IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 Crl.MC.No. 2118 of 2008() ------------------------- CC.278/1991 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER: ACCUSED ------------------- MATHAI, AGED 49 YEARS, S/O.EAPEN, GIRI NAGAR - 76, KOCHI - 20. BY ADV. SRI.V.EAPEN MATHAI RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE C.I. OF POLICE, C.B.C.I.D (F.S) THIRUVANANTHAPURAM. REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.2118 of 2008 ------------------------------------- Dated this the 25th day of July, 2008 ORDER Petitioner has come before this Court with this petition under Section 482 Cr.P.C for quashing of proceedings initiated against him (and two co-accused) in C.C.No.278 of 1991 of Chief Judicial Magistrate Court, Ernakulam. The petitioner along with a co- accused faced allegations in that Calendar Case on the basis of a final report filed by the police alleging offences punishable under Section 120 (B), 465, 466, 468, 471, 109 and 420 r/w 34 I.P.C. 2. This case have a had chequered history. The crux of the allegations is that the accused persons had conspired together to bring into existence a forged B.Com degree certificate for the petitioner herein. Making use of such forged B.Com certificate, the petitioner had allegedly secured admission for the L.LB course and later obtained the L.LB degree and had enrolled himself as a lawyer. He was practicing as a lawyer on the basis of such enrollment. No allegations are raised in respect of the L.LB degree or subsequent enrollment, but the charge is that he secured admission in the L.LB course with a forged B.Com degree certificate. Crl.M.C. No.2118 of 2008 2 3. Cognizance was taken by the learned C.J.M, Ernakulam and C.C.No.278 of 1991 was registered. 4. The learned C.J.M, by order dated 10.04.92, discharged the petitioner holding that the allegations against him are all groundless. At that time though the 3rd accused had expired, the 2nd accused was also facing allegations along with the petitioner. Now the 2nd accused is also no more, it is submitted. 5. By the detailed order dated 10.04.92, the petitioner was discharged under Section 239 Cr.P.C. 6. The State filed a revision petition against the said order of discharge. Suo motu revision proceedings was also initiated by the learned Sessions Judge. By common order dated 20.03.93 in Crl.R.P.Nos.50 of 1992 and 58 of 1992, the learned IInd additional Sessions Judge set aside the order of discharge and directed the learned C.J.M to “take back C.C.No.278 of 1991 to file and dispose of the same afresh in accordance with law untrammeled by any observations contained in this order”. 7. That order of the learned Sessions Judge was challenged before this Court. A learned Judge of this Court as per order dated 20.06.1991 in Crl.R.P.No.246 of 1993 dismissed the said challenge and upheld the order of the learned Sessions Crl.M.C. No.2118 of 2008 3 Judge. This Court also directed the learned C.J.M “to proceed with C.C.No.278 of 1991 and dispose of the same in accordance with law untrammeled by any observations contained in the judgment”. 8. That order of the learned Single Judge was challenged before the Supreme Court and the Supreme Court, by order dated 22.01.2004 in Crl.Appeal No.215 of 1998, dismissed the said appeal. 9. Thereafter the matter came before the learned C.J.M and at that stage, the Public Prosecutor filed an application for withdrawal of the case under Section 321 Cr.P.C. The learned C.J.M, by order dt.30.05.2008 in Crl.M.P.No.63 of 2006, refused to grant leave to the Public Prosecutor to withdraw from the prosecution. Thereafter the learned C.J.M had posted the case to 24.06.08 for hearing on the question of charge and further steps. Charges have not been framed so far. The matter stands posted for framing charge. 10. It is at this stage that the petitioner has come before this Court with this petition under Section 482 Cr.P.C. The order passed by the learned Magistrate refusing to grant leave for withdrawal is significantly not challenged at all. I am of the Crl.M.C. No.2118 of 2008 4 opinion that in the sequence of events referred above, it is for the petitioner now to appear before the learned C.J.M and advance arguments, if any, to show that charges are not liable to be framed. Instead of doing that, the petitioner has unnecessarily come to this Court with this petition under Section 482 Cr.P.C to quash the proceedings. The learned Sessions Judge had already held that the allegations are not groundless and that the discharge on that ground is not justified. That order of the learned Sessions Judge has been upheld by this Court and the Supreme Court. It is too late in the day for the petitioner now to contend that on merits, the prosecution against the petitioner is liable to be quashed invoking the jurisdiction under Section 482 Cr.P.C. 11. At the Bar in the course of submissions, the learned counsel for the petitioner submits that there has been inordinate delay in the disposal of the case and that in turn results in denial of the right to life of the petitioner under Article 21 of the Constitution of India. It is submitted that speedy trial is an axiom of the right to life under Article 21 of the Constitution and inasmuch as the same has been denied to the petitioner, the proceedings are liable to be quashed. Significantly such a Crl.M.C. No.2118 of 2008 5 contention is not seen raised at all in the petition filed under Section 482 Cr.P.C. Respondent/State has been denied an opportunity to raise the contention that there has been no denial of the fundamental right to speedy trial in the facts and circumstances of this case. I do note that though the learned Sessions Judge had passed the order as early as on 20.03.93, it was the successive challenges raised before this Court and the Supreme Court by the petitioner that led to the delay in the case making further progress. In any view of the matter, I am not persuaded to agree that powers under Section 482 Cr.P.C can or ought to be invoked in favour of the petitioner now. It is for the petitioner to appear before the learned Chief Judicial Magistrate and raise his contention, if he has any such contention, to claim discharge afresh. 12. I need only mention that the learned Magistrate must dispose of the case in accordance with law as expeditiously as possible. 13. With the above observations, this Crl.M.C is dismissed. (R.BASANT, JUDGE) rtr/- Crl.M.C. No.2118 of 2008 6