Nithin S. v. State of Kerala and Karuna Shankar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938** ## **Crl.MC.No. 4190 of 2016 ()** **--------------------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 508/2013 of JMFC-V, TVM (SPL.COURTMARKLIST CASES) CRIME NO. 738/2009 OF MUSEUM POLICE STATION , THIRUVANANTHAPURAM** **------------------------------------------------------------** ## **PETITIONER(S)/ACCUSED NO 2:** **---------------------------------------------------** **NITHIN S, AGED 26 YEARS, S/O K.S. SALAHUDHEEN, CHARUVILA PUTHENVEEDU, VADAMON P.O, ANCHAL, KOLLAM.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** ## **RESPONDENT(S)/STATE/ DEFACTO COMPLAINANT:** **---------------------------------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. (CRIME NO 738/2009 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT).** ## **2. KARUNA SHANKAR,** - **S/O KARUNAKARAN, PLANKALA VEEDU, THADATHIKKULAM WARD, KANJIRAMKULAM, THIRUVANANTHAPURAM.** **R1 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AD** **Crl.MC.No. 4190 of 2016 ()** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------------------------** **ANNEXURE I CERTIFIED COPY OF THE FINAL REPORT ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS V, (SPECIAL COURT FOR MARK LIST CASES), THIRUVANANTHAPURAM.** **ANNEXURE II COPY OF THE ORDER DATED 03-08-2015 PASSED BY THIS HON'BLE COURT IN CRL MC NO 4880/2015 BASED ON WHICH THE PROCEEDINGS AGAINST THE 4TH ACCUSED WAS QUASHED.** **RESPONDENT(S)' EXHIBITS** **-------------------------------------------** ## **NIL** **//TRUE COPY//** **P.A TO JUDGE** ## **AD** ## **RAJA VIJAYARAGHAVAN.V, J.** **--------------------------------------Crl.M.C. No.4190 of 2016 ---------------------------------------Dated this the 18[th] day of August, 2016** ## **ORDER** - 1.The petitioner is a practicing lawyer and he finds himself as the 2[nd] accused in Crime No.738 of 2009 of the Museum Police Station. The aforesaid crime was registered on 8.12.2009 for offences under Sections 143, 147, 148, 149, 323, 324 of IPC. The 2[nd] respondent is the de facto complainant. - 2.After investigation final report was laid before the jurisdictional court and the case is now pending as C.C No.508 of 2013 on the file of the Judicial Magistrate of First Class-V (Special Court for Mark List Cases), Thiruvananthapuram. - 3.Prosecution allegation is that owing to previous enmity, for the failure of the first informant to withdraw the request submitted by him to the Principal for _Crl.M.C. No.4190 of 2016 2_ postponing the union election of the Law College, the accused Nos. 1 to 4 , in furtherance of their common intention assaulted the 2[nd] respondent herein and voluntarily caused injuries. 4.It is submitted by the learned counsel appearing for the petitioner that the incident is of the year 7.12.2009. During the pendency of the case, the proceedings against the 4[th] accused was quashed by this Court by Annexure-II order on the basis of a reported settlement. Insofar as the petitioner herein is concerned, the proceedings are purposefully being dragged on by the 2[nd] respondent by refusing to appear before the trial court. The court below has initiated coercive proceedings as well as proceedings under Section 82 and 83 of the Code of Criminal Procedure but all efforts have been of no avail. It is contended that the de facto complainant is keeping away from the court with the manifest intention of prolonging the agony of the petitioner and to prevent him from securing a job, which _Crl.M.C. No.4190 of 2016 3_ he could have secured if it was not for the pendency of the criminal proceedings. - 5.When the matter came up for hearing, this Court had directed the petitioner to produce the certified copy of the proceedings sheet. - 6.The order sheet would reveal that on 01.04.2014, the charge was framed and summons to witnesses were issued. Thereafter, the case was posted on 16.05.2016, 17.06.2014, 22.07.2014, 12.09.2014, 17.10.2014, 24.11.2014, 13.01.2015 and 20.02.2015. On 20.2.2015, non bailable warrant was issued against CWs1 to 3. It appears that proclamation was also issued under Section 82 of the Cr.P.C as well. Thereafter, the case was posted on 24.04.2015, 06.07.2015, 17.08.2015, 17.09.2015, 16.10.2015, - 09.12.2015, 22.01.2016, 24.02.2016, 25.04.2016, 13.05.2016, 2.6.2016 and on 4.8.2016. Till date, the prime witnesses have not appeared. _Crl.M.C. No.4190 of 2016 4_ 7. Heard the learned Public Prosecutor as well. 8.I have anxiously considered the submissions of the learned counsel and the certified copy of the proceedings sheet. It is borne out from Annexure-II that the proceedings against the 4[th] accused has already been quashed. The proceedings are pending before the learned Magistrate solely because of the fact that the de facto complainant and the other occurrence witnesses who has been cited as CW2 have deliberately kept themselves away. I also take note of the fact that the pendency of the criminal proceeding is acting as an impediment in the petitioner securing a job in the Government service. The submission of the petitioner that CWs 1 to 3 are deliberately keeping themselves away to harass the petitioner is obvious. There is also a distinct possibility that the de facto complainant is not interested in prosecuting the matter. 9. **In Sirajul v. State of U.P.** (2015 (9) SCC 201) the Apex Court had occasion to observe that the right to _Crl.M.C. No.4190 of 2016 5_ speedy trial, in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. It was also held that the said right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and ius not confined to any particular category of cases. In every case , where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances and determine in each case whether the right to speedy trial has been denied in a given case. It was further held that mere delay in completion of proceedings may not be by itself a ground to quash proceedings where offences are serious, but the Court having regard to the conduct of the parties, nature of offence and the extent of delay in the facts and circumstances of a given case, quash the proceedings in exercise of jurisdiction under _Crl.M.C. No.4190 of 2016 6_ S.482 CrPC in the interest of justice and to prevent abuse of process of the Court. 10.After having considered the nature of the allegations levelled against the petitioner, the gravity of the offence, the abstinence of the prime witnesses before the trial court despite initiation of coercive proceedings and also the fact that the proceedings against the 4[th] accused has already been terminated on the ground of settlement, I am of the view that this is a fit case where powers under Section 482 of the Code is to be exercised _ex debitio justitiae_ to do real and substantial justice. It would be an abuse of process of court to allow any action which would result in injustice and prevent the promotion of justice. For the above reasons the petitioner is entitled to succeed. In the result, this petition is allowed. Annexure-I final report and all further proceedings pursuant thereto against the petitioner now pending as C.C No.508 of 2013 Judicial Magistrate of First Class-V (Special Court _Crl.M.C. No.4190 of 2016 7_ for Mark List Cases), Thiruvananthapuram are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V Judge** AD