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REPORTABLE IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO. 888    OF 2013     (ARISING OUT OF SLP(Crl.)NO.4513 OF 2012)

LOKESH KUMAR JAIN        … APPELLANT

VERUS

STATE OF RAJASTHAN             … RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave 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  

Court refused to quash the FIR No.10/2000 lodged against  

the 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 section 482 Cr.PC for quashing of FIR No.10/2000 registered at Police Station, Dausa.

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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 anyother  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 LDC­cum­

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 office of Directorate for the

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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 taken place in the year 1996­1997,  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”)  

5.During the pendency of the matter before the CJM, Dausa,  

the complainant filed an application on 18th November, 2000  

before the CJM, Dausa requesting therein to send back the  

matter to the Police for further investigation.  The CJM,  

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 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

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Police informed that the original copies of the bills and  

another documents are not available, therefore, no  

investigation 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 FIR No.10/2000 registered at  

Police Station, Dausa.

7.In the meantime, a Departmental Inquiry was initiated  

against the appellant for the same charges in which the  

Inquiry Officer after inquiry submitted his report on 15th  

December,2008 exonerating the appellant from the charges.

8.The High Court by impugned order dated 2nd  March, 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 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

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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 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 made out against the appellant and on

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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 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.

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 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.

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14. In State of Haryana v. Bhajan Lal, 1992 (Suppl.) 1 SCC  

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:­

“102.  In 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 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 of the process of any court or otherwise to  secure the ends of 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.

(1) Where the allegations made in the 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.

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(4) Where, the allegations in the FIR do not  constitute a cognizable offence but constitute only a  non­cognizable 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  conclusion  that  there  is sufficient  ground  for  proceeding against the accused. (6) Where there is an express legal bar engrafted in  any of the provisions 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 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 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.”

15. Need for speedy investigation and trial as both are  

mandated by the letter and spirit of the provisions of  

Cr.PC have 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 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

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doubt, the right to speedy trial. This Court further  

observed that:

“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  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 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. 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 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 pre­trial  release in India could be avoided or, in any event,  greatly reduced.”

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17. In  Abdul Rehman Antulay v. R.S. Nayak, (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 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:

(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 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.

(2) Right to speedy trial flowing from Article 21  encompasses all the stages, namely the stage of  investigation, inquiry, trial, appeal, revision and  re­trial. That is how, this Court has understood this  right and there is no reason  to take  a  restricted  view.

(3) The concerns underlying the right to speedy trial  from the point of view of the accused are:

(a) the period of remand and pre­conviction detention  should be as short as possible. In other words, the  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 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 non­availability of  witnesses or otherwise.

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(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 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, 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  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  instead of a pedantic one.

(6) Each and every delay does not necessarily prejudice  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,  J. in U.S. v. Ewell in the following words:

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‘... 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  a prosecution amounts to an unconstitutional  deprivation of rights depends upon all the  circumstances.’

However, inordinately long delay may be taken as  presumptive proof of prejudice. In this context, the  fact 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.

(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 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 non­asking for a speedy trial  cannot be put against the accused. Even in USA, the  relevance of demand rule has been 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 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 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 within a fixed time where the  trial is not concluded or reducing the sentence where

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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  time­limit 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 time­limit 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  entertains such 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.”

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 (II) and Raj Deo Sharma (I)  

and (II) cases wherein this Court prescribed periods 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

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Rao(supra) after exhaustive consideration of the authority  

on the subject this Court held:

“29.  For  all the  foregoing  reasons,  we  are of  the  opinion that in Common Cause case (I) [as modified in  Common Cause (II)] and Raj Deo Sharma (I) and (II) the  Court could not have prescribed periods of limitation  beyond 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 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 said propositions. (3) The guidelines laid down in A.R. Antulay case are  not exhaustive but only illustrative. They are not  intended to operate as hard­and­fast rules or to be  applied like a straitjacket formula. Their  applicability would depend on 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 conclusion of all criminal proceedings. The  time­limits or bars of limitation prescribed in the  several directions made in Common Cause (I), 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 terminate trial or  criminal proceedings merely on 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 time­limits cannot

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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 Court  under Section 482 CrPC and Articles 226 and 227 of the  Constitution can be invoked seeking appropriate relief  or suitable directions. (6) This is an appropriate occasion to remind the  Union of India and the 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 shall act.”

19. This Court in  Vakil Prasad Singh v. State of Bihar,  

(2009) 3 SCC 355  considered the question of quashing of  

criminal proceedings due to delay, when warranted.  

Referring to earlier decisions of this Court on the issue,  

this Court held 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.

20. In Vakil Prasad Singh(supra) one search operation was  

conducted by the office of Superintendent of Police, Crime

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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) Muzaffarpur, 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 charge­sheet  

for aforesaid offences was filed against the accused on 28th  

February, 1982.   The Magistrate took 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 Special Judge,  

Muzaffarpur taking cognizance of the said offences, on the  

ground that the Inspector of Police, who had conducted the  

investigations, on the basis whereof the charge­sheet 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 there till 1998, when the accused filed  

another petition under Section 482 Cr.PC, giving rise to  

the appeal before this Court.  

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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 Cr.PC 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  complainant­District  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

Police Station: Dausa

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Subject: Regarding misappropriation of the amount of  pending Bill for the period 11.96­11.97 by Sh.Lokesh  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 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  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 on the basis of the annexed enquiry report  of the office of the CAG.

