Supreme Court of India
LOKESH KUMAR JAINversusSTATE OF RAJASTHAN
- Citation
- 2013 INSC 453
- Decided
- 9 July 2013
- Disposal
- Appeal(s) allowed
- Bench
- T S THAKUR
Holding
The FIR was quashed because the High Court should have exercised its power under Section 482 CrPC given the inordinate delay, lack of original evidence, and the appellant's exoneration in departmental proceedings, which together violated Article 21.
Summary
The appellant, a former Lower Division Clerk, was implicated in an FIR filed in 2000 for alleged embezzlement of Rs.4,39,617 based on a CAG report. The police investigation stalled for over nine years because the original records were never produced, despite repeated orders. Meanwhile, a departmental inquiry in 2008 exonerated the appellant of the same charges. The appellant filed a petition under Section 482 CrPC to quash the FIR, arguing that the prolonged delay violated his right to a speedy investigation and trial under Article 21 and that further investigation was futile. The Supreme Court held that the High Court should have exercised its inherent power under Section 482 to prevent abuse of process, given the lack of evidence, the departmental exoneration, and the respondent's inaction causing delay. Consequently, the Court quashed the FIR, finding that continuing the investigation would be unwarranted and unconstitutional.
Issues considered
- The High Court's discretion to exercise power under Section 482 CrPC to quash an FIR pending prolonged investigation.
- Whether the delay in investigation violates the constitutional right to speedy trial under Article 21.
- Whether exoneration in a departmental inquiry for identical charges bars continuation of criminal proceedings.
- The adequacy of evidence and the unavailability of original records as grounds for quashing the FIR.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(3), s. 482, s. 91
- Constitution of Indias. Article 21
Subjects
Section 482 CrPCright to speedy trialArticle 21quashing FIRinvestigative delaydepartmental inquiry exonerationabuse of processcriminal procedure
Judgment
[2013] 7 S.C.R. 519
LOKESH KUMAR JAIN A
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 888 of 2013)
JULY 09, 2013
B
[T.S. THAKUR AND SUDHANSU
JYOTI MUKHOPADHAYA, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
c
s. 482 - Quashing of FIR - Investigation pending for more
than nine years - In departmental inquiry on identical charges,
appellant exonerated in inquiry report - Held: The instant case
is a fit one, where High Court should have exercised its power
uls 482 - Records have not been made available to 0
investigating agency - Keeping the investigation pending will
be futile as the department is not sure whether original
records can be procured for investigation to bring home the
charges -- Considering the fact that delay is caused by
respondent, the constitutional guarantee of a speedy
investigation and trial under Art. 21 of the Constitution has E
been violated and as appellant has already been exonerated
in departmental proceedings for identical charges, FIR is
quashed - Constitution of India, 1950 - Art. 21 - Speedy
investigation/trial.
F
On the basis of the report of the Auditor General,
noticing an embezzlement of Rs. 4,39,617, the District
Literacy Education Officer, got registered on, 4-1-2000, an
FIR against the appellant, who was posted as an LDC-
cum-Cashier during the relevant period in the said office. G
The police submitted a final report on 2-6-2000, before the
Chief Judicial Magistrate, who, on the application of the
complainant, sent back the matter to the police u/s. 156(3)
Cr.P.C. on 18-11-2000. Since there was no progress in the
519 H
520 SUPREME COURT REPORTS [2013] 7 S.C.R.
. A investigation, the appellant, having waited for more than ·
6 years, filed a petition uls. 482 Cr.P.C. before the High
Court seeking to quash the FIR. However, the High Court
declined to interfere. Meanwhile, in the inquiry report
submitted on 15.12.2008, the appellant was exonerated
in the departmental enquiry.
8
In the instant appeal, it was contended for the
appellant that after filing of the closure report in the year
2000, no effective investigation could take place and the
appellant was suffering the harassment for more than 13
C years; and that no purpose in continuing the
investigation would be served as the appellant was
exonerated in departmental enquiry report on the same
charges.
D Allowing the appeal, the Court
HELD: 1.1 This Court has held that extraordinary
power uls. 482 Cr.PC could be exercised by the High
Court to prevent abuse of process of the Court. Need for
speedy investigation and trial, as both are mandated by
E the letter and spirit of the provisions of Cr.PC, have been
emphasized by this Court in numerous cases. [Para 13
and 15] [526-C-D; 528-8]
State of Haryana v. Bhajan Lal, 1990 (3) Suppl. SCR 259
F = 1992 (Suppl.) 1 SCC 335; Vakil Prasad Singh v. State of
=
Bihar, 2009 (1) SCR 517 (2009) 3 SCC 355; Hussainara
Khatoon v. Home Secretary, State of Bihar, 1979 (3) SCR
169 = (1980) 1 SCC 81; Abdul Rehman Antulay v. R.S.
