Kulbir Singh Vs State of Punjab

@JUDGMENTTAG-ORDER

J.S. Sekhon, J.@mdashKulbir Singh, petitioner, has filed this petition u/s 482 of the Code of Criminal Procedure, for quashment of the F.I.R. (Annexure P-1) No. 135, registered at Police Station Chheherta, Amritsar on 21-8-1989 for offences under Sections 465, 467, 468, 471, 409, read with Section 120B of the Penal Code relating to the embezzlement of Rs. 4,36,345.28, mainly on the ground of delay of 9 years in the registration of the case and completion of investigation as well as on the ground that as per rule 4.51 of the Punjab P. W.D. Code, the petitioner was not liable as his successor has failed to report the loss of stone metal within a reasonable time of taking the charge.

2. The breif resume of facts relevant for the disposal of this petition is that Kulbir Singh, petitioner while posted as Sub-Divisional Engineer, Sub-Division No. I in Distirct Amritsar was also given the charge of construction Division II, Amritsar. During this period, flooring and widowing of the road between Guru Nanak Dev University up to gateway of India, Chheherta by laying stone metal was in progress. Some contractors vide agreement supplied metal stone to the Department, which was found short by 6056 cubic meter of the value of Rs. 4,36,345.28. It is further alleged that the record was forged depicting receipt of less quantity of metal stone from the contractor by the petitioner as well as by S/Shri S. S. Bhatti, Executive Engineer, G. S. Sidhu, Executive Engineer and Baldev Singh, Junior Engineer. It is further stated in the F.I.R. that running payment was required to be made at different stages while the work was in progress, but in this case, payment was made after completion of the work for the reasons known to these persons which is against the rules and illegal. On the basis of information from reliable source, the above referred case was registered by Apar Singh, the then Dy. Superintendent of Police, Vigilance Bureau posted at Amritsar. It is noteworthy that the investigation of the case is till in progress as no stay order was issued in this criminal misc proceedings. This petitioner was filed by Kulbir Singh on 28-9-1989.

3. The petitioner had averred in the petition that out of the 10 agreements for supply of metal stone, the petitioner was given charge of group I agreement for supply of metal stone of the value of about Rs. 50,000/-, for the year 1980-81 and that due to dual charge of this division and construction Division No. II, Ajnala, the petitioner used to work half day at Amritsar and other half day at Ajnala after convering the distance of 40 kilometers daily. The dual charge was assigned to him by Shri P. P. Sharma, the then Executive Engineer and that under the aforesaid Mr. P. I. Sharma, the petitioner had to submit IVth bill of M/s. Almaid Co-op. L&C Society who had supplied the material in Group I of the contract. The material supplied by the contractor as per record was 2030 stacks of one Cubic meter each but after checking the petitioner found the quantity to be 1890 cubic meter and submitted the bill as directed by Mr. P. P. Sharma, Executive Engineer, but the bill was returned with the remarks that the measurement should be recorded by the petitioner in his own hand. Accordingly the petitioner did the needful. It is further averred that Shri P. P. Sharma, then came for personal checking of the material at site on 6-10-1982 but found no variation either in the number or in the height of stacks. Mr. P. P. Sharma did not; in the inspection note, point out any variation in the material. Thereafter the Superintending Engineer deputed Shri V. P. Trehan, Sub-Divisional Engineer, Barnala, Construction Division No. 3 at Amritsar, for physical checking of the material and on 17-8-1982, Shri Trehan endorsed the measurement of the stock conducted by the petitioner. Thereafter, the Superintendent Engineer, being not satisfied with this report, again deputed Shri S. P. Singh, Sub-Divisional Engineer, Cent Works Sub-Division, Pathankot for physical checking of the material. He also conducted the measurement on 10-12-1982 and found the same to be correct. The petitioner was then transferred and as his apparent from Annexure P-2, he left the charge on 8-10-1982. Thus the petitioner maintains that the material throughout remained in the custody of others and Mr. Sharma, got transferred some material from the ten groups in question to other divisions, in order to show the shortage for falsely involving the petitioner, and that the said lifting of material was reported to the Chief Engineer by Shri Baldev Singh, Junior Engineer (co-accused of the petitioner). It is also averred that the alleged shortgage was shown after one year of the transfer of the petitioner from this division which is against the spirits of para 4.51 of Punjab P.W.D. Code. Under these circumstances, the petitioner has averred that the registration of the case relating the embezzlement of the metal stone after the lapse of 9 years is motivated as the case was reregistered when the petitioner was just being considered for promotion as Executive Engineer.

