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Criminal Revision No. 16 of 1967, decided on 4th April 1968.

S. 561-A-Abuse of process of Court-Complaint under S. 420, P. P. C. made on 31-5-61 and case coating up before trial Judge on 30-9-65-After many adjournments trial Judge on 8-9-66 ordering bifurcation of case and submission of separate challans----Order of trial Judge not complied with even after finding petition by accused for quashment of proceedings-Wanton abuse of process of lens, -Proceedings quashed.

M. S. Khawaja v. State P L D 1965 S C 28 and Ghulam Qadir Khan v. The State P L D 1963 Lah. 34 ref.

Ghulam Muhammad v. Muzammal Khan cruel four others P L D 1967 S C 317 distinguished.

Syed Mahmud for Petitioner.

M. Haleem Asstt. A.-G. for the State.

Date of hearing: 3rd April 1968.

This is a petition under section 561-A, Cr. P. C. for the quashment of proceedings pending against the petitioner, Wisal Ahmad, under section 420 P. P. C., read with section 5(2) of the Prevention of Corruption Act (II of 1947) in the Court of the learned Special Judge-cum-Enquiry Officer, Hyderabad, Camp Quetta.

2. The brief history of the case is as follows :-

On or about 31st of May 1961, when the petitioner, who is an employee of WAPDA, was Incharge of Power House, Mastung, a joint complaint against him was submitted by one Juma Khan, a hotel-keeper; and some others including some subordinate officials of the Power House to the Circle Officer, Anti-Corruption Department, Quetta. On the 29th of September 1961, this case was registered against the petitioner. On the 15th of July 1965, sanction for the prosecution of the petitioner was obtained from the Superintending Engineer (E), Hyderabad, and the challan was put up under section 420, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, before the learned Special Judge on the 30th of September 1965. The case was then adjourned to the 2nd of November 1965 as the petitioner was not present and fresh summons were issued against him for the 8th of December 1965. On the 8th of December 1965, the petitioner was released on interim bail and the case was adjourned to the 6th of January 1966. On the 6th of January 1966, the case was adjourned to the 9th of February 1966 as the Special Judge was on leave. On the 9th of February 1966, the case was again adjourned to the 29th of March 1966, because the Special Judge was still on leave. On that date summons were issued to some of the prosecution witnesses for the 23rd of May 1966. Since the tour programme was changed the next date was fixed for the 14th of June 1966, instead of 23rd of May 1966. On the 11th of June 1966, the tour programme was cancelled and the case was adjourned. On the 15th of August 1966, the case was fixed at Quetta on the 8th of September 1966 and summons were issued to the petitioner and the witnesses for that date. On the 8th of September 1966, the learned Special Judge ordered that the case be bifurcated and separate challans be submitted. After that several dates were given, but no proceedings could take place because the order of the learned Special Judge dated the 8th of September 1966 for separating the challans was not compiled with. On the last date of hearing i. e. the 17th of January 1968, it was again directed that the prosecution should submit separate challans and the case was adjourned to the 13th of April 1968.

3. It was prayed on behalf of the petitioner that there is no likelihood of the order of separating challans being complied with even on the next date of hearing and the petitioner has been sub jected to a great deal of mental torture and financial loss since 1961, due to the abuse of process of law and under these circum stances in the interest of justice the proceedings pending against him be quashed.

4. The learned Assistant Advocate-General, on the other hand, argued that the mere delay was no ground for quashing the proceedings. In support of his contention he cited the cases M. S. Khawaja v. State (PLD 1965 SC 28) and Ghulam Muhammad v. Muzammal Khan and four others (PLD 1967 S C 317). In case M. S. Khawaja v. State their Lordships observed :-

"The view that time is of the essence for the competency of a criminal prosecution cannot be accepted as of universal application. Limitation does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter parties. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of any Court or ortherwise to secure the ends of justice' would deem ft appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law.

Abuse, as attracting the in the rent power of the Court, must be abuse of the process of any Court', and 'the investigation stage' is, generally speaking, outside the purview of the Court and rarely involves employment of any Court process. Further, the ends of justice' to secure which the inherent power may be invoked, have reference to the purposes which the judicial process is intended to secure, and it is difficult to include the actions of Investigating agencies within the scope of judicial process. On the other hand, it is possible to agree with the observation that the circumstances of each case, in which the inherent power is invoked, must be examined with care to determine whether the judicial proceeding is really intended to secure the ends of justice' or is really 'an abuse of the process of the Court'."

Their Lordships in this very judgment approved the view taken by the High Court in case Ghulam Qadir Khan v. The State (P L D 1963 Lah. 32) wherein the proceedings against the accused were quashed. While discussing that case their Lordships of the Supreme Court made the following observation:

"These circumstances are certainly of weight to support the quashment ordered in that case. We say so in order to emphasise that each case of the present kind must rest on its own peculiar facts and circumstances."

In case Ghulam Muhammad v. Muzammal Khan and four others it was observed:-

"The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. This the High Court had not found in the present case but had merely proceeded on an erroneous conception that In a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of the investigation of the complaint, particularly, if the offence disclosed is of a non-cognizable nature. There is no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of the investigation on the basis of the complaint except in the cases mentioned in sections 196 to 199, Cr. P. C."

It was also observed:-

"The reasons given by the High. Court were, by no means, cogent. If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceeding as was pointed out in the case of M. S. Khawaja v. The State."

The facts of the present case are, however, different to the facts of the case mentioned above. In this case I find that no progress has been made since the case, case came up before the learned Special Judge on the 30th of September 1965. His order dated the 8th of September 1966 for separating the challans ha also not been complied with and this has resulted in several adjournments. The present petition was filed on the 27th of June 1967 and was admitted for hearing on the 30th of June 1967, which fact must, have come to the knowledge of the Prosecuting Agency and yet no steps were taken by them to comply with the order of the learned Special Judge, dated the 8th of September 1966. This clearly shows wanton abuse of the process of law. In view of these special circumstances I accept the petition and quash the proceedings pending against the petitioner in the Court of the learned Special Judge-cum-Enquiry Officer. Hyderabad.

Petition accepted.

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