Kerala High Court
Akhilesh.V.K vs The State Of Kerala on 2 March, 2013
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936
OP(Crl.).No. 55 of 2014 (Q)
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[AGAINST THE PROCEEDINGS IN C.C. NO.1206/09 ON THE FILE OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA]
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PETITIONER:
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AKHILESH.V.K, AGED 23 YEARS,
S/O. KAMALASANAN M.R., AKHILA NIVAS, VETTACKAL (P.O),
CHERTHALA, ALAPPPUZHA DISTRICT.
BY ADVS.SRI.S.SHANAVAS KHAN,
SMT.S.INDU.
RESPONDENT:
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THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.
THIS O.P (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 26-03-2014, ALONG WITH O.P.(CRL.).NO.56/2014,THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
Prv.
O.P.(CRL.).NO.55/2014-Q:
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE COMMUNICATION DATED 2.3.2013 RECEIVED
FROM THE OFFICE OF THE ASSISTANT PERSONNEL OFFICER (M&E),
PERSONNEL BRANCH, DIVISIONAL OFFICE, MADURAI, CHENNAI.
EXHIBIT P2: TRUE COPY OF THE F.I.R IN CRIME NO.249/09 OF PATTANAKKAD
POLICE STATION.
EXHIBIT P3: TRUE COPY OF THE ORDER DATED 11.4.2013 IN OA NO.304/2013 OF
THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.
EXHIBIT P4: TRUE COPY OF THE JUDGMENT DATED 16.1.2014 IN OA NO.304/2013
OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM.
RESPONDENT'S EXHIBITS: NIL.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
K. Ramakrishnan, J.
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O.P.(Criminal)No.55 of 2014
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Dated this, the 26th day of March, 2014.
J U D G M E N T
This is an application filed by the accused in C.C.No.1206/09 on the file of the Judicial First Class Magistrate Court, No-I, Cherthala, for speedy disposal of the case under Article 227 of the Constitution of India.
2. It is alleged in the petition that the petitioner was selected for appointment for the post of Ty.Trackman in Pay Bond-1 with grade pay of Rs.1800/- in Southern Railway and Integral Coach Factory. He was asked to report before the office on or before 25.03.2013 with the necessary certificates and other relevant documents. The petitioner accordingly reported at the office of the Assistant Personnel Officer, (M&E), Personnel Branch, Divisional Office, Madurai, Chennai. On perusal of the documents, it was informed that the petitioner cannot join duty as he had stated in the attestation form produced along with the documents that two criminal cases are pending against him and he was informed that he could join duty only after clearing the said cases. He is accused in C.C.No.1206/09 and 1207/09 pending before the Judicial First O.P.(Criminal)No.55 of 2014 : 2 : Class Magistrate Court, No-I, Cherthala. Since there was no positive response from the railway authorities, petitioner approached the Central Administrative Tribunal, Ernakulam by filing O.A.No.304/13 for a direction to the respondents therein to permit him to join duty and an interim order was passed in the said case directing the respondents to keep one vacancy unfilled for a period of two months. Thereafter, the interim order was extended from time to time. The matter has now been disposed of by the Central Administrative Tribunal, Ernakulam on 16.01.2014 directing the second respondent therein to take a decision on the representation filed by the petitioner within a month. Till such a decision is taken, one post was directed to be kept vacant. The case C.C.No.1206/09 now posted to 22.05.2014 for examination of witnesses. Though the petitioner was present, the witnesses were not present and due to the non availability of the witnesses, the case is being adjourned. Unless the case is disposed of quickly, he will be put to serious hardship as he is likely to lose the employment that has been now provided by the Railway Department. So, he has no other remedy except to approach this court seeking the following relief:
"To direct the Judicial First Class Magistrate Court 1, Cherthala to try and dispose of C.C.No.1206/09 on its O.P.(Criminal)No.55 of 2014 : 3 : file within a time frame."
3. Heard the Counsel for the petitioner and the learned Public Prosecutor and also called for a report from the concerned magistrate court. The learned magistrate sent a report which reads as follows:
"CC.1206/09 was taken on file on the basis of final report submitted by the Sub Inspector of Police, Pattanakkad Police Station in Cr.No.249/09. The offences alleged are u/ss.448, 294(b), 323, 354 of IPC.
The allegation against the accused is that, on account of enmity with CW1 due to the non-issuance of soda and glass to accused, on 22.06.2009 at 8.15.P.M., the accused with intention to cause bodily hurt to CW1, uttered obscene words towards CW1, who was standing in the varandha of a shop building situates in Ward-13 of Pattanakkad Panchayat. The accused fisted on the chest of CW1 2-3 times with hands, which caused pain and outraged her modesty.
