ORDER S.N. Saxena, J.
1. The applicant by means of this application under Section 482 Cr. P. C. has prayed this Court to quash the First information Report dated 19-4-1993 and the entire proceedings against him arising out of case crime No. 104/83 P. S. Karakat under Section 409 I. P. C. State v. Jai Prakash Singh pending in the Court of IVth Addl. Chief Judicial Magistrate or to direct the trial Court to complete the entire proceedings within a reasonable period of time. The facts of the case which gave rise to the present application were as follows.
2. The applicant, Jai Prakash Singh was an employee posted in the Irrigation Department, Sharad Sahayak Khand 36 Jaunpur. He was holding the post of watchman (Chaukidar). Kailash Chandra Soni who was holding the post of Assistant Engineer in Irrigation Department, Sharada Sahayak Khand-36, Jaunpur had found that 47 bags of Cement worth Rs. 33, 122/- were missing from the store where the applicant was posted on duty and therefore, he lodged First Information Report dated 19-4-83 under Section 409 I. P. C. at P. S. Karakat against him. The service of the applicant also had been terminated since 31-10-1983 by the order dated 29-10- 1983 without affording any opportunity to him to show cause against the termination. On the basis of the aforesaid First Information Report, a case was registered against him as crime No. 104/83 in July, 1983. Criminal Proceedings against him even today were pending decision before IVth Addl. Chief Judicial Magistrate, Jaunpur but no witness as yet was examined against him by the prosecution nor any other evidence had been adduced to prove his guilt as was evident from the questionnaire marked as Annexure No. 4 to the application. A notice dated 17-10-94 was issued by his Department to the applicant to deposit the amount of rupees 32,499/- shown as various advances standing in the name of the applicant at item No. 59/59 in the month of May, 1983. He was alleged to have been involved in a theft which had occured in the night of 13/19-4-1983 in Karakat store. The allegations in the First Information Report and the aforesaid notice dated 17-10-94 were self contradictory. According to the First Information Report, Cement bags were not found in the store when it was got opened by the applicant in the day at 2.30 p.m. on 18-4-83 while according to the notice dated 17-10-94, Cement bags were stolen in the night of 18/19-4-83. If the Cement was not found in the day on 18-4-83 at 2.30 p.m. then the theft of the same in the following night between 18/19-4-83 was not at all possible. The applicant was on duty during the day and therefore, the alleged theft which occurred in the following night was not his concers as he was not on duty in the night. He did not possess key of the store but the Superior Officers, in order to save their skin, shifted the whole liability on his head and they had been now prolonging the proceedings inordinately in order to harass him.
3. His criminal trial, for the said alleged offence, was wholly false and frivolus but the authorities were not prepared to given him relief by taking him back in service and they also were not at all interested in getting the trial concluded due to which he filed this application for getting quashed the same.
4. The opposite party namely the State of U. P., filed counter affidavit of Shri Desh Bahadur Singh Gautam, who was posted as S. I. at P. S. Karakat, District, Jaunpur. It was verified by him before the Oath Commissioner on 7th July, 1995. He disclosed in the counter affidavit that the applicant had been named as an accused in ease crime No. 104/1983, under Section 409 I. P. C. P. S. Kerakat, District, Jaunpur and after completion of the investigation, the Investigating Officer had submitted charge sheet against him which was pending before the appropriate Court concerned. Regarding paras No. 2, 3, 4 and 5 of the affidavit to the application, he disclosed that no cement was necessary in respect thereof. He contended that it was incorrect to say that no proceeding had taken place in the aforesaid case pending against the applicant. Further he stated that on a number of dates prosecution witnesses were persent before the Court but on account of serveral reason such as strike by the Advocates, condolence, transfer of the cases from one Court to another Court, the adjournment on the request of the counsel for the applicant, they could not be examined. Regarding Departmental proceedings he contended that he was not aware of the notice dated 17-10-94. The investingation, according to him, had revealed the prima facie guilt of the applicant and his trial, therefore, was necessary in the interest of justice. In para No. 8 of the counter affidvit he contended that the applicant by committing theft of 47 bags of Cement had caused loss of a sum of rupees 33, 912/- to the Government. The prosection according to him was not liable for the inordinate delay in the conclusion of the trial and the application, therefore, was liable to be dismissed.
5. The applicant filed Rejoinder affidavit in which he contended that the prosecution witnesses were absent on the dates fixed due to which the trial Court could not record the statement of even a single witness so far. He further contended that he had never sought adjournment and the contention of the opposite party to this effect was wholly incorrect. We stated that only a few dates no doubt, were adjourned due to strike by the Advocates, condolences etc, but he was not at all responsible for the inordinate delay. The assistant Engineer of the Department, who filed the First Information Report against him and the Executive Engineer of the Department, who issued notice to him, were not at all co-operating so far as the trial against him was concerned. As a matter of fact, no evidence at all against him was available to prove his alleged involvement in the aforesaid case and the case had been concocted by the Departmental Authorities. In para 10 of the rejoinder affidavit he has disclosed a number of dates which were fixed for evidence in the trial but the witnesses were not present before the Court concerned which, therefore, was unable to record any evidence. The date mentioned by him are as follows:-
21-11-87,9-12-87,18-1-88,2-7-88,2-8-88,5-10-88, 17-7-90, 28-11-91, 29-1-91, 2-4-91, 12-6-91. 28-6-91, 24-8-91, 28-3-92, 18-5-92, 18-7-92, 20-3-93, 13-5-93, 28-5-94 and 23-8-94.
