MONGLA PROSAD CHATTERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Section 482 Cr.P.C. filed by Mongla Prosad Chatterjee against the State of West Bengal, O.P. for quashing of the criminal proceeding being Special Trial Case No. 19/85 arising out of Goaltar P.S. Case No. 1 dated 11.7.83 under Section 409 I.P.C. pending before the Court of 1st Special Judge, Midnapore. The relevant facts leading to this application are in short as follows. The petitioner was a branch Post Master, Jirapara P.O., under Midnapore district in 1983. A complaint was lodged by one Sri B. Adhikari, Inspector of Post Office, Midnapore, West Sub- Division to the effect that the petitioner while acting as E.D. Branch Post Master, Jirapara accepted a sum of rupees 200/- on 27.9.82 from one Sri Gora Chand Mandi for opening a new Savings Bank Pass Book in the name of Sri Mandi, but he did not make any entry of the said amount in the new account or in the S.B. Fund and kept the amount with himself till 26.10.82 on which date he credited the same into the Government account in the name of Gora Chand Mandi and issued receipt being No. 27 dated 26.3.82 in his favour and thus he misappropriated the money for making wrongful gain. On the basis of this complaint Goaltar P.S. Case No. 1 dated 11.7.83 under Section 409 I.P.C. was registered. On completion of this investigation the Investigating Officer submitted a final report after consulting his superior officer in the year 1983, the learned Magistrate by his order dated 5.1.84 accepted that final report and discharged the petitioner from the case and further passed an order returning Alamat of the case in favour of the person from whom he seized. Thereafter on 15.3.85 at the instance of another S.I., D.E.B., Midnapore, the learned Magistrate passed an order reopening further investigation of the case and after completion of reinvestigation the S.I., D.E.B. submitted a charge- sheet on 17.7.85 against the petitioner under Section 409 I.P.C. The charge- sheet was received in the Court of learned Additional Sessions Judge on 1.8.85. Since thereafter a large number of adjournments were allowed by the Court which took about four years and thereafter charge was framed against the petitioner-accused under the above mentioned Section. In all 47 dates were fixed for the framing of charge and out of them the petitioner was absent on only five occasions. According to the petitioner, the reopening of the investigation of the case and fresh submission of charge-sheet was bad in law, inasmuch as, the order of the learned Magistrate accepting the final report and discharging the accused-petitioner had not been set aside by any superior Court. Secondly, the date of alleged occurrence is 26.10.1982 while the complaint was lodged on 11.7.83 and the said final report was submitted in 1983, whereas the case was reopened on 15.3.85, and the new charge-sheet was submitted on 17.7.85 and charge was framed on 1.3.89 and the trial had not yet commenced at the time when the revisional application was filed i.e. on 18.9.92. According to Mr. De, learned Advocate for petitioner this shows that there has been inordinate delay in the disposal of this case causing mental suffering, anxiety, agony and harassment and financial loss to the petitioner in flagrant violation of the fundamental right of being entitled to speedy trial as enshrined in the Article 21 of the Constitution of India. Thirdly, it is contended, that the alleged appropriation is in respect of the paltry sum of Rs. 200/- only and considering such nature of the offence as well as the hardships suffered by the petitioner due to the long pendency of this case, it may be taken that sufficient punishment has already been inflicted upon the petitioner. Lastly, the amount in question namely Rs. 200/- was ultimately credited and it was retained with the petitioner as alleged for about a month only and as such the petitioner cannot strictly be said to have misappropriated that amount for making any wrongful gain as alleged. It is the contention of the petitioner that considering all these reasons the criminal proceeding should not be continued any further and should be quashed. According to Mr. De the trend of decisions of the Apex Court is in support of this contention, inasmuch as, reasonably expeditious trial has been regarded as an integral and essential part of the fundamental right to life and liberty as laid down under Article 21 of the Constitution and any further continuation of the proceeding in question will be an abuse of the process of Court.

