G.R.Bhattacharjee, J. - (1.) This revisional application has been filed for quashing the proceeding being case No. 3 of 1978 pending in the court of the Judge, Second Special Court, Calcutta under sections 120B/420 I.P.C. and section 5(2) of the Prevention of Corruption Act, 1947. The only point pressed before me on behalf of the petitioner at the time of hearing is the ground of prolonged pendency of the criminal proceeding. The petitioner Bijan Bihari Gupta was holding the post of Commercial Publicity Officer, South Eastern Railway at the relevant time, that is, between June 1968 and Much 1976. On 27.1.78 a complaint was filed by Inspector of Police, C.B.I. in the court of the Additional Special Court, Calcutta against four accused persons including the present petitioner alleging commission of offences punishable under sections 120B/420 I.P.C. and section 5 (2) of the Prevention of Corruption Act. Even earlier however the petitioner was suspended by the Railway Board on 15.10.77. Cognizance was taken by the learned court below on 16.2.78. Ultimately, charge was framed against the three accused, namely, the present petitioner Bijan Bihari Gupta, Purabi Gupta and Pranab Kumar Roy on 20.5.89 under sections 120B and 420 I.P.C.
(2.) The gist of the charge is that the accused persons entered into a criminal conspiracy to cheat the South Eastern Railway and in pursuance of the said conspiracy illegally received and appropriated a total sum of Rs. 1,04,455.12 of South Eastern Railway as 15 per cent commission for certain advertisements as if those advertisements were procured for South Eastern Railway by certain canvassers/agents though in fact the concerned canvassers/agents did not procure the advertisements for the South Eastern Railway. The additional charge against the present petitioner, he being a public servant, has been framed under section 5(2) of the Prevention of Corruption Act. It may be mentioned here that although the cognizance was taken against four accused persons the case against the accused No. 3 Ranjit Kr. Dutta was filed by the learned Court below on 6.2.96 as the said accused was absconding and thereafter the proceeding continued only against three accused persons already recorded above.
(3.) It is inter alia submitted before me by the learned Advocate for the petitioner that from the date of taking cognizance it took more than 11 years to frame charge only and out of 52 witnesses named in the list furnished with the petition of complaint only 31 witnesses have been examined before framing of charge. It is further submitted that a supplementary list of witnesses has been also submitted in the court below and the total number of prosecution witnesses comes to more than one hundred. It is submitted on behalf of the petitioner that if only 31 witnesses could be examined in 11 years it can well be presumed that going by that rate it may not be possible to examine the remaining witnesses within the life time of the accused persons apart from the question of tendering the witnesses who have been already examined for cross-examination after charge. There is no doubt that this aspect of the matter is really a very disturbing one which can not be ignored. The petitioner has filed the present revisional application on 18.8.89. We are now in 1995. But even excluding the period of pendency of this revisional application in the High Court we will find, as I have already discussed, that more than 11 years elapsed between the date of taking of cognizance by the learned court below and of framing of charge. If things going on at this rate it is anybody's guess as to when the trial will come to an end in the normal course, if at all. The order sheets of the proceedings of the learned court below have been placed before me and the same disclose a very sorry and pathetic state of affairs. The prosecution, it seems, did not take any interest to see or ensure mat the trial comes to an end within a reasonable span of time. As we have seen cognizance was taken by the learned court below as far back as on 16 2.78. Instead of graphiaclly describing as to how the proceeding continued thereafter and what were the lapses of the prosecution in conducting the proceeding I would only like to refer to order no. 45 dated 31.10.81 recorded by the learned court below in the following language : ".. .. .. .. .. .. .. .. It is clear from the record that there are delays in examining witnesses causing prejudice to defence. This sort of misconduct should not be allowed but today hazira of five witnesses having been filed it would not be to expedient to close the evidence. The prosecution must be careful in future not to delay the matter and complete the evidence without further delay. In case the prosecution fails to bring witnesses on any occasion the evidence will be closed then and there and no further adjournment would be allowed . .. .. . ..." For a period of more than 3? years what was the role of the prosecution, we get an idea of the same from the above observations of the learned trial court. Even as far back as in 1981 the learned court below clearly observed that the delay in examining the prosecution witnesses caused prejudice to the defence. The learned trial court also branded such inaction on the part of the prosecution unequivocally as 'misconduct'. The learned court below also recorded a clear warning that the prosecution must be careful in future not to delay the proceeding and failure to bring the witnesses on any occasion would result in closing the evidence and no further adjournment would be allowed. Such observations and directions of the learned trial court lamentally fell into deaf ears, else the prosecution would not have taken another 8 years even thereafter to examine some of its witnesses, although not all, before inviting the learned trial court to take up the consideration of framing of charge. Even after such observations of the learned trial court as recorded above, the case could not proceed on 1.2.82 and 16.4.82 because of absence of the learned public Prosecutor. There are also a number of dates on which the case could not proceed because of inaction on the part of the prosecution. The proceeding however continued and continued. On 2.8.88 the prosecution prayed for an adjournment and it appears from the order sheet that the defence raised objection regarding further adjournment in the pending case. The learned trial court however granted the prayer for adjournment as 'a last chance' fixing 9.9.88 for further evidence and for framing of charge. A study of the order sheets of the learned court below reveals that even earlier there were 'last chances' and warnings galore. On 9.9.88 the prosecution again prayed for an adjournment but this time the learned court below rejected the petition for adjournment with the observation that no case was made out for granting further adjournment. The learned court below fixed 1.12.88 for consideration of charge.;