High Court Kerala High Court

Lakshmana vs Central Bureau Of Investigation on 7 December, 2006

Kerala High Court
Lakshmana vs Central Bureau Of Investigation on 7 December, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP No. 10180 of 2003(J)


1. LAKSHMANA, IPS (RETD.),
                      ...  Petitioner

                        Vs



1. CENTRAL BUREAU OF INVESTIGATION,
                       ...       Respondent

2. CENTRAL BUREAU OF INVESTIGATION,

3. STATE OF KERALA, REPRESENTED BY THE

4. UNION OF INDIA, REPRESENTED BY ITS

                For Petitioner  :SMT.SANGEETHA LAKSHMANA

                For Respondent  :SRI.P.S.SREEDHARAN PILLAI, SCGSC

The Hon'ble MR. Justice R.BASANT

 Dated :07/12/2006

 O R D E R


                             R. BASANT, J.

              -------------------------------------------------

                      O.P.NO. 10180 OF  2003-J

              -------------------------------------------------

           Dated this the 7th day of December, 2006


                               JUDGMENT

When violent naxalite activity was at its peak in Kerala,

the death of a naxalite leader one Varghese took place on

18/2/1970. He was allegedly wanted in some crimes. It was

reported that his death occurred in an encounter with the

police. Crime No.28/70 of the Mananthavady Police Station

was registered under the caption “unnatural death” and it was

promptly closed after enquiry. After about three decades,

consequent to the alleged disclosures made by a Police

Constable who was allegedly involved in such an alleged

encounter, public interest litigations were filed before this

Court and by Ext.P2 order dated 27/1/1999 this Court directed

the C.B.I. to register a crime and investigate. Thus, the F.I.R.

was registered on 3/3/99. Investigation was conducted,

completed and final report was filed on 11/12/2002.

Cognizance was taken. At that stage, the 2nd accused who was

charged sheeted came to this Court with this petition under

O.P.NO. 10180 OF 2003-J -: 2 :-

Art.226 of the Constitution praying that the final report and all

further proceedings may be quashed. It is, thus, that the

matter is before this Court now.

2. The 1st accused is the Constable who allegedly made

the confession and who allegedly shot the deceased at the

instructions of accused 2 and 3. The 2nd accused was a young

Deputy Superintendent of Police at the relevant point of time and

the 3rd accused was the Superintendent of Police at the time in

the District.

3. Various contentions have been raised in this writ

petition to support the prayer for quashing of the proceedings.

But after discussions at the Bar, the learned counsel for the

petitioner submits that all other contentions raised shall, if

necessary, be raised before the Sessions Court (Special Court,

C.B.I.) to which the case has already been committed and this

Court now need to consider only the contention that the

petitioner cannot aspire to get fair trial if the trial were to be

held at this belated hour. That is the only contention which has

been raised.

O.P.NO. 10180 OF 2003-J -: 3 :-

4. The learned counsel for the petitioner wants me to and

I must scrupulously avoid the temptation to advert to the facts in

detail and make any observations which may prejudice the

interests of the parties in the trial which will have to be

undertaken if proceedings are not quashed. I shall advert to the

minimal required facts only. My attention has been drawn to the

decisions which have dealt with the impact of the delay in

investigation/trial in respect of a criminal offence. It is trite that

there may be instances where the delay virtually renders fair

trial impossible. The learned counsel for the petitioner contends

that this is such a case where on account of the lapse of a period

exceeding 3 = decades by now the accused is disabled and it is

not possible for him to set up an effective defence on account of

the lapse of time. The learned counsel for the petitioner

carefully points out that it is not the number of days, months and

years that have gone by that disables the petitioner. The

inevitable absence/lack of necessary documents does also result

in denial of fair trial and justice to the petitioner, it is contended.

5. My attention has been drawn to the relevant precedents

O.P.NO. 10180 OF 2003-J -: 4 :-

on the subject. In particular, I have been taken through the

decisions in Abdul Rehman Antulay v. R.S. Nayak ((1992) 1

SCC 225); Common Cause, a Registered Society v. Union of

India (1996) 4 SCC 33); Common Cause, a Registered

Society ((1996) 6 SCC 775); Raj Deo Sharma v. State of

Bihar (AIR 1998 SC 3281); Raj Deo Sharma v. State of Bihar

(AIR 1999 SC 3524) and P. Ramachandra Rao v. State of

Karnataka ((2002) 4 SCC 578).

6. No inflexible standard or rigid yardstick can be

employed by a court while deciding whether the delay entail

denial of the right to fair trial and deprives the indictee of a

reasonable opportunity to defend himself. Any refined system of

law will certainly have to accept and recognise the right for fair

trial and the right to fair trial certainly includes the availability

of a reasonable opportunity to defend himself in the trial.

