Louis v. Pulickal — 1997 DIGILAW 136 (KER)

Judgment :- K. Narayana Kurup, J. Petitions under Art.227 of the Constitution of India to quash pending criminal proceedings. First petitioners in both these Original Petition are specialists in allopathic medicine and the second petitioner Dr. P. A. Varghese (68) in both these Original Petitions is their father. Petitioners in O.P. No. 1020/97 are accused 1 and 2 respectively in C.C. No. 4 of 1984 of the Judicial Magistrate of the First Class (Special Court for Mark List Cases) Trivandrum and petitioners in O.P.No. 1021/97 are accused 1 and 2 respectively in C.C. No. 19 of 1983 of the Special Court, Trivandrum. There was yet another case, viz. C.C. No. 11 of 1983 before the Special Court in which the second petitioner, the father and his another son were sentenced to undergo imprisonment for 2 years. The conviction and sentence were reversed in Crl. Appeal No. 72 of 1984 filed by the accused and the accused were acquitted. The State has filed Crl. Appeal No. 214 of 1987 before this Court. It is heard and judgment reserved. 2. The gist of the charge against the first petitioners in both these Original Petitions viz. the sons, is that they forged a mark list showing inflated marks and used a self attested copy of the same for securing admission to M.B.B.S. course in Karnataka and the father, the 2nd petitioner either joined in or abetted the commission of the offence. The charge sheet in C.C. No. 4 of 1984 was filed before the Special Court on 5.10.1983 and the charge sheet in C.C.19/83 was laid on 3.11.1983. 3. In C.C. No. 11/83 while convicting and sentencing the accused viz. the second petitioner and his another son, the learned Magistrate Mr. Vijaya raghavan commented as follows: "Why the accused, in their prowess provided by money, fame and status, prowled after a pre-degree certificate?!! was the Kamamohastreak in them that kept them locked together in this insane struggle. The tendency to do crimes on the same lines will persist in their mind unless the cosmic leader imbibes lessons in the silence of their hearts. But where is this silence, when human lives are passing on and on, filth over filth and God in discarded in glass cases? The only alternative, therefore, is to put the erring ones in prison houses, where the silence of the heart could open for the divine. But where is this silence, when human lives are passing on and on, filth over filth and God in discarded in glass cases? The only alternative, therefore, is to put the erring ones in prison houses, where the silence of the heart could open for the divine. And that was what happened when Oscar was put in prison". 4. These utterances made by the learned Magistrate in C.C.11/83 gave rise to genuine apprehension in the minds of the petitioners that if their case if tried by the same Magistrate, they will not get a fair trial or justice which impelled them to move this court in Cr1.M.C. No. 351/84 seeking transfer of the cases C.C. Nos. 19/83 and 4/84. However, this Court by order dated 14.1.1985 dismissed the Crl.M.C. No. 351/84. 5. Petitioners thereafter filed transfer application before the Hon'ble Supreme Court of India which came to be dismissed on 19.8.1985. Petitioners once again filed transfer applications Cr1.M.C. Nos. 947 and 948 of 1985 before this Court on 18.10.1985 which were dismissed by this Court on 20.12.1985 against which the petitioners moved the Hon'ble Supreme Court in SLP Nos. 302 and 303 of 1986. The Hon'ble Supreme Court passed orders of stay of further proceedings in the trial on 27.2.1986 and the same was eventually dismissed as withdrawn by order dated 21.8.1991. In spite of the dismissal of the S.L.P. by the Supreme Court and the consequential cancellation of the stay order as early as on 21.8.1991 and in spite of the production of the copy of the order of the Hon'ble Supreme Court before the Special Court, it did not bother to proceed with the trial till October 1995, after a delay of more than 4 years on the ground that it did not receive the authenticated copy of the order from the Hon'ble Supreme Court. The petitioners being aggrieved by the inordinate delay of the trial of their cases under various counts which has been pending since 1983-84 with no possibility of its logical culmination by trial in the foreseeable future, has moved this Court with the present petitions under Art.227 of the Constitution of India for quashing the pending criminal proceedings. 6. Heard Mr. S. Narayana Potti, Senior Counsel for the petitioners, Mr. M.K. Damodaran, Advocate General for the State-Prosecution. 7. 6. Heard Mr. S. Narayana Potti, Senior Counsel for the petitioners, Mr. M.K. Damodaran, Advocate General for the State-Prosecution. 