# Rajeev Kaurav v. Balasahab & Others; 2020 0 Supreme (SC) 143

- **Citation:** (2021) 2 ILRA 627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-22
- **Case number:** Application U/S 482 Cr.P.C. No. 36633 of 2013
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-kaurav-v-balasahab-others-2020-0-supreme-sc-143-46857
- **Pages:** 11

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 467 - Forgery of valuable
security , will , Sections 468 - Forgery for
purpose of cheating , Sections 471 - Using
as genuine a forged ( document or
electronic
record)
,
Sections
420
-
Cheating
and
dishonestly
indducing
delivery of property, Sections 409 -
Criminal
breach
of
ttrust
by
public
servant, or by banker, merchant or aagent
, Sections 120B - Punishment of Criminal
conspiracy , Prevention of Corruption Act,
1988
-
Sections
13(2)
-

Criminal
misconduct by a public servant.

(B)
Criminal
Law
-
exoneration
in
departmental proceedings would not lead
628 INDIAN LAW REPORTS ALLAHABAD SERIES
to exoneration or acquittal in criminal
case - standard of proof in department
proceeding is lower than that of criminal
prosecution - departmental proceeding or
for that matter criminal cases have to be
decided only on the basis of evidence
adduced therein - Truthfulness of the
evidence in the criminal case can be
judged only after the evidence is adduced
therein - Criminal case cannot be rejected
on the basis of the evidence in the
departmental proceeding or the report of
the
Enquiry
Officer
based
on
those
evidence. (Para -20)

Applicants were employees in the office of Soil
Conservation Firozabad - NABARD launched a
time bound scheme for improvement of the
denuded and banjar (infertile) soil - entire work
done on the directions passed by the higher
authorities - work of the Scheme executed as
per the norms of the Government - appointed
an Investigating Officer (''IO') to enquire the
matter - preliminary enquiry - F.I.R. lodged -
Investigating Officer recorded statement of the
complainant - no irregularity was committed in
execution of the project - statement of the
applicant - work is of supervisory nature -
performed his duty as per orders of the higher
authorities - applicant has not committed any
irregularity in performing the work under the
Scheme - charge sheet submitted to the State
Government seeking sanction to prosecute the
applicants - Upon sanction Court below took
cognizance of the offence - cognizance order
and
consequential
proceedings
are
under
challenge.(Para - 5,6)

HELD:- The delay, if any, has been caused by
the applicants themselves, and the fault cannot
be attributed to the prosecution of having
unnecessarily/ deliberately caused delay in
pursing the prosecution. The trial has not
proceeded after the stage of cognizance as
restrain
orders
were
operating
and
the
accused/applicants have not submitted to the
trial. The delay perse, in the circumstances, has
not violated the rights of the applicants to
speedy trial.(Para - 35)

Application u/s 482 Cr.P.C. rejected. (E-6)

List of Cases cited:-

## Text

2 All. Ratan Kumar Sarsawat Vs. State of U.P. & Anr.
627

(v) M. N. Ojha Vs. Alok Kumar
Srivastava; 2009 (9) SCC 682,

(vi) Mohd. Allauddin Khan Vs.
The State of Bihar & Others; 2019 0
Supreme (SC) 454,

(vii)
Nallapareddy
Sridhar
Reddy Vs. The State of Andhra Pradesh &
Ors.; 2020 0 Supreme (SC) 45, and laslty

(ix)
Rajeev
Kaurav
Vs.
Balasahab & Others; 2020 0 Supreme (SC)
143.

33. In view of the aforesaid, this Court
does not deem it proper, and therefore cannot
be persuaded to have a pre-trial before the
actual trial begins. A threadbare discussion of
various facts and circumstances, as they
emerge from the allegations made against the
accused-applicant, is being purposely avoided
by the Court for the reason, lest the same
might cause any prejudice to either side
during trial. But it shall suffice to observe that
the perusal of the complaint case filed by
opposite party no.2 and the statements of the
complainant
and
her
witnesses
under
Sections 200 and 202 Cr.P.C. makes out a
prima facie case against the accused at this
stage and there appear to be sufficient ground
for proceeding against the accused. I do not
find any justification to quash the summoning
order and the entire proceedings of the
aforesaid complaint case initiated against the
applicant, as the case does not fall in any of
the categories recognized by the Apex Court
which may justify their quashing.

34. The prayer for quashing the
impugned summoning order dated 13th
March, 2019 as well as the entire proceedings
of the Complaint Case No. 14 of 2019 (Smt.
Gyan
Devi
Vs.
Ashok
Ram
Dular
Vishwakarma)
under
Section
138
of
Negotiable Instrument Act, Police StationAurai, District-Bhadohi, pending in the Court
of Additional Chief Judicial Magistrate,
Bhadohi, Gyanpur, are refused, as I do not
see any abuse of the court's process at this
pre-trial stage.