Nayak, 1991 (3) Suppl. SCR 325 (1992) 1 SCC 225; P.
G Ramachandra Rao v. State of Kamataka, (2002) 4 SCC 578
- referred to.
1.2 The instant case is a fit one where the High Court
should have exercised its power uls. 482 Cr.PC. It is not
disputed that in the Inquiry Report dated 15.12.2008
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 521
submitted by the Inquiry Officer in the departmental A
proceeding, the appellant was exonerated over the
identical charges for which criminal case was lodged.
Further, during the investigation inspite of several
requests made by the police, the records in respect of
allegation were not produced. No evidence came against B
the appellant, from the file of the education department.
The CJM, by his order dated 18-11-2000 on perusal of
Final Report, in exercise of power conferred u/s. 156(3)
Cr.PC directed the SHO to re-investigate the case with the
assistance of complainant and to procure the original c
records. However, for nine years, records were not made
availa~le. [Para 27 and 32) [540-D-E; 545-E-H; 546-A]
P.S. Rajya v. State of Bihar, 1996 (2) Suppl. SCR 631=
(1996) 9 sec 1 - referred to.
D
· 1.3 There is nothing on the record, even by way of
counter affidavit filed before this Court to show that the
record has now been traced to make it available to the
investigating agency. There is no probability of finding
out original documents or evidence mentioned in the E
counter affidavit. Though, delay has been alleged on the
part of the appellant, there is nothing on the record to
suggest that he caused delay in the matter of
investigation. On the other hand, the silence on the part
of the respondent regarding availability of the original F
record or other evidence before the investigating agency
shows that the delay was caused due to inaction on the
part of the department. [Para 33] [446-B-D]
1.4 Therefore, keeping the investigation pending will
be futile as the respondent including Directorate for the G
State Literacy Programme is not sure whetfier original.·.
records can be procured for investigation to bring home
the charges. Considering the fact that delay is caused by
the respondent, the constitutional guarantee of a speedy
investigation and trial under Art. 21 of the Constitution H
522 SUPREME COURT REPORTS [2013] 7 S.C.R.
A has been violated and as the appellant has already been
exonerated in the departmental proceedings for identical
charges, keeping the case pending against the appellant
for investigation, is unwarranted. The FIR, is therefore,
quashed. [Para 33] [446-D-F]
B
Case Law Reference:
1990 (3) Suppl. SCR 259 referred to para 14
1979 (3) SCR 169 referred to para 16
c 1991 (3) Suppl. SCR 325 referred to para 17
(2002) 4 sec 578 referred to para 18
2009 (1) SCR 517 referred to para 19
D 1996 (2) Suppl. SCR 631 referred to para 28
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 888 of 2013.
From the Judgment and Order dated 02.03.2012 of the
E High Court of Rajasthan, Jaipur Bench; Jaipur in SB Criminal
Misc. Petition No. 605 of 2006.
Dr. Sumant Bhardwaj, Mridula Ray Bharadwaj for the
Appellant.
F Sonia Mathur, Sushi! Kumar Dubey, Pragati Neekhra for
the Respondent.
The Judgment of the Court was delivered by
SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
G granted. This appeal has been preferred by the appellant
against the order dated 2nd March, 2012 passed by the
Rajasthan High Court, Jaipur Bench in S.B. Criminal
Miscellaneous Petition No.605 of 2006 titled Lokesh Kumar
Jain v. State of Rajasthan. By the impugned order, the High
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 523
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
Court refused to quash the FIR No.10/2000 lodged against the A
appellant under Section 409 IPC at Police Station, Dausa. The
petition under Section 482 Cr.PC was disposed of by the High
Court with the following observation:
"This criminal misc. petition has been filed under
8
section 482 Cr.PC for. quashing of FIR No.1012000
registered at Police Station, Dausa.
This Court has asked the learned counsel for the
petitioner whether cha/Ian has been filed or not. He
replied that still cha/Ian has not been filed and the matter C
• 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. 0. D
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." E
2. In order to appreciate the rival stands of the parties, it
would be necessary to notice the background facts in a greater
detail.
F
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 G
when the appellant was posted as LDC-cum-Cashier, a
financial irregularity was committed by him. As per the report
of Auditor General, an embezzlement of Rs.4,39,617/- has
been discovered. The original copies of the bills and documents
were available in the office of the Auditor General and in the H
524 SUPREME COURT REPORTS [2013] 7 S.C.R.
A office of Directorate for the State Literacy Programme.
