury might be a procedural matter, the right to be so tried, was so substantial that its infringement would vitiate the entire trial. Thereafter, the retrial commenced before the Sessions Judge. At the retrial, two applications were filed by the respondent one was that in view of the decision in Ramswarup's case (supra), he should be tried with the aid of jury; and the second application was that Under Section 173(4) of Cr. P.C., copies of the police papers and other documents on which the prosecution sought to rely, should be furnished to him. The Sessions Judge dismissed both the applications by his order dt. 14th May, 1962. So far as the application for supplying copies of the documents was concerned, the Sessions Judge mentioned in his order that the statements Under Section 161, Cr.P.C. were not traceable, and therefore, copies could not be granted, but, copies of other papers on which the prosecution wanted to rely would be furnished to the accused before commencement of the trial The accused then went to High Court in revision which was dismissed. So far as the question of trial without Jury was concerned, the Sessions Judge mentioned in his order that he was directed by the High Court to proceed with the trial without the Jury. Then, on 15th July, '64, the accused-respondent filed a miscellaneous application Under Section 561Aof the Cr.P.C. before the High Court, for quashing the proceedings before the Additional Sessions Judge on the ground that copies of the police papers and other documents were not made available to him although retrial had been fixed for 15th July, '64, and that 18 years had elapsed since the prosecution against him had begun; that in the meantime, many of the witnesses had either gone away to England or had retired, and therefore, would then not be available. The High Court dismissed the application on 21st Jan. '65. Then Kapil Deo moved an application to the State Government on 12th Feb., '65 for withdrawal of the case against him. By its order dt. 2nd April, '65, the Government informed him that it would consider the withdrawal of the case, provided he was prepared to deposit the amount said to have been embezzled by him. The accused once again approached the Government, requesting the Government to agree to his paying a sum of Rs. 1,000/-. By its office memorandum dt. 16th Nov. 1965, the Government directed, in partial modification of its earlier order that it would consider the i withdrawal of the case provided that respondent paid Rs. 4,000/- out of the embezzled amount. The accused deposited a cheque of Rs. 4,000/- with the District Magistrate. Thereafter, in Oct. '66, Kapil Deo filed a fresh application before the High Court Under Section 561-A for quashing the trial before the Sessions Court. The High Court allowed the said application and quashed the proceedings before the Additional Sessions Judge. The State of U.P. then came to Supreme Court in i appeal. The question for consideration before the Supreme Court was whether in those circumstances of a somewhat extraordinary nature and specially the lapse of nearly twenty years since the trial against the respondent had begun, it should interfere with the High Court's said orders. In deciding this question,; the Supreme Court observed that although Kapil Deo was facing serious charges of public ' nature and it was regrettable that trial should not be proceeded with, but, as against that, equally there was the fact that on account of long lapse of time and impossibility of the accused being supplied with the copies of the police statements and other relevant documents was likely to end in the trial not being fair and just. Their Lordships of the Supreme Court, therefore, neither considered it expedient nor in the larger interest of justice to interfere in the High Court's order.