(2.) In support of his contention Mr. De has referred to a number of decisions namely; 1986 CCLR (CS), 1999 CCLR 241 (Cal), 1994 CCLR 122 (Cal), 1991 CCLR 55 and 365 (Cal). The decision reported in 1986 CCLR 199 (SC) will not be applicable to our case since in that case it was found by Their Lordships, regard being had to the materials on record of that case, that it was extremely doubtful whether it would at all result in conviction and under such circumstances no useful purpose would be served by allowing the prosecution to continue. But, in the present case the materials on record did not give any such indication or raise any such doubt. On the other hand, it appears to be prima facie evident that the accused petitioner was entrusted with the money being Rs. 200/- but did not deposit the same to the Government Treasury or did not enter it into the account book of the office concerned and retained the same with himself for about a month. The second ruling mentioned above namely, 1999 CCLR 241 (Cal) will also have no application to our case because in that case under reference also it was found by the Court that the ingredients of the offences under Section 406 IPC had not been disclosed from the materials on record and it was therefore held that mere retention of property or document entrusted to a person without any misappropriation does not constitute an offence of criminal breach of trust and the criminal proceeding in question was ordered to be quashed. But in our present case the fact and circumstances are not alike. Here as per the allegation the accused retained public money with himself for as long a period as one month without making any attempt of bringing it into official records, far less depositing it before the cash Section or Government Treasury. Therefore, it cannot be stated that the element of dishonesty and misappropriation in not fulfilled here. The third ruling referred to above namely, 1994 CCLR 122 (Cal) also cannot be attracted to the facts of the present case. Here the criminal proceeding in question was quashed by the order of this Court on account of a different ground that employees of a nationalised bank are not public servant within the meaning of Section 21 IPC and hence they cannot be tried by the special Court, although it was found by the learned Judge that ingredients of the offence under Sections 400, 420, 467 and 471 IPC had been disclosed from the materials on record against the accused petitioner.

(3.) The next case laws cited are two decisions reported in 1991 CCLR 365 (Cal) and 1991 CCLR 55 (Cal). In both the decisions a learned Single Judge of this Court has taken the view that administration of justice requires that the accused in entitled to have as much protection as the prosecution is entitled to and waste of time affects the defence of the accused and the witnesses which the accused may choose to examine may suffer from physical inability during trial in the event of a trial being dragged for years together. It has been further held that the mental torture and anxiety suffered by an accused for long length of time is to be treated as sufficient punishment inflicted on him and the prosecution cannot have the luxury of dragging a case in a Court of law for years together. The learned Judge observed that the inordinate delay in the continuance of the criminal proceeding violates the fundamental right of an accused. The accused is entitled to fair and speedy trial as enshrined under Article 21 of the Constitution of India. In order to arrive at such finding the learned Judge in this two cases has relied upon the legal principles enunciated by the Apex Court in different judgments. Thus, in 1988 AIR(SC) 1729 corresponding to SRINIVAS PAL v. UNION TERRITORY OF ARUNACHAL PRADESH, 1988 CrLJ 1803 it has been held by the Apex Court that keeping a person in suspended animation for 9 and 1/2 years without any case at all cannot be the spirit of the procedure established by law and the criminal proceeding in question was liable to be quashed solely on the ground of delay. In another earlier Division Bench decision, namely, 1978 AIR(SC) 579 the Apex Court has been quoted to have held that if a person is deprived of his liberty under a procedure which is not reasonable fair or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution and a procedure cannot be reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of the accused and there cannot be any doubt that speedy trial whereby I mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined under Article 21 of the Constitution. The learned Judge in the above referred two decisions of this Court has further relied upon another judgment of a Division Bench of this Court reported in (Ranjit Pal v. The State, 1990 2 AICLR 92) wherein relying on Srinivas Pal's case it has been held that long delay in disposal of the proceeding prejudicially affects the defence of an accused and in the event of trial being dragged for years, judicial view is in favour of dropping of the proceeding irrespective of the nature of the case.