STATE BY INSPECTOR OF POLICE, CRIME BRANCH, C.I.D., SALEM DIVISION, HASTHAMPATTI POLICE STATION Vs. VAZHGA VAIYAGAM ENTERPRISES REP. BY ITS MANAGING DIRECTOR, K. PALANISAMY AND ORS.

JUDGEMENT

(1.) THE respondents/accused were prosecuted by the Petitioner for offences under Section 4 read with Sections 3, 5(a) and 5(e) of prize chits and money circulation Scheme (Banning) Act, 1978. The Respondents filed separate petition under Section 239 of Criminal Procedure Code for discharge based upon the decision of the Apex Court in "Common Cause", A Registered Society Through Its Director v. Union of India and Ors., 1997 SCC (Cri) 42. The Respondents contended that they were appearing before the court for more than two years and in spite of this, the trial has not yet commenced and based upon the aforesaid decision, they want to be discharged from the case. The prosecution Agency opposed the application and after hearing the parties, the learned Judge discharged the Respondents under Section 239 of Code of Criminal Procedure and aggrieved against this, the present revisions have been filed by the State.

(2.) HEARD the learned Counsel of both sides.

(3.) POINT : It is not in dispute that the state represented by the Inspector of Police, Crime Branch, C.I.D., Salem filed the final report against these Respondents in Crime No. 479 of 1991 on 15.2.1993. However, the copies were furnished to the accused only on 11.6.1996. The Respondents filed application for discharge based upon the Common Cause Case (Cited Supra) on 31.12.1996 and orders were passed on 31.1.1997. Learned Government Advocate (criminal side) contended that the order passed by the Court below is not proper and correct. The Principle laid under the Common Cause Case is not applicable to the case of the Respondents. The delay claimed to have been occurred is not because of the conduct of either the prosecution machinery or the court and the same was entirely due to the deliberate conduct on the part of the accused in absenting themselves in attending the court for the court for the purpose of framing of the charges. Offences relating to Criminal misappropriation of property of the complainant as well as the offences relating to Criminal breach of trust under Indian Penal Code and the offence of cheating are excluded from the purview of the case referred to above. The directions 1 and 2 made in the said judgment are not applicable to the case of the Respondents. There was a proposal by the Government to constitute a Special Court in view of the involvement of the huge sums of public money and as such, the court has to await for the orders of the Government between 16.2.1993 and 8.4.1994 and only on 8.4.1994 the proposal to constitute a special Court was dropped and, as such, this period has to be excluded. The accused also filed several petitions for discharge on flimsy grounds and it also consumed the time of the court in disposing the petitions. The amount involved relating to the case is very huge and voluminous records and number of witnesses also took considerable time for preparation of the copies and furnishing, the same to the accused. The commencement of the period of the delay must be only from the date of commencement of trial i.e., from the date of framing the charge and not from the date of appearance of the accused and, as such, the order of the lower court is biased and not sustainable in law and, as such, liable to be set aside.