Kerala High Court
Kerala Streevedi vs State Of Kerala on 1 February, 2005
Equivalent citations: 2005CRILJ2293, 2005(1)KLT743, 2005 CRI. L. J. 2293, (2005) 29 ALLINDCAS 476 (KER), ILR(KER) 2005 (1) KER 425, 2005 (29) ALLINDCAS 476, (2005) 3 ALLCRILR 456, (2005) 1 KER LJ 401, (2005) 1 KER LT 743, (2005) 3 CURCRIR 218
Author: A.K. Basheer
Bench: A.K. Basheer
JUDGMENT B. Subhashan Reddy, C.J.
1. This Writ Petition has been filed pro bono public seeking invocation of the powers of this Court under Article 228 of the Indian Constitution.
2. Article 228 of the Constitution is an express indication of conferment of extraordinary powers on the High Court to withdraw any case from any Court subordinate to it for adjudication involving a substantial question of law as to the interpretation of the Constitution. In our constitutional scheme, the power of judicial review is conferred on the Courts. Such power vested in the High Court is to the exclusion of any Court subordinate to it. It is so clear from Section 113 of the Code of Civil Procedure and Section 395 of the Code of Criminal Procedure. Section 113 of the CPC reads as follows:
"113. Reference to High Court: Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:
Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court."
Section 395 of the Cr.P.C. reads as follows:
"395. Reference to High Court: (1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the decision of the High Court.
(2) A Court of Sessions or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of Sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.
(3) Any Court making a reference to the High Court under Sub-section (1) or Sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon."
From the above Sections, it is clear that whenever constitutional validity of any law is raised before any Civil Court or Criminal Court, the said Courts are not empowered to deal with the same, but, per force, have to refer to the High Court for its decision and on getting a judgment on that point from the High Court, proceed to adjudicate the dispute in consonance with the same. But, a litigant need not wait for such a reference. If the Subordinate Court does not refer the matter, then the High Court, on invocation of its power under Article 228 of the Constitution, can withdraw that case from Subordinate Court, be it civil or criminal, and dispose of the same by itself or determine the civil or criminal, and dispose of the same by itself or determine the question of law and return the case to the Court from which the case has been withdrawn together with a copy of the judgment on such question and the Subordinate Court shall, on receipt of such judgment, proceed to dispose of the case in conformity with such judgment. Let us now examine whether the above essentialities are present in this case so as to invoke our power under Article 228 of Indian Constitution.
3. One Mrs. Nalini Netto, an Officer of I.A.S. rank in the State Government, had lodged a complaint on 9.2.2000 with the Director General of Police, alleging that the second respondent had, on 21.12.1999, outraged her modesty, an offence punishable under Section 354 of the Indian Penal Code. Museum Police Station of Thiruvanamthapuram has taken it as a First Information Report and registered as Crime No. 47/2000. After filing of the charge sheet, the same was numbered as C.C. No. 2/2001 on the file of the Judicial Magistrate-III, Thiruvananthapuram. Prosecution evidence has been completed and so also the defence evidence. When the case was closed by the above Magistrate Court on 11.1.2005, in spite of the order passed by this Court on 14.12.2004 to wait for one month enabling the issuance of summons to defence witness Mr. Sheik Ahammed, the 2nd respondent had filed Crl. M.C. No. 177/2005 before this Court and a learned Single Judge, by his order dated 13.1.2005, set aside the order of the Court of Magistrate and directed him to wait till 25.1.2005 for the said witness to appear and depose and then hear the arguments on 28.1.2005 and dispose of the case as expeditiously as possible. Since the Presiding Officer of the Court of Magistrate-III, Thiruvananthapuram was promoted to the cadre of Subordinate Judge/Addl. Assistant Sessions Judge and posted elsewhere in the said promotion post, the J.F.C.M.11, Thiruvananthapuram who was holding the full additional charge, was directed to dispose of the case as mentioned above. The witness did not turn up and the defence evidence was closed and arguments commenced and it is stated that the arguments will resume from today.
4. Meanwhile, Mrs. Nalini Netto had filed transfer petition before this Court in Tr.P.(Crl.) No. 9/2005 to transfer the case to the Court of II Addl. Session's Judge, Thiruvananthapuram whose Presiding Officer was manning the Court of Judicial Magistrate-III of Thiruvananthapuram before his promotion. The case of the de facto complainant was that since the above judicial officer had recorded the evidence of the witnesses and observed the demeanour of the witnesses, he may have to dispose of the case. It was also pleaded that the present Judge who had no occasion to record the evidence or observe the demeanour of the witnesses and particularly of the de facto complainant, cannot take a decision in her case. By order dated 25.1.2005, the learned Single Judge has dismissed the said petition and only thereafter the arguments commenced, as mentioned above and are scheduled to continue today.
5. Meanwhile, this Writ Petition has been filed by Kerala Streevedi, a voluntary organization fighting the cause of the gender justice. The writ prayers are to "(i) call for the records in C.C.2/2001 of the Magistrate's Court, Thiruvananthapuram under Article 228 of the Constitution of India and decide the question of law as to whether judgment in an offence under Section 3541.P.C. perpetrated on a working women at work place can be pronounced by a Magistrate who has not seen the demeanour of the victim or any of the witnesses or participated in any manner in the trial of the offence, consistent with the law declared by the Honourable Supreme Court in "Vishaka and Ors. v. State of Rajasthan and Ors., (1997 (2) KLT SN 72 P.72 = AIR 1997 SC 3011) and (ii) to transfer the case to the Magistrate who conducted the trial and who is now working as Second Additional Assistant Sessions Judge (AIR 1966 SC 595, P. C. Gulati v. Lajya Ram) with time bound directions for disposal of the case." Pending disposal of the Writ Petition, stay of proceedings in C.C. No. 2/2001 is sought for.