35. Accordingly, the present applicants
is rejected. Interim order, if any, stands
discharged.
----------
(2021)02ILR A627
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Application U/S 482 Cr.P.C. No. 36633 of 2013
connected with
Application U/S 482 Cr.P.C. No. 39879 of 2013
connected with
Application U/S 482 Cr.P.C. No. 33505 of 2013

Ratan Kumar Sarsawat ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri R.S. Singh, Sri Hari Bans Singh

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 467 - Forgery of valuable
security , will , Sections 468 - Forgery for
purpose of cheating , Sections 471 - Using
as genuine a forged ( document or
electronic
record)
,
Sections
420
-
Cheating
and
dishonestly
indducing
delivery of property, Sections 409 -
Criminal
breach
of
ttrust
by
public
servant, or by banker, merchant or aagent
, Sections 120B - Punishment of Criminal
conspiracy , Prevention of Corruption Act,
1988
-
Sections
13(2)
-

Criminal
misconduct by a public servant.

(B)
Criminal
Law
-
exoneration
in
departmental proceedings would not lead
628 INDIAN LAW REPORTS ALLAHABAD SERIES
to exoneration or acquittal in criminal
case - standard of proof in department
proceeding is lower than that of criminal
prosecution - departmental proceeding or
for that matter criminal cases have to be
decided only on the basis of evidence
adduced therein - Truthfulness of the
evidence in the criminal case can be
judged only after the evidence is adduced
therein - Criminal case cannot be rejected
on the basis of the evidence in the
departmental proceeding or the report of
the
Enquiry
Officer
based
on
those
evidence. (Para -20)

Applicants were employees in the office of Soil
Conservation Firozabad - NABARD launched a
time bound scheme for improvement of the
denuded and banjar (infertile) soil - entire work
done on the directions passed by the higher
authorities - work of the Scheme executed as
per the norms of the Government - appointed
an Investigating Officer (''IO') to enquire the
matter - preliminary enquiry - F.I.R. lodged -
Investigating Officer recorded statement of the
complainant - no irregularity was committed in
execution of the project - statement of the
applicant - work is of supervisory nature -
performed his duty as per orders of the higher
authorities - applicant has not committed any
irregularity in performing the work under the
Scheme - charge sheet submitted to the State
Government seeking sanction to prosecute the
applicants - Upon sanction Court below took
cognizance of the offence - cognizance order
and
consequential
proceedings
are
under
challenge.(Para - 5,6)

HELD:- The delay, if any, has been caused by
the applicants themselves, and the fault cannot
be attributed to the prosecution of having
unnecessarily/ deliberately caused delay in
pursing the prosecution. The trial has not
proceeded after the stage of cognizance as
restrain
orders
were
operating
and
the
accused/applicants have not submitted to the
trial. The delay perse, in the circumstances, has
not violated the rights of the applicants to
speedy trial.(Para - 35)

Application u/s 482 Cr.P.C. rejected. (E-6)

List of Cases cited:-
1. Pankaj Kumar Vs St. of Mah., AIR 2008 SC
3077

2. P.S. Rajya Vs St. of Bihar , 1996 STPL (LE)
21754 SC

3. St. of N.C.T. of Delhi Vs Ajay Kumar Tyagi ,
2012 (9) SCC 685

4. P.S. Rajya Vs St. of Bihar , (1996) 9 SCC 1

5. State Vs M. Krishna Mohan , (2007) 14 SCC 667

6. C.B.I. Vs V.K. Bhutiani's , (2009) 10 SCC 674

7. Ashoo Surendranath Tewari Vs The Deputy
Superintendent of Police, EOW, CBI10, Criminal
appeal No. 575 of 2020 (arising out of SLP (
Crl.) decided on 8 September 2020

8. Radheyshyam Kejriwal Vs St.of W.B. & anr. ,
(2011) 3 SCC 581

9. Abdul Rehman Antulay Vs R.S. Nayak1 ,
(1992) 1 SCC 225

10. Ranjan Dwivedi Vs CBI through the Director
General , (2012) 8 SCC 495

11. Asian Resurfacing of Raod Agency Pvt. Ltd.
v. CBI , (2018) SCC Online SC 210

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Shri Hari Bans Singh,
learned counsel for the applicants and Shri
Vikas
Goswami,
learned
Additional
Government
Advocate
(''A.G.A.')
appearing for the State.