4. In return filed by Shri Apar Singh, Deputy Superintendent of Police, Vigilance Bureau, on behalf of the respondent, it is maintained that although the petitioner now alleges that he found on physical checking stacks metal stone to be 1890 cubic meter but in his statement recorded during regular enquiry on 11-12-1984, the petitioner took a stand that he could not physically check the material lying at the site due to his engagements, which shows that the petitioner has made false entry in the measurement book No. 16276 at pages 72 to 76 in this regard. It is further stated that Shri V. P. Trehan, Sub-Divisional Engineer, in his report dated 17-8-1982, submitted to the Superintending Engineer, Amritsar Circle stated that as the material was in scattered position, he failed to check it and Shri S. P. Singh, Sub-Divisional Engineer in his statement dated 28-11-1984 and report No. 1120 dated 21-12-1982 stated that material being in scattered position, could not be checked by him properly and that some of the material was checked by him only by counting stacks. It is, however, admitted that no payments were made by the petitioner, but the quantity was recorded by the petitioner and fourth and final bill was also submitted by him. It is further explained that a regular enquiry was registered against the petitioner and other co-accused on the basis of source report submitted by the then Investigating Officer in the year 1984 and record pertaining to this regular enquiry was taken into possession by the Vigilance Bureau, Amritsar in the year 1984 after the registration of the regular enquiry. The final report of the regular enquiry was submitted to the Chief Director, Vigilance Bureau, Punjab on 7-5-1985 through Superintendent of Police, Vigilance Bureau, Jalandhar for his perusal but the final report was received back by the Vigilance Bureau, Amritsar, time and again to meet some legal objections raised after scrutinising of the final report and supplementary reports, and ultimately after the conclusion of the regular enquiry, the State Government ordered the registration of a criminal case against the petitioner and others and thus the case was registered on 21-8-1989. It was further maintained that there was no intentional or wilful delay on the part of Vigilance Bureau to launch the prosecution against the petitioner as the investigation of the regular enquiry took an exceptional long time due to serious allegations and voluminous record.

5. Kulbir Singh petitioner in his rejoinder to the return filed by the respondent again reiterated his own stand while controverting to that of the respondent.

6. Vide order dated 7-8-1990, this Court directed the respondent to file reply to the rejoinder through a detailed affidavit explaining the circumstances which had protracted the investigation of the case for a number of years. Accordingly Shri Ved Parkash, present Deputy Superintendent of Police, Vigilance Bureau, Amritsar had filed an additional affidavit contending that although the material was received in the year 1980-81, shortage was detected in October, 1982 when Mr. P. P. Sharma, Executive (Engineer took the charge of Provincial Division, Amritsar. Thereafter he reported about the shortage: to the higher authorities and Superintendent Engineer constituted a panel of five officers namely S/ Shri N. R. Garg, Executive Engineer, P. P. Sharma Xen, Harish Mahajan S.D.O., S. S. Ghuman, S.D.O. and Simar Singh, S.D.E., to check the record and report. This panel of five officers checked the stock on 8-9-83 and recorded the entry in the measurement book. Thus it is maintained that the shortage of material was ascertained by the Department for the first time on 8-9-1983 and as a result of this checking, regular enquiry No. 1 dated 23-1-1984 was registered by the State Vigilance Department and investigated against 4 suspects namely S. S. Bhatti, Xen, G. S. Sidhu, Xen, Baldev Singh, Junior Engineer and the petitioner. When the enquiry was just near the completion Shri G. S. Sidhu submitted a representation on 4-1-1985 containing fresh version which was to be verified before deciding the taking of any action against this suspect. Ultimately this enquiry was finalised on 7-5-1985. Afterward Gurpal Singh Sidhu, Xen again submitted a representation on 26-2-1986 mentioning some more facts which required verification. This officer again submitted two representations one after the other on 12-5-1986 and 25-11-1986 mentioning some more facts which required verification. Then the petitioner also filed a representation on 25-11-1986 giving some different version and additional facts which also required verification. Baldev Singh, Junior Engineer also filed a representation on 25-11-1986 while Mr. S. S. Bhatti Xen, submitted three representations dated 24-4-1987 and last one dated 10-8-1989. Under these circumstances, it was maintained that the delay had occurred in concluding the enquiry and registration of the case.

