ORDER
M.L. Visa, J.
1. This is an application for quashing the entire proceeding pending before the Special Judge, Vigilance, South Bihar, Patna in Special Case No. 30/91 under Sections 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 and order dated 6-5-99 passed by the learned Special Judge, Vigilance, South Bihar, Patna refusing the prayer of petitioner for closing the case of prosecution.
2. The brief facts giving rise to this petition are that a F.I.R. on 5-4-91 was lodged against the petitioner by Addl. Superintendent of Police, Vigilance, Patna alleging therein that the petitioner while posted as Joint Registrar, Co-operative Societies, Magadh Division, Gaya from 1-9-82 to 15-1-86 made appointments of 11 Assistants and 11 Peons quite irregularly, without following the formalities, without taking permission from the department and in spite of posts not being created and in this way a loss of Government exchequer to the tune of Rs. 2,19,124.03 on account of salary paid to the persons appointed illegally was made. Sri P.P. Sharma, the then Registrar, Co-operative Societies, Bihar by his letters dated 26-12-85 and 21-1-86 passed orders of removal of the persons appointed illegally after paying them up-to-date salary and explanation from petitioner was called for as to why he made such illegal appointments but the petitioner did not submit his explanation. It was further alleged in the F.I.R. that all the documents relating to illegal appointments were being kept by the petitioner and at the time of making over charge he did not hand over those documents in the office and it tran-spired that the illegal appointments were made after taking bribe.
3. On the basis of the aforesaid F.I.R. a case under Section 5(2) read with 5(1)(d) of Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and 201, I.P.C. was registered against the petitioner. After investigation charge sheet was submitted, cognizance was taken on 9-11-92 and charge was framed on 26-2-96. After framing of charge only five witnesses were examined till 2-4-98. The petitioner filed an application before the Court below for closing the case of prosecution on the ground that more than two years had elapsed but prosecution had not been able to examine its all witnesses. The prayer of petitioner was rejected by the Court below on the ground that the delay caused in concluding the evidence by the prosecution was for reasons beyond control of any party. About the reasons of delay the impugned order shows that case diary was sent to this Court in connection with Cr. Misc. No. 14946/94 which was made available to the prosecution on 19-9-97, the Court was closed from 7-10-97 to 7-11-97 after 2-4-98 when one witness was examined by prosecution P.O of the Court was transferred, there was Puja vacation from 27-9-98 to 27-10-98 and there was strike of Court’s staff from 12-1-99 to 11-2-99.
4. From the impugned order it appears that the petitioner prayed for closing the case of prosecution on the ground that the petitioner was charged with an offence punishable with imprisonment of 7 years and more than two years had passed but the prosecution had failed to examine its all witnesses. Learned counsel on behalf of petitioner has submitted that the aforesaid prayer before the Court below was made in view of the principle laid down by the Supreme Court in the case of Rajdeo Sharma v. The State of Bihar (1998) 7 SCC 507 : (1998 Cri LJ 4596) and (1999) 7 SCC 604 : (1999 Cri LJ 4541). The case of petitioner is that he was fully authorised to make temporary appointments and during the course of investigation nowhere it has come that petitioner made appointments after taking bribe either in cash or kind and the petitioner has now retired from the service. It has also been submitted that a departmental proceeding was also initiated against the petitioner in which his 50 per cent pension was withheld but that order has also been set side by this Court with a direction for re-considering the matter (Annexure-5). The further submission on behalf of petitioner is that F.I.R. was lodged on 5-4-91 for an occurrence said to have taken place in a period between 1-9-82 to 15-1-86 i.e. after a delay of more than five years. It has been further argued that admittedly charge in this case was framed on 26-2-96 and from this date to 2-4-98 only five witnesses have been examined and after 2-4-98 no witness has been examined by the prosecution and the delay in producing the prosecution witnesses is not attributed to the petitioner because he was regularly taking steps in the case. According to learned counsel on behalf of petitioner the case of prosecution has to be closed in view of the decision of the Supreme Court in the case of Rajdeo Sharma v. The State of Bihar (supra). From the impugned order I find that on some occasions the prosecution could not produce the witnesses because the Court remained closed on account of Puja Vacation, strike of Court’s staff, transfer of P.O., delay in making available the case diary to the prosecution but then delay on this count was only for sometime whereas the fact remains that charge in the case was framed on 26-2-96 and till 2-4-98 only five witnesses were examined by prosecution and thereafter no witness has been produced. In between the aforesaid period the petitioner never made any prayer recalling for appearance of witnesses or taking step causing delay in examination of prosecution witnesses. Besides this, when the petitioner filed the present application in this Court learned counsel on behalf of Vigilance on 12-10-99 submitted that the prosecution will finish the case within four months and accordingly order was passed for fixing the case after four months and when after the expiry of aforesaid period the case was placed on 21-2-2000 the position remained the same and no witness on behalf of prosecution in between this period was produced although in between this period the petitioner remained physically present in Court below on all the dates fixed in the case.
5. The case relates to an occurrence alleged to have taken place during the period from 1-9-82 to 15-1-86. In spite of giving sufficient opportunity to the prosecution including allowing the prayer of prosecution for four months time to produce its witnesses even after filing this application it has failed to produce its remaining witnesses. The prosecution is not in a position to say when it will be able to produce its remaining witnesses. The case cannot be allowed to linger for an indefinite period.
6. In the result, this application is allowed. The Court below on receipt/production of a copy of this order will close the case of prosecution and proceed further in accordance with law. In case the copy of this order is received/produced before the next date fixed in the case the case of prosecution will be closed on the next date fixed in the case after examining the prosecution wit-nesses if any produced, on that day.