2. By the instant petitions filed under
Section 482 of the Code of Criminal
Procedure, 19731 (''Cr.P.C.') applicants
seek quashing of the entire proceedings of
S.S.T. No. 34 of 2010 (State vs. Shiv
Kumar Chandal and others) under Sections
467, 468, 471, 420, 409, 120B IPC, and
13(2) of Prevention of Corruption Act,
1988, pending in the court of Special
Judge/Sessions Judge, Firozabad.
2 All. Ratan Kumar Sarsawat Vs. State of U.P. & Anr.
629

3. All the applications, herein, are
being heard together on consent. The
applicants are chargesheeted in the same
case crime number. For the sake of
convenience the facts arising in Ratan
Kumar Saraswat2 (36633/2013) is being
referred to.

4. This Court had granted protection
to the applicants from coercive measures. It
is informed by the learned counsel for the
applicants that the trial since then has not
proceeded.

5. The facts, briefly stated, is that
applicants were employees in the office of
Soil Conservation Firozabad. The first
applicant
retired
from
the
post
of
Accountant,
on
31
December
2005.
NABARD launched a time bound scheme
in 1997-98 for improvement of the denuded
and banjar (infertile) soil. A meeting of the
District Soil and Water Conservation
Committee was held on 25 September
1997, under the Chairmanship of the
District Magistrate, Firozabad, wherein, it
was decided that tractor and machinery
shall be utilized for completing the work of
the Scheme in a time bound programme.
Accordingly, in compliance of the order
issued by the State Government earth work
and other related work was carried out on
behalf of the Soil Conversation Officer.

6. It is urged that entire work was
done on the directions passed by the higher
authorities and the work of the Scheme was
executed as per the norms of the
Government.
It
appears
that
some
complaint came to be filed with regard to
lapses in the execution of the work and loss
caused to the
Government. On the
complaint, it is urged that Technical Audit
Cell conducted an enquiry headed by
Additional Director of Agriculture (Soil
Conservation).
Upon
considering
the
report, Director, Agriculture U.P. informed
the State Government that the work was
done as per norms and no loss of any kind
was caused to the Government. It, however,
appears that on the complaint, Secretary of
the Department, vide communication dated
14 July 1998, directed the Deputy Inspector
General of Police, Economic Offences
Wing3 to inspect the project work and
enquire whether there was any loss caused
to the Government in execution of the
project. Pursuant thereto, EOW, CID,
Kanpur, appointed an Investigating Officer
(''IO')
to
enquire
the
matter.
After
preliminary enquiry, an F.I.R. was lodged
on 6 July 2005. The Investigating Officer
recorded statement of the complainant Smt.
Meena
Rajpur,
Deputy
Director
of
Agriculture (Soil Conservation), Chhedi
Lal Gupta, Soil Conservation Officer, Unit
IV
Firozabad,
who
stated
that
no
irregularity was committed in execution of
the project, and statement of the applicant.
Applicant stated that work of the applicant
is of supervisory nature and he performed
his duty as per orders of the higher
authorities; applicant has not committed
any irregularity in performing the work
under the Scheme. After investigation, a
charge sheet was submitted to the State
Government seeking sanction to prosecute
the applicants. Upon sanction, the learned
Court below took cognizance of the offence
vide order dated 5 April 2010. The
cognizance
order
and
consequential
proceedings are under challenge.

7. It is submitted by learned counsel
for the applicant that the prosecution is
malicious as the complaint was lodged by a
local leader; applicant is a petty employee
(Accountant); Scheme was duly enquired
by the Technical Audit Cell, which did not
find any irregularity or financial loss;
630 INDIAN LAW REPORTS ALLAHABAD SERIES
Scheme was executed as per norms
prescribed by the Government; there is no
evidence against the applicants linking
them with the commission of the offence;
there is no complaint by any labour or
supplier of tractors employed in execution
of the Scheme; work assigned to the
applicant was of inspection, measurement
and verification of the work executed.

8. It is, further, urged that in
departmental enquiry conducted by the
Technical Audit Cell, nothing adverse has
been found, consequently, prosecution of the
applicant based on the same material is abuse
of the process of the court. It is further urged
that the matter pertains to the year 1997-99,
F.I.R. came to be lodged in 2005, thereafter,
charge sheet was submitted, but cognizance
was taken in 2010. It is, therefore, submitted
that entire prosecution stands vitiated denying
the applicants speedy trial. Reliance has been
placed on the decision of the Supreme Court
in Pankaj Kumar vs. State of Maharastra4.

