IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WA.No. 88 of 2009() ------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.36587/2008 Dated 09/01/2009 .................... APPELLANT(S)/PETITIONER IN W.P.(C): ------------------------------------------ P.JAYARAJ, SOPANAM, CHETTAMCOON THALASSERY 670 101. BY ADV. SRI.C.S.ULLAS RESPONDENT(S)/RESPONDENTS: ----------------------------------- 1. SHRI N. PURUSHOTHAMAN NAIR @ VAIKOM PUTUSHOTHAMAN NAIR DEPUTY DIRECTOR OF PROSECUTIONS (RETIRED), OPP: FEDERAL BANK, ETTUMANOOR, KOTTAYAM. 2. THE INSPECTOR OF POLICE CBI (SPE) KOCHI. 3. THE SUPERINTENDENT OF POLICE, CBI (SPE) KOCHI. SRI.M.V.S.NAMBOODIRI, STANDING COUNSEL FOR CBI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON 12/01/2009 DELIVERED THE FOLLOWING: J.B.KOSHY, Ag.CJ & V.GIRI, J. =========================== W.A.No.88 of 2009 =============================== Dated this the 12th day of January, 2009. J U D G M E N T Koshy, Ag.CJ. Appellant/petitioner is the 3rd accused in a prosecution case pending before the Chief Judicial Magistrate, Ernakulam, a notified CBI Court. The alleged incident took place as early as on 12.2.1988, about two decades have passed. There were 12 accused in this case. Earlier, the case was delayed because of the filing of the petition by various accused, one by one. Finally as per the judgment in Premshankar v. Inspector of Police (2007 (4) KLT 739) a learned Single Judge of this Court directed the Magistrate court to dispose of the case within seven months from the date of receipt of a copy of the judgment. At paragraph 13, the following directions were issued: “13. As observed earlier, the revision petitioner has been indulging in dilatory tactics of the worst order. He has not spared any nerve or muscle in putting spokes in the smooth prosecution machinery to ensure that he does not have to mount the dock for facing the trial in this case. I do not wish to make any further comment in the matter lest it might influence the Trial Judge who has to proceed with the trial untrammelled by any observation made by of the superior courts. W.A.No.88 of 2009 2 The result of the foregoing discussion is that this revision which is devoid of any merit is liable to be dismissed and I do so. The Trial Judge shall commence the trial of this case forthwith and shall dispose of the same within 7 months of receipt of a copy of this judgment. The petitioner shall appear before the trial Court without any further notice or summons, on 24.10.2007.” 2. At that time, main point raised was lack of proper sanction. Ext.R1 shows that there was an attempt by other accused also to delay the trial. The present contention by the petitioner is that even though 1st respondent was conducting the case from the very beginning as public prosecutor during the interregnum period of 31.12.2004 to 17.9.2008. He did not have the requisite authority to function as counsel for the CBI and therefore according to the petitioner, a quo warranto writ should be issued. The petitioner approached this Court by filing a writ petition. The main prayer in that writ petition is as follows: “Issue a writ of quo warranto against the 1st respondent, who holds the post of Public Prosecutor of the 2nd respondent before the Chief Judicial Magistrate Court, Ernakulam, in the territory of the Kerala State.” 3. It is also prayed that since during the interregnum period, he had no authority to conduct investigation as public W.A.No.88 of 2009 3 prosecutor, all proceedings conducted in this case during this period should be treated as illegal and no nonest. He also wanted a stay of proceedings. The learned single Judge correctly noticed that the matter is very much delayed and more than two decades have passed after the incident and considering the fact that there was already a direction to dispose of the case and time was further extended and the stay was obtained at the time when the case was posted for judgment. Prayer was not allowed. Petitioner can raise all these questions in an appeal if the order passed by the civil court is against him. The petitioner has no case that at the time of initiating prosecution the then public prosecutor had no authority. It is only during the interregnum period, the public prosecutor had no authority. This question was also raised only now when the case was posted for judgment. A petition was also filed before the learned Magistrate in this regard only after the writ petition was filed. Further even if quo warranto writ is issued, it will have the effect only for prospectively. We are of the view that no interference is required in the order as learned Single Judge has given liberty to raise all W.A.No.88 of 2009 4 his contentions in the appeal if the civil court order is against the petitioner. On the facts of the case and considering the delay, we are not inclined to interfere in the impugned judgment and accordingly, we dismiss the appeal. J.B.KOSHY, ACTING CHIEF JUSTICE. V.GIRI, JUDGE bkn/-