Ranjit Singh Sarkaria, J. - (1.) THIS petition filed in the year 2007 is for quashing of complaint dated 5 -5 -1981 (Annexure P -1) and the summoning order dated 5 -5 -1988. The petitioners were summoned for an offence under Section 9 of the Central Excises and Salt Act, 1944. Prayer further is for quashing of the order dated 4 -2 -2005, Annexure P -4, passed by Chief Judicial Magistrate, Ludhiana, declining the prayer of the petitioners to discharge them on the ground that they stood exonerated by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, against which no appeal was preferred. The petitioner filed a revision against the said order before the Additional Sessions Judge, Ludhiana, which was also dismissed and hence, the present consolidated petition for quashing the complaint and the impugned summoning order is filed.
(2.) WHEN the case came up for hearing before this Court on 7 -5 -2007, counsel for the petitioners took time to file an additional affidavit, raising an additional ground to attack the pending proceedings on the grounds of delay. The petitioners were given time to file such an affidavit with a direction to indicate that the delay was not attributable to the petitioners in any manner. They accordingly filed application, which was taken on record as Annexure P -10. Noticing the inordinate delay in concluding the proceedings, notice of motion was issued. In the meanwhile, Chief Judicial Magistrate, Ludhiana, was directed to offer reasons as to why the case was allowed to pend for such a long time. On receipt of reply from the Chief Judicial Magistrate, Ludhiana, this Court observed that Trial Court has unnecessarily allowed to drift this case endlessly and accordingly, after making serious observations, asked for detailed reasons alongwith zimni orders to find out as to why this case was allowed to pend for 19 years. The operative part of the order dated 10 -9 -2007 is reproduced below : - A reply from Chief Judicial Magistrate, Ludhiana, in regard to the cause of delay in this case has also been received. This makes a very distressing reading. This complaint was instituted on 5 -5 -1988 and the accused were ordered to be summoned to be present on 1 -6 -1989. Thereafter, it is just mentioned that the case remained pending for pre -charge evidence till 1993. No explanation is given as to why this case remained pending for a period of four years for recording pre -charge evidence. On 17 -9 -1993 an application under Section 245 Cr.P.C. was filed for discharge of the accused. Said application was dismissed on 22 -10 -1994. The case again remained pending for pre -charge evidence, though the order declining to discharge the accused was impugned by filing a revision. The revision was rejected on 24 -8 -1996. Thereafter, the case again remained pending for recording pre -charge evidence till 5 -12 -2001. More than five years were taken just to record pre -charge evidence without disclosing any reason why this inordinate delay took place. This is to be seen that earlier three years were taken for the same very purpose. Surprisingly it would be noticed that the case has remained pending from 2001 to 2005 for consideration on charge. On 4 -2 -2005, a prima -facie case was found and the charge was framed under Section 9 -C of Central Excise and Salt Act, 1944. The case is still pending. The explanation as submitted for cause of delay is no explanation at all. Let Chief Judicial Magistrate, Ludhiana furnish reasons in detail on the support of zimini orders as to why this case has remained pending for such a long period of 19 years. The reasons be furnished by the adjourned date without fail. On 20 -11 -2007, the Court felt alarmed with the state of affair, which was described as pathetic. It was noticed that the Judicial Officers, who had dealt with this file, can not be allowed to escape their respective responsibility. It is disgusting to notice that adjournment after adjournment was granted in this case either on account of non -availability of witness or record or the counsel of the Department. This Court observed that a conscious Judicial Officer could not be expected to remain a silent spectator to this lethargic state of affair and allow the case to drift like this. The Court accordingly noticed that "it is not callous alone but may look to be a case of reckless culpable negligence. Rest should wait till response from the respondent, whose counsel seeks time to file reply." The Judicial Officer presently dealing with the case was asked to offer his explanation. The case was adjourned to see how the situation can be remedied. Thereafter, the case was adjourned on written request on number of occasions by this Court, till it is taken up for hearing today.