9. In rebuttal, learned A.G.A. submits
that allegation against the applicants is of
criminal conspiracy (Section 120 IPC), read
with other sections for which the applicants
have been charge sheeted. It is contended that
payments were made in cash over and above
the prescribed limit based on manufactured
documents; applicant in conspiracy with
other accused persons caused revenue loss to
the exchequer. It is further contended that
amount twice the prescribed rate was paid;
the money was used for purposes other than
for the purpose prescribed under the Scheme.
The delay in trial is not attributable to the
prosecution. There is no such departmental
enquiry as is being submitted by the learned
counsel for the applicants. The petition is
liable to be rejected being devoid of merit.

10.

Rival
submissions
fall
for
consideration.

11. As per the F.I.R., it is alleged that
the tractors were engaged from outside,
including, State of Rajasthan. Payments were
made in cash, whereas, payments over and
above Rs.2,000/- was to be paid through
cheque. It is further alleged that the cost
incurred per hectare, as shown from the
record, is at Rs.6983/-, whereas, the
Technical Asset Protection Report, 1997-98,
the rate prescribed is at Rs.3100/-, per
hectare, thus, causing revenue loss at
Rs.57,14,644/-. Similar allegations have been
made for loss caused under different heads. It
is further alleged that the officials conspired
and caused loss to the revenue @ Rs.3883/-
per hectare by preparing forged and
manufactured documents. First applicant
along with 10 other accused persons are
named in the F.I.R.. After investigation,
charge sheet came to be filed against 7
accused persons including the applicants.

12. Learned counsel has placed
reliance on the decision rendered in P.S.
Rajya vs. State of Bihar5, to submit that
pursuing the prosecution against the
applicants is not justified for the reason that
the enquiry conducted by the department
against the alleged irregularity / loss,
nothing was found. The project was
executed as per norms prescribed by the
Government. It is further urged that in the
given facts there has been inordinate delay
caused by the prosecution in trial. The
applicants have been denied speedy trail,
thereby, infringing their right under Act 21.

13. The following questions arise for
consideration from the rival contentions of
the parties:
2 All. Ratan Kumar Sarsawat Vs. State of U.P. & Anr.
631

i) whether in view of the
departmental enquiry, pursing prosecution
against the applicants would tantamount to
abuse of the process of the court;

ii) whether delay in trial in the
given facts has violated the principle of
speedy trial read into Act, 21 of the
Constitution of India.

14. It would be apposite to examine
the law on the proposition of law being
pressed by the learned counsel for the
applicant.

15. In State of N.C.T. of Delhi Vs
Ajay Kumar Tyagi6 (for short "NCT
Delhi case"), a three Judge Bench was
called upon to answer a reference whether a
person
exonerated
in
departmental
proceeding, no criminal proceedings can be
lauched or continued. The issue for
consideration by the Bench reads thus:

"The facts of the case are that
the respondent has been accused of
taking bribe and was caught in a trap
case. We are not going into the merits of
the dispute. However, it seems that there
are two conflicting judgments of two
Judge Benches of this Court; (I) P.S.
Rajya vs. State of Bihar reported in
(1996) 9 SCC 1, in which a two Judge
Bench held that if a person is exonerated
in
a
departmental
proceeding,
no
criminal proceedings can be launched or
may continue against him on the same
subject matter, (ii) Kishan Singh Through
Lrs. Vs. Gurpal Singh & Others 2010 (8)
SCALE 205, where another two Judge
Bench has taken a contrary view."

16. On having considered the
authority on the proposition of law,
Supreme Court, answered the reference in
the following terms:

"We
are,
therefore,
of
the
opinion that the exoneration in the
departmental proceeding ipso facto would
not result into the quashing of the
criminal prosecution. We hasten to add,
however, that if the prosecution against an
accused is solely based on a finding in a
proceeding and that finding is set aside by
the superior authority in the hierarchy, the
very foundation goes and the prosecution
may be quashed. But that principle will not
apply in the case of the departmental
proceeding as the criminal trial and the
departmental proceeding are held by two
different entities. Further they are not in
the same hierarchy."

17. In P.S. Rajya v. State of Bihar7,
(for short ''PS Rajya' case) the question
before the Court was as to whether:-

"3. .......the respondent is justified
in pursuing the prosecution against the
appellant under Prevention of Corruption
Act, 1947 notwithstanding the fact that on
an identical charge the appellant was
exonerated
in
the
departmental
proceedings in the light of a report
submitted
by
the
Central
Vigilance
Commission and concurred by the Union
Public Service Commission."

