VISHWANATH MAHADEV KARKHANIS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant in this case, a senior retired Railway clerk, came to be charge-sheeted by the Central Bureau of Investigation in Special Case No. 27 of 1978 along with four of his colleagues. The five accused stood charged with having committed an offence of conspiracy punishable under section 120-B of the Indian Penal Code. The learned Special Judge, Bombay, framed as many as 12 charges, some of them relating to abuse of position and securing gain, being offences under the Prevention of Corruption Act; charges relating to cheating of the Western Railway as also offences relating to fabrication of records. The charges are being summarily dealt with by me because on a prime facie scrutiny of the 12 charges, it is noticed that several of these charges were wholly unnecessary in so far as there is a repetition of the same charges which are all overlapping. There are reasons, however, why the technical errors or procedural errors involved in this case, though of consequence and being ones of a substantial nature, are not the only heads that are being considered because, to my mind the consequences of this prosecution being extremely serious and far-reaching to the concerned employees, it is essential that the case be dealt with also on merits so that a complete and final decision can be arrived at.

(2.) BRIEFLY stated, the prosecution alleged that between the period October 1973 and December 1975, the five accused persons who had dealt with the refunds in relation to unused or partially used tickets had entered into a criminal conspiracy, the object of which was to secure for themselves pecuniary gain misuse of their positions. It was alleged that accused No. 1 was the sanctioning authority and the four accused were clerks in his department dealing with issues relating to these refunds and that in certain cases though refunds were, in fact, shown that the amounts did not reach the passengers. Unfortunately, though the record of the case is voluminous and though a prestigious investigating authority, such as the Central Bureau of Investigation, was entrusted with the investigation of this case, I am constrained to observe that the combined efforts of the C. B. I. and the Railway have only succeeded in making a mountain out of a mole-hill. After the immense labour which the investigating authority seems to have gone through, the charge which emerges is that accused No. 2 was responsible for an amount totalling only Rs. 408-36 ps. Accused No. 3 was responsible for an amount of Rs. 303-20 ps. Accused No. 4 was responsible for an amount of Rs. 223-10 ps. and accused No. 5 was responsible for an even more insignificant amount of Rs. 60-50 ps. For this trivial amount aggregating hardly to a thousand rupees, the Railways instead of so much as holding an enquiry of their own which if held, would have demonstrated that there was virtually no case against the five employees, took the easy way out of lodging a complaint with the C. B. I. This authority, in its turn, adopted its favourite modus operandi of starting with a conspiracy charge and alleging that everything that took place was in furtherance of that conspiracy. The learned Special Judge has, after a protracted trial, come to the conclusion that accused No. 1 was entitled to an acquittal; whereas accused Nos. 2 to 5 have been convicted under almost all the charges except charge No. 12 which related to fabrication of documents. It is true that the learned Special Judge has taken a lenient view and has imposed very light sentences and fines in this case. As far as this appellant is concerned, after 38 years of service with the Railways as a clerk, the man had retired from service, at which time faced with a prosecution of the present type he appears to have suffered a nervous breakdown and landed in the Mental Hospital for treatment. At the time when the judgement was pronounced, therefore, his case was separated and after his discharge from the Mental Hospital, when he appeared before the Court, the learned Special Judge passed a separate order which is the subject-matter of the present appeal. By this order, the learned Special Judge imposed an extremely light sentence of one day and a fine of Rs. 15/- and Rs. 10/- respectively, but the consequences of this conviction were so totally ruinous to the appellant that, among other things. I am informed at the Bar that it resulted in a second nervous breakdown and the appellant was re-admitted to the Mental Hospital. Regardless, therefore, of the lightness of the sentence, having regard to the consequences that it has on the appellant by way of stigma and the fact that he stands to lose very seriously as far as his terminal benefits are concerned, Mr. Nakhwa on his behalf insisted on challenging the very basis of the conviction itself and, to my mind, with considerable justification.

(3.) ADVERTING at this stage, it is necessary for me to deal with another very exceptional and unusual feature that arose in the present case. Original accused No. 2 one Shrinarayan Hernarayan Suri had challenged his conviction under the main judgement by way of Criminal Appeal No. 447 of 1983. The present appeal was directed to be heard along with that appeal. When these two appeals were called out for hearing in the third week of March 1991, I found that the learned advocate appearing for original accused No. 2 was not present before the Court. The appellant was present in person and informed the Court that he was so totally ruined and impoverished as a result of the action taken by the Railways against him pursuant to his conviction that he was unable to pay his lawyers fees and, consequently, that in all sense of humility he had told his lawyer that the Counsel need not appear. Another equally painful event occurred when the remaining two accused who had been reduced to an even more pitiable economic condition informed this Court that they were unable to raise any funds to file an appeal challenging the judgment, but orally prayed that the Court should have mercy on their condition and should treat their oral request as an appeal and that the same should be heard along with the main appeal. Even at this stage, they were not in a position to engage a lawyer to study their cases and to argue their cases. Had they filed even formal appeals earlier and had they requested the state for legal aid, such assistance would have been made available. The curious but unprecedented position that I was faced with was as to whether the oral requests conveyed by original accused Nos. 4 and 5 should be treated as an appeal and the delay condoned and their cases considered along with the other cases of accused Nos. 2 and 3. The High Courts and the Supreme Court have over the last few years observed, while exercising inherent powers, that it is the duty of the Court while administering justice to consider pleas for legal redress even if not prosecuted in the prescribed form and to take suo motu notice their pleas and to act on them. Normally, this Court would not have entertained an appeal of this type, particularly when it is not in writing and is grossly delayed. I have however, passed a separates order setting out the exceptional situation prevalent in this case which required an exceptional order. In this view of the matter, the pleas advanced by accuses Nos. 4 and 5 shall technically be treated as Criminal Appeals Nos. 182 (A) and 182 (B) of 1984 in which the delay shall stand condoned and those two appeals shall be treated as having been heard along with this appeal and disposed of it is true that this Court is not exercising its jurisdiction under Article 226 of the Constitution of India in making this order, but the powers of this Court under section 482 of the Code of Criminal Procedure, 1973 are virtually parallel powers to those under Article 226 of the Constitution. Section 482 of the Code of Criminal Procedure reads as follows :---