(3.) AS the case has been pending since 1988 and numerous zimni orders were recorded by the Trial Court, it would be appropriate to reproduce the explanation offered by the Chief Judicial Magistrate, explaining the reasons for which the case was adjourned from time to time as otherwise it will take pages to pages to comment on it. The reasons given by the present Chief Judicial Magistrate, Ludhiana, on the basis of zimni orders, showing adjournment after adjournment in this case for the last 19 years or so are reproduced below : - On 3 -8 -1989, the learned counsel for the complainant could not examine the witnesses as they had not brought the record and the case was adjourned to 9 -11 -1989. On 9 -11 -1989, no evidence of the complainant was present and the case was adjourned to on 9 -11 -1989 to 22 -2 -1990, for evidence of the complainant. On 22 -2 -1990, one witness of the complainant namely P.S. Chawla was present, but the counsel for the complainant sought an adjournment as the original record of the complainant -Department had been summoned by the Appellate Tribunal in connection with some Appeal filed by the accused and he was unable to examine the witnesses due to non -availability of the original record. On his request, case was adjourned to 24 -5 -1990. On 24 -5 -1990, witness P.S. Chawla was present, were the counsel for the complainant again sought for an adjournment on the same ground and the case was adjourned to 15 -11 -90. On 15 -11 -90, no evidence of the complainant was present and the learned counsel for the complainant had informed the court that even the original record was not available with him and the case was adjourned to 14 -2 -91 for pre -charge evidence and the counsel for the complainant was directed to arrange the production of the record. On 14 -2 -91, no evidence of the complainant was present and the case was adjourned to 9 -5 -91 for evidence of the complainant. On 9 -5 -91, again no evidence of the complainant was present and the case was adjourned to 12 -9 -91 for evidence of the complainant. On 12 -9 -91, no evidence of the complainant was present and the case was adjourned to 7 -1 -92 for evidence of the complainant. On 7 -1 -92, no evidence of the complainant was present and the case was adjourned to 20 -2 -92 for evidence of the complainant. It would be proper to mention here that on 7 -1 -92, accused Rajinder Pal was also not present and his presence was exempted on the application filed by his counsel. On 20 -2 -92, no evidence of the complainant was present and the case was adjourned to 25 -5 -92. On 25 -5 -92, again no evidence of the prosecution was present and the case was adjourned to 9 -10 -02 for pre -charge evidence. On 9 -10 -92, no evidence of the prosecution was present and even the lawyers were on strike, as such, the case was adjourned to 17 -12 -92. On 17 -12 -92, the courts remained closed for the second half due to death of an advocate, as such, the case was adjourned to 5 -3 -93. On 5 -3 -93, the personal appearance of accused Rajinder Pal Mangal was exempted on application of his counsel. In the jimni order, there is no reference about the presence of any witness and the case was adjourned to 8 -4 -93. From 8 -4 -93, the case was adjourned to 11 -6 -93 as no evidence of the prosecution was present and then case was adjourned to 17 -9 -93. On 17 -9 -93, the accused moved an application under Section 245(2) of the Cr.P.C. for discharging them and the case was adjourned for 14 -10 -93 for filing reply. Reply was not filed on 14 -10 -93 and the case was adjourned to 8 -12 -93 for filing reply. Reply was filed on 8 -12 -93 and the case was adjourned to 4 -2 -94 and then to 21 -3 -94 for argument. On 21 -3 -94, the accused did not appear and their presence was exempted. On the request made by their counsel case was adjourned to 12 -5 -94 for arguments on the application. On 12 -5 -94, the case was adjourned to 25 -7 -94 for arguments on the application. On 25 -7 -94, The case was adjourned to 19 -9 -94, 8 -10 -94 for arguments and ultimately, arguments on application were heard on 8 -10 -94. Application moved by the accused u/s 245 (2) Cr. P. C. was dismissed on 22 -10 -94 and the case was adjourned to 21 -12 -94 for the evidence of the complainant. On 21 -12 -94, the presence of the accused was exempted and the case was adjourned to 3 -2 -95 for evidence of the complainant. On 3 -2 -95, again the accused did not appear. Their presence was exempted and the case was adjourned to 7 -3 -95 for evidence of the complainant. Similarly, the presence of the accused was exempted on 7 -3 -95 and the case was adjourned to 19 -4 -95. In the jimni orders dated 24 -10 -94, 3 -2 -95 and 7 -3 -95 there is no mention regarding the presence of any prosecution witness. The Jimni order dated 19 -4 -95 shows that the proceedings of this case were stayed and the case was adjourned to 31 -5 -95. Thereafter, the file was requisitioned by the court of Ld. Addl. Sessions Judge, Ludhiana in connection with Revision Petition filed by the accused against the rejection of their application under Section 245(2) of the Cr. P.C. The said Revision Petition was dismissed vide order dated 24 -8 -96. Thereafter, the matter was taken up on 25 -10 -96, 20 -1 -97 and no evidence of the prosecution was present and the case was adjourned to 7 -4 -97 for evidence of the complainant. On 7 -4 -97, one witness of the complainant as present, but his statement could not be recorded due to non -availability of the defence counsel and the case was adjourned to 28 -7 -97. On 28 -7 -97, the Learned Presiding Officer was on leave and the case was adjourned to 25 -9 -97 by the Duty Magistrate. On 25 -9 -97, the presence of the learned defence counsel and the case was adjourned to 20 -1 -98 for the evidence of the complainant. There is no mention of the presence of the witness on 25 -9 -97. On the subsequent dates i.e. 20 -1 -98, 30 -4 -98, 12 -6 -98, no evidence of the prosecution was present and even accused Rajinder Pal Mangal was exempted from personal appearance on all the said dates. On the next date i.e. 19 -8 -98 the Presiding Officer was on leave and the case was adjourned to 25 -9 -98. Even on 19 -8 -98, the accused was exempted from personal appearance. On 25 -9 -98, accused Rajinder Pal Mangal was again exempted from personal appearance. Since no evidence was present on 26 -11 -98, the case was adjourned to 25 -1 -99, 7 -3 -99, 25 -5 -99, 20 -8 -99 respectively but no evidence of prosecution was present and case was adjourned by the Court. On all the aforesaid dates, accused was exempted from his personal appearance. On 12 -10 -99, witness Pritpal Singh Chawla was present but he could not be examined for want of record and case was adjourned to 19 -11 -99 for evidence of complainant. On 19 -11 -99, H.S. Bedi Assistant Commissioner and P.S. Chawla were present; but on that date, the proxy counsel appeared for the complainant as the previous counsel had submitted his resignation to the complainant -Department. Even the accused were absent on the said date. The bail bonds of the accused were forfeited and the bail order was cancelled and the case was adjourned to 16 -12 -99 for evidence of the complainant. However, on that date, the accused appeared afterwards and the order forfeiting of their bail bonds was recalled. On 16 -12 -99, H.S. Bedi and P.S. Chawla again appeared before the court, but their statements could not be recorded as Mr. Bindra, Adv., who appeared on behalf of the complainant stated that he had not received the instructions from the Department and the case was adjourned to 18 -2 -2000. It would be proper to mention here that the accused were exempted from personal appearance. On 18 -2 -2K, witnesses H.S. Bedi and P.S. Chawla were again present, but the case had to be adjourned as the second half of the day was declared a Holiday due to the death of a lawyer. On next date i.e. on 4 -10 -2K witnesses H.S. Bedi and P.S. Chawla were again present, but their lawyers were observing strike and the case was adjourned to 15 -5 -2K. On 15 -5 -2K, the examination -in -chief of P.S. Chawla was recorded and his cross -examination was deferred on the request of the accused as their counsel was not available. On the next date, i.e. 21 -7 -2K, no evidence of the prosecution appeared before the Court and the case was adjourned to 4 -9 -2K. On 4 -9 -2K, the Presiding Officer was on leave and the case was adjourned to 10 -11 -2K by the Duty Magistrate for pre -charge evidence of the complainant. On 10 -11 -2K, the cross -examination of PW1 P.S. Chawla was partly recorded and his further cross -examination was deferred due to paucity of time with the court and the case was adjourned to 18 -12 -2K. On 18 -12 -2K, witness Pritpal Singh Chawla was present for his further cross -examination, but the case was adjourned on the request made by the accused due to non -availability of their counsel. On 9 -2 -01, the Presiding Officer was on leave and as such, the case was adjourned to 12 -3 -01. On 12 -3 -01, cross -examination of PW1 was completed and the case was adjourned to 30 -4 -01 for remaining evidence of the prosecution. On 30 -4 -01, no evidence of the prosecution was present and the case was adjourned to 4 -7 -01 for evidence of the prosecution. It would be proper to mention here that the presence of accused was also exempted on that date. On the next dates i.e. 4 -7 -01 and 21 -8 -01, again accused were exempted from their personal appearance. Since no witness was present on both the dates, the case was adjourned to 5 -12 -01. On 5 -12 -01, pre -charge evidence was closed by the complainant and the case was adjourned to 13 -2 -02 for consideration on charge. On 13 -2 -02, the Presiding Officer was away to Amritsar as he was to appear as a witness in some cases, as such, the case was adjourned to 18 -4 -02. On 18 -4 -02, the presence of the accused was exempted and on the request made by both the counsels for the parties, the case was adjourned to 10 -6 -02 for consideration on charge. On 10 -6 -02, the case was adjourned to 9 -7 -02 on the request made by the accused as the defence counsel was not available. On 9 -7 -02, the presence of the accused was exempted and the case was adjourned to 21 -8 -02 for consideration on charge. On 21 -8 -02 the presence of the accused was exempted and the case was adjourned to 11 -11 -02 for consideration on charge. On 11 -11 -02, the Presiding Officer was on leave and the case was adjourned to 27 -1 -03 for consideration on charge. On 27 -1 -03, the presence of the accused was exempted on the application moved by the defence counsel and the case was adjourned to 15 -4 -03 for consideration on charge. Similarly, on 15 -4 -03, presence of the accused was exempted and the case was adjourned to 20 -5 -03 for consideration on charge. Even on 20 -5 -03, the presence of the accused was exempted and the case was adjourned to 4 -9 -03 for consideration on charge. On 4 -9 -03, both the counsels requested for adjournment and the case was adjourned to 26 -11 -03 for arguments on charge. Since 26 -11 -03 was declared to be a Holiday, the file was taken up on 27 -11 -03 and the case was adjourned to 21 -1 -04 for consideration on charge. On 21 -1 -04, Mr. Maninder Singh, Advocate filed memo of appearance on behalf of the complainant and even the accused were not present and their personal appearance was exempted and the case was adjourned to 15 -4 -04. On 15 -4 -04, the case was adjourned to 27 -4 -04 on the request made by the parties. On 27 -4 -04, the accused were exempted from their personal appearance and the case was adjourned to 19 -7 -04 for consideration on charge. On 19 -7 -04, the accused were exempted from their personal appearance and the case was adjourned to 9 -8 -04 for consideration on charge. On 9 -8 -04, the case was adjourned to 2 -9 -04 for consideration on charge on the request made by the parties. On 2 -9 -04, the Presiding Officer was on leave, as such, the case was adjourned to 28 -10 -04 for consideration on charge. On 28 -10 -04, the accused were exempted from their personal appearance and the case was adjourned to 9 -12 -04 for consideration on charge. On 9 -12 -04, the Learned defence counsel moved an application for exemption from personal appearance of accused Rajinder Pal till further orders and the