Therefore, on the basis of report given by the Auditor General,
the FIR was filed.
4. On the basis of report submitted by the complainant, the
Police lodged FIR No.10/2000 of the incident alleged to have
8
taken place in the year 1996-1997, implicating appellant as an
accused. After making investigation, the Police submitted a
final report in the matter on 2nd June,2000 before the Chief
Judicial Magistrate, Dausa (hereinafter referred to as the, "CJM,
Dausa").
c
5. During the pendency of the matter before the CJM,
Dausa, the complainant filed an application on 18th November,
200Cl before the CJM, Dausa requesting therein to send back
the matter to the Police for further investigation. The CJM,
D Dausa vide order dated 18th November, 2000, sent back the
matter to the Police under Section 156(3) of Cr.PC. Since then
the matter remained pending with the police. According to the
appellant, he met as well as represented on a number of times
to the Police Authorities and the Departmental Authorities but
E still no action has been taken by the Authorities. Neither final
report is submitted nor the challan is being filed and the matter
is pending since then. Earlier in the final report, it was stated
that the Police informed that the original copies of the bills and
another documents are not available, therefore, no investigation
F could be made.
6. Having waited for more than six years, the appellant
preferred a petition under Section 482 Cr.PC before the
Rajasthan High Court being Criminal Miscellaneous Petition
No.605/2006 to set aside the Fl R No.10/2000 registered at
G Police Station, Dausa.
7. In the meantime, a Departmental Inquiry was initiated
against the app.ellant for the same charges in which the Inquiry
Officer after irl°quiry submitted his report on 15th December,
H 2008 exonerating the appellant from the charges.
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 525
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
8. The High Court by impugned order dated 2nd March, A
2012 chose not to interfere with the FIR and again left the
matter in the hands of the authorities. Hence, the special leave
petition was filed by the appellant before this Court.
9. Learned counsel for the appellant challenged the 8
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. C
(b) After filing the closure report way back in the year 2000
no effective investigation has taken place.
(c) If investigation 1s allowed to continue even in absence
0
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
exone~ated as none of the charges which also form the
basis of the present FIR could be proved against the E
appellant.
10. He also relied on decisions of this Court which will be
1
discussed in the following paragraphs of this judgment.
F
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 due to non-cooperative
attitude adopted by him. In any case; from the investigation
carried out till now, offence under Section 409 IPC is clearly G
made out against the appellant and on this ground alone, the
petition seeking quashing of FIR is liable to be dismissed and
the legal process deserves to be taken to a logical end.
12. Though the aforesaid stand has been taken by the
respondent in their counter affidavit, the respondent is silent H
526 SUPREME COURT REPORTS [2013) 7 S.C.R.
A about the documents i.e. whether they have been made
available to the Police for further investigation. Further no
specific instance was shown to suggest that the appellant failed
to cooperate with the Investigating Agency on any particular
date.
B
13. Before deciding the question whether under the given
circumstances the High Court should have exercised its
inherent powers under Section 482 Cr.PC to prevent abuse of
process of any court or otherwise to secure the ends of justice,
it will be desirable to notice some of the decisions of this Court
C relating to categories of cases wherein extraordinary power
under Section 482 Cr.PC could be exercised by the High Court
to prevent abuse of process of the Court.
14. In State of Haryana v. Bhajan Lal, 1992 (Suppl.) 1
D sec 335 this Court while formulating the categories of cases
by way of illustration, wherein the extraordinary power under the
aforestated provisions could be exercised by the High Court
to prevent abuse of process of the Court and observed as
follows:-
E
"102. Jn the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and
of the principles of law enunciated by this Court in a
' series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
F powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse o~ the
process of any court or otherwise to secure the ends of
G justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 527
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
(1) Where the a/legations made in the first information A
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 a/legations in the first information report 8
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. C
(3) Where the uncontroverted a/legations 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.
D
(4) Where, the a/legations 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. E
(5) Where the a/legations 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 conclusion
that there is sufficient ground for proceeding against the
accused. F
(6) Where there is an express legal bar engrafted in any
of the provi§ions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there G
is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with ma/a fide and/or where the proceeding is maliciously H
528 SUPREME COURT REPORTS [2013] 7 S.C.R.
A instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge. "
15. Need for speedy investigation. and trial as both are
mandated by the letter and spirit of the provisions of Cr.PC have
B been emphasized by this Court in numerous cases.