7. The question to be considered is whether the principle of speedy trial as laid down by the Apex Court in a catena of decisions has been breached in these cases entitling the petitioners to get the criminal proceedings against them quashed on that ground. Under our Constitution, though speedy trial is specifically enumerated as a fundamental right, it is implicit in the board sweep and contend of Art.21 of the Constitution - vide Hussainara Khatoon & Ors. v. Home Secretary, Bihar (AIR 1979 SC 1360). In otherwords, Art.21 includes the right of speedy trial. 8. On a careful scrutiny of the proceedings of these cases, I am satisfied that the wholesome principle of speedy trial - the main object of which is that the punishment should follow offence as closely as possible; for its impression upon the minds of men is weakened by distance, and, besides, distance adds to the uncertainty of punishment, by affording new chances of escape - (See Bentham, the Theory of Legislation 326 (Ogden ed. 1931) has been followed more in its breach than in its observance. One regrettable feature of these cases is that the delay has been contributed both by the prosecution as well as by the Special Court. It is no doubt, true that the petitioners being apprehensive of the intemperate language used by the then Magistrate Mr. Vijayaraghavan while disposing of C.C. No. 11 of 1983 moved the Apex Court for transfer of the cases and the Court granted stay on 27.2.1986 as it was prima-facie convinced about the justification for transfer. The State appeared in that case and the stay continued for more than 5 years till it was vacated by Ext. P2 order in S.L.P. (Crl.) Nos. 857 and 302 - 303 of 1986 dated 21.8.1991, However„ in November 1986 the Magistrate Mr. Vijayaraghavan retired and therefore, there was no necessity for pressing the transfer application. The State which had appeared in the transfer petition in the Supreme Court was aware of this fact. The State and the prosecution being fully informed about the retirement of the Magistrate ought to have brought that fact to the notice of the Supreme Court at the appropriate time and got the transfer application disposed of accordingly in 1986 itself. The State which had appeared in the transfer petition in the Supreme Court was aware of this fact. The State and the prosecution being fully informed about the retirement of the Magistrate ought to have brought that fact to the notice of the Supreme Court at the appropriate time and got the transfer application disposed of accordingly in 1986 itself. Instead of getting the S.L.P. disposed of by bringing the factum of retirement to the notice of the Supreme Court, the prosecution adopted a lukewarm and take-it-easy attitude, with the result, the stay granted by the Supreme Court continued indefinitely till the SLP was dismissed as withdrawn. However the fact was mentioned by the counsel for the petitioners on 21.8.1991 and the transfer application was accordingly dismissed as withdrawn and stay vacated. Even then, no action was taken by the prosecution to get the information of the withdrawal of the transfer application duly communicated to the Special Court, which was done only at the fag end of 1995. The stand taken before me by the State is that they were not aware as to what happened before the Supreme Court in the above transfer application. The State represented by a responsible counsel in the Supreme Court cannot be permitted to make a submission that they were not aware of what happened in the Supreme Court. The prosecution must be imputed with the knowledge of the withdrawal of the transfer application and the cancellation of stay and their failure to communicate an authenticated copy of the order of the Supreme Court to the Special Court has to be viewed seriously. The prosecution itself was wholly negligent in not obtaining an authenticated copy of the order of the Supreme Court for production before the Special Court and ask it to proceed with the trial of the cases. Throughout the long period of the pendency of the cases before the Special Court, it will be seen that the petitioners were never guilty of any dilatory tactics to prolong the trial. Every time they moved the High Court and the Supreme Court, it was only for justifiable reasons on account of the fact they were legitimately apprehensive of the trial of the case by the same Magistrate (Mr. Vijayaraghavan) whose unbalanced observations cited above in the previous case made the petitioners apprehensive of the trial by him. Every time they moved the High Court and the Supreme Court, it was only for justifiable reasons on account of the fact they were legitimately apprehensive of the trial of the case by the same Magistrate (Mr. Vijayaraghavan) whose unbalanced observations cited above in the previous case made the petitioners apprehensive of the trial by him. In the transfer petitions this court did not grant any stay of proceedings of the Special court. This shows that the prolongation of the proceedings has not been due to any improper conduct on the part of the petitioners. All along, they have co-operated with the trial and have been harassed for the last 15 years, the case being posted more than once in a month at Trivandrum 220 Kms. away from their place of residence