Kerala High Court
Visakh Babu vs State Of Kerala on 30 May, 2013
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 9TH DAY OF APRIL 2014/19TH CHAITHRA, 1936
OP(Crl.).No. 3494 of 2013 (Q)
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PETITIONER(S):
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VISAKH BABU, AGED 26,
S/O SRI. BHASKARAN BABU,
RESIDING AT PEZHUKONAM PALACE, NEDUMANCAUVU,
VAKKANADU P.O., KOTTARAKARA, KOLLAM DISTRICT.
BY ADVS.SRI.S.V.RAJAN
SRI.R.SANTHOSH (VARKALA)
SMT.S.UMA
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE DIRECTOR OF PROSECUTIONS,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031,
KERALA STATE.
2. STATION HOUSE OFFICER,
POOYAPALLYPOLICE STATION, KOLLAM DISTRICT,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.,
KERALA STATE.
3. THE CIRCLE INSPECTOR OF POLICE,
EZHUKONE, KOLLAM DISTRICT,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031,
KERALA STATE.
BY GOVERNMENT PLEADER SMT.S.HYMA
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 09-04-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
OP(Crl.).No. 3494 of 2013 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: THE TRUE COPY OF THE LETTER UNDR REF NO.I-4160/2013 DATED
30.5.2013 ISSUED BY THE SUB DIVISIONAL MAGISTRATE'S COURT,
KOLLAM.
RESPONDENT(S)' EXHIBITS
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
K. RAMAKRISHNAN, J.
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O.P.(Crl).No.3494 of 2013
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Dated this the 9th day of April, 2014.
JUDGMENT
This petition is filed by the petitioner, who is the accused in Crime No.241/2007 of Pooyapally police station of Kollam district seeking certain directions under Article 226 of the Constitution of India.
2. It is alleged in the petition that the petitioner was arrayed as accused in Crime No.241/2007 of Pooyappally police station of Kollam district. The case was originally registered under Section 174 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') when a suicidal death of one lady by name Biji Babu was informed on 26.7.2007. On 23.8.2007 the petitioner was arrested and detained on the allegation that he had abeted the suicide. He was granted bail by this Court on 23.8.2007 as per the order in B.A.No.5064/2007. Already six years have been lapsed, but no final report has been filed in the case. On account of the pendency of this case, he is not able to go abroad and his passport has been seized by the passport officer and though an O.P.(Crl).No.3494 of 2013 2 appeal has been filed, that was not taken up on account of the fact that a criminal case is pending against him. So he has no other remedy except to approach this Court seeking the following relief:
i. to call for the entire records relating to FIR No.241 of 2007 of Pooyapally police station, Kollam District, ii. to declare that the inordinate delay by the State (1st respondent) in bringing the petitioner, the accused in FIR No.241 of 2007 of Pooyapally police station, Kollam District, to trial for no fault of the petitioner, violates the mandate of Article 21 of the Constitution of India, iii. to issue an appropriate order or direction to the respondents to file the final report, if any, in FIR No.241 of 2007 of Pooyappally Police Station, Kollam District, in the Court of Judicial First Class Magistrate-II, Kottarakkara, within the time limit that may be fixed by this Hon'ble Court, iv. to issue an appropriate direction to the Court of Judicial Magistrate of First Class-II, Kottarakkara for initiating speedy prosecution steps, if the respondents have already filed any final report in FIR No.241/2007 of Pooyapally Police Station;
v. to issue any other appropriate order or direction to the concerned trial court, Court of Sessions, Kollam for a O.P.(Crl).No.3494 of 2013 3 speedy trial on receipt of the final report with respect to FIR No.241/2007 of Pooyapally police station; and vi. such other reliefs as this Hon'ble Court may deem fit and proper in the nature and circumstances of this case.
3. On the basis of the allegations in the petition, a statement was called for from the third respondent and the third respondent has filed a statement stating that the investigation was completed. But since certain original documents produced before the Sub Divisional Magistrate when it was pending under Section 174 of the Code seen missing, it will take some time to take steps to reconstruct the same and after reconstruction, the procedure will be completed and final report will be filed.
