Ajit Kumar Burman Vs. the State of West Bengal - Court Judgment

Excerpt:
- orders. narayan, j.1. this petition, being one under section 401 read with section 482 of the cr.p.c. is directed against the order dated 30-4-1991 passed by shri a.b. lahiri, judge, 1st special court, suri, birbhum in special court case no. 6 of 1988 (g.r. no. 408/82), whereby the petitioner's prayer to quash a pending proceeding under section 409 of the i.p.c. was refused.2. the petitioner ajit kumar burman was sought to be prosecuted along with co-accused santosh kumar roy on the basis of a f.i.r. dated 5-7-1982 issued for the offence under section 409 of the i.p.c. the petitioner was a godown keeper of a warehouse of m/s. west bengal state warehousing corporation, wherein fertilisers of different kinds were stored. on 26-6-1981, in course of an internal audit of the corporation it was detected that a stock of ten metric tons of a.n.p. fertilizer valued at rs. 22,000/-, approximately, was shown delivered in the stock ledger without any order for such delivery by the depositor and/or any valid supporting documents authorising actual delivery of such fertilizer from the appropriate authority. it has been alleged that the petitioner taking advantage of fictitious entry made in the stock register wrongfully secreted the said stock by setting up another record of delivery often metric tons of a.n.p. fertilizer, made on 8-12-1979. the said delivery of ten metric tons of fertilizer on 8-12-1979 was actually set off against d.o. no. 08709 dated 8-12-1979 placed at the warehouse on 10-12-1979 by striking out the entry made on 8-12-1979. it is further alleged that there was a conspiracy behind it and that co-accused santosh kumar (not petitioner) entered into the conspiracy and took delivery of the stock as per direction of his employer.3. since the solitary ground for quashing the proceeding as raised in the instant revision petition is in exercise of right to a speedy trial granted under article 21 of the constitution of india, it would be primarily relevant to trace out the history of the proceeding through which it has been processed over since the alleged commission of the crime.4. the period when the offence was allegedly committed is said to be from 7-10-1977 to 19-12-1979 when the petitioner was holding charge of the stock at the said warehouse. the alleged misappropriation of the stock is said to have been made on 8-12-1979 when it was shown to have been delivered against a letter issued by the sales officer, hindustan fertilizer corporation ltd. the alleged crime could not catch light of the day unless there was an internal audit and a report dated 26-6-1981 was submitted in this regard. it would be relevant to point out that prior to the audit, the petitioner had been transferred from the concerned warehouse and he had joined the office of taratala branch of the state warehousing corporation some time in the month of january, 1980 and, subsequently, he had also retired from the service with effect from 31-1-1981. after lapse of about a year of the internal audit report, a complaint to that effect was made to the secretary of the warehousing corporation on or about 15-6-1982. thereupon, on 5-7-1982, a f.i.r. was lodged before the police station, sainthia, district birbhum. the petitioner surrendered before the court of s.d.j.m, suri on 27-10-1984 and, thereafter, he was granted bail on 5-11-1984. after lapse of about 5 1/2 years of the f.i.r. the police submitted a charge-sheet dated 4-12-1987 before the s.d.j.m, suri on 9-1-1988. after the case record was transferred from the court of s.d.j.m, suri to the special court, birbhum, the petitioner submitted an application dated 21-7-1989 praying for supply of copies of the report of hand writing expert, yet another petition dated 21-4-1990 was filed by the petitioner for supply of copies of the documents along with the seizure list. the copies of the police papers, on the direction of the special court birbhum, were supplied to the petitioner on 14-12-1990 i.e., after about 3 years of the submission of the charge sheet and, thereupon, the case was taken up for consideration of charge. the petitioner filed a petition dated 7-2-1991 praying for discharge, which was refused by the impugned order.5. thus, what is most glaring to note is that even though the f.i.r. was issued on 5-7-1982, the chargesheet was filed only on 9-1-1988 i.e., after a lapse of 5 1/2 years. in the name of an explanation for this, it could be simply submitted on behalf of the prosecution that the police investigating officer had prayed before the court of s.d.j.m. for taking a specimen handwriting of the petitioner on 19-7-1985 and it was actually taken on 7-11-1985. in my opinion, this can hardly explain the inordinate delay of 5 1/2 years the time consumed under police investigation for submission of chargesheet. first, since the petitioner was under employment of the state ware housing corporation, there were a number of records under his writing and signatures available in the office of the informant, and those could be examined by hand writing expert for the purpose of investigation. besides this, the petitioner had already entered appearance in the proceeding on 20-7-1984 and so had any step for obtaining his specimen handwriting been taken earlier, the investigation on that score could have been expedited in normal course.6. therefore, the above explanation given for inordinate delay in submitting the chargesheet for 5 1/2 years was not acceptable. in this context shri deepak kumar sengupta, the learned counsel appearing on behalf of the petitioner has cited an authority reported in 1994 (3) scc (supp) 97, wherein the right to a speedy trial was upheld in a particular case in which, as against the f.i.r. issued on 10-12-1977, the chargesheet was filed on 9-2-1983 i.e., after a lapse on 5 years for the offences under sections 408 and 428 of the i.p.c. and section 7 of the essential commodities act. that also was a case in which fertilizer worth rs. 1,15,000/- was found short while the accused in that case was working as a depot manager under the bihar state co-operative marketing union at sitamari in the state of bihar. the supreme court observed that though the case was of misappropriation of public funds, the investigation may have taken a longer time but it cannot certainly take more than 5 years, having regard to the facts and circumstances of the case. the instant case also more or less appears to be similarly situated. thus, banking upon this authoritative decision of the supreme court i do feel inclined to grant relief as sought for on behalf of the petitioner.7. i may, however, also cite an authority referred to on behalf of the prosecution/op.p. being 1993 cri lr 23 (cal) of this high court, wherein the prayer on the ground of right to speedy trial was refused. that was however, a case wherein the right to a speedy trial was not disputed on principle. it was simply observed therein that there was need to strike at balance between the right to a speedy trial of the accused and the right of the prosecution to prosecute the criminal proceedings. it is true that right to a speedy trial as guaranteed under article 21 of the constitution has to be made available depending upon the individual merit of a case, as, in the instant case. i do find as noted above that the inordinate delay in submitted the chargesheet has certainly caused entitlement to the petitioner for quashing the proceeding.8. apart from what has been taken as a glaring most aspect of the case regarding a prolonged prosecution, it was further significant to note that the delay would also cause some sort of prejudice to the petitioner, if he is called upon now to enter upon defence after about 16 years of the alleged occurrence. the alleged occurrence of delivery of fertilizer took place as long back as on 8-12-1979 and, thereafter, the petitioner also retired from his service on 31-1-1981, which was even earlier than the internal audit report dated 26-6-1981. had the concerned authority detected the alleged crime well in time or in due course before the superannuation of the petitioner it would have been possible for him to explaint the things on the record as to how the delivery of the fertilizer had been given, and whether it was bona fide on the basis of the proper authority and in due course of official transaction. the defence in the case would thus be certainly prejudiced if the petitioner is called upon to enter into the defence after about 16 years of the alleged occurrence.9. for the reasons above i am of the definite opinion that the petitioner's right to a speedy trial has been infringed in this case and accordingly the prosecution launched against him is liable to be quashed. the revision petition is thus allowed and the criminal proceeding against the petitioner as noticed above is quashed here with.