and hospital, where they are practising their profession. The only time they sought for stay of the proceedings was during the time of the trial by Mr. Vijayaraghavan and that too only because of the bias which he showed towards them by his observations in the previous case. There was no single occasion in which the trial was prolonged due to any dilatory tactics adopted by the petitioners. Had the prosecution been vigilant, the trial could have been finished by taking speedy action at the appropriate time in November 1986 when the Magistrate retired which fact was very much known to them or at least in August 1991 when the Supreme Court vacated the stay by producing an authenticated copy of the same before the Special Court. The delay on these two counts comes to a staggering 9 years. The importance of prompt trial of criminal offences in a democratic society derives from the need of maintaining public order and preserving individual freedom. The social interest in security demands speedy trial, for this facilitates both effective prosecution of criminals and greater deterrence to potential criminals. At the same time, society, in its concern for freedom and for the dignity of individual life, seeks to prevent prolonged prosecutions which may develop in to prosecutions. (See in this connection the right to a speedy criminal trial - (1957) 57 Columbia Law Review, Page 846). 9. Then comes "the court created delay". At the same time, society, in its concern for freedom and for the dignity of individual life, seeks to prevent prolonged prosecutions which may develop in to prosecutions. (See in this connection the right to a speedy criminal trial - (1957) 57 Columbia Law Review, Page 846). 9. Then comes "the court created delay". In spite of the dismissal of the SLP and the consequent cancellation of stay by the Hon'ble Supreme Court way back on 21.8.1991 it took nearly five long years for the Special Court to recommence the trial towards the fag end of 1995. In fact, a copy of the order of the Supreme Court was produced before the Special Court on 10.10.1991 itself. However, the Special Court refused to proceed with the trial on the specious ground that it did not receive the authenticated copy of the order from the Supreme Court directly. The prosecution though represented by counsel in the Supreme court, did not bother to obtain a certified copy of the order of the Supreme Court and communicate the same to his counter-part at Trivandrum. In such a situation the petitioners cannot be faulted for the lapses on the part of the Special Court in proceeding with the trial in spite of it being appraised of the dismissal of the SLP by the prosecution and by the accused. As already stated, the prosecution did not move the Supreme Court to get the SLP withdrawn by bringing it to the notice of the Court that the Magistrate has retired and on that count a delay of five years has occurred. Added to this is the court created delay of more than 4 years. Thus, all told, there is a delay of 9 years in the trial of these two cases. Nine years delay in the life of the criminal trial is a fairly long period and such an inordinately long delay of 9 years would certainly infringe the fundamental right of the petitioners under Art.21 of the Constitution of India. The petitioners ought not to be penalised for such a delay on the part of the prosecution and the Special Court. The petitioners ought not to be penalised for such a delay on the part of the prosecution and the Special Court. The result therefore, is that both the prosecution and the Special Court have contributed to the astounding delay of nine years and they themselves are to be blamed in failing to cumulate the prosecution to its logical end by trial and the petitioners cannot be faulted in any manner for the same. 10. Now, it will be useful to highlight briefly the salient features of the cases involved in these two original petitions. In O.P. No. 1020/97 the first petitioner joined the MBBS course in the JN Medical College, Belgam, Karnataka in 1978. In 1984 he passed the MBBS and in 1990 in took his MD from the JJM Medical College, Devangere, also in Karnataka. In O.P. No. 1021/97 the first petitioner joined the MBBS course in M.S. Ramayya Medical College, Bangalore in 1979, passed the MBBS in 1986 and in 1994 he passed the DMRD and MD from the JJM Medical College, Devangere in Karnataka. It was in 1981 that this Court had occasion to come across cases relating to obtaining of marks by dubious methods to obtain admission to Medical and Engineering Colleges in the State, as a result of which admission to Medical and Engineering Colleges were thereafter made dependent upon an entrance test. Inter-alia there was a direction to enquire into this. In 1983 cases were registered against the petitioners in these two Original Petitions as well as other persons and the trial has been going on for the last one and half decades. In O.P. No. 1020/97 prosecution had a list of 70 witnesses out of which