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Judgment
A. Ramamurthi, J.—The respondents/accused were prosecuted by the Petitioner for offences u/s 4 read with Sections 3, 5(a) and 5(e) of prize chits and money circulation Scheme (Banning) Act, 1978. The Respondents filed separate petition u/s 239 of Criminal Procedure Code for discharge based upon the decision of the Apex Court in "Common Cause", A Registered Society Through Its Director v. Union of India and Ors. 1997 SCC (Cri) 42. The Respondents contended that they were appearing before the court for more than two years and in spite of this, the trial has not yet commenced and based upon the aforesaid decision, they want to be discharged from the case. The prosecution Agency opposed the application and after hearing the parties, the learned Judge discharged the Respondents u/s 239 of Code of Criminal Procedure and aggrieved against this, the present revisions have been filed by the State.
Heard the learned Counsel of both sides.
The point that arises for consideration is whether the order passed by the court below in the respective calendar cases is proper and correct 7.
Point: It is not in dispute that the state represented by the Inspector of Police, Crime Branch, C.I.D., Salem filed the final report against these Respondents in Crime No. 479 of 1991 on 15.2.1993. However, the copies were furnished to the accused only on 11.6.1996. The Respondents filed application for discharge based upon the Common Cause Case (Cited Supra) on 31.12.1996 and orders were passed on 31.1.1997. Learned Government Advocate (criminal side) contended that the order passed by the Court below is not proper and correct. The Principle laid under the Common Cause Case is not applicable to the case of the Respondents. The delay claimed to have been occurred is not because of the conduct of either the prosecution machinery or the court and the same was entirely due to the deliberate conduct on the part of the accused in absenting themselves in attending the court for the court for the purpose of framing of the charges. Offences relating to Criminal misappropriation of property of the complainant as well as the offences relating to Criminal breach of trust under Indian Penal Code and the offence of cheating are excluded from the purview of the case referred to above. The directions 1 and 2 made in the said judgment are not applicable to the case of the Respondents. There was a proposal by the Government to constitute a Special Court in view of the involvement of the huge sums of public money and as such, the court has to await for the orders of the Government between 16.2.1993 and 8.4.1994 and only on 8.4.1994 the proposal to constitute a special Court was dropped and, as such, this period has to be excluded. The accused also filed several petitions for discharge on flimsy grounds and it also consumed the time of the court in disposing the petitions. The amount involved relating to the case is very huge and voluminous records and number of witnesses also took considerable time for preparation of the copies and furnishing, the same to the accused. The commencement of the period of the delay must be only from the date of commencement of trial i.e., from the date of framing the charge and not from the date of appearance of the accused and, as such, the order of the lower court is biased and not sustainable in law and, as such, liable to be set aside.
Per contra, learned Senior Counsel for the Respondents contended that there is absolutely no delay on the part of the accused and the entire delay was caused only by the prosecution in supplying the Original records to the court for preparation of the copies. The original documents were presented in court only on 16.2.1993 and some of the documents were omitted and for which, the court had addressed number of times and because of that only, there was delay in preparation of the copies and ultimately the copies were supplied on 11.6.1996. As per the directions 1 and 2 in the Common Cause Case (cited supra), when the Respondents are involved in an offence punishable within a period of three years and if there is no progress in the case for nearly a period of two years, then the Case against them should be discharged. Based upon the Principle enunciated in the Common Cause Case decision only, the Respondents have been discharged from the Case and, as such, the order passed by the court below, is proper and correct and no interference is called for.
Admittedly, the docket entries relating to C.C.46 and 47 of 1993 have been produced by the concerned parties. Perusal of the same indicates that the final report was filed and they were taken on file on 16.2.1993. The entry regarding 15.12.1994 relate to certain documents called for have not been received and reminder was issued to the Inspector of Police. On 13.1.1995 also, the documents sent for have not been received. Similarly on 13.2.1995 and 24.3.1995 also, the documents sent for have not been produced. On 27.4.1995 for getting documents, Superintendent of Police, C.B.C.I.D. was also addressed. Similarly, for want of documents, the Cases were adjourned to 9.6.1995, 7.7.1995, 7.8.1995, 4.9.1995, 6.10.1995, 7.11.1995, 4.12.1995, 4.1.1996, 5.2.1996, 5.3.1996, 12.4.1996 and thereafter the copies were prepared and on 11.6.1996, copies were given. In the meantime, one of the accused (13th accused) also died. The aforesaid docket entries clearly indicate that there was delay of nearly three years in supplying the documents required by the court for preparation of the copies and delay was mainly caused by the prosecution. No doubt, during the relevant period, some of the accused might have filed discharge petition, but this cannot be construed so as to come to the conclusion that the delay was caused by the accused.
Learned Government Advocate (Criminal side) further contended that there was a proposal to form a Special Court and the court was awaiting for the orders between the period 16.2.1993 and 8.4.1994 and as such, this period has to be excluded from consideration. However, on 8.4.1994, the proposal to constituted a Special Court was dropped. I am unable to agree with the contention of the learned Government Advocate to exclude the period. Simply because the Government was considering the proposal to have a special court and if they take more than one year, it cannot be excluded from the consideration. Even then during the relevant period, the prosecution could have filed the documents into the court to enable the court to prepare the copies. There is absolutely no reason on the part of the prosecution for not filing the relevant documents to prepare the copy and the delay was mainly caused only by the prosecution and they have no necessarily suffer for their conduct. They cannot take advantage on their fault and put the blame on the part of the accused.
It has been held in Common Cause Case (cited supra) that "the under trials languishing in jail for long periods directed to be released on conditions laid down in the order. Guidelines and directions for disposal of other category of Cases, whether instituted on police report or private complaint, also issued. However, they are not applicable to certain class of Cases mentioned in the order. The Case of the Respondents does not fail under any of the categories excluded. It has been further held that where the Case pending in Criminal courts under IPC or any other law for the time being in force are pending in connection with offences which are punishable with imprisonment upto three years with or without fine and if such pendency is for more than two years and if in such Cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the Case may be, and close such Cases. For the purpose of directions contained in Clauses 1 and 2, the period of pendency of criminal Cases shall be calculated from the date the accused are summoned to appear in the court. Prima facie it is clear that this decision is applicable to the Case on hand. This decision has also been further clarified and the same is reported in 1997 SCC (Cri) 42.
Learned Senior Counsel for the Respondents also relied on the decision reported in Rajiv Gupta and Ors. v. State of H.P. 2000 SCC (Cri) 696, wherein it was held as follows:
Reading point No. 4.2.(f) of Supreme Court''s decision in main Common Cause Case and Para 1.11(ii) of its clarificatory judgment together, it is clear that if the trial of a Case for an offence which is punishable with an imprisonment up to three years has been pending for more than two years and if the trial had not commenced, then the criminal court is required to discharge and acquit the accused. In the clarificatory order, it is provided that in the warrant Case like the present, the trial will be regarded as having commenced when charges are framed u/s 244 Code of Criminal Procedure. This means that if within a period of two years charges are framed, then an accused would not be entitled to take the benefit of the Common Cause judgment and ask for his discharge. In the present Case, admittedly for a period of more than three years after the filing of the challan by the police and the appearance of the Appellants in Court, the charge, u/s 240 Code of Criminal Procedure has not been framed. This means that the Appellants trial had not commenced within a period of two years and therefore, the Magistrate was right in discharging the Appellants.
This decision is clearly applicable to the Case on hand in all fours. Under the circumstances, I am of the view that the orders passed by the Court below are proper and correct and no interference is called for.
For the reasons stated above, all the revision petitions fail, and accordingly, they are dismissed.