JUDGMENT Poonam Srivastava, J.
1. Heard Sri Manish Goyal, learned, Counsel for the applicant and learned A.G.A.
2. Counter and rejoinder affidavits have been exchanged. Present application under Section 482 Cr P.C. has been filed to quash the proceedings in Criminal Case No. 2863 of 1991 State of U.P. v. Atam Prakash Agrawal and Ors. pending in the Court of Chief Judicial Magistrate Bijnor under Sections 467, 468, 409, 420, 120B I.P.C. and Section 5(2) Prevention of Corruption Act.
3. Present applicant was posted as Assistant Engineer in P.W D at Bijnor certain grudge was nurtured by the then Superintendent Engineer one H.N. Sharam, who alone tried to cause harassment to the applicant and initiated certain departmental inquiry against the applicant, despite he had an excellent service record and was appreciated by me other senior authorities of the department However, after the retirement of the applicant, he came to know in the month of August, 1993 that FIR was registered against him and the police had submitted charge sheet, which is annexure No. 4 to the affidavit. Charge sheet related to an offence alleged to have been committed sometimes in the year 1980 and daily wager Jai Pal had given an application to District Magistrate in the end of November 1982 that his wage is at the Rs. 6/- per day along with several other daily wagers, was misappropriated by the present applicant in collusion with some other junior employees and the total amount embezzled is Rs. 1638-. winch was to be paid in respect of construction of Deckboard at the Rauhghat. The record shows that sanction by the Government, was granted only on 16.4.1988 which is a prerequisite for initiating prosecution against the government Servant, if an act is done in discharge of his official duty and also for prosecution under the Prevention of Corruption Act. The sanction granted after a lapse of eight years of the alleged date of occurrence, is annexure No. 5 to the affidavit. The statement under Section 161 Cr.P.C of the other daily wagers has been annexed with the affidavit as annexure No. 6, 7 and 8. Perusal of the said statement shows that the complaint has been filed on behalf of 20 daily wagers. whose names were typed on the complaint but it bears thumb impression of only Jai Pal S/o Ghisu, the Signature on the master roll was also shown to the daily wagers and they had expressed uncertainty and that they were not satisfied as to whether thumb impressions has been affixed by some other persons or the witnesses themselves. Besides, extract of the report of Government Thumb Impression Expert has also been annexed as annexure No. 9 to the affidavit in support of the contention on behalf of applicant that he was not able to ascertain regarding the signature as it was not decipherable, the thumb impression was blurred and the expert could not give a definite opinion on the basis of the aforesaid evidence, the police submitted charge sheet, which has been challenged on a number of grounds by the applicant
4. The first argument advanced is regarding delay in prosecution. It has been stated that the sanction was given in the year 1988 relating to alleged offence in the year 1980 and there was a delay of 8 years, charge sheet was submitted in the year 1993, neither any summon was issued nor any proceedings had commenced. Reliance has been placed on the decision of the Supreme Court in-the case of Santosh De v. Archana Goha it was laid down that delay in trial gives a right to the accused to get the proceedings quashed on this ground alone. The decision in the case of Santosh De (Supra) was only an affirmation of the principle in another previous decision of the Supreme Court A.R. Antuley v. R.S. Nayak in the said case charge sheet was tiled under Section 5 of the prevention of Corruption Act in April, 1990 and not a single witness was examined for a considerable long period as such Apex Court quashed the proceedings. In the present case sanction was granted after lapse of 8 years and it is a fit case whether the proceedings should be dropped Same priciple was followed in a decision of Manmohan Vaid v. State of U.P. and Anr. 1999 (1) JIC page 19, similar view was expressed as far back as in 1993 by the Apex Court in the case of State of U.P. v. Kapil Dav Shukla . Supreme Court had upheld the decision of the High Court for quashing the proceedings in exercise of inherant power on the ground of delay and protracted trial. Learned A.G.A. has not been able to give any valid reason for dalay in sanction and also proceedings pending since a very long time.
5. I am in agreement with learned Counsel for the applicant that after the retirement of employee the proceedings were initiated on the basis of a frivolous application has been kept continuing for considerable length of delay caused by the prosecution as well as sanctioning authority is sufficient to quash the criminal proceedings on the ground alone.
6. The second argument advanced on behalf of the applicant is that bare perusal of statement of the labourers as well as a report, of the Government handing writing Expert do not establish that there is any legal evidence and that to especially after lapse of 11 years. The statement of the daily wagers, who were examined under Section 161 Cr.P.C. are not in a position to depose anything definitely about the so-called thumb impression shown to them on the muster roll. Besides, complaint given by Jai Pal does not bear thumb impression of other daily wagers. In the circumstances, for want of any valid legal evidence, the proceedings are liable to be quashed in exercise of inherent powers. It has been contended by the Counsel for the applicant that present case is covered by one of the categories detailed by the Apex COURT IN the decision of R.P. Kapoor v. State of Punjab
7. The third ground challenged is that Court of C.J.M. has no jurisdiction to try the case under Prevention of Corruption Act. It is Court of the Special Judge alone which is competent to take cognizance of the offence and the proceedings before CJ.M. Bijnor are rendered without jurisdiction and are liable to be quashed.
8. The fourth ground of challenge is that I.O. was not authorized to investigate the matter the I.O. was Vigilance Inspector and the entire investigation is in violation of Section 5A(d) of the Prevention of Corruption Act 1947, which provides that no officer below rank of Deputy Superintendent of police shall investigate an offence punishable under Section 5 of Prevention of Corruption Act. In the instant case, admittedly charge sheet has been submitted by the Inspector, who has conducted the investigation and as such the entire charge sheet is liable to be quashed.
9. The last ground of challenge is that entire proceedings were initiated at the instance of the then Superintending Engineer H.N. Sharma and a number of documents have been brought on record to establish his malafide and bias. He. Had initiated departmental proceedings and also given adverse remarks in service book on account of bias which was expunged by the Senior Officer. Looking into facts and circumstances of the case, it is clear that the entire foundation of the prosecution is on the basis of weak and flimsy evidence and charge sheet in respect of which cognizance was taken without there being any jurisdiction. investigation was also not done by a proper investigating authority change sheet has also been submitted after lapse of 8 years and 11 year after date of occurrence, when the applicant had retired from service. On consideration of the argument advanced on behalf of the applicant and also the allegation of embezzlement by the applicant, who was an officer of the rank of Assistant Engineer in collusion with his subordinate and the total account involved is Rs. 1638/- which is sufficient to conclude that the petty amount involved is only with a view to cause harassment by way of persecution and not by way of prosecution for the offence. It is a fit case for quashing the proceedings against the applicant in exercise of inherent power The continuation of the proceedings is a perfect example of an abuse of the process of the Court.
10. The present application under Section 482 Cr.P.C. is allowed. Charge sheet annexure No. 1 to the affidavit and proceedings initiated on its basis are hereby quashed. There shall be no order as to cost.