only 30 have been examined so far. In O.P. No. 1021/97 it is said that some 20 witnesses have yet to be examined. In both these original petitions, the second petitioner is the father of the first petitioners. The prayer in both these original petitions is to quash the criminal proceedings as an undue harassment of the accused, causing loss of time, loss of money and great mental agony, while at the same time causing the exchequer huge losses in the conduct of the cases under several heads without corresponding benefit to the State. The prayer in both these original petitions is to quash the criminal proceedings as an undue harassment of the accused, causing loss of time, loss of money and great mental agony, while at the same time causing the exchequer huge losses in the conduct of the cases under several heads without corresponding benefit to the State. It is argued by learned counsel for the petitioners that the constitutional guarantee of speedy trial is enshrined in Art.21 of the Constitution and whenever that right is violated, the accused persons are entitled to remedy. The Supreme Court has ruled in several decisions that just, fair and reasonable procedure implicit in Art.21 creates a right in the accused to be tried speedily and the said right encompasses all the stages, namely, stage of investigation, inquiry, trial, appeal, revision and retrial. In para 54 of the decision of the Supreme Court reported in Abdul Rehman Antulay v. R.S. Nayak (AIR 1992 SC 1701) several guidelines have been stated by the Supreme Court and while determining whether undue delay has occurred, the court must have regard to the attendant circumstances including the nature of the offence, prevailing conditions, number of witnesses and all other circumstances which have a bearing upon the matter. Learned counsel for the petitioners submitted several factors most of which appear to be pertinent., He had no hesitation to argue that before 1981, the obtaining of marks through dubious methods was rampant in the State in almost every public examination starting from SSLC and the general impression of the time should have a bearing in adjudging this matter. In these two cases, no seat in any of the medical colleges in Kerala were lost to any one because the petitioners obtained admission outside the State on payment of capitation fee. The degrees obtained by them were from Universities outside the State which were not being challenged. They passed further examinations, in one case MD and in the other case DMRD and both the petitioners have practiced such a long time in medicine without any complaints. Both have been employed, married and are having children. Offences of this type have to be distinguished from offences affecting the State like treason, espionage, etc. imperilling the integrity and security of the State, Smuggling, FERA violations etc. Both have been employed, married and are having children. Offences of this type have to be distinguished from offences affecting the State like treason, espionage, etc. imperilling the integrity and security of the State, Smuggling, FERA violations etc. affecting the financial stability of the State, dealing in illicit liquor or adulterated foodstuff which affect the lives and health of the citizens and other such crimes like murder, rape, etc. While these latter crimes have to be viewed with all seriousness, harassment of the petitioners for one and a half decades with likelihood of harassment for a further decade for an offence like tempering with the mark list for getting admission outside the State should not be viewed in the same light. Counsel argued that there are thousands of cases of people tampering with their dates of birth either to get employed or to remain in employment longer than they are legally entitled to. There are such cases in plenty. When it is discovered at any time, all that results is termination of service at the correct age. He also argued that in the case of several persons who have got employed or are practising after getting marks through influence, nothing is happening to them. Under these circumstances, it is a travesty of justice to harass the accused - petitioners who are said to have tampered with their mark list 20 years ago and put them on trial spending fabulous amounts from the State Exchequer for conducting the cases and causing huge expenses to the accused in defending themselves owing to travelling from Ernakulam where they are residing to the venue of the court, viz. Trivandrum, practically every week and suffering intolerable harassment. It is glibly stated by the prosecution that in one case there are only 30 witnesses more and in the other case only 20 witnesses more and a time limit can be given for closing the trial. This argument has no legs to stand on because it is not merely the prosecution evidence, but the witnesses of the accused is necessary, appeal by either side, further appeal to the High Court and further appeal to the Supreme Court as well as re-trial