The learned Court as last opportunity, had fixed 12-6-86 for evidence but even as yet the prosecution had failed to examine any witness (for the last 9 years) against him. The bailable and the non-bailable warrants of arrest also were issued by the learned trial Court against the witnesses who had furnished bail bonds and sureties but even then did not turn up. A period of 12 years had elapsed since the commencement of the said criminal trial but a fair criminal trial was not possible in the said case who are the evidence mainly consisted of oral evidence the inordinate delay had resulted in violation of the Article 21 of the Constitution of India, which conferred the right of speedy trial. He further contended that under the circumstances of the present case, the prosecution and the First Information Report was liable to be quashed and the applicant was entitled to get a clean acquittal.
6. This Court heard the arguments advanced by the learned counsel for the applicant and the learned A. G. A. Learned A. G. A. could not challenge the correctness of the version of the applicant. The applicant has filed a copy of the questionnaire dated 29-11-1994 as contained in Annexure No. 4 to the application and its perusal showed that not a single witness till 29-11-1994 was examined by the prosecution against the applicant in the aforesaid criminal trial. In further showed that the aforesaid criminal case was pending decision since July, 1983 and since 2-5-84, several dates were fixed for taking down the evidence of the prosecution but no evidence at all had been produced by the prosecution. It was thus evident that during a period of 10 years the prosecution had not been able to examing any witness against the accused/applicant in the aforesaid criminal trial. The opposite party had not made any effort to controvert the aforesaid allegation of the applicant. After carefully considering this aspect of the case. I am of the opinion that the liability for the inordinate delay in the trial of the applicant rested solely upon the prosecution.
7. It may also be important to mention here that the version of the prosecution was self contradictory. According to the First Information Report of the occurrence which is annexure No. 1 to the application, the Assistant Engineer of the department inspected the store on 18-4-83 at 2.30 PM in the day and he had not found 471 bags of Cement inside the store although there should have been 471 bags of Cement inside the store. He as a matter of fact had found the store totally empty. Assistant Engineer further mentioned in the First Information Report that the applicant accepted that with the help of duplicate key, he had opened the locks of the store and sold 471 bags of Cement. The Executive Engineer however, stated in his notice dated 17-10-94 a copy of which is Annexure No. 5 to the application, about the theft of the aforesaid Cement in the night between 18/19-4-1983 and therefore, directed him to deposit the price of the same with the Government. If the store was found empty at 2.30 p.m. in the day on 18-4-83 by the Assistant Engineer, then no theft at all was possible in the following night between 18/19-4-83. It was probably due to this reason that the trial had been inordinately delayed as the aforesaid self contradictory version of the prosecution would be sufficient for disbelieving the prosecution version in the criminal trial. This Court, however, at this stages is not at all concerned with the fate of the trial but the fact remained that the sole responsibility for the inordinate delay was on the side of the prosecution and it was sufficient to my mind for quashing the prosecution of the applicant.
8. Learned counsel for the applicant relied upon a decision of the Hon'ble Supreme Court reported in AIR 1962, SC at page No. 603 (Sic) S. G. Jain, appellant v. Union of India, respondent and argued that the prosecution of the applicant in view of the above, was liable to be quashed. In the said case before the Hon'ble Supreme Court, a period of 14 years had elapsed in the matter of prosecution of the S. I., in C. R. P. F, under Section 10(4) of C. R. P. F., Act, 1949 and Section 409 I.P.C. It would be useful to re-produce the following observations of the Hon'ble Supreme Court from the aforesaid decision :--
It is difficult to get over the fact that the prosecution against the appellant is pending for almost fourteen years. Apart from mential agony it must have adversely affected him in his service caree. In the facts of the case it is difficult rather impossible to arrange a fair trial to the appellant after such a long time lapse. It would be sheer waste of public time and money apart from causing harassment to the appellant. It is, no doubt, correct that this appeal has been pending in this Court for almost eleven years but that is not a ground to permit this stale prosecution to go on. It is not the State action but its effect on the citizen which is relevant.
9. The aforesaid decision of the Hon'ble Supreme Court fully supported the contention of the learned counsel for the applicant that the prosecution of the applicant was liable to be quashed.
10. A full Bench decision of Patna High Court reported in AIR Patna, 324 (Sic) Madheshwardhari Singh, petitioners, v. State of Bihar, respondents relied upon by the applicant also supported his contention that it is a fit case for quashing the entire criminal proceedings against him. Following observations from the aforesaid Patna High Court's decision would be useful to re-produce :-
Laying down of an outer time limit to concretise the right to speedly public trial is envisioned both by principle and precedent. A callous and inordiantely prolonged delay of seven years of more (which does not arise from the default of the accused or is other wise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones plaintly violate the constitutional guarantee of a speedy public trial under Article 21.
11. For the applicant reliance was also placed upon a decision of Bombay High Court reported in Cr. LJ 1388 (Sic), R. Mahadevan Iyer. Petitioner v. State of Maharashtra respondents wherein also under similar circumstance it was held that the prosecution was liable to be quashed. Under the circum- stances of the present case there was no chance of a fair trial as the guilt of the applicant could be proved by the oral evidence only. The prosecution was required to establish by producing evidence that the applicant had opened the store with the help of duplicate key and sold the Cement for financial gain. Such evidence, after the lapse of 12 years of the alleged incident could hardly be produced before the trial Court. The possibility of the production of fabricated evidence before the learned trial Court, after such a long gap, could not possibly be ruled out. The applicant could also be highly prejudiced in his defence after a lapse of a period of about 12 years of the incident.
12. I am, therefore, of the opinion that this application of the applicant was liable to be allowed and the same therefore, is allowed. The entire proceedings arising out of crime case No. 104/83, State v. Jai Prakash Singh under Section 409 I. P. C. pending before the learned IV additional Chief Judicial Magistrate, Jaunpur are quashed and he shall be deemed to have been acquitted honourably of the charges levelled against him.