Anil Kumar Sharma Petitioner v. State Of U.P & Others S

Hon'ble Amar Saran, J.

Hon'ble Dinesh Gupta, J.

Heard learned counsel for the petitioner and the learned A.G.A for the State.

It is submitted by the learned counsel for the petitioner that the petitioner had only joined the said hospital on 31.4.2012, where embezzlement of Rs. 8 lac and odd is alleged to have taken place in the financial year 2012-13. There was no material for indicating non-purchase of the medicines for which bills had been prepared and the amounts are alleged to have been received by the petitioner and co-accused. The petitioner was in any case said to be not concerned with the job of purchase of medicines. Learned A.G.A to obtain instructions on these submissions within a week.

It has further come to our knowledge that in many cases, where orders staying arrest till the submission of the charge sheet have been passed, the concerned police officer refrains from arresting the accused persons not only till the time of submission of the report under section 173(2) Cr.P.C but even thereafter until the lower court issues summons or warrants for the arrest of the accused. This has resulted in the trial being unduly prolonged. It is also in violation of section 170(1) of the Code of Criminal Procedure, which provides that when the police officer is satisfied that sufficient evidence or reasonable ground exists to proceed against an accused, he should arrest and produce the accused in custody before a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, he should take security from the accused after giving him bail and direct him to appear before the Court concerned on a fixed date and on subsequent dates under the direction of the Magistrate. But there appears to be complete non-observance of this provision. Such reports under section 173(2) Cr.P.C often remain lying in the Magistrate's office for years in a routine manner and sometimes as a result of the undue influence exercise by accused over the concerned official.

Even in non-bailable matters where arrests of the accused were stayed by the High Court until submission of charge sheets/reports under section 173(2) Cr.P.C, when the police officer decides to submit a charge sheet against the accused, the police officer concerned could consider taking the accused into custody for producing him before the Magistrate or direct him to obtain bail from the appropriate Court and to appear before the Magistrate competent to take cognizance and to try the offence or to commit the case to the Court of Sessions on a fixed date. In the event of the failure of the accused to appear before the Magistrate concerned on the date fixed, and in the absence of any reasonable explanation for his non-appearance through his counsel, all coercive measures ought to be taken for ensuring the appearance of the accused before the concerned Magistrate. We require an explanation from the State why such a course of action is not presently being adopted, and whether any government order is being issued or other steps are being taken in the light of section 170(1) Cr.P.C casting a responsibility on the concerned police officer to ensure the attendance of the accused person before the competent Magistrate when he decides to submit a report under section 173(2) Cr.P.C against the said accused.

We also think that trial proceedings would be expedited if the report under section 173(2) Cr.P.C is submitted before the competent Magistrate and copies of the said papers mentioned under section 207 Cr.P.C are simultaneously handed over to the accused on their first date of appearance/production before the competent Magistrate, and we seek an explanation from the State as to why typed or photocopies of these materials are not got prepared by the police for handing over to the accused on his first appearance before the concerned Magistrate, when the officer also files the report under section 173(2) Cr.P.C before the concerned Magistrate.

Learned A.G.A may also obtain instructions on all the aforesaid points and also the steps that are being taken, or government order, if any, that is being issued for redressing these problems from the Home Secretary and Director General of Police by the next date of listing.

List on 17.1.2013 for further hearing.

Till the said date, arrest of the petitioner namely Anil Kumar Sharma in Case Crime No. 1044/2012, under section 409 I.P.C, Police Station Hari Parvat, District Agra, shall remain stayed, provided he co-operates with the investigation.

Let a copy of this order be given to the learned A.G.A within 48 hours.