Gobardhan vs State of U.P. and Another

B.K. Rathi, J.—This is a petition u/s 482, Code of Criminal Procedure to quash the proceedings of Criminal Case No. 293 of 1999. State v. Gobardhan, u/s 409 I.P.C. pending in the Court of IVth Additional Civil Judge (Junior Division), Mirzapur.

The quashing of the proceedings have been requested on two grounds. The first ground is purely legal for which learned Counsel has relied on the decision of the case of Raj Deo Sharma v. State of Bihar XXXVII 1998 ACC 834.

It is contended that the Hon''ble Supreme Court in this case has directed that in cases punishable with imprisonment for a period exceeding seven years the Court shall close the prosecution evidence on completion of three years, from the date of recording the plea of accused on the charges framed, whether the prosecution has examined all the witnesses or not within the said period, and the Court can proceed to the next step provided by law for the trial of the ease. It is further contended that in the present case, the charges were framed on 12.7.1994 and the plea of the accused was recorded on that date and large number of dates have been fixed for evidence but the prosecution has not examined any witness as yet, and therefore, the evidence of the prosecution should be closed.

I have considered the argument and have bona fide doubt in my mind as to whether the evidence could be closed in this case which is for offence u/s 409. I.P.C. which is punishable with imprisonment for life in view of the directions given in the above case. The perusal of the judgment of the Hon''ble Supreme Court shows that the above directions are in addition and without prejudice to the directions issued by the Apex Court in the case of "Common Cause" v. Union of India as modified later on.

The perusal of the direction given in the case of "Common Cause" by the Hon''ble Supreme Court shows that these directions do not apply to the cases of misappropriation of public fund. Therefore, the decision of Raj Deo Sharma (supra) will also not apply to the offence u/s 409. I.P.C. as the direction given in this case is without prejudice to the directions given in the case of "Common Cause". If otherwise the view is taken, it will prejudice the directions given in the case of "Common Cause".

There is another reason for finding that the case of Raj Deo Sharma (supra) does not apply to offence punishable for death or imprisonment for life. Section 53 of Indian Penal Code provides definition of punishments which reads as follows:

Punishments The punishments to which offenders are liable under the provisions of this Code are

First--Death

Secondly--Imprisonment for life:

Thirdly--(Deleted)

Fourthly--Imprisonment, which is of two descriptions, namely

(1) Rigorous, that is. with hard labour,

(2) Simple:

Fifthly--Forfeiture of property : Sixthly--Fine.

The perusal of the above Section shows that punishments have been categorised in six categories. The first and second are death and imprisonment for life. The fourth is regarding punishment of imprisonment. Therefore, where the Hon''ble Supreme Court has mentioned regarding the punishment with imprisonment of seven years or more, it has mentioned regarding the punishment provided in the fourth category and not regarding punishments of first and second category. Therefore, in case of an offender liable to punishment with death or imprisonment for life under first and second category of Section 53, I.P.C., the decision of Raj Deo Sharma (supra) will have no application. Therefore, the proceedings cannot be quashed on the basis of the decision of Hon''ble Supreme Court in the case of Raj Deo Sharma (supra).

Now coming to the second ground which is factual. It is alleged, that there was dispute with managing committee and the Petitioner was appointed as ad hoc Head Master of the institution by the Basic Shiksha Adhikari. That the management committee did not accept the Petitioner as Head Master and, therefore, informed the bank not to accept the deposit made by the Petitioner. That, therefore, the amount realised by the Petitioner as fee, etc. were not accepted by the bank and, therefore, the Petitioner deposited the same in the post office by opening a separate account. That the managing committee thereafter lodged an F.I.R. that the amount was misappropriated. That in fact there is absolutely no misappropriation and the entire amount was deposited by the Petitioner. For this reason, nobody is coming forward to support the case of the prosecution.

The narration of the facts as alleged by the applicant, if are correct, no prima facie offence u/s 409, I.P.C. is made out and the Petitioner is facing trial since last about more than five years.

In the circumstances I direct the trial court to decide the case very expeditiously on priority basis within six months from the date of presentation of the certified copy of this order before it. The trial court may issue directions to the prosecution to produce the entire evidence on the date fixed with warning that no adjournment shall be granted.

The petition is accordingly disposed of.