16. In Hussainara Khatoon v. Home Secretary, State of
Bihar, (1980) 1 SCC 81 this Court observed that Article 21
confers a fundamental right on every person not to be deprived
C of his life or liberty except according to procedure established
by law; that such procedure is not some semblance of a
procedure but the procedure should be "reasonable, fair and
just"; and therefrom flows, without doubt, the right to speedy
trial. This Court further observed that:
D "8. In regard to the exercise of the judicial power to
release a prisoner awaiting trial on bail or on the
execution of a personal bond without sureties for his
appearance, I have to say this briefly. There is an
amplitude of power in this regard within the existing
E provisions of the Code of Criminal Procedure, and it is
for the courts to fully acquaint themselves with the nature
and extent of their discretion in exercising it. I think it is
no longer possible to countenance a mechanical
exercise of the power. What should be the amount of
security required or the monetary obligation demanded
F
in a bond is a matter calling for the careful consideration
of several factors. The entire object being only to ensure
that the undertrial does not flee or hide himself from trial,
all the relevant considerations which enter into the
determination of that question must be taken into account.
G A synoptic impression of what the considerations could
be may be drawn from the following provision in the
United States Bail Reform Act of 1966:
"In determining which conditions of releases will
H reasonably assure appearance, the judicial officer
LOKESH KUMAR .JAIN v. STATE OF RAJASTHAN 529
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
shall, on the basis of available information, take A
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 B
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 C
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."
D
17. In Abdul Rehman Antulay v. R.S. Nayak, (1992) 1
sec 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.
E
86. In view of the above discussion, the following
propositions emerge, meant to serve as guidelines. We
must forewarn that these propositions are not exhaustive.
It is difficult to foresee all situations. Nor is it possible to
lay down any hard and fast rules. These propositions are:
F
(1) Fair, just and reasonable procedure implicit in Article
21 of the Constitution creates a right in the accused to
be tried speedily. Right to speedy trial is the right of the
accused. The fact that a speedy trial is also in public
interest or that it serves the social interest also, does not G
make it any the less the right of the accused. It is in the
interest of all concerned that the guilt or innocence of the
accused is determined as quickly as possible in the
circumstances.
H
530 SUPREME COURT REPORTS [2013] 7 S.C.R.
A (2) Right to speedy trial flowing from Article 21
encompasses all the stages, namely the stage of
investigation, inquiry, trial, appeal, revision and re-trial.
That is how, this Court has understood this right and there
is no reason to take a restricted view.
B
(3) The concerns underlying the right to speedy trial from
the point of view of the accused are:
(a) the period of remand and pre-conviction detention
should be as short as possible. In other words, the
c accused should not be subjected to unnecessary or
unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his
vocation and peace, resulting from an unduly prolonged
D investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the
ability of the accused to defend himself, whether on
account of death, disappearance or non-availability of
witnesses or otherwise.
E
(4) At the same time, one cannot ignore the fact that it is
usually the accused who is interested in delaying the
proceedings. As is often pointed out, "delay is a known
defence tactic". Since the burden of proving the guilt of
F the accused lies upon the prosecution, delay ordinarily
prejudices the prosecution. Non-availability of witnesses,
disappearance of evidence by lapse of time really work
against the interest of the prosecution. Of course, there
may be cases where the prosecution, for whatever reason,
G also delays the proceedings. Therefore, in every case,
where the right to speedy trial is alleged to have been
infringed, the first question to be put and answered 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
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 531
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
delaying tactics nor can the time taken in pursuing such A
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 B
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 C
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 D
ensure a speedy trial and State includes judiciary as well,
but a realistic and practical approach should be adopted
in such matters instead of a pedantic one.
(6) Each and every delay does not necessarily prejudice E
the accused. Some delays may indeed work to his
advantage. As has been observed by Powell, J. in Barker
"it cannot be said how long a delay is too long in a
system where justice is supposed to be swift but
deliberate". The same idea has been stated by White, F
J. in U.S. v. Ewell in the following words:
'... the Sixth Amendment right to a speedy trial is
necessarily relative, is consistent with delays, and has
orderly expedition, rather than mere speed, as its
essential ingredients; and whether delay in completing G
a prosecution amounts to an unconstitutional deprivation
of rights depends upon all the circumstances. '
However, inordinately Jong delay may be taken as
presumptive proof of prejudice. In this context, the fact H
532 SUPREME COURT REPORTS [2013) 7 S.C.R.
A of incarceration of accused will also be a relevant fact.
The prosecution should not be allowed to become a
persecution. But when does the prosecution become
persecution, again depends upon the facts of a given
case.
B (7) We cannot recognize or give effect to, what is called
the 'demand' rule. An accused cannot try himself; he is
tried by the court at the behest of the prosecution. Hence,
an accused's plea of denial of speedy trial cannot be
defeated by saying that the accused did at no time
c demand a speedy trial. If in a given case, he did make
such a demand and yet he was not tried speedily, it would
be a plus point in his favour, but the mere non-asking for
a speedy trial cannot be put against the accused. Even
in USA, the relevance of demand rule has been
D substantially watered. down in Barker and other
succeeding cases.
