Kerala High Court
Syamalan Pillai vs State Of Kerala on 14 August, 2014
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936
OP(Crl.).No. 146 of 2014 (Q)
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CC 4/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,ATTINGAL
IN CC 268/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT - I,ATTINGAL
IN CC 408/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,ATTINGAL
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PETITIONER :
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SYAMALAN PILLAI, AGED 55 YEARS,
S/O. NARAYANA PILLAI, PANAMOOTTIL VEEDU,
MEVANAKONAM DESOM, KALLUVATHUKKAL, KOLLAM.
BY ADVS.SRI.R.SATISH KUMAR
SMT.T.J.SEEMA
RESPONDENTS :
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1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
2. THE CIRCLE INSPECTOR OF POLICE,
ATTINGAL, THIRUVANANTHAPURAM DISTRICT-695101.
BY GOVERNMENT PLEADER SMT.S. HYMA
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 14-08-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
OP(Crl.).No. 146 of 2014 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE FINAL REPORT IN C.C.NO. 408/2008 ON THE
FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL.
EXHIBIT P2: TRUE COPY OF THE FINAL REPORT IN C.C.NO. 268/2008 ON THE
FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL.
EXHIBIT P3: TRUE COPY OF THE FINAL REPORT IN C.C.NO.4/2008 ON THE FILES
OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, ATTINGAL.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
BP
K. RAMAKRISHNAN, J.
.................................................
O.P.(Crl.)No.146 of 2014
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Dated this the 14th day of August, 2014.
JUDGMENT
This original petition is filed by the accused in C.C.Nos.4/2008, 268/2008 and 408/2008 pending before the Judicial First Class Magistrate Court-I, Attingal for early disposal of the cases under Article 227 of the Constitution of India.
2. It is alleged in the petition that the petitioner has been arrayed as the 5th accused in C.C.No.408/2008 and C.C.No.4/2008 and 6th accused in C.C.No.268/2008 pending before the Judicial First Class Magistrate Court-I, Attingal. The offences alleged against the petitioner and the other accused are one punishable under Sections 454, 461, 380, 411 and 34 of the Indian Penal Code. During the crime stage, in all those cases, the petitioner obtained bail. But later on account of his employment, he had to go to Doha in Gulf country. After filing the final report, he could not appear and participate in the trial of the case. So the learned Magistrate has issued non bailable warrant against the petitioner and that O.P.(Crl.)No.146 of 2014 2 is pending. He has to come from Doha to face the trial and he has to go back by 7.10.2014, otherwise he will lose his employment. So those cases will have to be disposed of on or before 3.10.20143. So that he can go back to Doha and pursue his employment. So, the petitioner has no other remedy except to approach this Court seeking the following reliefs:
i. direct the Judicial First Class Magistrate Court-I, Atingal to dispose of C.C.Nos.4/2008, 268/2008 and C.C.No.408/2008 before 3.10.2014 as as to secure the ends of justice.
ii. To grant such other reliefs as this Hon'be Court may deem fit and proper in the circumstances of this case.
3. On the basis of the allegations in the petition, this Court felt that the petition can be disposed of after hearing the counsel for the petitioner, the learned Public Prosecutor and after getting a report from the concerned Magistrate regarding the present stage of the case. Accordingly a report has been called for and the learned Magistrate has sent three different reports in each case, which reads as follows:
Report No.73115 Dated 4.8.2014 O.P.(Crl.)No.146 of 2014 3 "With reference to the above information, most respectfully submitting the present stage of CC 268/2008 in Crime No.585/2007 of Attingal police Station on the file of this Court.
This case stands charged by the Attingal police in Crime No.585/2007 alleging offences u/s. 454, 461, 384 and 34 IPC. The accused persons are 6 in numbers. This case was taken on file as CC 268/2008. Summons issued to accused and posted for their appearance to 27.6.2008. The same day case was adjourned by notification to 20.8.2011. On 20.8.2011 summons served to A4 and he was not present. Hence, issued NBW to him. Repeated summons to others on 8.5.2012. A1 produced. A3 not produced. Charge u/s.454, 461, 384 and 34 IPC..A1 pleaded not guilty. Summons issued to CW1 to 3. Posted for evidence to 18.6.2012. On 2.7.2012 Accused not produced. CW1-2 present examined PW1 and 2. Exts.P1-P2 were marked. MO1 to 17 marked.