6. Mrs. K.V. Bhadrakumari, the learned counsel appeared for the petitioner while Mr. Retna Singh, the learned Advocate General appeared for the first respondent and Mr. S. Vijayakumar, the learned counsel appeared for the second respondent. The learned counsel for the petitioner heavily relies upon Section 326 of the Cr.P.C. and cited the judgment of the Supreme Court in P. C. Gulati v. Lajya Ram and Ors. (AIR 1966 SC 595(1)). She also cited the judgment of the Supreme Court in Vishaka and Ors. v. State of Rajasthan and Ors. ( AIR 1997 SC 3011(2). The learned Advocate General as also the learned counsel for the 2nd respondent countered the arguments of the petitioner's counsel to the effect that when the transfer application has been dismissed by this Court by order dated 25.1.2005 moved under Criminal Procedure Code, the petitioner-organization cannot seek for transfer under the guise of invoking Article 228 of the Constitution of India and that Article 228 is only a camouflage seeking transfer of the case which the de facto complainant had failed to achieve in Transfer Petition (Crl.) No. 9/2005 and thatSection 326 of the Crl.P.C. has been amended in the year 1978 and in view of the said amendment, the legal principles enunciated by the Supreme Court in AIR 1966 SC 595( 1) supra are inapplicable and neither a transfer of the case is contemplated nor is there any warrant for de novo trial because of the change of Presiding Officer of the Court.
7. This case is already more than five year old. Both the de facto complainant and the 2nd respondent are highly placed. While the de facto complainant is a senior I. A.S. Officer now holding the post of Commissioner for Rural Development in the State Government, the 2nd respondent had been a cabinet rank Minister when the allegations are made against him and even now, he is a Member of the Legislative Assembly. We are not concerned with the merits of accusation, as the same need to be decided by the competent Court of Magistrate where it is pending adjudication. After concluding the trial by crossing so many legal obstacles, the arguments are in part-heard stage. It has been said by the Supreme Court in A.R. Anthulay's case (Abdul Rehman Antulay v. R.S. Nayak and Anr., AIR 1992 SC 1701(3) that speedy criminal trial is a fundamental right guaranteed under Article 21 of the Constitution of India and the said principle has been reiterated time and again by the Supreme Court and various High Courts. Pendency of case of this nature for five years itself can be called as inordinate delay and noting the same, the learned Single Judge, in criminal proceedings referred to above, had set the dates for completion of the defence evidence and also disposal of the case. This Writ Petition can be a cause for further delay. But, that is not the cause for not entertaining this Writ Petition and we are of the considered view that for the reasons mentioned infra, the Writ Petition is fit to be dismissed.
8. P. C. Gulati's case (1)suprais not applicable to the trial in C.C.No. 2/2001. Section 326 of the Code of Criminal Procedure was amended by Act 45 of 1978. We deem it apt to extract the same:
"326. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another: - (1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter, within the meaning of Sub-section (1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325."
A reading of the Section makes it clear that upon evidence recorded by a predecessor Magistrate, the successor Magistrate manning the Court is empowered to proceed from the next stage of the case and dispose of the same. The power is vested in the succeeding Judge or Magistrate to further examine any of the witnesses whose evidence has already been recorded to re-summon such witness for further examination, cross-examination and re-examination as he may deem fit. Validity of the amended Section 326 is not in question before the Court of Magistrate so as to invoke Article 228 of the Constitution of India. The Court of Magistrate is only invited to decide upon the truthfulness or otherwise of the accusation against the 2nd respondent basing upon the evidence tendered both by prosecution and the defence. Vishak's case supra (2) is a law laid down under Article 141 of the Constitution laying guidelines for taking legal action against the offenders in sexual harassment cases. But, the said judgment operates when there is no specific law for prosecuting the offender. That is not the situation in the instant case. The de facto complainant has lodged a complaint that the 2nd respondent had committed offence punishable under Section 354 of the Indian Penal Code and the prosecution has been launched and charge sheet has been filed and the case is ripe for disposal. For the above reasons, Vishaka 's case supra has no application to the instant case. Further, when the de facto complainant can take care of herself and had been prosecuting her case and even filed a transfer petition, this pro bono publico is not entertainable for the very same relief of transfer. As already stated above, mentioning of Article 228 of the Constitution is only a camouflage as there is no case pending before the Court of Magistrate challenging the constitutional validity of Section 326 of the Crl.P.C. In view of what is stated above, we dismiss the Writ Petition.
ORDER B. Subhashan Reddy, C.J.
After delivery of the judgment, Ms. Bhadra Kumari, learned counsel for the petitioner has sought for a certificate for appal to the Supreme Court under Art. 134A of the Constitution of India. We do not see any such substantial question of law requiring and adjudication by the Supreme Court. The oral plea is rejected.