S.D. Bajaj, J.
1. Vide letter No. DCA/PHG77/E10/7042 dated 27th August, 1977, District Commander Home Guards, Amritsar approached the SSP Amritsar for registration of a case under section 5(2) of the Prevention of Corruption Act and section 380 of the Indian Penal Code against accused Gurdev Singh, then posted as Company Commander in charge (Hqs.) Company (Urban) Amritsar, on account of having embezzled a sum of Rs. 32, 651/ during the period 21st May, 1976 to 25th July, 1977. On its basis, FIR No. 238 of 1977 was registered against the accused in Police Station `A'' Division, Amritsar on 28th August, 1977, under section 5(2) of the Prevention of Corruption Act 1949, and section 380. of the Indian Penal Code.
2. In the course of trial on 10th August, 1982, learned Special Judge. Amritsar dropped the charge under section 5 (2) of the Prevention of Corruption Act and sent the case to learned Chief Judicial Magistrate for trial of the accused under section 409 of the Indian Penal Code. Learned Judicial Magistrate Ist Class, Amritsar, on 4th March, 1984, convicted accused Gurdev Singh under section 409 Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of one year and to pay Rs. 1,000/ as fine. In default of payment of fine the accused was ordered to undergo rigorous imprisonment for a further period of three months. In appeal filed by the accused Gurdev Singh against the judgment dated 4th April, 1984 of the learned Judicial Magistrate Ist Class Amritsar, learned Sessions Judge Amritsar vide his impugned judgment of 11th June, 1984, acquitted the accused. The State Government of Punjab has assailed it by filing Cr. Appeal No. 563DBA/1984 in this Court.
3. We have heard Shri P.S. Kang, Advocate for the appellantState; Shri Meja Singh Sandhu, Advocate for the accused, and have carefully perused the evidence on record.
4. Relevant portion of the impugned judgment of acquittal dated 11th June, 1984 reads :
"It is open to the Court of Session at the stage of framing of the charge to send the case to the Chief Judicial Magistrate after framing the charge if it comes to the conclusion that the case is triable by the Magistrate. No such power vested in a Special Judge because the procedure before a Special Judge in a case under Section 5 of the Prevention of Corruption Act is that of a warrant trial. Shri M. M. Aggarwal, judicial Magistrate Ist Class. Amritsar committed a clear illegality in relying upon the evidence recorded by the Special Judge. The Special Judge was also not competent to send the case back to the Chief Judicial Magistrate. So, there was clearly an illegal trial and miscarriage of justice. Now the question that remains to be seen is as to whether there should be a retrial. The offence relates to the year 1977 and the appellant is in courts since 1980. The appellant must have suffered a lot as is clear from the various adjournments with which the record of the case is replete. It would be a waste of time and money of the State also. As such, I do not deem it expedient to order retrial. The appeal is accepted. It is held that there was no valid trial. The appellant is on bail. His bail bonds are cancelled. The fine, if paid, be refunded."
5. While rendering the impugned judgment, learned Sessions Judge Amritsor was fully conscious of his powers to order retrial of the accused under section 409 of the Indian Penal Code but did not do so to avoid harassment to the accused resulting from protracted trial more than 12 years after the occurrence. The right to speedy trial was recognized in Madheshwardhari Singh and another v. State of Bihar, AIR 1986 Patna 324 as a fundamental right of the accused vested in him in terms of Article 21 of the Constitution of India, and their Lordships of the Supreme Court ruled in State of Punjab v. Kailash Nath, 1989(1) Recent Criminal Reports 139 : AIR 198 SC 558 that stale matters like the present one need not be pursued further by ordering retrial after an inordinately longtime.
6. In this particular case, as already stated, the occurrence is set out in the FIR to be of the period from 2151976 to 2511977. The FIR was lodged on 28877 and now we are in the year 1990. Accused has had the agony of a protracted trial for the last more than 12 years in three different courts of learned Special Judge, learned Sessions Judge, Amritsar. Impugned judgment of the learned Sessions Judge dated 11th June 1984, thus, deserves to be maintained on this ground alone. Acquittal of the accused would not, however, affect departmental proceedings instituted or contemplated against him. In result, the State appeal is rendered wholly without merit and is consequently dismissed.