Examination of PW1 and 2 adjourned for identification of accused. Summons issued to CW4-7. Adjourned to 7.8.2012. On that day, A1 produced. A3 applied. CW6 examined as PW3. Summons to PW1 and 2 repeated. Posted to 3.9.12. On 17...9.12 A1 not produced. P2 and 3 examined. Examination of PW2 and 3 adjourned to 28.9.2012. On 10.12.12 CW8 present. Examined a s O.P.(Crl.)No.146 of 2014 4 PW4. Issue summons to CW10-13 on 3.5.13. A1 produced, noted that remaining witnesses were CW3- 5,7,9-13 summons issued to CW3-5 on 2.7.2013. From 7.3.2014 onwards there was no siting, since the Presiding Officer of this Court was promoted and transferred to Neyyattinkara as Sub Judge. Hence, Judicial I Class Magistrate-II Attingal was holding charge o this Court. On each posting dates, accused was produced on that Court only for the purpose of remand extension. The later proceeding of this case was resumed by me after assuming charge on 2.6.14. On 10..6.14 accused produced, The case was posted for verification of back reports. A1 produced. Others split up. CW5 examined as PW5. Ext.P3 marked. CW3 reported to be abroad. CW3 found to be the same person cited as CW4. Issue summons to CW7.
Prosecution has cited 11 witnesses in this case. Already 6 witnesses were examined.
These bing the facts, I most respectfully submitted that I will try my level best to dispose the case within 6 months. I humbly requested that sufficient time maya be allowed in this regard."
Report No.73116 dated 4.8.2014 "With reference to the above information, most respectfully submitting the present stage of CC 408/08 O.P.(Crl.)No.146 of 2014 5 in crime No.550/2007 of Attingal Police Station on the file of this Courts This case stands charged by the S.I. Of Police, Attingal in crime No.550/2007 alleging offences u/s. 454, 461,380, 411 and 34 IPC. The accused persons arrayed in this case are 5 in numbers. Final report filed, on 28.3.2008 and the case was taken on file as CC 408/08. Summons issued to all and posted for their appearance in 23.7.08. On 23.7.08, it is reported that summons served to all except A1 & 4. But they were not present. Hence, bailable warrant to A2,A3 & A5 issued, repeat summons to A1 & A4 and case adjourned to 28.1.09. On 3.11.11 production warrant issued to A3 through Superintendent, central Prison, Thiruvananthapuram. Subsequently on 7..12.11 A3 produced as per production warrant for the first time. On 4..3.13 accused 3 is reported in jail, A3 applied. Hence production warrant issued to A1 and NBW to others repeated. On 1.4.13 A1 produced. Charge framed u/s 454, 461 and 380 r/w S.34 IPC. He pleaded not guilty. Hence, summons issued to CW1-3, A3 applied & petition dismissed. NBW issued to A2-4 and adjourned to 15.4.13. On 29.4.13, A1 produced, A3 reported in custody, and production warrant issued for him. NBW repeated to others. On 10.6.2013, A1 & 3 produced. Heard. Charge u/s 454,461,380,411 and 34 IPC framed O.P.(Crl.)No.146 of 2014 6 against A3. He also pleaded not guilty. NBW repeated to others. A3 represented by counsel. Direction was given to the effect that A3 shall ve produced as and when his presence is specifically required. A3 is a disabled person. Hence, this direction. A3 send back to jail. On 8.7.13, A3 took bail and applied for recalling warrant. Petition allowed and repeat NBW to others. On 23.9.13 A1 produced . A3 absent. No representation. Hence issued NBW to A3, NBW to others also repeated. On 21.10.13 A1 produced. It is reported that A2 to 5 are absconding. Hence, they are split up. Issued