Anil John vs State of J. and K. and Others

Mohammad Yaqoob Mir, J.—OWP No. 277/2004 filed by the appellant for quashment of the case registered as FIR No. 43/2000 for

commission of offences punishable u/s 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006 and Sections 120B, 420, 467 and 468

of the RPC, stands dismissed vide judgment dated 6th July, 2007. Aggrieved thereof instant Letters patent Appeal.

Appellant along with Sh. Gh. Mohammad Khan Proprietor of M/S Sour a Group of Industries, Sh. Rajinder Koul, the then AAO Home

Department and Sh. Subash Chander Jandial, the then CAO/FA Home Department, allegedly, hatched a conspiracy and succeeded in getting Rs.

43,33,380/- released as rent for the Industrial units/residential accommodation owned by Sh. Gh. Mohammad Khan situated at Batergam,

Kupwara.

Sh. Gh. Mohammad Khan in respect of Industrial units/residential accommodation situated at Batergam Kupwara allegedly occupied by the

Security Forces from the year 1989 to 1996, represented to the Home Department for payment of the rent. The Home Department referred the

case to the Deputy Commissioner, Kupwara for assessing the rent through Rent Assessment Committee. The Deputy Commissioner, Kupwara

instead of finalizing the rent assessment, after 15 months returned the rent case with the request that status of the accommodation be got

determined through Tourism Department, as Sh. Gh. Mohammad Khan (accused) represented and claimed that the occupied accommodation falls

within the Three Star category Hotel, therefore, assessment can only be made by the Tourism Department. As a result thereof the matter had been

referred to the Commissioner-Secretary, Tourism Department. The Commissioner-Secretary, Tourism Department did ask the Dy. Director

Tourism, (Registration) for a report in respect of the accommodation occupied by the Security Forces at Batergam, Kupwara i.e. to categorize the

residential accommodation. The Deputy Director Tourism (appellant) addressed a communication to the Special Secretary to Govt., Home

Department, Srinagar dated 18th June, 1996, wherein he has recorded ""As per rules in vogue the accommodation falls in B-Category of Hotels"".

As a result thereof the Home Department processed the rent case and fixed rent at Rs. 70/- per day per room. On the basis of the said assessment

Rs. 43,33,380/- for the period 1989 to 1996, as against the genuine entitlement of the rent Rs. 2,46,664/- for the said accommodation has been

released.

Noticing the release of huge amount of rent Principal Secretary to Government, Industries and Commerce Department, J&K Government,

Srinagar lodged complaint with the Vigilance Organization and after necessary enquiry same resulted into the registration of case as FIR No.

43/2000, with the Police Station Vigilance Organization, Kashmir (VOK).

Appellant claims to be innocent and added that in terms of SRO 512 dated 08.10.1984, he was prescribed authority under the Jammu and

Kashmir Registration of Tourist Trade Act, 1978 (hereinafter to be referred to as the Act of 1978). In the petition he further alleged that the said 3

Star residential accommodation of Gh. Mohammad Khan was not registered u/s 10 of the Act, which was pre-requisite for the very application of

the Act, 1978. So accommodation being not registered as Hotel, it was none of his official duty to categorize such accommodation, further more

the said accommodation does not fall in the Tourist Area. It was further projected that respondents 7 and 8 on the basis of service enmity had

given opinion against him.

The learned Writ Court after considering the matter and contentions has concluded that the petition is without any merit, and at the same time

recorded that all these matters are required to be seen as and when proper Challan is put in a competent Court of jurisdiction.

The first contention raised is that appellant is innocent and he has been falsely implicated, when there is no criminal act attributable to him, he has

been unnecessarily arrayed as accused.

This contention is to be rejected, because categorization certificate allegedly, has been issued without conducting spot inspection and without

verifying the position of the accommodation, appellant has recorded that as per the rules in vogue the accommodation falls in B-Category of

Hotels. If the said accommodation was not registered under the said Act, he should not have categorized the same and nothing would have

prevented him from stating that he is not the authority to categorize it, unless the said accommodation is registered as a Hotel under the Act, 1978.

Learned Counsel for the appellant contends that whatever appellant has done seems to have been done in terms of Section 15 of the Act. This

contention is of no help to him, because Section 15 of the Act provides for fixation of the maximum rates, service charges in respect of Hotels and

Restaurant commensurate with the standard of hotel and quality of food, accommodation and service which may be charged by the hotel keeper

for board or lodge.

