JUDGMENT
Y.R. Meena, J.
1. These three miscellaneous petitions are directed against the order of the Special Judicial Magistrate (Economic Offences), Jaipur, dated August 17, 1991, whereby the charges have been framed against the petitioners for the offence under Section 277 of the Income-tax Act, 1961. Since a common question is involved in all these three petitions, for the sake of convenience, I dispose of them by this common order.
2. The accused petitioners are partners of Messrs. Champalal Jainarain firm. A partnership deed was executed consisting of four partners, three major and one minor. The partners are Jainarain, Purshottam, Ram Kishore and Jugal Kishore. The allegation was levelled against Champalal also, who happened to be the father of Jainarain, Purshottam and Ram Kishore. Champalal has expired during the pendency of the proceedings. The partnership deed has shown four partners but profit of the firm in these years have been divided among five partners and later on it was corrected also that profit of the firm is divided among four partners. The income-tax return to this effect has been filed. On scrutiny, the Income-tax Officer found that the partnership firm shows that there are four partners. Ramniwas was not a partner in the partnership deed, but while returns were filed, initially the income of the partnership firm for the assessment year 1967-68 have been distributed among five partners. According to the Income-tax Officer, this is a wrong statement of the fact showing the contrary distribution of income of the firm among five partners than the partners shown in the partnership deed. Therefore, the firm was treated as an unregistered firm and assessed as such. Not only that, the prosecution also lodged against the partners for offences under Section 277 read with Section 278 of the Income-tax Act, 1961, as well as Section 477A of the Indian Penal Code, and complaint to this effect was filed in the court of Munsif and Judicial Magistrate, Barmer, in December, 1977. The charges were framed in 1985 and so far only three prosecution witnesses have been examined.
3. The submission of learned counsel for the petitioners, Mr. P.K. Kasliwal, is that a fair and speedy trial is a fundamental right of the citizens for a petty offence. The petitioners have also faced trial for about 18 years and there is no hope that the trial will be completed shortly.
When there is no tax effect and the petitioners have faced more than 17 years of trial, the proceedings be dropped.
4. On the other hand, learned standing counsel for the Department, Mr. Garg, submitted that when three prosecution witnesses have been examined, there is no justification to drop the proceedings at this stage. A query was made to standing counsel for the Department that by distributing the profits of the firm in these three years among five partners whether any tax effect is there, whether the petitioners have paid less tax, he failed to answer the query.
5. Heard learned counsel for the petitioners and learned standing counsel for the Department. The facts are not in dispute that the partnership deed shows four partners, viz., Jainarain, Purshottam, Ram Kishore and Jugal Kishore, but profit of the firm has been distributed among five partners. On that account, the firm was treated as unregistered and the entire income of the firm was assessed as such. Therefore, the partners had to pay the tax as an unregistered firm. On perusal, it reveals that in the assessment year 1966-67, the income of the firm, Messrs. Champalal Jainarain, has been shown as Rs. 12,593 and the firm was assessed as such. There was no addition but the firm was assessed as an unregistered firm. In the assessment year 1967-68, the firm has disclosed its income amounting to Rs. 21,132 and was assessed as such. The name of Ramniwas, i.e., fifth partner, has been struck off from the income-tax return filed in the Income-tax Department. In the year 1968-69, the income has been shown as Rs. 6,188 and the firm was assessed as such. When the firm was assessed as an unregistered firm for such income, the factual position shows that there was some confusion in the mind of the partners. Sometimes they have shown the distribution of the income of the firm among four partners, sometimes five partners. Champalal who was looking after the business of the firm has expired. Ramniwas and Ram Kishore are minors. The case pertains to the assessment years 1966-67 to 1968-69, which means about 24 years have elapsed. There is no tax effect. It can be a mistake also on the part of the partners/accountant of the firm, when in the return itself, they have struck off the fifth name, which shows that they were not sure whether the income should be divided among four partners or five partners or whether the fifth name has been shown in the return with the understanding of the partners but it is pertinent to note that the assessment year 1966-67 and relevant accounting year is 1965-66, that practically 30 years have passed from the accounting year till today and no tax benefit was given to the firm. Nothing was concealed. Even the partnership deed
was filed along with the return indicating the true position of the partnership deed. The complaint was filed in 1977 and charges were framed in August, 1991. That shows that the prosecution, as well as the court has taken more than 14 years in framing the charge. Whether it is not amounting to denial of justice and fundamental right of the partners to complete the trial within reasonable time.
6. In various decisions of this court as well as the apex court, it has been held that speedy and fair trial is a fundamental right of the citizens and within reasonable time, the trial be completed. Even seven years delay has been taken as an inordinate delay by this court in the case of Sanwarmal v. State of Rajasthan (RCC, March, 1992, page 127). In Srinivas Pal v. Union Territory of Arunachal Pradesh [1988] 3 JT 342 (SC) ; AIR 1988 SC 1729, the apex court has held as under (at page 1732) :
“Quick justice is a sine qua non of Article 21 of the Constitution. Keeping a person in suspended animation for 91/2 years without any cause at all and none was indicated before the learned Magistrate or before the High Court or before us, cannot be with the spirit of the procedure established by law. In that view of the matter, it is just and fair and in accordance with equity to direct that the trial or prosecution of the appellant proceed no further. We do so accordingly.”
7. While dropping the proceedings, the court has to keep in mind whether the delay was on account of the accused petitioners or on account of the prosecution or the court. At the same time, the gravity and seriousness of the offence have to be kept in mind and also the factor that after completion of trial, there is every possibility of conviction in the case. All these facts are relevant to be taken into account before dropping the proceedings. But when there is no fault on account of the petitioners, they cannot be dragged in trial for an unlimited period.
8. The perusal of the record shows that the offeree pertained to the years 1965-66 to 1967-68. The complaint was filed in 1977. There is no tax effect as the firm was assessed as an unregistered firm. So no benefit of the registered firm was given to the partners. Even they have not concealed the fact regarding the partnership deed as well as the profit distributed among the partners. This is a small firm having petty income in these years ranging from Rs. 6,188 to Rs. 21,132. Even it can be a case of misleading by the accountant or chartered accountant or legal adviser of the firm. There appears to be no intention on the part of the accused partners specially when the business of the firm in these years was looked after by their father, Shri Champalal, who is no more in this world. About 30 years
have elapsed from the date of the first accounting year in this case till today. After the filing of the complaint, 14 long years have been taken by the court only in the framing of the charges and that too the accused petitioners were discharged for the offences under Section 277 read with Section 278 of the Income-tax Act and only framed the charges against the accused petitioners for the offence under Section 277 of the Income-tax Act. Out of six, only three witnesses have been examined by the prosecution, that too pre-charge witnesses. Therefore, in these circumstances, it cannot be expected from the prosecution that they will prosecute the accused petitioners shortly. The time taken in framing the charge itself is very unreasonable and dragging further these accused petitioners to trial will be against the interest of justice. Hence, I fully agree with counsel for the petitioners that the proceedings deserve to be dropped.
9. Hence, it is ordered that these proceedings are dropped as the prosecution failed to complete the trial within a reasonable time, as well as there are bleak chances of conviction in this case.
10. In the result, all the three miscellaneous petitions are allowed.