Various circumstances may intervene which would threaten this

right to fair trial of the accused. The right of the individual

facing trial on the one side and the societal interests for justice

on the other will have to be balanced and harmonised to decide

O.P.NO. 10180 OF 2003-J -: 5 :-

whether it would be just, proper and fair to compel the accused

to go for trial belatedly in a case like the instant one.

7. Truth does or at least must ultimately triumph. There

can be no dispute that the circumstances under which the delay

occurred have got to be considered very cautiously. Even

assuming that the case may ultimately end for want of cogent

and acceptable evidence, I am certainly of opinion that the

inherent jurisdiction under Sec.482 of the Cr.P.C. or the

constitutional jurisdiction under Art.226 cannot be lightly

invoked to thwart a trial. At times there is justice in the trial

itself. Sending round the message that the guilty will not be

spared wherever the lapse of time is certainly important in a

society where the rule of law prevents. I shall scrupulously be

circumspect but I do take note that the offence is allegedly

committed under sheer arrogance of power in the hope or the

assumption that the crime shall not be brought to light. There

is also an assumption that the polity, worried about the menace,

will also appreciate a little highhandedness on the part of law

enforcers. It will certainly be a good message that whether the

O.P.NO. 10180 OF 2003-J -: 6 :-

lapse of time and however mighty they be, the offenders will be

brought to book ultimately and they will have to face trial. The

mere fact that those responsible for the alleged crime were

successful in keeping the offence under cover and secrecy for a

long period of time cannot certainly help them to successfully

claim immunity from prosecution on the basis of the delay for

which they were themselves responsible.

8. Will justice be denied because of the lapse of time and

the inability of the accused to get at all necessary documents?

This is the question to be considered. Even the prosecution is

not able to lay their hands on many documents which could have

been ordinarily reckoned as important. But, in the facts and

circumstances of this case (and in fact, I have been taken

through the entire gamut of materials that are available) I am

unable to agree that the mere lapse of time and the consequent

inevitable non-availability of some of the documents which may

have been useful for the prosecution or the accused is sufficient

in itself in a case like the instant one to save the accused of even

the trauma of a criminal trial. Of course, the learned counsel for

O.P.NO. 10180 OF 2003-J -: 7 :-

the petitioner prays that it will be open to the petitioner to claim

discharge. I shall therefore, as requested by the learned counsel

for the petitioner also, not advert to the materials which

allegedly justify the charge now raised. Suffice it to say that I

have been taken through the final report submitted by the C.B.I.

in which there is a detailed narration of the facts and evidence

which the C.B.I. would like to introduce in the trial. The C.B.I.

particularly relies on the admitted fact of death by fire arm

injury of the deceased. The C.B.I. relies on the fact that it is the

petitioner who has recorded the information reckoned as the

F.I.R. in Crime No.28/70. The C.B.I. relies on the fact that the

contents of the First Information Statement recorded by the

petitioner is allegedly false. The C.B.I. relies on the fact that

Varghese was apprehended much earlier and it was not a case of

any encounter at all. Though a confession of the co-accused is

relied on, consequent to the death of the accused who allegedly

made the confession, the same may not be available now for

trial. Be that as it may, even without that I am certainly of

opinion that to meet the allegations which the C.B.I. wants to

O.P.NO. 10180 OF 2003-J -: 8 :-

raise as revealed in the final report the lapse of time and the

inevitable non-availability of documents cannot be held to be

sufficient to justify a contention of denial of right of a fair trial.

This certainly is an eminently fit case where the accused must

be directed to face a trial commencing from framing of charge.

Of course, the question whether the charges have to be framed

or not and the materials justify discharge under Sec.227 or

framing charge under Sec.228 of the Cr.P.C. will be decided by

the Special Judge at the stage of Sec.227/228 of the Cr.P.C.

9. The learned counsel for the petitioner submits that the

petitioner is ill and will not be able to physically appear before

the learned Special Judge for a further period of three months. I

do not want to express any opinion. The petitioner has

admittedly appeared before the committal court already. To

decide on the question of framing of charge/discharge, it may not

be necessary for the court to insist on the personal appearance

of the petitioner. Hence I make no further directions on that

aspect.

10. In the result, this Original Petition is dismissed. In the

O.P.NO. 10180 OF 2003-J -: 9 :-

facts and circumstances of this case, the learned Special Judge

must certainly endeavour an expeditious disposal of the case. I

need only direct the learned Special Judge to finally dispose of

the case as expeditiously as possible – at any rate, within a

period of six months from this day.

11. Communicate a copy of this judgment to the learned

Special Judge forthwith.

(R. BASANT, JUDGE)

Nan/