are comprehended in the period of trial relevant for consideration under Art.21 of the Constitution of India. At page 1731 of Antulay 's case cited supra, in sub para 2 of para 54, the Supreme Court has stated that the right to speedy trial encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial. 11. By now, it is settled law that a person accused of a criminal offence shall be guaranteed a speedy trial. It is implicit in the right to file guaranteed under Art.21 of the Constitution of India. Logically, therefore, if a speedy trial cannot be ensured, the liberty of the accused cannot be curtailed by indefinite prolongation of the trial. Whether an accused who is facing a trial is in custody or on bail, are matters of no moment in this regard because the liberty of the accused is still curtailed completely or partially and this can only be done within the framework of law. It is in this background that the grievance projected by the petitioners against whom proceedings are pending since 1983 have to be viewed. By speedy trial one presupposes that it will be a trial which will be completed within a reasonable period of time and that every effort will be made to avoid delay. Under these circumstances, where a proceeding has not been completed though 14 years have elapsed, it cannot by any stretch of imagination, be argued that the spirit of the rights guaranteed under ait. 21 of the Constitution has not been infringed upon. There is another aspect to proceedings of this type which a court of law requires to take very serious cognizance of. Not only is the prosecution seriously handicapped due to the passage of time because inevitably some or many of the witnesses may not be available and there is a possibility of the record getting lost or misplaced, but, more importantly where the burden of establishing the charges vests heavily on the oral evidence of the prosecution witnesses, it could be rather far-fetched to expect that witnesses deposing to facts and circumstances that are more than one decade old would be able to do so with any serious degree of exactness. If the evidence that is to be presented is inevitably uncertain and thereby tainted, it would be a complete waste of judicial time going through such an empty exercise on the basis of which the prosecution can never hope to succeed. If the evidence that is to be presented is inevitably uncertain and thereby tainted, it would be a complete waste of judicial time going through such an empty exercise on the basis of which the prosecution can never hope to succeed. A more serious aspect which needs to be borne in mind in such situations is that a criminal prosecution is a very serious matter because lapses on the part of the defence would inevitably result in penal consequences to the accused which would entail a heavy jail sentence and or fine. Under these circumstances the law presupposes that the accused shall also be afforded a fair opportunity to defend himself. In criminal trials, there are several situations whereby a heavy burden is cast on the accused; sometimes the onus shifts to the accused in criminal proceedings. Under these circumstances, it is just and necessary that the accused be placed in a position whereby he can fairly conduct his defence. If the incidents in question are extremely old in point of time as in the present case - where it is alleged to have taken place some time in 1970 - the accused himself would be heavily prejudiced in his defence. There are also situations wherein the accused is required to produce evidence to contradict or to correct the prosecution witnesses and there are also instances when an accused may be required to summon defence witnesses, all of which'would become almost impossible in instances where the delay has been abnormal. If these factors, which cannot be lost sight of, are taken cognizance of, the question that arises is as to whether even if the prosecution is in a position to fairly conduct its case, whether it would be fair to subject the accused to the rigours of that prosecution at the belated point of time. Viewed in this perspective, I am opinion that if the accused is required to defend his case against heavy odds it cannot be said that he has been afforded a fair opportunity to defend himself. (See in this connection R. Mahadevan Iyer v. State of Kerala -1992 Crl. Q 1388). 12. The humanitarian element involved in these cases also cannot be lost sight of. The second petitioner in both these Original Petitions is aged 68. He is the second accused in both the cases. It is submitted that he suffered a stroke in 1989. (See in this connection R. Mahadevan Iyer v. State of Kerala -1992 Crl. Q 1388). 