SRO 512 clearly indicates that the appellant was prescribed authority meant for the purposes falling within the scope of Section 15, this

Section would not provide for categorization of the accommodations/Hotels. The appellant has responded to the communications sent to him,

therefore, he cannot claim to have acted in good faith in categorizing the accommodation as B-Category. The investigation conducted in the case

would indicate that no facilities and privileges required for declaring the accommodation as B-Category were available with the accommodation in

question. It would further indicate that as per the tourist expert's opinion the said building at the most was fit to be declared as a ""dormitory class

and the occupants could be charged on 'per head' 'per day' basis. The categorization report submitted by the appellant is totally contrast to the

ground realities. It would further indicate that all the correspondences with regard to the categorization of accommodation were kept by the

appellant in his personal custody.

On the merits of the case less said is better, as otherwise rights of the appellant in the Trial Court may get prejudiced.

The next contention projected by the learned Counsel for the appellant is that there has been considerable delay in the investigation of the case.

As the case has been registered in the year 2000, sanction for prosecution of the case has been obtained in the year 2008. More than eight years

have been consumed for completion of investigation and production of Challan. In addition, it is also projected that the investigation has almost

been completed in the year 2004 itself, still four years have been consumed for presentation of the charge sheet (Challan) before the Trial Court.

Such a long delay violates the fundamental rights of the appellant. Right of speedy trial has been infringed. It has further been contended that in

view of the said delay, the appellant has suffered, therefore, the criminal proceedings lodged against him are liable to be quashed. In support of his

contention learned Counsel for the appellant has placed reliance on the judgments reported in;

State of Haryana and others Vs. Ch. Bhajan Lal and others,

Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc.,

Santosh De Vs. Archna Guha and others,

Mahendra Lal Das Vs. State of Bihar and Others,

P. Ramachandra Rao Vs. State of Karnataka,

Pankaj Kumar Vs. State of Maharashtra and Others,

In the case titled State of Haryana and others Vs. Ch. Bhajan Lal and others, , Hon'ble Apex Court in Para 108 by way of illustrations has

shown categories of cases wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the

ends of justice. Again it has been held that it is not 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.

Illustration No. 7 is quoted as under:

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The learned Counsel for the appellant has projected that respondents 7 and 8, had some service dispute, therefore, they have given their

opinion against the appellant which is not free from mala fide. The contention of learned Counsel for the appellant is not supported by any material

available on record. Further more criminal case has been set on motion at the instance of Industries and Commerce Department. It is during the

course of investigation opinion was sought from respondents 7 and 8, so the proceedings have not been instituted at the behest of respondents 7

and 8. Incidentally, during the course of investigation they have been asked to participate, so as to give their expert opinion, so the question of

maliciously institution at the behest of respondents 7 and 8 is far from imagination. However, the observations will not prevent the appellant in

proving the same at the relevant stage before the Trial Court.

It is in the peculiar facts and attending circumstances of each case, the question of delay is to be taken into consideration. There is no time

framed or law laid down which would provide that the investigation of the case shall be concluded within a particular period of time. Delay in

isolation of the merit position and attending circumstances cannot be a sole factor for seeking quash-ment of the criminal case.

In case titled Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., , a constitutional Bench of Hon'ble Supreme Court has ruled that it

is not possible to lay down any time schedule for conclusion of the criminal proceedings. It is quite apt to quote following passage from Para ""51

of the judgment.

But then speedy trialor other expression conveying the said concept-are necessary relative in nature. One may ask - speedy means, how speedy?

How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of

offence, the number of accused, the number of witnesses, the work-load in the particular Court, means of communication and several other

circumstances have to be kept in mind.

Finally, the Hon'ble Supreme Court in the said judgment framed certain propositions, and at the same time it has been held that the

propositions so framed are not exhaustive, as it is difficult to foresee all situations and further it is not possible to lay down hard and fast rules.

Propositions No. 5, 8 and 10 for the purposes of appreciating the matter in hand are quite apt to be quoted.

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 ac-cusedand witnesses, the work-load of the court concerned/prevailing local conditions and

so on what is called, the systematic 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 instead of a pedantic one.

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 to speedy trial has been denied in a given 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 U.S.A, too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor it can be said that non-fixing any

such outer limit ineffectuates the guarantee of Right to speedy trial.

It is quite clear that while determining undue delay resulting in violation of right to speedy trial, it is the attending circumstances, nature of

offence and other relevant consideration which are to be taken note of and in terms of the referred judgment a realistic and practical approach has

to be adopted. Coming to the case in hand, nature of offence and other circumstances as noticed herein above, are suggestive of the fact that delay

as noticed coupled with the merit position and the attending circumstances do not warrant quashing of the criminal proceedings as launched against

the accused. Systematic delay sometimes is also attributed to the circumstances and some time attributed to the tardy pace of the concerned

authorities in processing the papers. In the instant case, though investigation seems to have been almost completed in the year 2004, but record will

show that even in the year 2005, certain seizure memos have been prepared. There is a bit of slackness, but that will not prevail in view of merit of

the material collected by the investigating agency.