summons to CW1, adjourned to 4..11.13. On that day, A1 not produced. CW1 present. APP prays for evidence. Since the Mos are on interim custody, hence CW1 bound over. Direction was given to CW1 to produce the same. Case adjourned to 18.11.13. A1 not produced. CW1 present. Mos not produced. CW1 bound over, adjourned to 2.12.13. On 2.12.13 A1 not produced. CW1 present, examined as PW1. Ext.P1 & P2 marked. Identified MO1 to 5 . Summons issued to CW2. On 3.12.13 summons issued to CW3 and 4. Subsequently CW3 was given up by the APP and summons issued to CW4. On 24.2.14 it is reported that A3 is no more. From 19.4.14 onwards, there was no sittings in this Court since the Presiding Officer was promoted and transferred to Neyyattinkiara O.P.(Crl.)No.146 of 2014 7 as Sub Judge, the Judicial I Class Magistrate-II, Attingal was holding charge. On each posting dates, accused was produced on that Court only for the purpose of remand extension, The later proceeding of this case as resumed by me after assuming charge on 2.6.14. On 26.6.14, CW2 & 3 were given up by APP. Case posted for verification of back records. On 18.7.14 case advanced on application and A1 took bail. A3's death certificate produced. Now the case stands posted to 25.9.14. Summons issued to CW4 and 5.
In this case, the prosecution has cited 13 witnesses. Among them only CW1 was examined.
These being the facts, I most respectfully submitted that I will try my level best to dispose the case within 6 months. I humbly requested that sufficient time may be allowed in this regard".
Report No.73117 dated 4.8.2014 "With reference to the above information, most respectfully submitting the present stage of Cc 04/08 in Crime No..509/2007 of Attingal police station on the file of this court.
Originally, this crime No.509/07 has been registered by Attingal Police against the accused persons 5in numbers alleging offences u/s 454,461,380and 34 IPC. Final report filed on 9.1.09 and the case was taken on O.P.(Crl.)No.146 of 2014 8 file as CC4/08. Summons issued to A1 - 5 and posted for their appearance to 5.5.08. On that day even though summons was duly served to all of them, they were not appeared before the court. Hence, NBW ordered and posted to 17.12.09. On 14.6.12 prosecution filed report stating that A1 To 3 are in custody, so production warrant issued to bring them. On 7..6.13 A1 produced since he is a convict undergoing sentence. A2 to 5 were absent. No representation. Copy of the charge served to the counsel for A1, NBW repeated against A2 to 5, and case adjourned to 5.7.13. On 26.6.13 case taken up, as A4 reported in jail hence, production warrant issued, and case posted to 5.7.13. On 5.7.13 A4 produced. A1 not produced. A4 remanded in this case till 19..7.13. Repeated NBW to A2 and A5. Report to the effect that A3 is in central Prison, hence issued production warrant to A3 adjourned to 19.7/13. On 19..7.13 A1 and A4 produced. A3 not produced. In the afternoon, this case again taken up for hearing of the bail application of A4. Bail granted to A4 and posted to 2.8.13. On the very same day, A4 present. A1 & 3 produced. A2 and 5 were absence. Submitted that A3 is a disabled person, thence, it was directed that he need be produced only his personal presence is specifically required by this Court. NBW issued to A2 & 5. Again adjourned to 4.9.13. On O.P.(Crl.)No.146 of 2014 9 14.8.13 case advanced on application. Since, A3 is on bail, he applied to recall the production warrant. Petition allowed and the production warrant recalled.