Judgment:
ORDER

S. Narayan, J.

1. This petition, being one under Section 401 read with Section 482 of the Cr.P.C. is directed against the order dated 30-4-1991 passed by Shri A.B. Lahiri, Judge, 1st Special Court, Suri, Birbhum in special Court Case No. 6 of 1988 (G.R. No. 408/82), whereby the petitioner's prayer to quash a pending proceeding under Section 409 of the I.P.C. was refused.

2. The petitioner Ajit Kumar Burman was sought to be prosecuted along with co-accused Santosh Kumar Roy on the basis of a F.I.R. dated 5-7-1982 issued for the offence under Section 409 of the I.P.C. The petitioner was a godown keeper of a warehouse of M/s. West Bengal State Warehousing Corporation, wherein fertilisers of different kinds were stored. On 26-6-1981, in course of an internal audit of the Corporation it was detected that a stock of ten metric tons of A.N.P. Fertilizer valued at Rs. 22,000/-, approximately, was shown delivered in the stock ledger without any order for such delivery by the depositor and/or any valid supporting documents authorising actual delivery of such fertilizer from the appropriate authority. It has been alleged that the petitioner taking advantage of fictitious entry made in the stock register wrongfully secreted the said stock by setting up another record of delivery often metric tons of A.N.P. Fertilizer, made on 8-12-1979. The said delivery of ten metric tons of fertilizer on 8-12-1979 was actually set off against D.O. No. 08709 dated 8-12-1979 placed at the Warehouse on 10-12-1979 by striking out the entry made on 8-12-1979. It is further alleged that there was a conspiracy behind it and that co-accused Santosh Kumar (not petitioner) entered into the conspiracy and took delivery of the stock as per direction of his employer.

3. Since the solitary ground for quashing the proceeding as raised in the instant revision petition is in exercise of right to a speedy trial granted under Article 21 of the Constitution of India, it would be primarily relevant to trace out the history of the proceeding through which it has been processed over since the alleged commission of the crime.

