Kerala High Court
P.J. Sebestian And Ors. vs State Of Kerala And Ors. on 5 November, 1998
Equivalent citations: 1999CRILJ656
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
ORDER P.K. Balasubramanyan, J.
1. The petitioners have approached this Court invoking Articles 226 and 227 of the Constitution of India praying for the issue of a writ of certiorari for quashing a criminal complaint, C. C. No. Ill of 1997 on the file of the Chief Judicial Magistrate's Court, Pathanamthitta. At the hearing, it was submitted that the motion was really one under Article 227 of the Constitution of India, in the wake of the decision of this Court in Dr. Louis V. Pulickal v. State of Kerala 1997 (2) KLT 233. The case was therefore argued on the basis that it was a motion under Article 227 of the Constitution of India.
2. The petitioners are accused Nos. 1 to 3 in C. C. No. 111 of 1997 on the file of the Chief Judicial Magistrate's Court,. Pathanamthitta. The three accused were charged with offences punishable under Sections 409, 420 and 120-B read with Section 34 of the Indian Penal Code. The petitioners are alleged to be the partners of a financial institution by name Southern Financiers'. They had received deposits from the public promising to repay the deposits with good interest. But, they cheated the depositors by closing down the business concern without prior notice and without returning the deposits. They had thereby committed the offences they were charged with. The petitioners have raised various defences including the one that petitioners -2 and 3 were not partners of the firm, that there was no closing down of the business, that the petitioners have not cheated anyone and that they are not guilty of the offences charged. According to the petitioners, the First Information Report regarding the offences allegedly committed on 11-9-1985 was only dated 27-11-1987. In respect of the FIR registered in the year 1987, the charge sheet was filed before the Chief Judicial Magistrate's Court, Pathanamthitta only in the year 1997. The petitioners were also accused in C. C. No. 14 of 1995 before the Judicial First Class Magistrate's Court, Kottayam for offences under Sections 409 and 420 and 120-B of the Indian Penal Code based on the same facts and based on the same incident. There was also an insolvency case to which petitioner No. 1 was a party. A decade and more have elapsed since the alleged offences were committed, the documents have become moth eaten, memories of the witnesses have faded and the petitioners are constantly under threat and harassment. The prosecution hangs as a Democles Sword over their heads. The liberty of the petitioners has been curtailed and their fundamental rights have been trampled upon. The petitioners are therefore entitled to relief from this Court. The right to speedy trial was implicit under Article 21 of the Constitution of India. The petitioners are therefore entitled to have the criminal proceedings, C. C. No. 111 of 1997 on the file of the Chief Judicial Magistrate's Court, Pathanamthitta quashed.
3. Learned counsel for the petitioners referred to various decisions outlining the content and contours of the fundamental rights of a citizen under Article 21 of the Constitution. Referring to the decision in Deena v. Union of India 1983 (4) SCC 645 : 1983 Cri LJ 1602 counsel pointed out the approach to be adopted by the Court. Starting from the decision in Sreekantan Nair v. Travancore Mineral Concerns AIR 1955 SC 792 (sic) and ending with the decision in Biswanath Prasad Singh v. State of Bihar 1994 Supp (3) SCC 97 : 1994 Cri LJ 242, learned counsel urged that this was a fit case where the proceedings ought to be quashed under Article 227 of the Constitution of India. Great emphasis was laid by counsel on the decision in Dr. Louis V. Pulickal v. State of Kerala 1997 (2) KLT 233, to urge that the proceedings must be set aside on the ground of delay. The learned Government Pleader answered this argument by pointing out that the petitioners had promised attractive interests to the people and had taken deposits from a large number of people and had simply closed down the firm without returning the amount taken in deposit, that, this was a crime against society, that the delay in the prosecution occurred because of the obstructive tactics adopted by the petitioners, that the accused were absconding and only later they appeared before the Court and got bail, that the complaint was filed in time and since this was a crime against society, this was not a fit case where this Court ought to exercise its discretionary jurisdiction under Article 227 of the Constitution of India. Counsel submitted that this was a fit case where the trial ought to be permitted to go on and the petitioners punished if they are found guilty.
4. Counsel for the petitioners submitted that the petitioners have not deliberately delayed the -. trial and should not be refused relief. Before finalising the judgment, I sought information from the Chief Judicial Magistrate's Court; Pathanamthitta about the progress of C. C. 111 of 1997. This Court was informed that the proceedings at the trial had got stalled by the petitioners herein by filing a revision, Cri. R. P. 21 of 1997 in the Sessions Court of Pathanamthitta against some interlocutory order made by the trial Court and by getting all the proceedings stayed until disposal of the revision. The petitioners have thus again stalled the trial. No doubt the accused may be entitled to challenge orders which are capable of being challenged by way of appeal or revision. But having done so, it is not open to the accused to raise the bogey of delay in prosecution to seek the quashing of the prosecution itself. In any view, this conduct of the petitioners should be of prime consideration for this Court while it is invited to exercise its jurisdiction under Article 227 of the Constitution of India.
