TaxTMI 
TaxTMI 
2013 (7) TMI 1162
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..../2000 registered at Police Station, Dausa. This Court has asked the learned Counsel for the Petitioner whether challan has been filed or not. He replied that still challan has not been filed and the matter is under investigation. If it is to, the Petitioner is permitted to file representation/documents on the basis of the judgment of the Hon'ble Supreme Court or any other Court, the I.O. Should investigate the matter on the basis of the judgment/documents/representation so filed by the Petitioner and thereafter shall file progress before the court concerned. Accordingly, the petition is disposed of. 2. In order to appreciate the rival stands of the parties, it would be necessary to notice the background facts in a greater detail. 3. The Appellant was posted as Lower Division Clerk (for short, 'LDC') during the period November, 1996 to November, 1997 in the Office of District Literacy Education Officer, Dausa. On 4th January, 2000, the District Literacy Education Officer, Dausa registered a First Information Report (for short, 'FIR') in Police Station, Dausa alleging therein that when the Appellant was posted as ....
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....on was filed by the Appellant before this Court. 9. Learned Counsel for the Appellant challenged the decision of the High Court on the following grounds: (a) Since the date of order passed by the CJM, Dausa the Appellant has been suffering the harassment of investigation for more than 13 years which is not completed till date because of lack of supply of documents. (b) After filing the closure report way back in the year 2000 no effective investigation has taken place. (c) If investigation is allowed to continue even in absence of document, it will be futile and can only cause harassment to the Appellant, serving no purpose as even in the departmental inquiry for said charges conducted against the Appellant in the year 2009, the Appellant was exonerated as none of the charges which also form the basis of the present FIR could be proved against the Appellant. 10. He also relied on decisions of this Court which will be discussed in the following paragraphs of this judgment. 11. The State of Rajasthan has filed counter affidavit. According to them, the investigation is still continuing and the Appellant himself is delaying the same....
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....first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclus....
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....tes Bail Reform Act of 1966: In determining which conditions of releases will reasonably assure appearance, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offence charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings. These are considerations which should be kept in mind when determining the amount of the security or monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing system of pre-trial release in India could be avoided or, in any event, greatly reduced. 17. In Abdul Rehman Antulay v. R.S. Nayak m(1992) 1 SCC 225, the Court formulated as many as 11 propositions with a note of caution that these were not to be treated as exhaustive and were meant only to serve as guidelines. 86. In view of the above discussion, the following propositions....
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....ed is--who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation. (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on--what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters ....
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....ake such other appropriate order--including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded--as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertai....
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.... account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. (5) The criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Cour....
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....iminal Procedure, giving rise to the appeal before this Court. 21. Having noticed the ratio laid down by this Court in number of cases including State of Haryana v. Bhajan Lal (supra), Hussainara Khatoon (supra), Abdul Rehman Antulay (supra) etc. And the relevant facts of Vakil Prasad Singh (supra) case, this Court was of the view that it was a fit case where the High Court should have exercised its power under Section 482 Code of Criminal Procedure as the State was not sure as to whether a sanction for prosecuting the accused is required and if so, whether it has been granted or not and that the case was pending for about 17 years and the proceedings against the Appellant was quashed. 22. To find out the factual scenario, we have noticed the background in a greater detail as mentioned hereunder: 23. On 4th January, 2000, the following allegation was made by the complainant-District Literacy & Education Mission Officer, Dausa in the FIR, the relevant portion of which is quoted below: First Information Report Office of literacy and continuous education mission, Dausa File No. 672 dated 4.1.2000 To, The SHO Polic....
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....nder Section 91 Code of Criminal Procedure for making available of the requisite document but despite that no record was made available. Again on 21.4.2000 a notice Under Section 91 Code of Criminal Procedure was issued and directions were given that in case of non-supply of document one sided action will be taken. No document, no record was produced. During the course of investigation pertaining to Lokesh Jain (LDC) for the period 11.96-11.97 statements of Sh. Kailash and Ram Kishor Bairwa (Jr. Accountant) who stated that during investigation credit-debit record was not made available and they showed their inability to produce the record before the I.O., No. T.P. 31162, a complaint was also given in this regard, C.O. Has also written to the department to produce the record but they showed their inability to produce the same. The present case, several requests were made for production of record but the same was not produced. No evidence came against Sh. Lokesh Jain, from the file of the education department. The case has been pending since long and there is no probability of availability of record in the near future. Further investigatio....
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....of Literacy officer, Dausa. c) Letter dated 21-11-2008 issued by the office of the treasurer of the treasury. d) Letter bearing CA/II/Dausa/176 dated 04-11-2008 issued by the office of the chief auditor. According to the aforesaid documents, the photocopies of the original documents was shown to the alleged officer. After the perusal of the photocopies, the alleged officer denying the same has again filed the application on 12-01-2009 and demanded that he might be allowed to peruse the original records. The objections were raised by the alleged officer and the prosecuting officer was given strict direction to present the original record and evidence. On the next several dates also the prosecuting officer failed to produce any other original record. On 24-07-2009, the alleged officer along with the assistant perused the case and the related document and letters in the presence of the prosecution party and for the purpose of the presenting the written argument the case was fixed for 29-07-2009. The defence appearing along with the assistant has filed his written argument which was taken on record. The prosecut....
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....quent Officer Shri Lokesh Kumar Jain. Hence the part of the offence is not established in respect of the accused. 2. The entry of the Bills of F.V.C. Amounting to Rs. 2,96,100/- is found in the Bill Register, Encashment Register and Books of account: In respect of the said offence, the original bill or the carbon copy of the said bills is not filed by the prosecution. On the basis of the documents P-1 and P-2 filed by the State, the delinquent member could not be held guilty for the withdrawal of the amount of the said bills. The said offence merely on the basis of the letters of the bank and Treasury could not be regarded as cogent evidence. The entries of the bills are not available on any record of the related office. In the inquiry, the original bills are not available with the Assistant Agency Treasury nor the carbon copies of the bills are available in the office. In the said facts and circumstances, it could not be established that the said bills are withdrawn by Shri Lokesh Kumar Jain because in ordinary course of business it is not possible for single person to execute the entire work that is to say generation of bills, getting it passed and w....
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.... that the Appellant was exonerated in the departmental proceeding for same charge. 29. Having regard to the aforesaid fact, this Court held that if the charges which is identical could not be established in a departmental proceedings, one wonders what is there further to proceed against the accused in criminal proceedings where standard of proof required to establish the guilt is far higher than the standard of proof required to establish the guilt in the departmental proceedings. 30. Having regard to the factual scenario, noted above, and for the reasons stated below, we are of the opinion that the present case of the Appellant is one of the fit cases where the High Court should have exercised its power under Section 482 Code of Criminal Procedure. It is not disputed by the Respondent that the departmental proceeding was initiated against the Appellant with regard to identical charges made in the FIR. It was alleged that as per CAG Inquiry Report dated 15th December, 2008 Rs. 4,39,617/- has been misappropriated by the Appellant, all the copies of original bills and documents are available in the office of CAG and the original documents are available in the office of the Dire....