M.T. Thomas and Peter Myalipparampil v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **OP(Crl.).No.210 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CC 73/2019 OF CHIEF JUDICIAL MAGISTRATE ,TRIVANDRUM/SPECIAL COURT FOR TRIAL OF CYBER CRIME** ## **PETITIONER/S:** - **1 M.T.THOMAS AGED 68 YEARS S/O.M.G.THOMAS,MARUMTHOOKIL,MULAKULAM SOUTH,PERUVA,KOTTAYAM-686610.** - **2 PETER MYALIPARAMPIL, AGED 60 YEARS S/O.JOSEPH,POOZHIKOL.P.O, KADUTHURUTHY,KOTTAYAM-686604.** **BY ADVS. SRI.AJIT JOY SRI.ANEESH JAMES SRI.JIJO THOMAS SMT.M.D.BEENA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,COCHIN-682031.** - **2 K.AJITH, AGED 49 YEARS S/O KESHAVAN,ANJANAM(SANTHALAYAM), THEKKENADA,VAIKOM,KOTTAYAM-686141.** **3 KUNJAMMUDU MASTER, AGED 71 YEARS S/O.IBRAHIM,KURUNGODU HOUSE,MARUTHERI,** _**OP(CRL).210/2020**_ 2 **MENJAYAM VILLAGE,KOYILANDI TALUK, KOZHIKODE,PIN-679355.** **4 E.P.JAYARAJAN, AGED 70 YEARS** **S/O KRISHNAN NAMBIAR,AAROLI JAYASONS HOUSE,PAPPINISSERY,KANNUR,PIN-670561.** **5 C.K.SADASIVAN, AGED 67 YEARS** **S/O.KUMARAN,CHUNGAPURACKAL HOUSE, KUUAPPAPURAM,KAINAKARI NORTH VILLAGE, KUTTANADU TALUK,ALAPPPUZHA,PIN-685501.** **6 V.SIVANKUTTY, AGED 66 YEARS** **S/O VASUDEVANPILLA,MULLACKAL HOUSE, T.C.36/1241,SUBASH NAGAR,PERUMTHANNI, PETTA VILLAGE,THIRUVANANTHAPURAM, PIN-695008.** **7 K.T.JALEEL, AGED 53 YEARS S/O.KUNJUMUHAMMED,GHAZAL HOUSE, MEENAPARA,KOOZHIPARAMBIL THEKKUMPATTU, KATTIPPARUTHY VILLAGE,TIRUR TALUK, MALAPPURAM,PIN-676552.** ## **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 20.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(CRL).210/2020**_ 3 ## **V.G.ARUN, J. ----------------------------------------------O.P(CRL).No.210 of 2020 ----------------------------------------------Dated this the 20[th] day of August, 2020** ## **JUDGMENT** The original petition is filed by persons seeking to intervene in C.C.No.73 of 2019 pending before the Chief Judicial Magistrate's Court, Thiruvananthapuram. The essential facts, as narrated in the original petition, are as under; While the budget session of the Kerala Legislative Assembly was in progress, on 13.3.2015, certain members of the opposition created unruly scenes inside the assembly hall. They went over to the dais of the Speaker of the Assembly, destroy[ed the computer monitor and microphone on the dais, lifted and threw the Speaker's chair into the well of the assembly, compelling the Speaker to withdraw to his chamber and the session to be adjourned. Upon a complaint filed by the Secretary of the Legislative Assembly, Crime No.236 of 2015 was registered at the Museum Police Station on 14.3.2015. The investigation was thereafter entrusted with the Crime Branch and final report was submitted on 21.3.2016, alleging commission of offences under Sections 447, 427 read with 34 of IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984. The learned Chief _**OP(CRL).210/2020**_ 4 Judicial Magistrate, Thiruvananthapuram took the case on file and C.C.No.790 of 2016 and issued summons to the accused. It is alleged that in spite of the summons being repeated on 19.7.2017, 15.9.2017, 11.1.2018 and 28.1.2018, the accused never appeared before the court. 2. According to the petitioners, consequent to the change of Government following the assembly elections, they apprehended that an attempt would be made to withdraw from the prosecution, since the accused are leaders of the party which had formed the Government. Hence, the petitioners, who claim to be public activists committed to the advancement of the rule of law, filed Exhibit P2 application seeking permission of the court to intervene in the matter and submit their objections against the proposed withdrawal. While so, a Special Court for trial of cases relating to Members of Parliament and Members of the Legislative Assembly was constituted in the State, as directed by the Honourable Supreme Court. Thereupon, C.C.No.790 of 2016 was transferred to the newly constituted Additional Chief Judicial Magistrate Court (Special Court for M.Ps and M.L.As), Ernakulam and re-numbered as C.C.No.151 of 2018. At that juncture, the Assistant Public Prosecutor in charge of the case filed Exhibit P3 petition under Section 321 Cr.P.C., seeking permission to withdraw from prosecution of the case against the accused. Thereupon, the petitioners submitted Exhibit P4 objection, opposing the request. According to the petitioners, the _**OP(CRL).210/2020**_ 5 petition was posted seven times between 23.8.2018 and 29.11.2018 for the purpose of hearing, but had to adjourn at the instance of the Public Prosecutor or counsel for the accused. Called with such a situation, the learned Magistrate directed the parties to file argument notes and accordingly, the petitioners filed Exhibit P6 argument notes on 29.11.2018. While so, pursuant to the directions in Exhibit P8 order of the Honourable Supreme Court, the case was sent back to the Chief Judicial Magistrate Court, Thiruvananthapuram and re-numbered as C.C.No.73 of 2019. The petitioners are aggrieved by the fact that, in spite of the case being posted 15 times between 27.5.2019 and 16.6.2020, hearing on Exhibit P3 petition is being deliberately protracted at the instance of the prosecution and the accused. The petitioners therefore seek expeditious disposal of Exhibit P3 application. 