IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 Crl.MC.No. 805 of 2005() ------------------------ CP.2/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... PETITIONERS/ACCUSED: ----------------------------- 1. STEPHEN, S/O. CHACKO, (ACCUSED NO.8) NO.38/88, CHANAKKAL VEEDU, MADHURAVELI, KADUTHURUTHI. 2. P.J. JOBE, S/O. VARGHESE, (ACCUSED NO.9) NO.40/88, VELLAPPATTIYIL VEEDU, THALAYOLAPPARAMBU, VAIKOM. 3. PUSHPANGHADHAN, S/O. RAGHAVAN, (ACCUSED NO.14), NO.39/88, RAJ BHAVAN, KAPPIKKADU, KALLARA, KOTTAYAM. BY ADV. SRI.S.RADHAKRISHNAN RESPONDENTS: ---------------- 1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA. 2. DETECTIVE INSPECTOR, C.B. C I D, PALAKKAD. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.2232/05 IN CRL.M.C.NO.805/05 //DISMISSED// 8.4.09 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.805 OF 2005 ----------------------------------------------------- DATED THIS THE 8th DAY OF APRIL, 2009 O R D E R Petitioners are accused Nos.8, 9 and 14 in C.P.No.2/99 on the file of the Judicial First Class Magistrate's Court, Mannarkkad. Originally, Crime No.132/88 was registered by the Mannarkkad Police against accused Nos.1 to 6 alleging offence punishable under Section 489-D read with Section 34 of IPC as per the FIR dated 8.5.1988, copy of which is produced as Annexure 1. Thereafter, investigation of the case was completed by the CBCID, Palakkad and filed the final report in FIR No.268/CR/88 on 28.12.1998, copy of which is produced as Annexure 2. During investigation, accused Nos.7 to 15 were also included in the array of accused. The allegation against the accused persons as revealed from Annexures 1 and 2 is that accused Nos.1 to 6 were seen counterfeiting Indian currency and they were arrested then and there from Palakkad. The Circle Inspector of Police has also seized the press, incomplete currency notes, etc. from accused 1 to 6. Later, the crime was transferred to CBCID, Palakkad and it CRL.M.C.No.805/05 -2- was renumbered as Crime No.268/CR/88. 2. It is alleged in this petition that even though the charge was laid in the year 1998 as revealed from Annexure 2, the case has not been committed for trial to the Sessions Court by the learned Magistrate of J.F.C.M.'s Court, Mannarkkad. The petitioners herein who are accused Nos.8, 9 and 14 have been arrayed as accused in the case on some bare statements of certain witnesses and there is absolutely nothing to suggest any complicity in the crime. In spite of this, the petitioners have been made to undergo the worry and anxiety of being in the array of the accused for the last 17 years. It is also alleged in this petition that Article 21 of the Constitution creates a right to the accused to be tried speedily. The right of speedy trial includes, the period of investigation and enquiry also. Thus, the grievance of the petitioners herein is that even though the final enquiry report was submitted by the Investigating Agency on 28.12.1998 in respect of the above case which was registered on 8.5.1998, the case was not even tried for the last about 21 years and the same is violative of the right to life guaranteed under Article 21 of the Constitution of India. Therefore, this petition is filed under Section 482 of Cr.P.C. with the prayer to quash the FIR and the charge sheet in C.P.No.2/99 on the CRL.M.C.No.805/05 -3- file of the J.F.C.M.'s Court, Mannarkkad in Crime No.268/CR/88 of the CBCID, Palakkad. 3. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor. 4. This petition is opposed by the learned Public Prosecutor and submitted that an earlier Crl.M.C. was filed by petitioners 1 and 2 herein, who are accused Nos.8 and 9, before this Court for the same relief and this Court as per order dated 22.1.2001 in Crl.M.C.No.323/2001,dismissed the petition, photocopy of which is produced by the learned Public Prosecutor. That order is annexed to the file of this petition. 5. The learned counsel for the petitioners relied on the decision reported in Superintendent and Remembrancer of Legal Affairs W.B. v. Mohan Singh and others (AIR 1975 SC 1002) to substantiate his argument that the second Crl.M.C. filed under Section 482 of Cr.P.C. is maintainable. On going through the facts and circumstances of the case in the aforementioned decision, I find some difference with regard to the facts in the present case. The concluding portion in paragraph 2 of the above-mentioned decision reads as follows: CRL.M.C.No.805/05 -4- “The facts and circumstances obtaining at the time of the subsequent application of respondents Nos.1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent, because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. It was for this reason that, despite the earlier order dated 12th December, 1968, the High Court proceeded to consider the subsequent application of respondents Nos.1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561A. In the present