10. The above narration of facts of the Supreme Court case, would go to show that there were extraordinary circumstances in that case, the extraordinary circumstances were that there had been acquittal of Kapil Deo by the Sessions Judge in the year 1950. On appeal, the High Court convicted him vide its judgment dt. 12th Aug. '53. That conviction was set aside by the Supreme Court on the ground that there was mis trial because some of the members of the Jury had no sufficient knowledge of English then, there was some confusion whether the retrial should be with the assistance of the jury or without jury on account of the fact that one of the Jurors knew a very little English, and one another had no sufficient knowledge of English, as he could understand letters written in English with some difficulty. The High Court on an application Under Section 561-A of the Cri.P.C. filed by the accused Kapil Deo and decided on 17th Sept. '59, held that the trial might take place with the aid of the Jury. Then, there was a conflict of decisions in the same High Court in Ramswarup's case (1962 (1) Cri LJ 113) (supra). Relying upon that decision Kapil Deo moved an application that he may be tried with the aid of Jury. He also moved another application for supplying him documents Under Section 161, Cr.P.C. Those documents were not traceable. There was a revision against the order passed by the -Sessions Judge for trying the case without the jury, which was dismissed by the High Court. Then there was a further application by the accused Under Section 561-A, Cr.P.C. before the High Court for quashing the proceedings on the ground that police papers and other ' documents were not made available to him although retrial had been fixed after 18 years had elapsed, and meantime many of witnesses had run away to England or had retired. The High Court dismissed that application. Then, there were negotiations with the State Government, for withdrawal of the prosecution. In pursuance of the said negotiation, the accused was asked to deposit a sum of Rs. 4,000/- out of the embezzled amount, which ultimately he did by depositing a cheque with the District Magistrate, of Rs. 4,000/-, and the Government encashed it. Subsequently the Government changed its mind and informed the trial court that the case should be proceeded with. Then, there was a fresh application on 17th Oct. '66 on behalf of the accused, for quashing the trial. That application was Under Section 561-A, Cr.P.C, which came up for hearing on 16th Mar. '67. The Government did not file any reply to the assertions made by the accused, and also did not file any affidavit to that effect. The Allahabad High Court quashed the proceedings. As already stated above, what weighed with the Supreme Court in Kapil Deo's case, was that failure of the prosecution to supply copies of the statements Under Section 161, Cr.P.C. and other documents Under Section 173, Cr.P.C. would affect the trial, which has already protracted for one reason or the other for 20 years or more; the accused had already remained in jail as an undertrial prisoner for about 9 months; and lastly the possibility of the witnesses' memory failing owing to such a long lapse of time to identify the writings in question being those of the respondent. Some of witnesses had retired long ago and even had settled in England and their availability was doubtful. The statements Under Section 161, Cr.P.C. which were recorded in the year 1946, could not be furnished and thus, most valuable right of the accused was denied which would have caused prejudice to the accused. In such circumstances, the Supreme Courtheld that it was neither expedient nor in the larger interest of justice that the' trial with all the aforesaid deficiencies should be allowed to proceed, and in any event, they did not think it fit to interfere with the order of the High Court in an appeal under Article 136 of the Constitution.

11. It is true that the court should not keep persons under trial for their lives under indefinite suspense. Justice is not one sided it has many facets, and we have to draw a nice balance between rights and duties. When it is incumbent upon the court to see that the guilty should not escape, it is even more nefcessary to see that persons accused of crimes, are not unnecessarily harassed This proposition of imparting criminal justice is very settled since the decision of their Lordships of the Supreme Court in case of Machander v. State of Hyderabad : 1955CriLJ1644 .