7. I have heard learned counsel for the parties besides perusing the records.

8. The law is well settled on the point that the right of personal liberty enshrined in Article 21 of the Constitution of India also includes the speedy trial of criminal cases. In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, the Apex Court in para No. 54 of the judgment; after discussing the import of its earlier decisions in A.K. Gopalan Vs. The State of Madras, as well as in Kharak Singh Vs. The State of U.P. and Others, , had observed as under:--

"It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty, is concrned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Article 21 is : what is the meaning and content of the words ''personal liberty'' as used in this Article? This question incidentally came up for discussion in some of the judgments in A.K. Gopalan Vs. The State of Madras, and the observations made by Patanjali Sastri, J., Mukherjee, J. and S. R. Das, J. seemed to place a narrow interpretation on the words ''personal liberty'' so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words ''personal liberty'' as the inter-relation between Articles 19 and 21. It was in Kharak Singh Vs. The State of U.P. and Others, that the question as to the proper scope and meaning of the expression ''personal liberty'' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view ''that personal liberty'' is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the ''personal liberties'' of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, personal liberty'' in Article 21 takes in and comprises the residue". The minority Judges, however, disagreed with this view taken by the majority and explained their position in the following words:

"No doubt the expression ''personal liberty'' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ''personal liberty'' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person''s fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned."

There can be no doubt that in view of the decision of this Court in Rustom Cavasjee Cooper Vs. Union of India (UOI), the minority view must be regarded as correct and the majority view must be held to have been overruled. We shall have occasion to analyse and discuss the decision in R. C. Cooper''s case a little later when we deal with the arguments based on infraction of Articles 19(1)(a) and 19(1)(g), but it is sufficient to State for the present that according to this decision, which was a decision given by the full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom. The decision in A. K. Gopalan''s case a rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive each article enacting a code relating to the protection of distinct rights, but this theory was overturned in R. C. Cooper''s case where Shah, J., speaking on behalf of the majority pointed out that "Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights." The conclusion was summarised in these terms: "In our judgment, the assumption in A. K. Gopalan''s case that certain articles in the Constitution exclusively deal with specific matters --cannot be accepted as correct." It was held in R. C. Cooper''s case -- and that is clear from the judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of law contained in the opinions of Kania, C. J., Patanjali Sastri, J., Mahajan, J., Mukherjee, J. and S. R. Das, J. in A. K. Gopalan''s case -- that even where a person is detained in accordance with the procedure prescribed by law, as mandated by Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to be available to him and the law authorising such detention has to satisfy the test of the application freedoms under Article 19, Clause (1).

This would clearly show that Articles 19(1) and 21 are not mutually exclusive for, if they were, there would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the challenge of a fundamental right under Article 19(1). Indeed, in that event, a law of preventive detention which deprives a person of ''personal liberty'' in the narrowest sense, namely, freedom from detention and thus falls indisputably within Article 21 would not require to be tested on the touchstone of Clause (d) of Article 19(1) and yet it was held by a Bench of seven Judges of this Court in Sambhu Nath Sarkar Vs. The State of West Bengal and Others, that such a law would have to satisfy the requirement inter alia of Article 19(1), Clause (d) and in Haradhan Saha Vs. The State of West Bengal and Others, which was a decision given by a Bench of five Judges, this Court considered the challenge of Clause (d) of. Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression ''personal liberty'' as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wave length for comprehending the scope and ambit of the fundamental rights has been set by this Court in R. C. Cooper''s case and our approach in the interpretation of the fundamental rights must now be in tune with this wave length. We may point out even at the cost of repetition that this Court has said in so many terms in Rustom Cavasjee Cooper Vs. Union of India (UOI), that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression ''personal liberty'' in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19(1). The expression ''personal liberty'' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held. by this Court in Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi and Others, that ''personal liberty'' within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the enactment of the Passports Act, 1967, there was no law regulating the right of a person to go abroad and that was the reason why the order of the Passport Officer refusing to issue passport to the petitioner in Satwant Singh''s case was struck down as invalid. It will be seen at once from the language of Article 21 that the protection it secures is a limited one. It safeguards the right to go abroad against executive interference which is not supported by law; and law here means ''enacted law'' or ''State law''. Vide A.K. Gopalan Vs. The State of Madras, . Thus, no person can be deprived of his right to go abroad unless there is a law made by the State prescribing the procedure for so depriving him and deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports Act, 1967 that it lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney-General who with this usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A. K. Gopalan''s case in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazal Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Willis book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J., did not go as far as that but he did say that "certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law." Mahajan, J., also observed that Article 21 requires that "there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings." But apart altogether from these observations in A. K. Gopalan''s case which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21 having regard to the impact of Article 14 on Article 21. The interrelationship between Articles 14, 19 and 21."

Again the view taken in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, by the Apex Court was followed by that Court in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, . Again the Apex Court in State of Punjab Vs. Kailash Nath, , had quashed the F.I.R. on the ground of six years delay in registration of the case from the accrual of cause of action by holding that pursuing of a stale matter would be of no consequence.

9. In State of Andhra Pradesh Vs. P.V. Pavithran, , the Apex Court has upheld the judgment of Andhra Pradesh High Court quashing the F.I.R. in a case involving corruption by observing in para No. 7 of the judgment as under :--

"There is no denying the fact that a lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceedings to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis. Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence or inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the Court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation."

10. In Mangilal Vyas v. State of Rajasthan JT (1990) 1 74 SC, the Apex Court refused to interfere with the order of Rajas-than High Court by observing that the High Court after detailed examination of the entire facts and the history of pending proceedings as well as the causes for delay, concluded that it is not at all in the interest of justice to quash the proceedings. The following observations of the learned Judge of the High Court were extracted in para 2 of the judgment:--

"It is highly desirable and expedient in the interest of co-operative movement and the larger public interest that an offender against whom charges of embezzlement of amounts entrusted to him by various Sahkari Samities, prosecution should come to its legitimate end and the accused should not be allowed to abuse the process of Court by delaying himself the criminal proceedings which he is now facing by his own conduct."

11. This controversy was also elaborately discussed in two Full Bench judgments of the Patna High Court in The State Vs. Maksudan Singh and Others, and Madheshwardhari Singh and Another Vs. State of Bihar, . In para 25 of Madheshwardhari Singh''s case (supra), the Full Bench observed as under regarding the rendering of the very concept and purpose of a speedy trial purely illusory by inordinate delay in concluding the investigation of the trial:

"Coming now to Question No. (2), the core issue is as to what does a speedy public trial in a criminal prosecution truly connote? Does it include within it the preceding Police investigations in the case also or is it confined only to the period of time when the portals of the Court are entered in a regular trial? On principle I am clearly of the opinion that in the majestic sweep of the fundamental right of a speedy public trial in the context of a criminal prosecution initiated at the State''s instance, it necessarily connotes all the period from the date of the levelling of the criminal charge to the date of rendering of the judgment in Court. Unless it is so held, the cherished fundamental right herein would be whittled down to a teasing mirage, where the investigation of the offends itself may protract On for years (as is well manifested in the present case), and, thus rendering the very concept and purpose of a speedy trial purely illusory. Therefore, a speedy trial in a criminal prosecution herein includes within it both the police investigation of the crime and the later adjudication in Court based thereon."

Again in para 50 of the judgment, the Full Bench had sounded a note of caution, that mere delay is not sufficient to conclude that the accused is prejudiced in the trial or investigation of the case but it depends upon the facts and circumstances of each case, by observing as under:--

"A sharp note of caution must be sounded. The aforesaid finding must not be misunderstood or misconstrued to mean that a delay of less than seven years would not in any case amount to prejudice. Indeed, what is sought to be laid down is the extreme outer limit whereafter grave prejudice to the accused must be presumed and the infraction of the constitutional right would be plainly established. Really, I am somewhat hesitant in spelling out even the aforesaid outer time limit which, perhaps, errs on the side of strictitude But since we are following binding precedent, the same has to be unreservedly accepted. Nor is it sought to be laid down that in a lesser period than seven years an accused person would not be able to establish circumstances pointing to the patent prejudice which may entitle him to invoke the guarantee of speedy public trial under Article 21. This is a question which can be properly considered and adjudicated where it may expressly arise. In both the cases before us the delay is admittedly even far beyond the outer limit of seven years. What indeed is sought to be laid down here is that beyond this period of seven years the continuation of the investigation and trial would bring in the weightiest presumption that the enshrined right of speedy public trial is violated and the prosecution should be halted in its tracks. This would per se be indicative of prejudice. Thereafter the burden would automatically shift heavily on to the shoulders of the State to show that such grave delay was either entirely the handiwork of the accused himself or was occasioned by such special and exceptional circumstances so as to merit condonation thereof. A criminal prosecution by the State cannot be allowed to become an inquisitorial prosecution of the accused. Nor can a fair speedy trial be allowed to become an unending travail for him."

12. In The State Vs. Maksudan Singh and Others, , the majority judgment of the Full Bench as per para 10 had answered the questions before the Full Bench in affirmative by holding that the constitutional right of the accused to a speedy and public trial in all criminal prosecutions now flowing from Article 21 of the Constitution, by virtue of precedential mandate is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution. Towards fag-end of para 9 of the judgment it was remarked that the right of speedy and public trial in India should be put at a lower pedestal than the Sixth Amendment of the American Constitution as it is not written in so many words in our Constitution. It was further remarked that such right must be in a way read down in Article 21 of our Constitution.

13. Admittedly in the present case, the alleged embezzlement of stone metal took place in the year 1980-81 and this fact came to the notice of authorities for the first time in October, 1982. Thereafter, regular enquiry was instituted in the year 1984. The statement of Kulbir Singh, accused-petitioner was recorded by the concerned authorities on 11-12-1984 and after completion of enquiry on 7-5-1985, the concerned Deputy Superintendent of Police, Vigilance Bureau, Amritsar had forwarded the case to the Chief Director, Vigilance Bureau, Punjab at Chandigarh for perusal and moving the Government for obtaining sanction to prosecute the petitioner and others obviously u/s 19 of the Prevention of Corruption Act, for the above referred offences. Although the cognizable offences were disclosed much earlier i.e. in the year 1985, when the Deputy Superintendent of Police, Vigilance Bureau had sent the case to the Chief Director, Vigilance Bureau, Chandigarh, yet the case was got registered on 21-8-1989 vide F.I.R. Annexure P-1 at Police Station, Chheherta, Amritsar, on the basis of sources report only. Thus there is delay of four years in registration of the case. The prosecution has tried to explain this delay of four years on the ground that some additional information was sought for by the office of Chief Director, Vigilance Bureau and that all the four accused including the petitioner continued filing representations as late as 10-8-1989 contending new facts in support of their innocence which were required to be verified by the local police officials.