18. The Court clarified in para 23 of
the report that "...We have already held that
for the reasons given, on the peculiar facts
of this case, the criminal proceedings
initiated against the appellant cannot be
pursued..." In other words the Court did not
lay down that an exoneration of an
employee in departmental proceedings, the
criminal prosecution has to be quashed.

19. In NCT Delhi, the Court,
therefore, was of the opinion that the
prosecution was not terminated in P.S.
632 INDIAN LAW REPORTS ALLAHABAD SERIES
Rajya case on the ground of exoneration in
the departmental proceedings but on the
peculiar facts. The observation is as
follows:

"The decision in the case of P.S.
Rajya (supra), therefore does not lay down any
proposition that on exoneration of an employee
in the departmental proceeding, the criminal
prosecution on the identical charge or the
evidence has to be quashed. It is well settled
that the decision is an authority for what it
actually decides and not what flows from it.
Mere fact that in P.S. Rajya (Supra), the
Supreme Court quashed the prosecution when
the
accused
was
exonerated
in
the
departmental proceeding would not mean that
it was quashed on that ground."

20. P.S. Rajya case came up for
consideration before the Supreme Court in
State v. M. Krishna Mohan8, thereafter, in the
case of Central Bureau of Investigation v.
V.K. Bhutiani's9, the Supreme Court held that
quashing of the prosecution was illegal holding
that exoneration in departmental proceedings
would not lead to exoneration or acquittal in
criminal case. It is well settled that the standard
of proof in department proceeding is lower than
that of criminal prosecution. It is equally well
settled that the departmental proceeding or for
that matter criminal cases have to be decided
only on the basis of evidence adduced therein.
Truthfulness of the evidence in the criminal
case can be judged only after the evidence is
adduced therein. The criminal case cannot be
rejected on the basis of the evidence in the
departmental proceeding or the report of the
Enquiry Officer based on those evidence.

21. Recently in Ashoo Surendranath
Tewari vs. The Deputy Superintendent of
Police, EOW, CBI10, (for short ''Ashoo
Tewari case), Supreme Court relying on
Radheyshyam Kejriwal Vs. State of West
Bengal
and
another11
(for
short
''Radheyshyam Kejriwal case), set aside the
judgment of the High Court and Special Judge
and discharged the appellant from the offence
under the Penal Code. The facts, therein, is that
the employer SIDBI did not consider it a fit
case, consequently, declined permission to
prosecute the appellant. The Chief Vigilance
Commission (CVC) after having gone through
the arguments put forth by the CBI and SIDBI
during the course of joint meeting was of the
opinion that the appellant may have been
negligent without any criminal culpability.

22. In Radhey Shyam Kejriwal, the
adjudicating authority under the provisions of
the Foreign Exchange Regulation Act,
197312, was not convinced with the
Enforcement Directorate to impose penalty
upon the appellant. In other words, if the
departmental
authorities
themselves,
in
statutory adjudication proceedings recorded a
categorical and an unambiguous finding that
there is no such contravention of the
provisions of the Act, it would be unjust for
such departmental authorities to continue
with the criminal prosecution and say that
there is sufficient material. It would be unjust
and an abuse of the process of the court to
permit Enforcement Directorate & Foreign
Exchange Regulatory Authority to continue
with criminal proceedings on the very same
material.

23. After referring to various
decisions the Supreme Court in Radhey
Shyam Kejriwal culled out the ratio of the
decisions as follows:-

"38. The ratio which can be
culled out from these decisions can broadly
be stated as follows:

(i) Adjudication proceedings and
criminal prosecution can be launched
simultaneously;
2 All. Ratan Kumar Sarsawat Vs. State of U.P. & Anr.
633

(ii) Decision in adjudication
proceedings
is
not
necessary
before
initiating criminal prosecution;

(iii)
Adjudication
proceedings
and criminal proceedings are independent
in nature to each other;

(iv) The finding against the
person
facing
prosecution
in
the
adjudication proceedings is not binding on
the proceeding for criminal prosecution;

(v) Adjudication proceedings by
the
Enforcement
Directorate
is
not
prosecution by a competent court of law to
attract the provisions of Article 20(2) of the
Constitution or Section 300 of the Code of
Criminal Procedure;

(vi)
The
finding
in
the
adjudication proceedings in favour of the
person facing trial for identical violation
will depend upon the nature of finding. If
the
exoneration
in
adjudication
proceedings is on technical ground and not
on merit, prosecution may continue; and

(vii) In case of exoneration,
however, on merits where the allegation is
found to be not sustainable at all and the
person
held
innocent,
criminal
prosecution on the same set of facts and
circumstances cannot be allowed to
continue, the underlying principle being
the higher standard of proof in criminal
cases."

24. The Court finally concluded:

"39. In our opinion, therefore, the
yardstick would be to judge as to whether
the
allegation
in
the
adjudication
proceedings as well as the proceeding for
prosecution
is
identical
and
the
exoneration of the person concerned in the
adjudication proceedings is on merits. In
case it is found on merit that there is no
contravention of the provisions of the Act in
the adjudication proceedings, the trial of
the person concerned shall be an abuse of
the process of the court."

25. In nutshell, to recapitulate, the
principle culled out in Radhey Shaym
Kejriwal case, is that where the statutory
adjudicating authority did not find prima
facie case to impose penalty for violation of
FERA, the prosecution based on the same
material was held unjustified and abuse of
the process of the Court. In Ashoo Tewari,
CVC agreed with the competent authority
of SIDBI (employer), after hearing the
CBI, that complicity and culpability of the
appellant was not found. The Court relying
on para 38(vii) of Radhey Shaym
Kejriwal and having regard to the detail
order of CVC was of the considered
opinion that the "chances of conviction in a
criminal trial involving the same facts
appear to be bleak".

26. Reverting to the facts of the
instant case, learned counsel for the
applicant is unable to show from the so
called report of the Technical Audit Cell
that complicity and culpability of the
applicants was not found. The specific
allegation against the applicants is that
twice the amount over and above the
sanctioned rate was spent. Further, the
accused persons had made payment to the
labourers and the tractors engaged for the
Scheme in-cash by preparing false and
manufactured documents. Reliance has
been placed on the communication dated
30 May 2005, of Additional Director
Agriculture (Soil Conservation), U.P., Agra
Division, Agra, addressed to Director
Agriculture,
U.P.
Krishi
Bhawan,
Lucknow, wherein, request was made that
the investigation initiated after lodging of
the F.I.R. be halted. It is noted therein that
the Scheme for the year 1997-98 and 199899, the EOW was of the opinion that twice
634 INDIAN LAW REPORTS ALLAHABAD SERIES
the sanctioned rate was released, whereas,
the entire scheme was evaluated in 20012002. The EOW wrongly computed the
work at a flat rate at Rs. 3100/-, whereas, as
per norms the payment cannot exceed
Rs.7200/- per hectare. In other words, it
was stated in the communication that
average of the different payments made per
hectare would have to be taken and that
sum should not exceed the upper limit, that
is, Rs. 7200/- per hectare. Pursuant thereof,
Director
of
Agriculture,
vide
communication dated 2 June 2005, placing
reliance upon the letter of the Additional
Director of Agriculture, requested the
Government not to prosecute the officers of
the department as there was no loss caused
to the Government. It appears that the State
Government
did
not
act
upon
the
communication and on 6 July 2005, F.I.R.
came to be lodged. Thereafter, sanction
was granted by the State Government for
prosecution.

27. It is evident from the facts
emerging from the material placed on
record that no departmental proceeding,
and/or disciplinary enquiry was ever
conducted against the accused persons,
including, the applicants. Further, the
material relied upon by the I.O. is not
part of any such proceedings. The
prosecution is based upon an independent
enquiry got conducted by the State
Government by the E.O.W.. It is not the
case of the applicant/accused that the
prosecution is based upon the very same
material relied upon by the department
against the accused that was part of
departmental
statutory
adjudication
proceeding. The departmental enquiry
being relied upon by the applicants was
never accepted by the Government. The
Government, on the contrary got an
independent enquiry conducted to find
out whether loss was caused to the
Government. The final report came to be
accepted
by
the
Government.
The
authorities relied upon by the learned
counsel for the applicant to submit that
the applicants have been exonerated in
the departmental enquiry lacks merit. The
petition
is
bereft
of
the
essential
pleadings and foundation to that effect.
The submission, accordingly, is rejected.

28. The next point pressed by
learned counsel for the applicant is that
the prosecution against the applicants
should be quashed due to inordinate delay
in concluding the prosecution and trial,
thus, being violative of the concept of
speedy trial enshrined in Article 21 of the
Constitution of India.

29. In Abdul Rehman Antulay v.
R.S. Nayak13 (Abdul Rehman Antulay
case) the Court observed as follows:

"While
determining
whether
undue delay has occurred (resulting in
violation of Right to Speedy Trial) one
must have regard to all the attendant
circumstances,
including
nature
of
offence,
number
of
accused
and
witnesses, the workload of the court
concerned, prevailing local conditions
and so on -- what is called, the systemic
delays. It is true that it is the obligation of
the State to ensure a speedy trial and
State includes judiciary as well, but a
realistic and practical approach should be
adopted in such matters instead of a
pedantic one."