(8) Ultimately, the court has to balance and weigh the
several relevant factors - 'balancing test' or 'balancing
process' - and determine in each case whether the right
E to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused has
been infringed the charges or the conviction, as the case
may be, shall be quashed. But this is not the only course
F
open. The nature of the offence and other circumstances
in a given case may be such that quashing of
proceedings may not be in the interest of justice. In such
a case, it is open to the court to make such other
appropriate order - including an order to conclude the trial
G 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-
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 533
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
limit for trial of offences. Any such rule is bound to be A
qualified one. Such rule cannot a/so 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 B
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 c
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 entertains such D
a plea, ordinarily it should not stay the proceedings,
except in a case of grave and exceptional nature. Such
proceedings in High Court must, however, be disposed
of on a priority basis. "
E
18. Seven learned Judges of this Court in P.
Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578,
considered the validity of the ratio laid down in Common Cause
case (I) as modified in Common Cause case (llfand Raj Deo
Sharma (I) and (II) cases wherein this Court prescribed periods F
of limitation beyond which the trial of a criminal case or a
criminal proceeding cannot continue and directed to close the
proceeding by an order acquitting or discharging the accused
in such cases. In the said case of P. Ramachandra Rao(supra)
after exhaustive consideration of the authority on the subject this G
Court held:
"29. For all the foregoing reasons, we are of the opinion
that in Common Cause case (/) [as modified in Common
Cause (II)] and Raj Deo ·Sharma (I) and (II) the Court
could not have prescribed periods of limitation beyond H
534 SUPREME COURT REPORTS [2013] 7 S.C.R.
A which the trial of a criminal case or a criminal proceeding
cannot continue and must mandatorily be closed followed
by an order acquitting or discharging the accused. ·In
conclusion we hold:
(1) The dictum in A.R. Antulay case is correct and still
B holds the field.
(2) The propositions emerging from Article 21 of the
Constitution and expounding the right to speedy trial laid
down as guidelines in A.R. Antulay case adequately take
care of right to speedy trial. We uphold and reaffirm the
c said propositions.
(3) The guidelines laid down in A. R. Antu/ay case are not
exhaustive but only illustrative. They are not intended to
operate as hard-and-fast rules or to be applied like a
straitjacket formula. Their applicability would depend on
D the fact situation of each case. It is difficult to foresee all
situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially
permissible to draw or prescribe an outer limit for
E conclusion of all criminal proceedings. The time-limits or
bars of limitation prescribed in the several directions
made in Common Cause (/), Raj Deo Sharma (I) and Raj
Deo Sharma (II) could not have been so prescribed or
drawn and are not good law. The criminal courts are not
obliged to ter:rninate trial or criminal proceedings merely
F
on account of lapse of time, as prescribed by the
directions made in Common Cause case (/), Raj Deo
Sharma case (I) and (//). 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
G 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
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 535
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
inordinateiy delayed as to be called oppressive and A
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
mandatori/y obliging the court to terminate the same and
.
acquit or discharge the accused.
.
B
(5) The crimina/'~ourts 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 fo be a better protector of such right than any C
guidelinf.s. In appropriate cases, jurisdiction of the High
Court under Section 482 CrPC and Articles 226 and 227
of t;1e Constitution can be invoked seeking appropriate
relief or suitable directions.
D
(6) This is an appropriate occasion to remind the Union
of India anc' t!:o State Governments of their constitutional
obligation to strengthen the judiciary - quantitatively and ·
qualitatively - by providing requisite funds, manpower and
infrastructure. We hope and trust that the Governments E
shall act."
19. This Court in Vakil Prasad Singh v. State of Bihar,
(2009) 3 sec 355 considered the question of quashing of
criminal proceedi11gs due to delay, when warranted. Referring
to earlier decisions of this Court on the issue, this Court held F
that speedy investigation and trial, both are enshrined in Cr.PC.