5. It may now be noticed that in the petition for Special Leave to Appeal (Cri.) No. 1952-53/97 filed by the State challenging the decision in Dr. Louis V. Pulickal v. State of Kerala, relied on heavily by counsel for the petitioners, the Supreme Court has very clearly stated that Their Lordships "do not agree with the reasons given by the High Court..." in that judgment. Their Lordships no doubt did not ultimately interfere with the order of this Court quashing the proceedings. But the observations of the Supreme Court make it clear that the decision in Dr. Louis V. Pulickal v. State of Kerala cannot have value as a precedent for any proposition of law enunciated therein. The arguments based on that decision cannot, therefore, be automatically, accepted.
6. A great Judge had once said that by not punishing the criminal we punish the society. In a case where people have allegedly got together to swindle the public by receiving huge amounts by way of deposits from them promising attractive interest and have simply appropriated or misappropriated those amounts without repaying the depositors, it is really a crime against society since it affects the economic fabric of a number of families who have optimistically made the deposits with those people. Those people, the financiers are obviously monied people with power and influence that results from wealth. Such influential persons would certainly be able to put spokes in the wheels of investigation, sometimes bringing it to a grinding halt. Such persons will also be able to seek and acquire advice and assistance from acknowledged legal and may be able to get the proceedings in Court blocked at each and every stage by raising points and arguments precluding the trial from commencing or continuing. It cannot also be forgotten that the accused in such cases may wield sufficient influence to impair the investigation itself. What one finds is that the built in safeguards against such tactics adopted by influential persons charged with such crimes, are becoming inadequate and tend to crumble due to human failings and loss of national character and what results is the denial of justice to the innumerable small depositors and like people who are considerably affected if not ruined altogether by the offences allegedly committed. To exercise jurisdiction under Article 227 of the Constitution of India in favour of persons accused of such crimes on the ground that they have succeeded in getting the investigation delayed and the proceedings in Court stalled, would be' totally unjust and would be paying a premium for indulgence in such delaying tactics. The Court should be wary of not succumbing to pleas by such persons of delay and of being exposed to a criminal prosecution for years.
7. It is no doubt true that an accused has a right to speedy trial. But in our present dispensation of criminal justice, both at the stage of investigation and at the stage of- prosecution, considerable delays do occur. This reality cannot be ignored. Not to try offences charged, merely on the basis that there has been considerable delay between the detection of the crime and its culmination, may itself be a negation of justice and would not be a course in furtherance of justice at least in some cases. Criminal justice is attuned to the social well-being of the society and it is not merely a question of punishing an individual accused for an isolated crime. The social objective cannot be lost sight of in dealing with such claims for discontinuing the prosecution on the ground of delay, especially when the major portion of the delay is engineered by the accused themselves through their influence and money power. The right of an individual accused to have a speedy trial in terms of Article 21 of the Constitution of India has to be tested on the touchstone of justice to society and so tested, the petitioners in this case would not be entitled to any relief in this proceeding under Article 227 of the Constitution of India.
8. Learned counsel for the petitioners relied on the following passage in the text book "New Dimensions of Law and Justice" by Justice H. G. Balakrishna occurring in Chapter 14 of that book :
First, the right to be free from governmental violations of the integrity of the person. Such violations include torture, cruel, inhuman or degrading treatment or punishment, arbitrary arrest or imprisonment, denial of fair public trial and invasion of the home or privacy. When human beings are forcibly abducted from their homes and interrogated incessantly at the pleasure of their captors and produced (?) with electrodes or held under water to the point of drowning when such things are happening in the world in which we live...all who truly value human rights ought to speak out.
This may be one facet of the problem, but can we ignore the other facet of the problem of doing justice to the thousands of depositors of whom monies have been collected with promises of their return with attractive interest. Can we forget the misery and the penury that engulf them when such crimes are committed? The duty of the Court is to strike a balance. Pitted against the crime on society and the need to punish those who are ultimately found guilty of such crimes, is the individual fight to speedy trial. When the accused himself has engineered to protract and to defeat the trial, the Court can hardly come to his aid to avoid it. I am, therefore, not satisfied that the passage relied on by learned counsel for the petitioners should induce this Court to prevent the prosecution from being proceeded with in this case.
I, therefore, decline to exercise my jurisdiction under Article 227 of the Constitution of India in favour of the petitioners. I dismiss this Original Petition.