30. The aforesaid decision came up
for consideration before a Seven-Judge
Constitution Bench in the case of P.
Ramachandra
Rao
Vs.
State
of
Karnataka. The Court over ruled four
2 All. Ratan Kumar Sarsawat Vs. State of U.P. & Anr.
635
earlier decisions* on the point, and while
approving the ratio, the Court in Paragraph
29 (1) & (2) observed as follows:

"(1) The dictum in Abdul Rehman
Antulay v. R.S. Nayak14 is correct and still
holds the field.

(2) The propositions emerging
from Article 21 of the Constitution and
expounding the right to speedy trial laid
down as guidelines in Abdul Rehman
Antulay v. R.S. Nayak15 adequately take
care of right to speedy trial. We uphold and
reaffirm the said propositions."

31. The Constitution Bench, in Abdul
Rehman Antulay16, has formulated certain
propositions, 11 in number, meant to serve as
guidelines. The paragraphs relevant for the
instant case are extracted:

(1).................................

(2) Right to speedy trial flowing
from Article 21 encompasses all the stages,
namely the stage of investigation, inquiry,
trial, appeal, revision and re-trial. That is
how, this Court has understood this right and
there is no reason to take a restricted view.

... ... ... ... ... ... ... ... ...

... ... ... ... ... ... ... ... ...

(5) While determining whether
undue delay has occurred (resulting in
violation of Right to Speedy Trial) one
must have regard to all the attendant
circumstances, including nature of offence,
number of accused and witnesses, the
workload of the court concerned, prevailing
local conditions and so on -- what is called,
the systemic delays. It is true that it is the
obligation of the State to ensure a speedy
trial and State includes judiciary as well,
but a realistic and practical approach
should be adopted in such matters instead
of a pedantic one.

... ... ... ... ... ... ... ... ...

... ... ... ... ... ... ... ... ...

(8) Ultimately, the court has to
balance and weigh the several relevant
factors - ''balancing test' or ''balancing
process' - and determine in each case
whether the right to speedy trial has been
denied in a given case.

(9) Ordinarily speaking, where
the court comes to the conclusion that right
to speedy trial of an accused has been
infringed the charges or the conviction, as
the case may be, shall be quashed. But this
is not the only course open. The nature of
the offence and other circumstances in a
given case may be such that quashing of
proceedings may not be in the interest of
justice. In such a case, it is open to the
court to make such other appropriate order
- including an order to conclude the trial
within a fixed time where the trial is not
concluded or reducing the sentence where
the trial has concluded - as may be deemed
just and equitable in the circumstances of
the case.

(10) It is neither advisable nor
practicable to fix any time-limit for trial of
offences. Any such rule is bound to be
qualified one. Such rule cannot also be
evolved merely to shift the burden of
proving justification on to the shoulders of
the prosecution. In every case of complaint
of denial of right to speedy trial, it is
primarily for the prosecution to justify and
explain the delay. At the same time, it is the
duty of the court to weigh all the
circumstances of a given case before
pronouncing upon the complaint. The
Supreme Court of USA too has repeatedly
refused to fix any such outer time-limit in
spite of the Sixth Amendment. Nor do we
think that not fixing any such outer limit
ineffectuates the guarantee of right to
speedy trial.

(11) An objection based on denial
of right to speedy trial and for relief on that
636 INDIAN LAW REPORTS ALLAHABAD SERIES
account, should first be addressed to the
High Court. Even if the High Court
entertains such a plea, ordinarily it should
not stay the proceedings, except in a case of
grave
and
exceptional
nature.
Such
proceedings in High Court must, however,
be disposed of on a priority basis."

32.

The
matter
pertaining
to
reasonably expeditious trial again came up
for consideration by Supreme Court in
Ranjan Dwivedi vs. CBI through the
Director General17. The Court relying
upon the Constitution Bench and Larger
Bench decisions declined to quash the
proceeding which was pending for 37
years. Appellant/accused had approached
the Court at the stage of argument,
contending that the right enshrined in
Article 21 was infringed. The Supreme
Court held that length of the delay is not
sufficient in itself to warrant a finding that
the accused was deprived of the right to a
speedy trial. The relevant paras reads thus:

"23. The length of the delay is not
sufficient in itself to warrant a finding that the
accused was deprived of the right to a speedy
trial. Rather, it is only one of the factors to be
considered, and must be weighed against
other factors. Moreover, among factors to be
considered in determining whether the right
to speedy trial of the accused is violated, the
length of delay is least conclusive. While
there is authority that even very lengthy
delays do not give rise to a per se conclusion
of violation of constitutional rights, there is
also authority that long enough delay could
constitute per se violation of right to speedy
trial. In our considered view, the delay
tolerated varies with the complexity of the
case, the manner of proof as well as gravity
of the alleged crime. This, again, depends on
case to case basis. There cannot be universal
rule in this regard. It is a balancing process
while determining as to whether the accused's
right to speedy trial has been violated or not.
The length of delay in and itself, is not a
weighty factor."