4. I have called for a report from the Judicial First Class Magistrate Court-II, Kottarakkara in this aspect and the learned Magistrate has sent a report which reads as follows:
"It is most respectfully submitted that Sri. Jose N. Cyril, learned Judicial I Class Magistrate-II, Kottarakkara is promoted as Sub Judge and posted as such at Karunagappally and I was put in full additional charge of that court from the afternoon on 11.3.2014. In the above referred CP, the accused entered his appearance on 18.2.14 and the case was posted to 18.3.14. Subsequently it was notified and posted to O.P.(Crl).No.3494 of 2013 4 29.4.14. It is humbly submitted that in the meanwhile I had no occasion to consider the above CP. It is further submitted that on 18.2.14 on appearance of the accused, he filed a Crl.M.P.738/14 praying for giving direction to the respondent, the Circle Inspector of Police, Ezhukone to produce the original records in the case namely FIR, scene mahazar dated 25.6.07, inquest report, certificate of proof of age, ownership certificate and scene plan. On this application hearing was adjourned to 18.3.14. However, on verification of case file it is found that then learned Magistrate has reported to that Hon'ble Court about the inability to furnish certified copies of FIR, F.I.Statement, scene mahazar and inquest report as those were only copies and originals were not available. Vide the letter dated 19.2.14 it was submitted that the certified copies of available original records were already issued to the accused. It is further submitted that the case would be committed on 29.4.14 itself after complying with formalities u/s.207 Cr.P.C. Herewith I am submitting the copy of the proceeding paper for kind perusal."
5. Earlier the petitioner had filed an application as I.A.No.2445/2014 seeking direction to the Judicial First Class O.P.(Crl).No.3494 of 2013 5 Magistrate-II, Kotarakkara to give certified copies of certain documents in respect of this case and this Court by order dated 4.3.2014 disposed of the application recording the report submitted by the Magistrate in this regard which reads as follows:
"This is an application filed by the petitioner to direct the Judicial First Class Magistrate Court-II, Kottarakkara to issue certified copies of the documents mentioned in the petition. A report has been called for from the Judicial First Class Magistrate Court-II, Kottarakkara regarding this aspect, which reads as follows:
"Crime No.241/07 was originally registered u/s 174 of the Cr.P.C and hence the FIR and connected records were submitted before the Sub Divisional Magistrate, Kollam. The FIR, inquest report and scene mahazar were submitted before the SDM Court, Kollam. Subsequently at the time of filing charge sheet those documents were not produced and hence the charge sheet was returned. Thereafter the police filed a report along with a letter of the Sub Divisional Magistrate, Kollam stating that those documents could not be traced even after through search at the record O.P.(Crl).No.3494 of 2013 6 room and hence those documents were irrecoverably lost. On the basis of the said letter of the Sub Divisional Magistrate and the report of the Investigating Officer, the case was taken on file after receiving copies of those documents certified by the Investigating Officer.
On appearance of the accused before court, he was furnished with copies of all relevant records. Even though the accused filed a copy application praying for certified copies of the entire documents in the case including copies of FIR, FI Statement, scene mahazar and inquest report are only copies, certified copies of those documents were not given to the accused. Certified copies of available original documents were issued to the accused".
2. In view of the remarks submitted by the Judicial First Class Magistrate Court-II, Kottarakkara, I don't think that there is any further time required in this regard as the possible documents for which the certified copy can be issued have already been issued. Regarding the other documents, certified copy cannot be granted as they are not original documents. It is mentioned in the report that all the required documents relied on by the prosecution have been O.P.(Crl).No.3494 of 2013 7 furnished to the accused when he appeared as provided under Section 207 of the Code of Criminal Procedure.
With the above observation, the petition is closed.
The counsel for the petitioner submitted that the case is now posted to 18.3.2014 for the purpose of committal. Post on 24.3.2013."
6. So as regards the documents are concerned, the certified copies of the available documents that has been produced before that court were already furnished to the petitioner and the learned Magistrate in the report submitted that the available copies required to be given to the accused under Section 207 of the Code will be complied with only thereafter it will be committed and all steps will be taken to commit the case on 29.4.2014 itself. Under such circumstances, this Court feels that there is no further direction need be given in the matter as learned Magistrate before whom the committal proceedings are now pending has assured that the case will be committed on 29.4.2014 after complying with Section 207 of the Code. If the petitioner did not get any of the documents which he is entitled to get and the prosecution wants O.P.(Crl).No.3494 of 2013 8 to rely on and produced along with the final report, then he can make a submission before the Magistrate for that purpose and the Magistrate is directed to pass appropriate orders on such submission in accordance with law.
7. The prayer regarding speedy trial cannot be now considered because only after committal of the case, the case will be taken on file by the Sessions Court and only after getting report from the concerned court only that prayer can be considered and granted. At this stage the relief cannot be granted.
With the above directions and observations, the original petition is disposed of.
Office is directed to communicate this order to the concerned Magistrate Court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge O.P.(Crl).No.3494 of 2013 9