Enclosures enquiry 8 pages

Sd/­

District Literacy & Education

Mission Officer, Dausa”

24. After conducting investigation, the Investigation  

Agency submitted Final Report on 2nd  June,2000 before the  

CJM, Dausa, the relevant portion of which reads as follows:

“Brief Facts of the case:

Respected Sir,

The facts of the present case are that on  4.1.2000 Sh. Murari lal S/o Sh. Harmukh Prasad,  caste: Brahmin, aged 56 years, R/o Village: Oonch,  P.S: Nandbai, District:Bharatpur presently posted as  district literacy and mission education officer,  Dausa, presented in the Police Station and filed one  report against 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 as per

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which misappropriation of Rs.4,39,619/­ has been  reflected.

Copy of report is annexed; copies of the original  document of CAG and original document of state  literacy and mission education office are available.  On the basis of the said report FIR No.10/2000 u/s  409 of IPC 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 on 13.4.2000. A notice was  issued u/s 91 Cr.PC   for making available of the  requisite document but despite that no record was  made available.

Again on 21.4.2000 a notice u/s 91 Cr.PC 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  credit­debit 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  investigation  will be  taken  on  the receipt  of  the  records from the concerned departments.

Hence FR No.67/2000 is being filed for kind  perusal and acceptance because of insufficient  evidence.”

25. On perusal of Final Report, the CJM, Dausa passed the  

following order:

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“Before the Chief Judicial Magistrate

District: Dausa, Dausa

Complainant: Murari Lal

FIR No. 10/2000

18.11.2000

Present App.

Present complainant: Sh Murari Lal Sharma

In this case final report has been filed with the  avernment that the original record has not been  supplied to the SHO and hence investigation cannot be  carried out.  The complainant Murari Lal is present and  he is ready to cooperate with the police officers for  procuring the said records.

Hence u/s 156(3) Cr.PC the SHO Dausa is directed to re­ investigate the case with the assistance of Sh. Murari  Lal literacy and mission education officer to procure  the original records.   Final report is not accepted,  case diary is being returned.

Sd/­ CJM

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  

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 by the Inquiry Officer whereby the appellant was

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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, 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:

a) Books of accounts, Encashment Register and Bill  register (all photocopies)

b) Letter dated 26­04­2004 issued by S.B.B.J. Bank  Branch Dausa which was addressed to the office of  Literacy officer, Dausa.

c) Letter dated 21­11­2008 issued by the office of the  treasurer of the treasury.

d) Letter bearing CA/II/Dausa/176 dated 04­11­2008  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 12­01­2009 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 24­07­2009, 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 29­07­2009. The defence

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appearing 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 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  alleged against Shri Jain on 22­12­2007:

1. That you Shri Lokesh Kumar Jain (Cashier) being in  the office of the District Education and Education  officer Dausa from 20­11­1995 to 13­11­1997, was given  the work of accountant.

According the inquiry report of 11/96 to 11/97, an  embezzlement of Rs.4,39,617/­ was found to be done by  you.

The details of the allegation is depicted as follows:

a) Bills of F.V.C. amounting to Rs.65,330/­ 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.

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 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.65,330/­ (P­1) 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 (P­2) (P­3). The entries of the bills are not  available in the other records apart from the Bill  Register.  On the basis of the documents produced (P­2)  (P­3) by the prosecution, the original bill which was  to be obtained from the office of the Chief Auditor,  was not received (P­4).

Hence it is not clear that which person has withdrawn  the said bills from the bank nor the original bill is  there on record, looking into the pages of which

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conclusion could be drawn that who has withdrawn the  amount of the said bills from the bank.

In the light of the said evidence (P­2) (P­3) 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 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 P­1 and P­2  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 withdrawing the same.

Hence the second part of offence is not proved against  Shri Lokesh Kumar Jain for want of cogent and  sufficient proof.

3. Embezzlement of the amount of Rs.78,179/­ by  withdrawing the bills of the other department in the  head of Literacy and Education in the Budget.   

The prosecution has filed the evidence of (P­2) (P­3)  in 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 RAMAVI  Dhigariya but in the budget the same is under the head  of Literacy and Education department.

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

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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 expenditure and receiving the  payments does not prove the delinquent officer to be  the guilty of the offence.  It is possible that error  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, 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:

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 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.  

Sd/­ Chitarmal Meena

Inquiry Officer and Principal Officer,

RAU Department Bhandarej, Dausa.”

28. In P.S. Rajya v. State of Bihar, (1996) 9 SCC 1, this  

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 the departmental proceeding for same charge.

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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 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 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  

Directorate, State Literacy Programme.   

31. In the departmental proceeding identical allegation was  

made that as per the Inquiry Officer Report, an

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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  

respect of allegation were not produced.  No evidence came  

against the appellant­Lokesh 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  November, 2000 on perusal of Final Report, in  

exercise of power conferred under Section 156(3) Cr.PC  

directed the SHO, Dausa to re­investigate the case with the  

assistance of complainant and to procure the original  

records.   Inspite of order dated 18th  November, 2000, for  

nine years, records were not made available, as apparent  

from the Inquiry Report dated 15th December,2008.  

33. There is nothing on the record, even by way of counter  

affidavit filed before this Court to show that 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 counter affidavit.

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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 matter of investigation.  

On the other hand, the silence on the part of the  

respondent regarding availability of the original record 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  

pending for further period will be futile as the respondent  

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 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  

deserves to be quashed.

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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.  

………………………………………………………………………….J.                   (T.S. THAKUR)

……………………………………………………………………….J.                     (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, JULY 9,2013