S.M. KATWAL Vs. VIRBHADRA SINGH AND ORS.

JUDGEMENT

(1.) PETITIONER S.M. Katwal is an IAS Officer (Retd.). He claims himself to be a 'victim' within the meaning of Section 2(wa) of the Code of Criminal Procedure, in short to be referred as 'the Code', hence aggrieved by the judgment dated 24th December, 2012, in Corruption Case No. 9 -S/7 of 2010, passed by learned Special Judge (Forests), Shimla, acquitting accused -private respondents Virbhadra Singh and his wife Pritibha Singh from the charges under Sections 7, 9, 11, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and under Section 120 -B of the Indian Penal Code framed against each of them. Hence he has filed a petition under Section 378(4) of the Code seeking leave to appeal along with memorandum of appeal under Section 372 of the Code. The appeal, however, is time barred, therefore, the present petition for condonation of delay has been filed on the grounds, inter alia that while he was at PGI, Chandigarh during the months of January -March, 2013 attending to his ailing wife there, he came to know about the judgment dated 24th December, 2012 under challenge in the appeal, through newspaper. He is having no access to the record nor engaged any lawyer to prosecute the case on his behalf. On coming to know that the State of Himachal Pradesh ruled by the Congress Party Government and accused -respondent No. 1 the Chief Minister, who is holding the charge of Home Department also and therefore, prosecutor and the accused became one and the same having common interest not to pursue the case for filing the appeal against the judgment of acquittal, the petitioner has come forward to prefer an appeal against the judgment in the capacity of a 'victim'. An age old rule "nullum tempus qut locus occurrit regi" embedded in criminal justice delivery system has been pressed into service and it is submitted that the Parliament while acknowledging the said rule has prescribed no period of limitation for filing the appeal under the proviso to Section 372 of the Code against an order of acquittal. The rule of limitation, according to the petitioner, cannot be mechanically applied in a case of this nature. He having obtained Photostat copy of the judgment under challenge in the month of August, 2013 has preferred the appeal immediately thereafter. It has been urged that the delay, as occurred in filing the appeal is not intentional, but attributed to the compelling circumstances under which he was made to search for the relevant record required for the purpose of drafting the grounds of appeal.

(2.) THE stand of the respondent -State in reply to the petition in a nutshell is that in the opinion of the District Attorney it was not a fit case for filing an appeal. The said opinion was examined in the office of Additional Director General, State Vigilance & Anti Corruption Bureau, Himachal Pradesh and the file was forwarded to Additional Secretary (Home/Vig.). Based upon the opinion of the District Attorney and that of Joint Director (Prosecution) in the office of Additional Director General, State Vigilance & Anti Corruption Bureau, Himachal Pradesh, the case file along with relevant record was sent to the Law Department for seeking final opinion. In the office of Law Department the case being of no evidence, a conscious decision was taken for not preferring the appeal. It is pointed out that in a police challan no private individual other than victim can prefer appeal against acquittal. The petitioner allegedly is not a victim because initially it is the State Government, which took a conscious decision to hold vigilance enquiry into the allegations against accused -respondents No. 1 and 2 and after submission of enquiry report a decision was taken to register a case against them. Consequently, FIR No. 27 of 2009 came to be registered against them on 3rd August, 2009 at the instance of Superintendent of Police in the capacity of complainant. Therefore, the petitioner is stated to be neither complainant nor victim as defined under Section 2(wa) of the Code and as such is not entitled to prefer an appeal under Section 372 of the Code.

(3.) IN the counter reply (rejoinder) while denying the contentions to the contrary being wrong and reiterating the case as set out in the petition, it is pointed out that accused -respondent No. 1 is acting in mala fide manner and with ulterior motive to settle scores not only with the petitioner, but also with all Officers/Officials namely, Dr. D.S. Minhas, former Director General of Police, Himachal Pradesh, Shri I.D. Bhandari, the then Additional Director General, Shri Daya Sagar, Inspector (Retired) and Shri Hardesh Bisht, the then Superintendent of Police, Vigilance (now Retired), the Investigating Officers, who supervised the proceedings in the case registered against him and his wife accused -respondent No. 2 in one way or the other/investigated the same. The instances of harassment of the above Police Officers have also been highlighted in the counter reply with the help of documents, i.e., Annexure P -3, representation of Dr. D.S. Minhas to Secretary (Home), Government of India against the request made by the State Government for seeking permission to charge -sheet him in connection with the case in hand registered against accused -respondents No. 1 and 2, Annexure P -4, a charge -sheet served upon Shri Daya Sagar, the then Inspector, Vigilance, who has investigated the case partly and Annexure P -5, copy of FIR No. 5 dated 29th April, 2014 registered under Section 218 of the Indian Penal Code against Shri Hardesh Bisht, the then Superintendent of Police, SIU and Shri Daya Sagar aforesaid with the allegation that they did not investigate the case against the accused in a fair manner.