JUDGMENT
B.L. Hansaria, J.
1. These revisions are directed against orders of discharge passed by the learned Special Judge, Kohima, in a case under Section 120B/420/468/471 of the Indian Penal Code and Section 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act. The broad allegations against the opposite parties were that they had conspired together to cause pecuniry loss to the Union of India by fraudulent means and in furtherance of the conspiracy misappropriated and cheated the Government by misusing official position, a sum of Rs. 1,05,989.13. Though, initially the case was one but it came to be bifurcated as would appear from the two orders of discharge passed by the learned Judge. At first, the case against the opposite parties Major W.P.F. Roberts and Naik Subedar K.P. Verma was taken up and by an order passed on 29-9-78 they were discharged. Subsequently, the case of the remaining accused was gone into and they came to the discharged by an order dated 21-12-71. Feeling aggrieved, the State has preferred these revisions.
2. Shri Hazarika, leanred Special Prosecutor on behalf of the C.B.I., has submitted that the learned Judge applied a wrong section, namely, Section 227 of the Code of Criminal Procedure, in discharging the accused whereas the proper section was 239. It is then contended that the second order in any case was bad as it was passed ex parte. Some comment has also been made by the learned Counsel about passing of two orders of discharge in one case. The next submission is that the order is based on extraneous considerations and the learned Judge went beyond record in passing the same. It is finally urged by Shri Hazarika that there were enough materials on record at least to frame charge against the accused persons.
3. Insofar as the first grievance is concerned, we may refer to a recent decision of the Supreme Court in R.S. Nayak v. A.R. Antulay , wherein three sections, namely, 227, 239 and 245 of the Code of Criminal Procedure dealing with discharge in a trial (1) before a Court of Sessions; (2) of Warrant case and (3) of summons cases were examined and it was stated in para. 44 of the judgment that in spits of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed. This being the position in law, no fault can be really be found because of mentioning of Section 227 instead of Section 239 in the order of discharge which would have been the appropriate section in view of Section 8(1) of the Criminal Law (Amendment) Act, 1952.
4. As regards the grievance that the second order was passed ex parte, Shri Misra, learned Counsel for the respondents, has drawn our attention to the Order Sheet wherein it is to be found that the lerned Senior Public Prosecutor on behalf of the C.B.I. had concluded his address to the Court on 2-8-78. This is apparent from the observation in this order that “(a) rguments for the prosecution concluded”. Thereafter the defence addressed the Court which was over by 20-11-78. The case was then fixed for further disposal on 20th December, 1978. That day, howevar, came to be refixed by order passed on 15-12-78 which stated that the case would be taken up at Kohima instead of Dimapur Camp Court, on20thif the parties happened to attend that day, otherwise, it would stand adjourned till 19th January, 1978. But then instead of doing that the order of discharge was passed on 21-12-78. It is contended by Shri Hazarika that after the order dated 15-12-78 was communicated to all concerned by telegram, the learned Public Prosecutor on behalf of the C.B.I. did not make his appearance on 20-12-78 and he did not know that the case would be taken up at Kohima on 21-12-78. But then this grievance has no cutting edge inasmuch as prosecution’s arguments on the charge were concluded by 2-8-78.
5. As to the two orders of discharge we would only observe that this was at best an irregularity which has not affected the legality of the order. A perusal of the impunged orders would show that they are not very happy. But then reading the two orders together it would be found that the material aspects of the case, which are required to be examined in this regard, were gone into though some extraneous considerations also weighed with the/learned Judge.
6. The grievance on merit is three-fold : First, the local purchases were made without verifying whether the articles were available with 222 ABOD (Advanced Base Ordinance Depot). It, however, appears that of the 41 items for which demands were raised, there was non-availability (NA) certificates as regards 39 items – only items No. 18 and 19 were left out. The total amount covered by these two items is a sum of about Rs. 2200/-.