4. The period when the offence was allegedly committed is said to be from 7-10-1977 to 19-12-1979 when the petitioner was holding charge of the stock at the said warehouse. The alleged misappropriation of the stock is said to have been made on 8-12-1979 when it was shown to have been delivered against a letter issued by the Sales Officer, Hindustan Fertilizer Corporation Ltd. The alleged crime could not catch light of the day unless there was an internal audit and a report dated 26-6-1981 was submitted in this regard. It would be relevant to point out that prior to the audit, the petitioner had been transferred from the concerned warehouse and he had joined the office of Taratala Branch of the State Warehousing Corporation some time in the month of January, 1980 and, subsequently, he had also retired from the service with effect from 31-1-1981. After lapse of about a year of the internal audit report, a complaint to that effect was made to the Secretary of the Warehousing Corporation on or about 15-6-1982. Thereupon, on 5-7-1982, a F.I.R. was lodged before the Police Station, Sainthia, District Birbhum. The petitioner surrendered before the court of S.D.J.M, Suri on 27-10-1984 and, thereafter, he was granted bail on 5-11-1984. After lapse of about 5 1/2 years of the F.I.R. the police submitted a charge-sheet dated 4-12-1987 before the S.D.J.M, Suri on 9-1-1988. After the case record was transferred from the Court of S.D.J.M, Suri to the Special Court, Birbhum, the petitioner submitted an application dated 21-7-1989 praying for supply of copies of the report of hand writing expert, yet another petition dated 21-4-1990 was filed by the petitioner for supply of copies of the documents along with the seizure list. The copies of the police papers, on the direction of the Special Court Birbhum, were supplied to the petitioner on 14-12-1990 i.e., after about 3 years of the submission of the charge sheet and, thereupon, the case was taken up for consideration of charge. The petitioner filed a petition dated 7-2-1991 praying for discharge, which was refused by the impugned order.

5. Thus, what is most glaring to note is that even though the F.I.R. was issued on 5-7-1982, the chargesheet was filed only on 9-1-1988 i.e., after a lapse of 5 1/2 years. In the name of an explanation for this, it could be simply submitted on behalf of the prosecution that the Police Investigating Officer had prayed before the Court of S.D.J.M. for taking a specimen handwriting of the petitioner on 19-7-1985 and it was actually taken on 7-11-1985. In my opinion, this can hardly explain the inordinate delay of 5 1/2 years the time consumed under Police investigation for submission of chargesheet. First, since the petitioner was under employment of the State Ware housing Corporation, there were a number of records under his writing and signatures available in the office of the informant, and those could be examined by hand writing expert for the purpose of investigation. Besides this, the petitioner had already entered appearance in the proceeding on 20-7-1984 and so had any step for obtaining his specimen handwriting been taken earlier, the investigation on that score could have been expedited in normal course.

6. Therefore, the above explanation given for inordinate delay in submitting the chargesheet for 5 1/2 years was not acceptable. In this context Shri Deepak Kumar Sengupta, the learned counsel appearing on behalf of the petitioner has cited an authority reported in 1994 (3) SCC (Supp) 97, wherein the right to a speedy trial was upheld in a particular case in which, as against the F.I.R. issued on 10-12-1977, the chargesheet was filed on 9-2-1983 i.e., after a lapse on 5 years for the offences under Sections 408 and 428 of the I.P.C. and Section 7 of the Essential Commodities Act. That also was a case in which fertilizer worth Rs. 1,15,000/- was found short while the accused in that case was working as a Depot Manager under the Bihar State Co-operative Marketing Union at Sitamari in the State of Bihar. The Supreme Court observed that though the case was of misappropriation of public funds, the investigation may have taken a longer time but it cannot certainly take more than 5 years, having regard to the facts and circumstances of the case. The instant case also more or less appears to be similarly situated. Thus, banking upon this authoritative decision of the Supreme Court I do feel inclined to grant relief as sought for on behalf of the petitioner.

7. I may, however, also cite an authority referred to on behalf of the prosecution/OP.P. being 1993 Cri LR 23 (Cal) of this High Court, wherein the prayer on the ground of right to speedy trial was refused. That was however, a case wherein the right to a speedy trial was not disputed on principle. It was simply observed therein that there was need to strike at balance between the right to a speedy trial of the accused and the right of the prosecution to prosecute the criminal proceedings. It is true that right to a speedy trial as guaranteed under Article 21 of the Constitution has to be made available depending upon the individual merit of a case, as, in the instant case. I do find as noted above that the inordinate delay in submitted the chargesheet has certainly caused entitlement to the petitioner for quashing the proceeding.

8. Apart from what has been taken as a glaring most aspect of the case regarding a prolonged prosecution, it was further significant to note that the delay would also cause some sort of prejudice to the petitioner, if he is called upon now to enter upon defence after about 16 years of the alleged occurrence. The alleged occurrence of delivery of fertilizer took place as long back as on 8-12-1979 and, thereafter, the petitioner also retired from his service on 31-1-1981, which was even earlier than the internal audit report dated 26-6-1981. Had the concerned authority detected the alleged crime well in time or in due course before the superannuation of the petitioner it would have been possible for him to explaint the things on the record as to how the delivery of the fertilizer had been given, and whether it was bona fide on the basis of the proper authority and in due course of official transaction. The defence in the case would thus be certainly prejudiced if the petitioner is called upon to enter into the defence after about 16 years of the alleged occurrence.

9. For the reasons above I am of the definite opinion that the petitioner's right to a speedy trial has been infringed in this case and accordingly the prosecution launched against him is liable to be quashed. The revision petition is thus allowed and the criminal proceeding against the petitioner as noticed above is quashed here with.