In case titled Santosh De Vs. Archna Guha and others, , on the completion of investigation, charge sheet was presented. The allegation against

the accused was that he possessed disproportionate assets to the tune of Rs. 2 lac. Prosecution remained pending for 14 years. Charge sheet was

framed after lapse of about eight years. Case was committed to the Sessions Court on 15th July, 1974, and the Sessions Court framed charge on

13th April, 1983, i.e. after a lapse of eight years. The Hon'ble Supreme Court held that unexplained delay of eight years in commencing the trial by

itself infringes the right of the accused to speedy trial and such delay was on account of the default of the prosecution. Such delay was held to be

non systemic delay.

In the same case i.e. Santosh De. (supra) the Hon'ble Apex Court in (Criminal Appeal No. 601 of 1987) after noticing 17 years of total

pendency held that speedy trial has been breached. It is apt to quote Para 17 of the said judgment:

While we appreciate that a serious criminal offence might have taken place at *he hands of respondents 1 to 9, we cannot be oblivious to the fact

that almost 17 years have elapsed since the date of that occurrence and there and these several delays pointed out earlier which remain

unexplained. We think that in the circumstances the rights of respondents 1 to 9 to a speedy trial have been breached and no interference with the

judgment under appeal is called for. The appeal is dismissed.

In case titled Mahendra Lal Das Vs. State of Bihar and Others, , the attending circumstances and the position was such which warranted

quashment of the FIR. In Para 5 of the said judgment, it has been observed that it is true that interference by the Court at the investigation stage is

not called for. However, it is equally true that the investigating agency cannot be given the latitude for protracting the conclusion of the investigation

without any time of limit. Thereafter, Hon'ble Apex Court while noticing the law laid down in the case Abdul Rehman Antulay Vs. R.S. Nayak and

another etc. etc., has then noticed the position of the case which was being dealt with in Para 6 of the judgment. The same is quoted herein:

In this case the prosecution has miserably failed to explain the delay of more than 13 years by now. In granting the sanction for prosecution of the

appellant-accused of possessing disproportionate wealth of about Rs. 50,600. The authorities of the respondents state also appear to be not

satisfied about the merits of the case and were convinced that despite granting of sanction the trial would be a mere formality and exercise in futility.

In the constitutional judgment delivered in case titled P. Ramachandra Rao Vs. State of Karnataka, , it has been laid down that the Hon'ble

Supreme Court cannot fix any time limit as bar beyond which criminal proceedings or trial cannot continue, thereby entitling the accused to be

acquitted on ground of delay. It has been further laid down that prescription of such limitation period would amount to judicial legislation which is

not permissible. The Hon'ble Apex Court in the said judgment held that the dictum in A.R.An-tulay case (supra), is correct and still holds the field.

In the judgment delivered in the case titled Pankaj Kumar Vs. State of Maharashtra and Others, , in the criminal proceedings inordinate delay

of over eight years coupled with the facts of the said case was held to have been in violation of the constitutional right to a speedy investigation and

trial, so was quashed. In the said judgment the Hon'ble Apex Court has ruled that where the court comes to the conclusion that right to speedy trial

has been infringed, the Court may quash the proceedings, provided Court may not feel that nature of offence and other relevant circumstances may

not defeat the ends of justice.

It shall be quite appropriate to quote Para 17 of the judgment.

It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right ulnder Article 21 of the Constitution. This

right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right

to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to

speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attending

circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court

comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be

quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in

the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of

time for conclusion of trial.

Finally, in the reported case in view of the attending circumstances on the basis of inordinate delay proceedings were quashed. Once again it is

clear that delay is not a sole factor for quashing the proceedings. The attending circumstances and ends of justice are also to be taken into

consideration.

Applying the ratio of the judgments as referred to above to the facts and position of the present case detailed in the beginning part of the

judgment, there is no scope for interference with the order impugned. Appeal, as such, falls.

The charge sheet (Challan) on completion of the investigation has been presented before the Court of Special Judge Anticorruption (Additional

District and Sessions Judge) Srinagar. It would be quite appropriate for the appellant to project before the learned Trial Court all his grievances, so

as to show that prima facie he is not involved in the case.

Since eight years time has been consumed in the investigation and production of Challan the matter is required to be dealt with expeditiously by

the learned trial Court. Learned trial judge will hear the parties on the question of framing or otherwise of the charges and shall pass such order as

shall be warranted uninfluenced by the observations made herein above.

Learned Trial Court is expected to schedule the proceedings of the case in such a convenient manner as may ensure expeditious disposal of the

case.

Copy of this order along with record of the Trial Court be sent back to the Trial Court.