The accused entered appearance before this court on 10.12.2009 and particulars of offences were read over and explained to the accused. Accused pleaded not guilty. After issuing process, CW1 appeared before the Court on 15.07.2011. On that day the Asst:Public Prosecutor was on leave. The case was posted for settlement to 19.08.2011. No sitting on 19.08.2011. The case was posted to 20.09.2011. On that day CW1 was absent and applied. The case was posted for examination of CW1/settlement. The records show that, on 13.12.2011 CW1 was present. But not settled. The Asst:Public Prosecutor was absent and case was posted for examination of CW1. No further time. On 15.12.2011 CW1 was present. The learned counsel for the accused prayed for examination of CW1. Thereafter two postings CW1 was absent and applied. On 23.01.2012 CW1 was present. But, the O.P.(Criminal)No.55 of 2014 : 4 : Asst:Public Prosecutor was absent. The case was posted for examination of CW1. Subsequent two postings CW1 was absent. The next posting date CW1 was present. But, the Asst:Public Prosecutor was absent. The case was posted for examination of CW1 to 28.03.2012, as last chance. No further time. On 28.03.2012, CW1 was absent. Issued NBW to CW1 and case was posted to 19.04.2012. Ob 19.04.2012 CW1 was present. But Asst:Public Prosecutor was absent. Hence CW1 was bound over and case was posted to 26.04.2012. The records show that, on 26.04.2012 CW1 was present. The case was posted for examination of CW1/for settlement. The next posting date both parties were present and parties were referred to Adalath on 11.08.2012. On 11.08.2012 accused was present in Adalath. But, CW1 was absent. For settlement case was posted to 18.09.2012(in Adalath). On 18.09.2012 accused was present. But CW1 was absent. Hence no chance for settlement. The next postings on regular Court accused and CW1 were present. Matter was not settled. On the prayer of accused for adjournment, CW1 was bound over and ordered to pay cost of Rs.150/- to CW1. The next posting accused and CW1 were absent. Thereafter on 22.10.2012, 21.11.2012 and
04.12.2012 due to the alternative absence of CW1 and prayer for adjournment by the counsel for the accused, the CW1 was not examined. On 30.01.02013, Accused and CW1 were present. The counsel for the accused prayed for settlement. The case was posted for evidence(Last Chance). The next posting accused was absent, CW1 was present. Matter was not settled. Hence CW1 was examined in part as PW1. Ext P1 was marked. The cross examination was deferred on request. The next posting PW1 was absent. On 31.05.2013 accused and PW1 were present. PW1 was cross examined and Exts.D1 to D3 were marked. Summons were issued to CW2 and CW3. CW2 and CW3 were examined as PW2 and PW3 and issued summons to CW4 to CW6. On 4.10.2013 CW4 was present and examined as PW4. Ext.P2 also marked. Repeated O.P.(Criminal)No.55 of 2014 : 5 : summons to CW5 and CW6. But, CW5 and CW6 continuously absent. The records show that summons was served to CW6. Hence Non-bailable Warrant was issued to CW6 and repeated summons to CW5. Now the case was posted to 22.05.2014.
This court is the 2nd heaviest Magistrate's Courts in Alappuzha District. There are eight witnesses in the charge sheet. Out of them Cws 1 to 4 were examined. Therefore, I find that six month time is required to complete the trial of the case."
4. The grievance of the petitioner is genuine because, he is facing trial in a criminal case from 2009 onwards and the pendency of the case is likely to affect his employment prospects as well. Speedy trial is a right guaranteed under the Constitution of India for an accused who is facing trial in a criminal matter. But, unfortunately, that mandate could not be fulfilled by most of the courts in India because of huge pendency of cases before each court and the present court is also one such example which is clear from the report submitted by the learned magistrate. This court is not aware of the difficulties of the subordinate court when giving direction to that court to dispose of the case as expeditiously as possible. In this case, it is seen from the report that trial has already been started and on account of the non availability of the witnesses, the trial of the case could not be completed. So, efforts must be taken by the magistrate to procure the O.P.(Criminal)No.55 of 2014 : 6 : presence of the witnesses by taking coercive steps as provided under law and expedite trial of the case. Considering the report of the learned magistrate, this court feels that the petition can be disposed of by giving direction to the court below as follows:
The learned magistrate is directed to dispose of C.C.No.1206/09 as expeditiously as possible after taking all earnest attempts to procure the witnesses in accordance with law and giving opportunity to the accused also to adduce defence evidence if any required at any rate within six months from 22.05.2014 on which date the case is now posted for further evidence of the prosecution.
With the above direction and observation, the petition is disposed of. Office is directed to communicate this order to the concerned court at the earliest.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge