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ORISSA HIGH COURT
S.K. Sahoo, J.
Sridhar Swain and Anr. —Appellants
versus
State of Odisha —Respondent
Criminal Appeal No.331 of 1989
Decided on 4.1.2021
Prevention of Corruption Act, 1947—Section 5(2)—Indian Penal Code, 1860—Sections 465 and 471 read with Section 109—Criminal misconduct, forgery and abetment—Prosecution must stand or fall on its own legs and it cannot derive any strength from weakness of defence—It is not the law that where there is any infirmity or lacuna in prosecution case, same could be cured or supplied by a false defence or a plea which is not accepted by a Court—Supposition, surmise, speculation and subjective beliefs are no substitute for fact findings based on evidence—In absence of any clinching evidence as to who made cuttings, overwriting and interpolations in relevant documents and when and particularly when files containing tender papers and also tender register were being handled by different persons, trial Court is quite justified in its observation that there is no specific evidence as to who committed forgery—Conviction of appellant no.1 under Section 5(2) of 1947 Act read with Section 34 of Indian Penal Code and Sections 465 and 471 read with Section 34 of Indian Penal Code is not sustainable in eye of law—Abetment can be by instigation, conspiracy or intentional aid—In order to decide whether a person has abetted by instigation commission of an offence or not, act of abetment has to be judged in conspectus of entire evidence in the case—Act of abetment attributed to an accused is not to be viewed or tested in isolation—Impugned judgment and order of conviction of appellants passed by trial Court and sentence passed thereunder set aside—Appellants acquitted of all charges. (Paras 11, 12, 13 and 14)
Result: Criminal Appeal allowed.
JUDGMENT
S.K. Sahoo, J.—This case has proceeded at a snail’s pace since the first information report was registered on 05.01.1983 and on completion of investigation charge sheet was submitted on 31.12.1984. The learned trial Court framed the charges on 07.07.1986, delivered the impugned judgment on 26.10.1989 whereafter this criminal appeal was presented on 10.11.1989 and admitted on 17.11.1989 and the appellants were directed to be released on bail. More than thirty one years after the presentation of the appeal, the judgment is being delivered today. When such type of year old criminal appeal comes for adjudication, few questions strike to mind, “Why so much of delay was caused to adjudicate the appeal? How it happened? Who is responsible for the delay?” The answers are not very difficult to find. The order sheet indicates that after the admission of the appeal, it was listed before various Benches for hearing but in spite of filing of paper books, the learned counsel for the appellants showed no interest to argue the appeal, for which the bail order granted to the appellants at the time of admission of the appeal was recalled on 06.02.2008. However, on the application filed by the appellants, they were directed to be released on bail on surrender before the learned trial Court as per order dated 12.05.2008. Again the same thing continued and when the matter was taken up on 13.03.2013 for hearing, none appeared for the appellants to argue the case for which the bail order dated 12.05.2008 was recalled and the appellant no.2 Maheswar Behera was arrested on 10.04.2013 and he was directed to be released on bail by this Court on 18.04.2013 and on the same day, an order was passed to recall the order dated 13.03.2013 so far as appellant no.1 Sridhar Swain is concerned. Another co-accused namely M.K. Raghaban who along with the appellants faced trial and convicted by virtue of the impugned judgment, preferred a separate appeal in Criminal Appeal No.332 of 1989 and was on bail, expired on 26.08.2000 for which the said appeal stood abetted as per order dated 17.04.2013. Finally, this appeal was listed before me on 06.08.2020 and again on that day, none appeared for the appellants and on the request of learned Senior Standing Counsel for the Vigilance Department, the matter was adjourned awaiting the report of Superintendent of Police, Vigilance, Sambalpur Division, Sambalpur for giving intimation to the appellants for taking up the matter for hearing. In spite of due intimation, Mr. Jugal Kishore Panda, Advocate though filed vakalatnama for appellant no.2 Maheswar Behera but since none appeared on behalf of the appellant no.1 Sridhar Swain, the learned counsel Mr. Jugal Kishore Panda was appointed as Amicus Curiae to place the case of appellant no.1 also and time was granted to him to prepare the case. The matter was ultimately taken up every week on Thursday which was fixed for hearing of criminal appeal starting from 05.11.2020 and after the hearing was concluded, the judgment was reserved and the learned counsel for the appellants took time to file written note of submissions, which he filed on 24.11.2020.
It is said that slow and steady wins the race, but when the world is changing very fast, if one does not take pace then the fast would beat the slow. This case is a glaring example to show as to how the true import of the legal maxim ‘justice delayed is justice denied’ has yet not been appreciated properly. Delayed justice is the deadliest form of denial of justice. Discipline, commitment, thorough preparation, active cooperation from the learned members of the Bar and their able assistance can save a lot of valuable time of the Court and will pave way for early disposal of the old criminal appeals which are hanging over the head of judiciary like the sword of Damocles, otherwise all the planning, mechanism and infrastructure development would fail to yield the desired result in docket management. All concerned must realise
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