3. Heard Sri.Ajit Joy, learned counsel for the petitioners and Sri.Suman Chakravarthy, learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the inordinate delay in disposing of Exhibit P3 application has resulted in the calender case itself being dragged on endlessly. It is submitted that the offences committed by the accused are serious, they being elected Members of the Legislative Assembly. That, the unwholesome acts of the accused having been telecast live and viewed by the general public, failure of the court in deciding the case within a _**OP(CRL).210/2020**_ 6 reasonable time, will create wrong impression among the public. 5. The learned Senior Public Prosecutor prayed for expeditious disposal of Exhibit P3 and submitted that there cannot be any such direction at the instance of the petitioners. It is contended that, not being _de facto_ complainants or affected persons, petitioners have no _locus standi_ to make such a request and at best, they can only seek for disposal of their application seeking intervention. It is submitted that under the prevailing circumstances and threat of rampant spread of COVID-19 pandemic in Thiruvananthapuram District, it may not be possible for the learned Chief Judicial Magistrate to dispose of Exhibit P3 within a particular time frame. 6. Responding to the contention regarding _locus standi_ learned counsel for the petitioners drew my attention to the decision of the Apex Court in _**Abdul Wahab v. State of Kerala**_ [(2018) 18 SCC 448] and argued that the question is no longer _res integra._ _7._ In the report called for by this Court, the Chief Judicial Magistrate, Thiruvananthapuram has stated that the petition seeking withdrawal from prosecution is numbered as Crl.M.P.No.2577 of 2019 and the objection filed by the petitioners, as Crl.M.P No.107 of 2018. The report reveals the case to have been posted to 21.3.2020 for hearing on the withdrawal petition and adjourned to 16.6.2020 and thereafter to 23.7.2020 due to the national lock down. It is reported that from 4.7.2020 to 27.7.2020 the State Government had declared _**OP(CRL).210/2020**_ 7 complete lock down in Thiruvananthapuram City and therefore the case had to be adjourned to 19.8.2020 by notification. 8. The contention of the learned Public Prosecutor that a direction to dispose of Exhibit P3 cannot be issued at the instance of the petitioners ought to be considered in the light of the undisputed fact that the crime was registered in the year 2015 and cognizance taken by the court in the year 2016 and that, in the absence of any supervening circumstance, the case would have been disposed by now. Therefore, merely for reason of an application for withdrawal being filed and kept pending without orders, the case cannot b kept on hold indefinitely. True, that it is entirely for the trial court to decide upon the _locus standi_ of the petitioners, depending on which alone their objection to Exhibit P3 can be considered. But, as rightly pointed out by the learned counsel for the petitioners, there is no justification for the inordinate delay in rendering a decision on the application seeking withdrawal from prosecution, particularly when the accused are elected Members of the Legislative Assembly. In this regard, it may be worthwhile to note that the directions in Exhibit P8 order were issued by the Apex Court to ensure speedy disposal of cases against sitting and former legislators. For the reasons aforementioned, the Chief Judicial Magistrate, Thiruvananthapuram is directed to dispose of Crl.M.P.Nos.107 of 2018 and 2577 of 2019 within an outer limit of two months from the date on _**OP(CRL).210/2020**_ 8 which the court resumes normal functioning. The original petition is disposed of as above. Sd/- **V.G.ARUN, JUDGE** _vgs_ _**OP(CRL).210/2020**_ 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGES OF THE FINAL REPORT IN CRIME NO.25/CR/0CW1/TVPM/2015 OF THE CBID,THIRUVANANTHAPURAM,OCW-1** **EXHIBIT P2 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT,THIRUVANANTHAPURAM IN C.C. NO.790/2016 SEEKING PERMISSION OF THE COURT TO INTERVENE** **EXHIBIT P3 A TRUE COPY OF THE PETITION FILED BY THE PROSECUTOR BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (SPECIAL COURT FOR MP'S AND MLA'S),ERNAKULAM IN CC 151/18 UNDER SECTION 321 OF THE CODE OF CRIMINAL PROCEDURE** **EXHIBIT P4 A TRUE OF THE OBJECTION DATED 22.08.2018 SUBMITTED BY THE PETITIONERS TO EXHIBIT P2 APPLICATION. EXHIBIT P5 A TRUE COPY OF THE PRINT OUT OF THE CASE DETAILS PERTAINING TO C.C.NO.151/2018 ON THE FILES OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (SPECIAL COUIRT FOR MP'S AND MLA'S )ERNAKULAM TAKEN FROM THE OFFICIAL WEBSITE SERVICES.e courts,gov.in** **EXHIBIT P6 A TRUE COPY OF THE ARGUMENT NOTES DATED 29.11.2018 SUBMITTED ON BEHALF OF THE PETITIONERS BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (SPECIAL COURT FOR MP'S AND MLA'S),ERNAKULAM IN C.C.NO.151/2016 EXHIBIT P7 A TRUE COPY OF THE PRINT OUT OF THE CASE DETAILS PERTAINING TO.C.C.O.73/2019 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATE COURT,THIRUVANANTHAPURAM TAKEN FROM THE OFFICIAL WEBSITE SERVICES.e courts.gov.in EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 04.12.2018 OF THE HON'BLE SUPREME COURT IN W.P(C)NO.699/2016.**