case, it is true that there is delay of 10 years on the part of the Investigating Agencies to complete the investigation. After investigation, final report is filed by the CBCID on 28.12.1998. Originally, Crl.M.C.No.323/2001 was filed by petitioners 1 and 2 in the year 2001. That is, after the filing of the final report by the police and the prayer therein is to quash the proceedings in C.P.No.2/99 on the file of J.F.C.M.'s Court, Mannarkkad as against the petitioners. It was alleged by the petitioners in that petition that there is absolutely no evidence in the case to connect them with the crime as revealed from CRL.M.C.No.805/05 -5- the order produced by the learned Public Prosecutor. This Court has dismissed the earlier petition with the finding that, “At this stage it cannot be said that the uncontroverted allegations do not disclose the commission of the offence alleged to have been committed by the petitioners. If there is no material on record to connect the petitioners with the crime, the petitioners are at liberty to move the trial court for a discharge.” Accordingly, that petition was found groundless and dismissed on 22.1.2001. In the present petition, the only difference I find is that accused No.14 is also joined who was not there in the earlier petition, Crl.M.C.No.323/2001. For that reason alone, this petition cannot be dismissed and I am disposing this petition on merits. 6. In support of the contention to quash the proceedings on the ground of delay, the learned counsel for the petitioners has produced photocopy of the decision of this Court dated 22.2.2008 in Crl.M.C.No.2641/2003. In that case, the offence alleged against the sole accused therein was with regard to disproportionate income under the Prevention of Corruption Act. In that case, the FIR was prepared on 30.1.1995 and the final report was filed on 30.3.2006. That is, on the previous day of the date of retirement of the accused therein. The proceedings in that case were pending before the Court of Enquiry CRL.M.C.No.805/05 -6- Commissioner and Special Judge, Thiruvananthapuram. The accused therein was retired from service on 31.3.2006 and his pensionary benefits were not given due to pendency of the criminal case. Accordingly, proceedings were pending for the last 20 years and trial was not over. Considering the long delay of the criminal proceedings, which affected the pensionary benefits of the accused therein, this Court quashed the entire proceedings against the petitioner. But, the facts and circumstances involved in the present case are entirely different. 7. The learned counsel for the petitioner has also relied on the decision in P.Ramachandra Rao v. State of Karnataka (2002 (4) SCC 578). The relevant portion in paragraph 9 of that decision reads as follows: “The Constitution Bench, in A.R.Antulay case, heard elaborate arguments. The Court, in its pronouncement, formulated certain propositions, 11 in number, meant to serve as guidelines. It is not necessary for our purpose to reproduce all those propositions. Suffice it to state that in the opinion of the Constitution Bench (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of CRL.M.C.No.805/05 -7- investigation, inquiry, trial, appeal, revision and retrial; (iii)who is responsible for the delay and what factors have contributed towards delay are relevant factors. Attendant circumstances, including nature of the offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on – what is called the systemic delays must be kept in view; (iv) each and every delay does not necessarily prejudice the accused as some delays indeed work to his advantage.” In conclusion, it was held in the above said decision as follows: “(1) The dictum in A.R.Antulay case is correct and still holds the field. (2) xxxx xxxxxxxxxxxx xxxxxxxxxxx (3) The guidelines laid down in A.R.Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made.” Thus no hard and fast rules have been laid down in this decision so as to help the petitioner herein as argued by the learned counsel. In appropriate cases, inherent power of this Court under Section 482 of Cr.P.C. can be invoked to make such orders, as may be necessary, to CRL.M.C.No.805/05 -8- give effect to any order under the Code of Criminal Procedure or to prevent abuse of process of any Court or otherwise, to secure the ends of justice. Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice. This Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. Considering the facts in the present case, I find no circumstance which entitle this Court to entertain the subsequent application of petitioners 1 and 2 and to consider whether on the facts and circumstances then obtaining, the continuance of the proceeding against them constituted an abuse of the process of the Court or its quashing is necessary to secure the ends of justice. 