The right to:speedy trial is guaranteed under Article 21 and the
same is applicable not only to actual proceedings in court but
also includes within its sweep the preceding police
investigations as well. G
20. In Vakil Prasad Singh (supra) one search operation
was conducted by the office of Superintendent of Police, Crime I
Investigation Department (Vigilance), Muzaffarpur, on the basis
of a complaint lodged by a civil contractor against the accused,
an Assistant Engineer in "the Bihar State Electricity Board (Civil) H
536 SUPREME COURT REPORTS [2013] 7 S.C.R.
A Muzaf{arpur, for allegedly demanding a sum of Rs.1000 as
illegal gratification for release of payment for the civil work
executed by him. The case was instituted on 8th April, 1981
and the charge-sheet for aforesaid offences was filed against
the accused on 28th February, 1982. The Magistrate took
B cognizance on 9th December, 1982 but nothing substantial
happened. The accused filed a petition under Section 482
Cr.PC before the Patna High Court against the order passed
by the Specia! Judge, Muzaffarpur taking cognizance of the said
offences, on the ground that the Inspector of Police, who had
C conducted the investigations, on the basis whereof the charge-
sheet was filed, had no jurisdiction to do so. Accepting the plea.
the High Court by its order dated 7th December, 1990 quashed
the order of the Magistrate taking cognizance and directed the
prosecution to complete the investigation within three months.
However, no further progress was made and the matter rested
D there till 1998, when the accused filed another petition under
Section 482 Cr.PC, 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
E (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 Cr.PC as the State was not sure as to whether a sanction
F 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
G background in a greater detail as mentioned hereunder:
23. On 4th January, 2000, the following allegation was
made by the complai'nant-District Literacy & Education Mission
Officer, Dausa in the FIR, the relevant portion of which is quoted
below:
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 537
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
"First Information Report A
Office of literacy and continuous education mission,
Dausa File No.672 dated 4.1.2000
To,
B
The SHO
Police Station: Dausa
Subject: Regarding misappropriation of the amount of
pending Bill for the period 11.96-11.97 by Sh.Lokesh C
Jain LDC(Cashier),
In reference to the above subject, it is requested that Sh..
Lokesh Jain, Lower Division Clerk (Cashier) presently
under suspension while working on the post of cashier D
has committed financial irregularities for which financial
department and office of CAG conducted an enquiry
which is annexed herewith.
As per the enquiry report Rs.4, 39, 617 has been E
misappropriated, all the copies of the original bill are
present in the office of CAG and the original documents
are available in the office of Directorate State Literacy
and Education Mission.
Hence, it is requested that an FIR may be got registered F
on the basis of'the annexed enquiry reporl of the office
of the CAG.
Enclosures enquiry 8 pages
Sd/- G
District Literacy & Education
Mission Officer, Dausa"
24. After conducting investigation, the Investigation Agency
submitted Final Report on 2nd June,2000 before the CJM, H
538 SUPREME COURT REPORTS [2013] 7 S.C.R.
A Dausa, the relevant portion of which reads as follows:
"Brief Facts of the case:.
Respected Sir,
B The facts of the present case are that on 4.1.2000
Sh. Murari /al S/o Sh. Harrnukh Prasad, caste: Brahmin,
aged 56 years, Rio Village: Oonch, P. S: Nandbai,
District: Bharatpur presently posted as district literacy and
mission education officer, Dausa, presented in the Police
c Station and filed one report age"' .st Sh. Lokesh Kumar
Jain (LDC) presently under suspension that Lokesh Jain
while working as cashier, committed certain financial
irregularities which emerged during an enquiry conducted
by the office of the Controller and Auditor General cis per
D which misappropriation of Rs.4,39,6191- has been
reflected.
Copy of report is a."'e"f:!d; copies of the original
document of GAG and originai document of state literacy
and mission education office are available. On the basis
E of the said report FIR No.1012000 uls 409 of /PC was
registered and investigation witnesses were recorded. Oral
requests were made several times to the concerned
department for producing the requisite document
pertaining to the case but was ineffective subsequently
F on 13. 4. 2000. A notice was issued uls 91 Cr. PC for
making available of the requisite ddcument but despite
that no record was made available.
Again on 21.4.2000 a notice u/s 91 Cr.PC was
G 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 tile course of investigation pertaining to
Lokesh Jain (LDC) for the period 11.96 -11.97
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 539
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
statemei1ts of Sh. Kai/ash and Ram Kishor Bairwa (Jr. A
accountant) who stated that during investigation credit-
debit record was not made available and they showed
their inability to produce the record before the /. 0, No.
T.P. 31162, a complaint was a/so given in this regard,
C. 0. has a/so written to the department to produce the B
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, C
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 investigation will be taken on the receipt of
the records from the concerned departments. D
Hence FR No.6712000 is being filed for kind
perusal and acceptance because of insufficient
evidence."
E
25. On perusal of Final Report, the CJM, Dausa passed
the following order:
· "Before the Chief Judicial Magistrate
District: Dausa, Dausa
Complainant: Murari Lal F
FIR No. 1012000
18.11.2000
Present App.