case was adjourned to 11 -1 -05 for consideration on the said application. It would be proper to mention here that the accused Meena Gupta had already been exempted from personal appearance. On 11 -1 -05, the case was adjourned to 1 -2 -05 on request made by the learned counsel for the complainant who was not feeling well. On 1 -2 -05, the Presiding Officer was busy in hearing arguments in seven years old cases tilted as Jagtar Singh v. Jagjit Singh. As such, the case was adjourned to 4 -2 -05 for consideration on charge. On 4 -2 -05, the argument on charge were heard. The Court found a prima facie case under Section 9 of the Central Excise and Salt Act, 1944 against the accused and they were ordered to be charged. Since the accused were not present, the case was adjourned to 21 -2 -05 for framing of the charge. On 21 -2 -05, the accused again did not appear. Their personal appearance was exempted on the application moved by the learned defence counsel and the case was adjourned to 28 -3 -05 for framing of the charge. On 28 -3 -05, again accused did not appear and the case was adjourned to 3 -4 -05 on the application moved by the learned defence counsel. Since 3 -4 -05 was declared a holiday, as such, the file was taken up on 4 -4 -05 and on that date, accused Rajinder Pal Mangal did not appear and the case was adjourned to 30 -4 -05 for framing of charge. On 30 -4 -05, the Presiding Officer was away to Kapurthala for appearing as a witness in some case and the case was adjourned to 7 -6 -05. But in the meantime, an order had been received from the Court of Ld. Addl. Sessions Judge, Ludhiana staying the proceedings of the trial court. Thereafter, the file was sent to the court of Ld. Addl. Sessions Judge, Ludhiana in connection with the Revision Petition filed by the accused against the Order dated 4 -2 -05 and ultimately, the file was received on 2 -6 -07. On 2 -6 -07, the accused did not appear before the Court and their personal appearance was exempted on the application moved by the learned defence counsel. It would be proper to mention here that the file was put up before me for the first time on 2 -6 -07 as I assumed charge at Ludhiana only on 23 -5 -07. In the order dated 2 -6 -07, it was specifically observed by the undersigned that the case is quite old and the charge is yet to be framed and necessary instructions were issued to the learned defence counsel to produce both the accused on 20 -7 -07. The long date had to be given as according to the Medical certificate produced by the learned defence counsel, accused Rajinder Pal Mangal had been advised bed rest upto 18 -6 -07 and thereafter, the courts were to remain close from 16 -6 -07 to 15 -7 -07 due to summer vacations. Even on 20 -7 -07, accused did not appear before the Court. An application for exemption from personal appearance of accused Rajinder Pal Mangal was filed. Said application was supported by a medical certificate. It was specifically observed by the Court that on one hand, the accused were delaying the framing of the charge -sheet by seeking exemption from their personal appearance on the medical ground and on the other hand, they had approached the Hon'ble High Court for quashing the proceedings on account of delay in completion of trial. The instructions were issued to the learned defence counsel to produce the accused on 21 -7 -07. On 21 -7 -07, both the accused appeared before the court and the charges were framed against them. They pleaded not guilty to the charge and claimed trial and the cased was adjourned to 3 -8 -07 for after charge evidence of the complainant. On 3 -8 -07, P.S. Chawla was produced for further cross -examination by the learned defence counsel and his cross -examination was recorded on that date and the case was adjourned to 17 -8 -07 for evidence of the complainant. On 17 -8 -07, no evidence of the complainant was present. The complainant was granted last opportunity to conclude evidence on 7 -9 -07. On 7 -9 -07, statement of one witness of the complainant was recorded and another witness B.K. Bector was given up by the Learned Counsel for the complainant being unnecessary. Since the learned counsel for the complainant requested for adjournment, he was granted one more opportunity to conclude on 5 -10 -07.;