8. The learned counsel has also relied on the decision in Vakil Prasad Singh v. State of Bihar (2009(1) KHC 783(SC)(SN)). The facts of that case is entirely different from the facts of the present case. The facts of the case in the above reported decision were as follows: The Magistrate took cognizance of the offence under sections 161, 109 and 120B of the IPC and Section 5(2) of the Prevention of Corruption CRL.M.C.No.805/05 -9- Act against the sole accused on 9.12.1982. Charge sheet was filed on 28.2.1982. In 1990, the accused therein filed a petition under Section 482 of Cr.P.C. with the contention that the Inspector of Police had no jurisdiction to conduct the investigation. Accordingly, as per order dated 7.9.1990, the High Court directed the prosecution to complete the investigation by an Officer of the rank of Dy.S.P. within a period of three months. But, nothing happened till 27.2.2007 and filed fresh charge sheet on 1.5.2007. It was in such circumstances the Hon'ble Supreme Court found that there were inordinate delay of more than two decades in investigation and trial. Such delay was not due to default of the accused and the Supreme Court held that such delay clearly violates the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution. The facts in the present case are entirely different. None of the decisions relied on by the petitioners' counsel will help the petitioners to substantiate their prayer made in this petition. 9. It is an undisputed fact that the proceedings against the petitioners and other accused were initiated much earlier as on 8.5.1988 and thereafter final report was filed on 28.12.1998. So, about 21 years are over. Even now, the trial has not been started. CRL.M.C.No.805/05 -10- Petitioners 1 and 2 herein filed earlier Crl.M.C. in the year 2003. The present petition is filed under Section 482 of Cr.P.C. on 23.2.2005. This Court on 25.2.2005 called for the report of the learned Magistrate regarding the reasons for delay in committing the case to the Sessions Court, Palakkad. Pursuant to that direction, the learned Magistrate has reported on 28.2.2005 “that the case was taken on file on 5.3.1999 against 15 accused for the offence punishable under Section 489D read with Section 34 of IPC. Accused No.11 is reported dead. Accused Nos.1, 3, 5, 7 and 15 are absconding. Others have entered appearance. The bail granted to accused No.6 was cancelled and a fresh bail bond was executed by accused Nos.2 and 6 with fresh sureties. Thereafter, on 28.2.2005, the learned Magistrate committed the case to the Sessions Court, Palakkad and the case against the absconding accused was split up and refiled.” 10. The present case was filed originally against accused 1 to 6 only. Thereafter, during investigation, the complicity of other accused was revealed and accused Nos.7 to 15 were also impleaded subsequently. Undoubtedly, investigation of the offence as alleged against the accused in the present crime would take some time. Investigation Agency can take thereon time to complete the CRL.M.C.No.805/05 -11- proceedings and they cannot be blamed for the same. It is revealed from Annexure 2 report that 36 witnesses were included in the witness list along with the final report. Altogether how many witnesses were questioned will be revealed from the CD, which is not a matter for consideration for disposal of this petition. There can be no doubt that there should be speedy trial and speedy trial means reasonably expeditious trial, which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The nature of the offence, the number of accused in the case, witnesses, etc. are also to be looked into. The trial is not started in the present case. In such a case, it is open to this Court to make such other appropriate order including an order to conclude the trial within a fixed time, where the trial is not concluded as may be deemed just and equitable in the circumstances of the case. In the present case, considering the nature of the offence and other circumstances, quashing of proceedings may not be fair in the interest of justice. Now the case is pending before the District and Sessions Court, Palakkad as S.C.No.565/05 and is posted to 8.6.2009 for framing charge as submitted by the learned counsel for the petitioners and the learned Public Prosecutor. Accordingly, by exercising the inherent jurisdiction CRL.M.C.No.805/05 -12- of this Court under Section 482 of Cr.P.C. the following directions are given to the Sessions Court, Palakkad. 1) The learned Sessions Judge is directed to frame the charge on 8.6.2009 itself, the day on which the case is already posted, in respect of the accused who are present before that court on that day and start the trial. 2). The learned Sessions Judge is directed to conclude the trial and dispose of the case, S.C.No.565/2005 within four months from the date of receipt of a copy of this order. With the above directions, this Crl.M.C. is disposed of. M.C.HARI RANI, JUDGE. dsn