12. The humanitarian element involved in these cases also cannot be lost sight of. The second petitioner in both these Original Petitions is aged 68. He is the second accused in both the cases. It is submitted that he suffered a stroke in 1989. It is also submitted that he suffered an M.I. (Myocardial Infraction) in the year 1990 and that he is a diabetic. To subject such a medical cripple to the rigours of a criminal trial at this distance of time will certainly result in miscarriage of justice violating his constitutional right to speedy trial not to mention his basic human rights. The plight of the second petitioner is in fact more agonizing than the term of imprisonment which he would have suffered had he been convicted and sentenced for the offences charged. Regarding the other petitioners also, it has to be noted that they were admitted 19 years ago in the Medical College after paying capitation fees. Both of them have passed their MBBS. In addition to that, they have also passed their MD And DMRD qualifying them to practice medicine and also they have practiced such a long time in medicine without any complaints. All these have contributed to make them qualified doctors useful to the society. In fact, the hospital they work is a multi-speciality one which is being run on philanthropic principles without sharing any profit therefrom thereby rendering yeoman service to the public. 13. The indefinite protraction of the trial is an exercise in futility when it is remembered that out of the total number of mark list cases, charge sheets have been filed in 68 cases and out of the cases which ultimately reached the Supreme Court all ended in acquittal or the accused discharged from the prosecution with admonition considering the suffering undergone by them. 14. No doubt, the Advocate General brought to my notice the observations made by the Hon'ble Supreme Court while disposing of Civil Appeal Nos. 3193/91 & 31947 91 filed by two other accused in mark list cases. The observation was made on 20.8.1991. 14. No doubt, the Advocate General brought to my notice the observations made by the Hon'ble Supreme Court while disposing of Civil Appeal Nos. 3193/91 & 31947 91 filed by two other accused in mark list cases. The observation was made on 20.8.1991. It was as follows: "We are of the view that these criminal cases should be disposed of expeditiously and appropriate arrangement should he made by the High Court to set apart the services of adequate number of trial judges to complete these cases. We would also like to indicate that it is our intention that all the cases should meet the logical end by trial and should not be interfered with by them directions of stay or otherwise. It shall, therefore, be not open to any court other than this Court to make interim order of stay or detain the trials by any other judicial process. We would request the learned Chief Justice of Kerala High Court to personally look into this matter, provide adequate trial judges for taking up the pending trials so that within a reasonable time not exceeding six months from now these criminal trials may be over." Having given serious consideration to the aforesaid observation of the Supreme Court I am of the opinion that it will not in any way help the prosecution. The observations are general in nature and do not relate to the petitioners in these original petitions. What was required by the Courts is that the trial of cases should not be stayed in interim stay orders. This was nothing to do with the quashing of the charge itself on account of the prejudice unjustifiably caused to the petitioners by the inordinate delay. In fact the spirit of the observation that the trial should be completed within a reasonable time not exceeding six months has been totally ignored. Therefore, the observation made by Apex Court in Civil Appeal Nos. 3193/9 land 3194/91 is of no assistance to the prosecution. 15. In fact the spirit of the observation that the trial should be completed within a reasonable time not exceeding six months has been totally ignored. Therefore, the observation made by Apex Court in Civil Appeal Nos. 3193/9 land 3194/91 is of no assistance to the prosecution. 15. Taking therefore, an overall picture of the entire circumstances including the nature of the alleged offences, its impact upon the society, the time at which it is said to have been committed when the society was more tolerant in such matters, the number of years the accused have been spending in the court for defending themselves and the number of years it is likely to take if the trial is to go on, the abnormal expenses incurred by the accused as well as the State in the prosecution of these cases, it appears that this is a fit case for quashing the criminal prosecution as a violation of the petitioner's right under Art.21 of the Constitution. Malignant trials of this nature are revolting to judicial conscience and if permitted to drag on indefinitely and aimlessly will certainly erode the credibility of judicial process besides resulting in manifest injustice to the accused -petitioners. In the result, I allow these Original Petitions and quash CC Nos. 19/83 and 4/84 of the Special Court of the Judicial Magistrate of First Class (Special Court for Mark list Cases), Trivandrum. Original Petitions are allowed as above.