14. Regarding the delay resulting from'' considering the representations filed by the present petitioner and his three other co-accused, it transpires that this aspect was asserted only in the additional return filed in the shape of affidavit dated 21-8-1990 by Shri Ved Parkash, Dy. Superintendent of Police, Vigilance, Amritsar, whereas earlier return filed by Mr. Apar Singh, Deputy Superintendent of Police, Vigilance Bureau who had investigated this case, was silent in this regard, except stating in para 8 that this time was consumed in legal objections raised by the legal cell of the office of Chief Director, Vigilance Bureau, Punjab. Anyhow, since the above referred representations are in black and white, the explanation of the respondent taken in the additional return can be well verified from those representations. Under the directions of this Court, Mr. G. S. Cheema, A.A.G. Punjab had placed on the file copy of the representation which does not bear any date, although the endorsement on the original representation reveals that it was received in the Vigilance Bureau, Chandigarh on 10-8-1989. A bare glance through this representation filed by Mr. S. S. Bhatti, Executive Engineer, one of the co-accused of the petitioner, reveals that he has not asserted anything new therein except contending that he is innocent. The main allegation in this representation is that Mr. P. P. Sharma, Xen had got transferred some material to other divisions, in order to show the shortage for falsely implicating the petitioner in this case. This allegation figures in the statement of the petitioner recorded during the regular enquiry (Annexure P-3) on 25-11-1986. Thus, I find no substance in the contention of Mr. G. S. Cheema, learned Assistant Advocate-General, that the delay of four years, had occurred on account of the petitioner and co-accused having asserted fresh facts in the representations filed by them or that the same were required to be verified by the concerned Investigating Officer.

15. The matter does not rest here as although this case was registered on 21-8-1989 about a year ago but the investigation has not been concluded so far. There is no move so far, from the Chief Director, Vigilance Bureau for obtaining requisite sanction from the State Government for the prosecution of the petitioner and his co-accused. Under these circumstances, the delay of more than 9 years when the alleged misappropriation and fabrication of records came into notice, would certainly give rise to a reasonable presumption that the accused would be prejudiced in defending himself effectively. The facts and circumstances of this case also show that this prejudice to the accused is the only necessary consequence because it involves actual measurement of the stone metal stacks at the site regarding which the concerned officers appointed from time to time had exhibited helplessness due to the stone metal having not been arranged in the shape of proper stacks. A perusal of report Annexure P-3 dated 10-12-1982 of Shri S. P. Singh, Sub-Divisional Engineer, appointed by Superintending Engineer, reveals that the stone metal at site of Group I contract work was found on verification as 1890 cubic metre and similar is the version of Kulbir Singh, petitioner that on taking charge he found the stone metal stacks at the spot to this extent. Moreover, in the report dated 17-8-1982, Annexure P-4, forwarded by Shri V. P. Trehan, Sub-Divisional Engineer, Ajanala, to the Superintending Engineer further shows that he had checked the material lying at the site of Provincial Sub-Division No. 1, Amritsar and found it to be correct. Although in the return filed by the respondent, it is stated that Shri P. P. Sharma, Xen had denied having visited the spot or conducted the actual measurement of the stone metal in dispute but the letter Annexure P-8, written by Mr. Sharma, Xen to Kulbir Singh, present petitioner reveals that he had checked one stack of the material. Thus it appears that the version of Mr. P. P. Sharma, Xen in his statement recorded by the Vigilance authorities, was altogether different and he had taken a somersault by stating that he had failed to conduct the actual measurement as the stone metal was in scattered position. The above referred report assumes great importance in determining the fate of the case because in the subsequent report of the Departmental Committee appointed by the Superintending Engineer, it has been found that the stone metal was short to the extent of quantity alleged in the F.I.R. Under these circumstances, due to passage of number years it would rather be impossible for the accused-petitioner to explain or prove that the stone metal was not misappropriated or that the earlier reports of Mr. V. P. Trehan Xen S. P. Singh Sub-Divisional Engineer, were incorrect or correct.

16. For the foregoing reasons, the impugned F.I.R. as well as all the proceedings resulting therefrom qua the petitioner are quashed by accepting this petition.