12. Mr. Tibrewal also referred to a single Bench decision of this Court in the case of Rampratap v. State (1961 Raj LW 119) In that case, Rampratap was a cashier at Tehsil-Lalsot. In the year 1952-53, he committed breach of trust in respect of various sums of money received by him in his capacity as cashier. Originally, he was prosecuted sometime in the year 1954 or 1955 Under Section 409, IPC, in respect of an amount of Rs. 68-6-0 consisting of three items of Re. 1/-, Annas 4 and Rs. 67/2/. Although he was convicted by the Extra Magistrate, Dausa, but on appeal, the Sessions Judge set aside his conviction. Subsequent to that, the police put up three challans against the accused in respect of particular sums of money misappropriated by him in the year 1952 and 1953. The amount alleged to have been misappropriated totalled to Rs. 929/11/6 in one case and in other two cases Rs. 673/8/3 and 471/9/6. The Magistrate after the trial, came to the conclusion that there was no misappropriation regarding the item of Rs. 673/8/3 of case No. 45/57 and that there was also doubt regarding some items included in the charges in cases Nos. 31 and 190. However, in respect of the specific items, he found the charge proved and convicted the accused and passed sentence. On appeal, the Addl. Sessions Judge maintained the sentence. In revision before the High Court, the counsel for the accused did not challenge the conviction, but, he requested only for reduction in sentence. His argument was that the accused having been tried in respect of some sums of money alleged to have been misappropriated in the year 1953, it was hardly desirable that he should have been again prosecuted in respect of other sums of money alleged to have been misappropriated in the same year. His contention was that Section 222(2), Cr.P.C. contemplated generally one trial in respect of all the sums misappropriated during the space of one year. Justice Chhangani in that case observed that in strict theoretical sense, misappropriation of different sums of money during one year constitutes separate offence. On this consideration, the prosecution should be under an obligation to specify specific sums of money misappropriated and to prosecute an accused at one trial only in respect of three items. His Lordship further observed therein that there was also a difficulty in the absence of any provision enabling the clubbing together of different items, it was not possible for the prosecution to prosecute at one trial more than three acts of criminal breach of trust though committed in course of the same year and by the same accused. In order to avoid the difficulties of the prosecution, Sub-section (2) of Section 222, Cr.P.C. was introduced, and it was laid down that after the introduction of this provision, it is not necessary to specify the items in respect of which the offence was committed, and that, subsequent trials being not illegal, no rigid and hard rule should be laid down for the determination of the question of. the desirability of a second trial in the abstract. It was also observed that the subordinate courts, of course, cannot prevent such trials, and it is only the High Court which can direct so in exercise of its inherent jurisdiction Under Section 561 A, Cr.P.C. So, if a second trial is held and the accused is convicted, the conviction is legal and cannot be quashed. Justice Chhangani dismissed the revision petition of Rampratap, but, he however, reduced the sentence of 2 years' rigorous imprisonment to 6 months' rigorous imprisonment.

13. On the facts of the case before me, the decision in the case of Rampratap (1961; Raj LW 119) (supra) does not help the petitioner for the simple reason that the embezzlements which are alleged to have been made by the petitioner, pertain to different Sahkari Samitis, for which, the petitioner used to maintain separate records. In Rampratap's case (supra), the accusedwas a cashier at Tehsil-Lalsot, and in that capacity, he committed criminal breach of trust of the amount received by him as cashier at Tehsil-Lalsot. In the instant case, the allegations are that the petitioner received the amount from different Sahkari Samitis.

14. I have already dealt with the decision of the learned single Judge of this Court in the petitioner's own case which came by way of S.B. Misc. Petn. No. 161 of 1982 Under Section 482, Cr.P.C. for quashing the proceedings against the petitioner in respect of another case. The distinguishing feature in the case covered by Miscellaneous Petition No. 161/82, was that although the case was committed to the Court of Sessions Judge, Jhunjhunu under Order dt. 31st Jan. '68, but for about 18 months, not a single prosecution witness was examined. I would presently show that the facts of the case before me are somewhat distinguishable.

