IMPORTANT POINT
Offence under Section 3 of Railway Property (Unlawful Possession) Act, 1966 is quite a serious offence delay alone in framing charge is not sufficient to quash the proceedings when major part of delay is due to act of the accused persons in procrastinating the criminal proceeding against them.

Headnote:Criminal Procedure Code, 1973 -Chapter XIX-Trial of warrant cases instituted otherwise than on Police Report-Sections 244 and 245-Order of discharge-Railway Property (Unlawful Possession) Act, 1966-Section 3-Offence under-FIR registered in 1991-Complaint after enquiry u/s. 8 filed in Court on 13-1-92-Cognizance taken-Revision against to Sessions Court-Quashed on burden of proof on 29.5.92-High Court reversed in appeal on 1.4.94-Proceedings initiated late due to absence of accused & receipt of record from High Court-Case posted for framing charge in 1998-On 5-1-1998 accused filed application for discharge-Dismissed-High Court quashed it on ground of 7 years delay noting that there is nothing on record showing that delay was due to accused-Appeal against to Supreme Court-Whether High Court was right? (No)-Case Law referred -Proper Course-Expeditious trial as judicated-Appeal allowed accordingly.
       Held : An order of discharge of the accused after collecting the evidence envisaged in Section 244 of the Code can be passed only when "the magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction." This is the legislative edict of Section 245 of the Code. The only other exception to the said precept is that it is open to the magistrate to discharge the accused at any previous stage of the case "if for reasons to be recorded by such magistrate, he considers the charge to be groundless." The magistrate had no reason to discharge the accused at that stage as he felt that there is evidence to frame the charge he could not but dismiss the plea for a discharge. The High Court did not consider the case from the angle provided in Section 245 of the Code. As extracted above, the High Court was persuaded to discharge the accused only on the ground that "the case was pending for the last seven years." (Para 7)
       After referring case law
       Held : In the present case, cause of the delay is mostly due to the accused either because they challenged the various orders passed or because they were not present in the court and hence proceedings could not be continued on many occasions. Causes attributable to the prosecution or even to the court are comparably much less as to permit the accused to take advantage of the delay in registering progress of the proceedings. We, therefore, set aside the impugned order and direct the trial court to proceed with the case and complete the prosecution evidence within six months from the date on which the accused would appear before the trial court. We make it clear that if the accused is instrumental in causing the delay, then so much of the period would be debited from the time frame fixed by us above. This appeal is allowed in the above terms. (Paras 11, 12 & 13)

JUDGMENT

Thomas, J.-Leave granted.

2. The accused persons who succeeded greatly in procrastinating a criminal proceeding against them, later succeeded in getting the criminal proceedings quashed solely on the ground of procrastination of court proceedings in the criminal case concerned. State of Bihar has now challenged the judgment of a learned single Judge of the Patna High Court as per which the aforesaid criminal proceedings have been quashed.

3. An FIR was registered in 1991 for the offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, (for short the RPUP Act ). An inquiry was conducted under Section 8 of the said Act and on completion of the inquiry a complaint was filed in the court of a judicial magistrate of First Class on 13.1.1992. The magistrate took cognizance of the offence and issued proceedings against four persons arrayed in the complaint including the respondents in this appeal. Thereafter, the case passed through many vicissitudes. On 5.1.1998, the respondent moved on application in the trial court praying that they may be discharged. The magistrate rejected the application and the said order of the magistrate was challenged before the High Court. On 24.7.1998, learned single Judge of the High Court quashed the criminal proceedings as per the impugned order. The reasoning of the learned single Judge for adopting such a step is the following:

"Admittedly, the criminal case was registered against the petitioners on the basis of report on 22.2.1991 and cognizance was taken on 13.1.1992 on the basis of the charge-sheet submitted by the Railway Police Force personnel. It is also admitted fact that till date charge has not been framed although about 7 years have passed and the case is pending for the last seven years. There is nothing on the record to show that the delay in proceeding with the case has been caused due to laches on the part of the petitioners. In such circumstances, in my opinion, for the ends of justice, the instant proceeding against the petitioners should not continue any further."

4. The interval between 13.1.1992 (the date on which the magistrate took cognizance of the offence) and 24.7.1998 (the date on which the High Court quashed the proceedings) is, no doubt, too long a period. If the criminal case remained without any progress during the said period it portrays a sad picture of the administration of criminal justice. But the uncontroverted fact situation in this case reflects that the respondents accused have no justification in seeking advantage of the said delay because their contribution towards such delay was, by no means, insubstantial.

5. We may now give an outlay of the said factual position which the respondents, in their counter affidavit, did not dispute. The complaint was filed on 13.1.1992 and process was issued against the four accused arrayed therein. First respondent thereafter moved the Sessions Court in revision by challenging the order by which the magistrate took cognizance of the offence. Despite the legal position casting bur den of proof on the person who is found in possession of railway property, the Sessions Judge had quashed the criminal proceedings on 29.5.1992. The State thereupon moved the High Court in challenge of the said order of the Sessions Judge. On 1.4.1994, the High Court overturned the said order of the Sessions Court.

6. The next stage should have commenced in the trial court soon after the receipt of the records from the High Court, but on account of the absence of one or the other accused the case remained in limbo till 14.10.1996 by which time alone all the accused made their appearance before the magistrate. The trial court adopted the procedure prescribed in Chapter XIX of the Code of Criminal Procedure (for short the Code ) for trial of warrant cases instituted otherwise than on police report. The trial magistrate collected preliminary evidence envisaged in Section 244 of the Code and then the case was posted for framing

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2001 Supreme(SC) 1483

Cases Referred (3)