7. Secondly, there were bogus quotations and these had been obtained by the accused persons in conspiracy with each other. In this connection, Shri Misra has drawn our attention to Union of India v. Major J.S. Khanna , wherein the facts were much similar with the case at hand. A perusal of that judgment, the whole of which was placed before us by Shri Misra, would show that Major Khanna and others had faced a prosecution and the charges are akin to the case at hand. The learned trial Judge had framed charges in that case against the accused persons. They, however, came to be discharged by this Court whereupon an appeal was preferred before the Hon’ble Supreme Court by the Union of India, but the Hon’ble Supreme Court dismissed the appeal. A reference to paras 9, 10, 12 and 13 of this judgment would show that though some of the firms in whose names tenders had been submitted might have been non-existent, it was pointed out it was difficult to hold that the official accused persons knew about the same. As quotations were in printed letterheads, it is urged by Shri Misra that materials are lacking to show that the accused persons had conspired with each other. Learned Public Prosecutor, however, submits that without going through the entire materials on record it would be difficult to come to the conclusion that there was no conspiracy between the accused persons. There appears to be force in the submission of the learned Public Prosecutor.
8. Thirdly, the accused persons had paid exhorbitant prices for the articles in question. To illustrate, we would refer to the First Information Report wherein the rates paid and rates at which the Army Workshop in the same area had obtained the articles have been noted. The chart does show that the prices were very much high. It is, however, contended by Shri Misra by referring to para. 17 of Major Khanna’a case that prices depend on diverse factors such as quality, suitability, immediate availability etc. It is urged by the learned Counsel that we should bear in mind the fact that the supply had been done from April 1970 to November 1971, part of which covered by Bangladesh War. Shri Misra would, therefore, like us to make concession for the higher prices, if it was paid by the accused persons, to make readily available the goods to the personnel fighting on the front. We may say that the supply in the present case was of motor parts, general stores and clothing items. Our attention has also been invited by Shri Misra to the observations in para. 18 of the aforesaid judgment that “spot enquiries and purchases following them might have been considered expedient depending upon the degree of urgency with which particular spare parts were needed”. Some submission has also been on the ground that the bills as prepared were paid by the Deputy Controller of Defence Accounts. On this aspect of the case, the learned Special Public Prosecutor contends that the Audit Department had no choice but to pay as per bills which had been certified by the official accused persons. We may say that the contention of the learned Public Prosecutor relating to payment of high prices has also some force.
9. Shri Misra has ultimately referred to S. Guin v. Grindlays Bank Ltd. , wherein after setting aside the order of acquittal passed by the learned trial Court, the High Court had ordered for fresh trial, which was, however, not favoured by the Hon’ble Supreme Court because the order of acquittal had been passed six years before the judgment of the High Court. In this connection what has been stated is as below:
The pendency of the Criminal Appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in serious prejudice to the appellant. We are of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 482 Criminal Procedure Code even if for some reason it came to the conclusion that the acquittal was wrong. A fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process.
It was further observed that having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offence alleged to have been committed by the appellants and the difficulties that might have to be encountered in securing the presence of witnesses in a case of this nature nearly 7 years after the incident, the High Court should have dismissed the appeal before it even if it disagreed with the view taken by the trial Court with regard to the gist of the offence punishable under Section 341 of the Indian Penal Code.
10. It is urged by Shri Misra that in the present case the occurrence had taken place between April 1970 to November, 1971, and the orders of discharge had come to be passed in 1978. It has been brought to our notice that during this interval many changes have taken place : some officers have either retired or have been promoted to higher grades.
11. The learned Public Prosecutor has, however, brought to our notice the decision of the Supreme Court in State of Himachal Pradesh v. Krishan Lal Pardhan . This was a case where the order of framing of charges passed by one learned Judge was reviewed and subsequently the accused persons were discharged. It was held that a discharge order was not permissible in the eye of law. The order of discharge having been upheld by the High Court the State preferred appeal and the same was allowed. That case, however, has not dealt with the point of delay.
12. There is no doubt about delay in the present case though nobody can be made directly responsible for the same : it is the entire process of administration of justice which is at the back of the delay. In the present case we cannot ignore the stark fact that the occurrence had taken place in 1970-71, and we are in 1987. No doubt, the misappropriation was to the extent of Rs. 1 lakh and odd, but then it is worth remembering that 20 accused persons were involved in the same. We have also noted that the prosecution has submitted a long list of documents numbering about 1512 and there are 91 charge-sheeted witnesses, If a trial of this nature has to take place it can well be stated that it will run to 2/3 years.
13. Keeping in view the entire facts and circumstances of the case, we decline to interfere with the impugned orders and therefore dismiss these petitions.