15. I shall first deal with Criminal Case No. 22/64 which is the oldest number assigned to the case. Subsequently, this case was assigned Criminal Case No. 22/74, and the present number is 270/86. In this case, which related to an embezzlement of Rs. 500/-, the police had filed a charge sheet on 4th Feb. '64.1 have carefully gone through the entire proceedings of this case from 4th Feb. '64 to 25th May, '67. I do not find that during this period of 3 years, there was any negligence on the part of the trial court in further proceeding with this case. On the other hand, the proceedings dt. 4th Apr., '64, 26th June, '64,24th Apr., 65,15th Jan., '66,3rd Mar. '66 and 13th Oct. '66, would go to show that the trial court examined all the witnesses who were present in the court. On some of the dates the case was adjourned either on the ground that the presiding officer was on leave or he was not holding court on account of inspection of Nyaya Panchayat or was on other government duties. There were several dates, on which adjournments were sought on behalf of the accused. These dates are 22nd Feb. '65 and 23rd Apr., '65. Even after the prosecution evidence was over, and the case had been fixed for final arguments, an application was moved for recalling some witnesses. One such witness Gambhirsing was recalled and examined on 13th Oct. '66. The defence evidence was also completed expeditiously. Final arguments were completed on 27th Feb. '67. The Magistrate 67 and held the petitioner guilty of offence charged against him, but he granted him benefit of Section 4 of the Probation of Offenders Act, 1958. That would have terminated.the criminal prosecution which the petitioner alleges has become protracted, but the petitioner himself did not become content despite the fact that benefit was given to him Under Section 4 of the Probation of Offenders Act, because, he wanted clear cut acquittal. He, therefore, filed Criminal Appeal No. 54/67, before the Sessions Judge, Jhunjhunu, who allowed the said appeal and set aside the conviction on 30th Mar. '68. The State then filed a criminal appeal against the said acquittal of the accused-petitioner before the High Court. Instead of getting verdict from this Court, the petitioner wanted to get the case remanded on the ground that he had moved certain applications before the trial court on Oct. 8 and Nov. 7, 1984 as also on 5th Jan., 1965,22nd Feb. 1965 and 27th June, 1965 for summoning certain documents, but they had not been sent for or were ignored, whereby, he was prejudiced. The prosecution as well as the petitioner had no objection before this Court in remanding of the case to the trial court. Therefore, this Court on 10th Sept. 71, setting aside the judgment of the trial court as well as Sessions Court, remanded the case to the trial court ordering that the documents asked for by the petitioner in his applications be sent for and that the prosecution witnesses be allowed to cross-examine and re-examine in relation to those documents and then the whole evidence be re-assessed and fresh judgment be given in accordance with law. this Court directed that the trial court shall dispose of the case expeditiously. It is here pertinent to note that after the trial court had decided the case on 22nd May, '67 and convicted the petitioner, the file of the case was not received back by the trial court for about 41/2 years, which was received by it on 17th Jan. '72, because, in between, the petitioner had filed Criminal Appeal No. 54/67 before the Sessions Judge, and the State had filed Cr. Appeal No. 378/68 before the High Court and the High Court decided the appeal on 10th Sept., '71. Trial Court has expedited the case, because the proceedings go to show that the trial court was very much conscious of deciding the case expeditiously. However, it seems that the petitioner was more interested to get the prosecution quashed on account of protracted criminal proceedings, and he, therefore, moved one application after another for quashing the proceedings and the trial was very much hampered on account of petitioner's own conduct. The petitioner filed application Under Section 482, Cr.P.C., which was registered as S.B. Cr. Misc. Petition No. 1671/74, for quashing the proceedings on account of the protracted trial, and that application was very much vehemently argued before a learned single Judge of this Court. In that petition, reliance was placed on the decision of the Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh : 1975CriLJ812 ; and on the decision of this Court in the case of petitioner himself in S.B. Cr. Misc. Petn. No. 348 of 1967 decided on 12th Dec, 1967. S.B. Cr. Misc, Petition was decided on Feb. 20, 1976 by Hon'ble Justice M.L. Jain, wherein, the learned Judge very rightly and beautifully stated in the concluding para of his order that 'the case of the prosecution appears to be that about one lakh of rupees were embezzled by the accused. The cases which are pending against the accused are regarding the amounts of different societies which were affiliated to the said bank. It is also the case of the State that these embezzlements came to the knowledge when the audit of the societies took place.' In that case, Justice Jain was of the view that the prosecution has been quite slow - the accused had been suspended, and he has to go to Jhunjhunu every time in several cases to face trial, which had caused him difficulty but, he observed pertinently that 'it was the petitioner who was to blame himself for it all'. He also noted very rightly that 'it is highly desirable and expedient in the interest of the co-operative movement and of public in general that the offender must be prosecuted once a prima facie case is made out against him even if he has to face a number of trials'. Justice Jain dismissed that petition on 20th Feb. '76. The petitioner was still not ready to face trial. He went to Supreme Court and failed there also on 9th Sept., '78. Then on 25th Sept. '79, the petitioner filed an application before the trial court that the prosecution was not producing relevant defence documents. That application was decided by the CJM on 25th Jan. '80. The order of the CJM goes to show that it had already come on record that the documents were not in possession of the prosecution side. There was only one counterfoil of a voucher dt. 6th Feb. '63, which was summoned from the Sahkari Samiti, and when the same was not received in the trial court, it issued a search-warrant, but, no such document was found. The rest of the documents had been received. Effective proceedings have been taken by the trial court. It may be mentioned here that the petitioner was requiring some documents of the Central Co-operative Bank which were not in possession of the Bank but were before this Court in S.B. Civil Writ Petition No. 1839/72. The trial court even sent a letter to this Court, but, it was informed that the documents could not be sent before 13th Feb. '80. Thus, the prosecution was not at all responsible of being blamed for any a delaying tactics. On the other hand, it has become clear from the order-sheet dt. 14th June, '82 that the petitioner himself was adopting delaying tactics. It has already been mentioned that when the State came in appeal (378/68) before this Court, against the acquittal of the petitioner by the Sessions Judge, Jhunjhunu, instead of appeal being allowed to be argued on merits, a contention was raised on behalf of the accused himself that certain applications made by him on different dates, were not decided by the trial court. It is important here to note that on 14th June, '82 after 11 years of the judgment of the High Court in Cr. Appeal No. 378/68, it was told by the accused as well as his counsel to the trial court that he did not want to cross-examine any of the prosecution witnesses on the documents mentioned in his those very applications dt. 8th Oct. '64, 7th Nov., '64, 5th Jan. '65, 22nd Feb. '65 and 27th June, '65, and he did not want to press them. He only wanted the voucher dt. 6th Feb. '63 of Devipura Gram Sahkari Samiti, which was not received despite issue of search-warrant. So, this was the conduct of the petitioner from the year 1967 to 14th June, '82. The present stage in the case is that the case was fixed for 27th Nov., '86 for defence evidence. The defence evidence obviously cannot be much, because the petitioner has already adduced defence evidence, and after the case has been remanded by the High Court, the petitioner after about 11 years stated that he is not interested in any document, for which he had made different applications in the years 1964 to 1965. It is a type of case where the petitioner himself wants to avoid the trial and was interested in protracting it by taking one proceeding after another inasmuch as after this Court's remand order, the petitioner came to High Court tor quashing the proceedings and went up to Supreme Court, and when he failed ultimately, he has come for the second time before this Court for quashing the proceedings.