25. Prescribing a time limit for the
trial court to terminate the proceedings or, at
the end thereof, to acquit or discharge the
accused in all cases will amount to
legislation, which cannot be done by judicial
directives within the arena of judicial law
making power available to constitutional
courts; ........."

33. In the given facts of the case in
hand, it is not in dispute that the Scheme
pertains to the year 1997-98 and 1998-99.
The State Government in July 1998 had
directed the EOW to conduct an enquiry with
regard to any loss caused to the government.
F.I.R. came to be lodged on 6 July 2005 and
charge sheet was filed on 13 March 2010.
The applicants were summoned to face trial
on
5
April
2010.
Thereafter,
applicant/accused had approached this Court
by filing criminal writ petition, wherein,
arrest of the applicants came to be stayed.
Thereafter, applicant/accused filed petitions
under Section 482 Cr.P.C., wherein, the
Court, vide order dated 10 October 2013, had
stayed the proceedings by directing no
coercive action be taken against the applicant
(36633/2013). The order reads thus:

"Heard learned counsel for the
applicant and learned A.G.A. for the State.

The present application under
Section 482 Cr.P.C., has been filed for
quashing the entire proceedings of S.S.T.
No. 34 of 2010 (State Vs. Shiv Kumar
Chandel and others, under Sections 467,
468, 471, 420, 409, 120B IPC and 13(2)
P.C. Act,pending before the Special Judge/
Sessions Judge, Firozabad.

It is contended by learned counsel
for the applicant that in the present case,
2 All. Jai Prakash Gupta Vs. State of U.P. & Anr.
637
F.I.R., was lodged on 06.07.2005 and
charge sheet has been filed after a lapse of
5 years i.e. on 05.04.2010. It is thus, argued
that as per settled principles of law of
Hon'ble Apex Court, reported in AIR 2008
SC 3077 in the matter of Pankaj Kumar Vs.
State of Maharastra in which, it has been
held that such prolonged investigation
which is not attributable to the applicant
and taking note of the fact, the proceedings
were quashed in the aforesaid case. It is
thus contended that in the present matter
charge sheet has been filed after 5 years,
which is liable to be quashed by this Court.

Issue notice to the opposite party
no.2 returnable within a period of four
weeks. Steps be taken within a week.

Learned A.G.A. prays for and is
granted four weeks' time for filing counter
affidavit. Opposite party no.2 may also file
counter affidavit within the same period.
As prayed by learned counsel for the
applicant, two weeks, thereafter, is granted
for filing rejoinder affidavit.

List immediately after expiry of
the aforesaid period.

Till the next date of listing, no
coercive action shall be taken against the
applicant in the aforesaid case."

34. Similar orders came to be passed
in respect of other co-accused persons. It
appears that the trial did not proceed
thereafter. The trial court vide order dated 3
March 2020, however, summoned the
applicant/accused to face trial pursuant to
the direction of the Supreme Court in
Asian Resurfacing of Raod Agency Pvt.
Ltd. v. CBI18. Thereafter, the applicants
are pressing the instant petition.

35. From the facts narrated herein
above, it is evident that the delay, if any,
has
been
caused
by
the
applicants
themselves, and the fault cannot be
attributed to the prosecution of having
unnecessarily/ deliberately caused delay in
pursing the prosecution. The trial has not
proceeded after the stage of cognizance as
restrain orders were operating and the
accused/applicants have not submitted to
the
trial.
The
delay
perse,
in
the
circumstances, has not violated the rights of
the applicants to speedy trial.

36. The applications being devoid of
merit is, accordingly, rejected.

37. The applicants to surrender before
the trial court within three weeks from date.
The trial court shall make an endevour to
expedite the proceedings and conclude the
trial, at the earliest possible, without
granting unnecessary adjournment to either
of the parties, provided there is no other
legal impediment.
----------
(2021)02ILR A637
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 Cr.P.C. No. 36722 of 2016

Jai Prakash Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Yadav

Counsel for the Opposite Parties:
A.G.A., Sri Kshitij Shailendra

Criminal
Law-Suit
for
permanent
injunction, cancellation of will deed and
mutation proceeding pending-High court's
direction to frame charges expeditiously