G
Present complainant: Sh Murari Lal Sharma
In this case final report has been filed with the avemment
that the original record has not been supplied to the SHO
and hence investigation cannot be carried out. The H
540 SUPREME COURT REPORTS [2013] 7 S.C.R.
A complainant Murari Lal is present and he is ready to
cooperate with the police officers for procuring the said
records.
Hence uls 156(3) Cr.PC the SHO Dausa is directed to
re-investigate the case with the assistance of Sh. Murari
B
Lal literacy and mission education officer to procure the
original records. Final report is not accepted, case diary
is being returned.
Sd/- CJM
c District: Dausa, Dausa"
26. Thereafter, nothing on the record suggest that after the
order dated 18th November, 2000 passed by the CJM, Dausa
the respondent produced the original records before the
0 Investigation Agency for further investigation.
27. At least for more than nine years neither original
records could be traced by the Authorities nor any relevant
document could be found to implicate the appellant, as evident
from the Inquiry Report dated 15th December,2008 submitted
E by the Inquiry Officer whereby the appellant was exonerated
over the identical charges for which criminal case was lodged.
The respondent inspite of repeated requests by the Inquiry
Officer failed to produce any records including originals from
the Bank to establish the guilt of the delinquent official,
F Sh.Lokesh Kumar Jain. The relevant portions of Inquiry Report
dated 15th December, 2008 are quoted hereunder:
'The prosecuting officer after the lapse of various dates
has presented the following documents:
G a) Books of accounts, Encashment Register and Bill
register (all photocopies)
b) Letter dated 26-04-2004 issued by S.B.B.J. Bank
Branch Dausa which was addressed to the office of
H Literacy officer, Dausa.
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 541
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
c) Letter dated 21-11-2008 issued by the office of the A·
treasurer of the treasury.
d) Letter bearing CAlll/Dausa/176 dated 04-11-2008
issued by the office of the chief auditor.
According to the aforesaid documents, the photocopies 8
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 C
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.
D
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 parly and
for the purpose of the presenting the written argument the
case was fixed for 29-07-2009. The defence appearing E
along with the assistant has filed his written argument
Which was taken on record.
The prosecution party and the defence party were given
one last and final opportunity to present the witness/
evidence/documents in accordance with the principle of F
natural justice. On the date fixed neither the prosecution
nor the defence has filed their witness/evidence/
documents.
According to the notification, following offence was G
alleged against Shri Jain on 22-12-2007:
1. That you Shri Lokesh Kumar Jain (Cashier) being in
the office of the District Education and Education officer
Dausa fror:n 20-11-1995 to 13-11-1997, was given the
work of accountant. H
542 SUPREME COURT REPORTS [2013] 7 S.C.R.
A Accordin!} the inquiry report of 11196 to 11197, an
embezzlement of Rs.4,39,6171- was found to be done by
you.
The details of the allegation is depicted as follows:
B a) Bills of F. V. C. amounting to Rs. 65, 3301- is found to be
entered in the Bill Register but after the passing of the
bill from the treasury, the entry of which was not found in
the encashment register and books of account.
c There is no entry of any bill of F. V. C. in the aforesaid
manner in the photocopy of the records (Cash book,
Encashment Register) filed by the prosecution in respect
of the offence alleged. From the bare perusal it becomes
clear that the bill which is entered, the earlier entry record
D of which is entered according to the rules. The letter of
both the agencies were produced in respect of the
withdrawal of various bills of F. V.C. amounting to
Rs.65,3301- (P-1) from the banks and in respect of
passing from the treasury and the said bills are also found
to be mentioned in the bill register (P-2) (P-3). The
E
entries of the bills are not available in the other records
apart from the Bill Register. On the basis of the
documents produced (P-2) (P-3) by the prosecution, the
original bill which was to be obtained from the office of
the Chief Auditor, was not received (P-4).
F
Hence it is not clear that which person has withdrawn the
saicJ bills from the bank nor the original bill is there on
record, looking into the pages of which conclusion could
be drawn that who has withdrawn the amount of the said
G bills from the bank.
In the light of the said evidence (P-2) (P-3) the first part
of the offence (1 ), the offence of embezzlement of amount
by withdrawing the amount of said bills from the banks
could not establish the guilt of the Delinquent Officer Shri
H
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 543
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
Lokesh Kumar Jain. Hence the part of the offence is not A
established in respect of the accused.
2. The entry of the Bills of F. V. C. amounting to
Rs. 2, 96, 1001- is found in the Bill Register, Encashment
Register and Books of account:- 8
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 C
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 D
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 E
the entire work that is to say generation of bills, getting it
passed and withdrawing the same.