16. In the light of the facts narrated above, it is not at all in the interest of justice to quash the proceedings for the reasons alleged by the petitioner in view of my above findings. I repeat what Justice Jain had said in the concluding part of his order dt. 20th Feb. 1976 in Cr. Misc. Petition No. 1671/74, that it is highly desirable and expedient in the interest of co-operative movement and the larger; public interest that an offender against whom charges are of embezzlement of amounts entrusted to him by various Sahkari Samities, prosecution should come to its legitimate end and the accused should not be allowed to abuse the process of court by delaying himself he criminal proceedings which he is now facing by his own conduct.

17. I refuse to quash the proceedings in the aforesaid Criminal Case No. 22/64 (Oldest), later numbered 22/74 and now numbered 270/86 (new number).

18. I need not go into the details of the other cases, which have likewise proceeded and in all of them, there is charge against the petitioner of embezzlement of amounts received from various Sahkari Samities. If the trials in such cases are quashed, the Sahkari movement would receive a serious setback, and opportunity would be taken by persons, who happen to occupy one position or the other in the co-operative societies at the lowest level or at the apex, to frustrate this movement by embezzling its money.

19. I, therefore, dismiss all the eight Criminal Miscellaneous Petitions Nos. 702 to 709 of 1986, filed in this Court under Section 482, Cr.P.C.; and direct the trial court to proceed with the cases against the accused-petitioner now day to day and decide them very epeditiously.