On 13.12.13, A1 is produced. A4 present. A3 absent applied. Case against A2 and A5 split up and NBW issued to them, case posted for hearing and framing charge, directed that, A3 and A4 shall be present. Remand of A1 extended to 27.12.13. On 21.2.14 A4 present, A1 produced, A3 reported no more. Charge framed u/s. 454,461,380 r/w S.34 IPC. Read over and explained. A1 and AR pleaded not guilty adjourned for prosecution evidence to 7.3.14. From 7.3.14 onwards, there was no sitting, since the presiding Officer of this court was promoted and transferred to Neyyattinkara as Sub Judge. Hence, Judicial I Class Magistrate -II Attingal was holding charge of this court. On each posting dates, accused was produced on that court only for the purpose of remand ext4ension. The later proceeding of this case as resumed by me after assuming charge on 2.6.14. On 10.6.14 accused produced, the case was posted for verification of back reports. On 1.7.14 A3 reported died. Death certificate of A3 produced. Direction given to A4 to be present for hearing on charge. A1 produced, Posted to
15..7.14. On that day, A1 not produced. A4 present. Report filed to the effect that A1 is produced before O.P.(Crl.)No.146 of 2014 10 Assistant Session's Court, Attingal. Again adjourned to 29.7.14. On 18.7.14 the case advanced on application. Issued production warrant to A1 though Superintendent, Central Prison. Thiruvananthapuram and posted to 29.7.14. On 29..7.14 there was no sitting and case adjourned by notification on 5.11.14.
In this case, the prosecution has cited 14 witnesses. So far no witnesses examined.
These being the facts, I most respectfully submitted that I will try my level best to dispose the case within 6 months. I humbly requested that sufficient time may be allowed in this regard."
4. Heard the counsel for the petitioner and the learned Public Prosecutor.
5. The learned counsel for the petitioner submitted that though during the crime stage he was on bail, since he got employment, he had to go to Doha in Gulf country and he could not participate in the trial and the case against him is now pending and non bailable warrant has been issued against him. He has come back to India and he is prepared to participate in the trial, but he wanted a speedy disposal as he will have to go back on or before 7.10.2014, otherwise he will O.P.(Crl.)No.146 of 2014 11 lose his employment.
6. On the other hand, the learned Public Prosecutor submitted that he himself was responsible for the delay and he is not entitled to get the discretion of this Court.
7. It is an admitted fact that the petitioner has been arrayed as the 5th accused in Crime Nos.509/2007 and 550/2007 of Attingal Police station and 6th accused in Crime No.585/2007 of Attingal police station. It is also an admitted fact that during the crime stage he was released on bail. But, later when the final reports were filed, he did not appear. It is also seen from the respective reports submitted by the learned Magistrate that in some cases against the petitioner, the case has been split up and in some cases, evidence has been started and it is being proceeded with in respect of persons, who have appeared before that court. So, it is clear from the conduct of the petitioner that he himself was responsible for the delay and if he had participated along with others, the cases could have been proceeded without delay. Further, since the case against some of the accused persons have already been started, it is difficult for the Magistrate to proceed with the case of the petitioner alone with those persons and the case O.P.(Crl.)No.146 of 2014 12 against him will have to be separately dealt with. So, in fact, he is not entitled for the relief of speedy trial as claimed by him within a short period in order to suit his convenience to go back to pursue his employment as he himself was responsible for the delay. However, considering the fact that Constitution of India mandates right of speedy trial for the accused and if persons accused of the same, the court will have to be considered that aspect. But, at the same time, if the period claimed by the petitioner is too short, that cannot be considered as it will cause unnecessary burden on the presiding officers of the subordinates courts, who are working hard to dispose of old cases by scheduling the same in a convenient manner and if directions were given to dispose of cases of later years within short periods, that will only affect their working arrangements and cause hardship to the persons, who are earnestly contesting the cases without causing any delay in disposal of the cases on their part and co-operate with the disposal of the cases. But, the learned Magistrate has sought for only six months time for disposal of the cases in the reports. So considering that, this Court feels that the petition can be disposed of accepting the reports of the learned O.P.(Crl.)No.146 of 2014 13 Magistrate as follows:
The Judicial First Class Magistrate Court-I, Attingal is directed to dispose of C.C.Nos.4/2008, 268/2008 and 408/2008 pending before that court as against the petitioner as early as possible, at any rate, within six months from the date of receipt of a copy of this order as requested in the reports submitted by the learned Magistrate.
With the above directions and observations, this petition is disposed of.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge O.P.(Crl.)No.146 of 2014 14