Hence the second part of offence is not proved against
Shri Lokesh Kumar Jain for want of cogent and sufficient
proof. F
3. Embezzlement of the amount of Rs. 78, 1791- by
withdrawing the bills ot the other department in the head
of Literacy and Education in the Budget.
The prosecution has filed the evidence of (P-2) (P-3) in G
respect of the offence. According to the evidence, the
payment was made for the purpose of making the
payment of the bills of said Sparsh Vidyalaya RAMA VI
Dhigariya but in the budget the sarr. J is under the head
o, Literacy and Education department. H
544 SUPREME COURT REPORTS [2013] 7 S.C.R.
A The entire part of the offence is completely disputed.
There is withdrawal of the bills of the other department in
the head of Literacy and Education in the Budget but it
is not clear as to who has received the payments. Merely
on the basis of the Treasury office regarding the fact of
B expenditure and receiving the payments does not prove
the delinquent officer to be the guilty of the offence. It is
possible that effor might have happened by the other
assisting agency. It is also impossible to pass the bill
merely on the budget head. It could not be ascertained,
c without looking to pages of the original records, whether
the guilty officer has obtained the payment of the bills
from the bank or not.
CONCLUSION:
D On the basis of the records, evidence and documents
presented in the proceedings and upon the basis of
written and oral arguments of both the parties, the
undersigned comes to the conclusion that who was made
the payment of amount of various bills alleged in the
offence is doubtful. All the said bills were passed by the
E
- Treasurer. The original and carbon copies of the said
entire bills is not available with the department. Merely
on the basis of the letters of the Assisting Agencies the
offence against the alleged officer is not found to be
established.
F
Sdl- Chitarrnal Meena
Inquiry Officer and Principal Officer,
RAU Department Bhandarej, Dausa."
28. In P.S. Rajya v. State of Bihar, (1996) 9 SCC 1, this
G Court noticed that the appellant was exonerated in the
departmental proceeding in the light of report of the Central
Vigilance Commission and concurred by the Union Public
Service Commission. The criminal case was pending since .
long, in spite of the fact that the appellant was exonerated in
H the departmental proceeding for same charge.
LOKESH KUMAR JAIN v. STATE OF RAJASTHAN 545
[SUDHANSU JYOTI MUKHOPADHAYA, J.]
29. Having regard to the aforesaid fact, this Court held that A
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 B
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 C
the High Court should have exercised its power under Section
482 Cr.PC. 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 D
the copies of original bills and docurnents are available in the
office of CAG and the original documents are available in the
office of the Directorate, State Literacy Programme.
31. In the departmental proceeding identical allegation was E
made that as per the Inquiry Officer Report, an embezzlement
of Rs.4,39,617/- was found to be done by the appellant.
32. During the investigation inspite of several requests
made by the Investigating Agency (Police), the records in
F
respect of allegation were not produced. No evidence came
against the appellant-Lokesh Kumar Jain, from the file of the
education department. As the case was pending since long and
there was no possibility of availability of record in the near
future, FR No.67/2000 against the appellant was filed before
the CJM, Dausa. The CJM, Dausa by his order dated 18th G
November, 2000 on perusal of Final Report, in exercise of
power conferred under Section 156(3) Cr. PC directed the
SHO, Dausa to re-investigate the case with the assistance of
complainant and to procure the original records. lnspite of order
H.
546 SUPREME COURT REPORTS [2013] 7 S.C.R.
A dated 18th November, 2000, for nine years, records were not
made available, as apparent from the Inquiry Report dated 15th
December,20G8.
33. There is nothing on the record, even by way of counter
affidavit filed before this Court to show that record has now
8
been traced to make it available to the Investigating Agency.
There is no probability of finding out original documents or
evidence mentioned in the counter affidavit. Though, delay has
been alleged on the part of the appellant, there is nothing on
the record to suggest that the appellant caused delay in the
C matter of investigation. On the other hand, the silence on the
part of the respondent regarding availability of the original
reco•d or other evidence before the Investigating Agency shows
that the delay caused due to inaction on the part of the
respondent. Therefore, in our view, keeping investigation
D pending for further period will be futile as the re . ondent
including Directorate for the State Literacy Programme is not
sure whether original records can be procured for investigation
and to bring home the charges. Considering the fact that delay
in the present case is caused by the respondent, the
E constitutional guarantee of a speedy investigation and trial
under Article 21 of the Constitution is thereby violated and as
the appellant has already been exonerated in the departmental
proceedings for identical charges, keeping the case pending
against the appellant for investigation, is unwarranted, the FIR
F deserves to be quashed.
34. In the result, the appeal is allowed and the FIR No.10/
2000 lodged in Police Station, Dausa as against the appellant
is hereby quashed.
G R.P. Appeal allowed.
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