IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3737 of 2006()
1. K.G.PREMSHANKAR, THE SUPDT. OF POLICE,
... Petitioner
Vs
1. INSPECTOR OF POLICE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :SRI.S.SREEKUMAR, SC FOR CBI
The Hon'ble MR. Justice R.BASANT
Dated :12/01/2007
O R D E R
R.BASANT, J
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Crl.M.C.Nos.3708 of 2006 & 3737 of 2006
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Dated this the 12th day of January 2007
O R D E R
Those who want lessons on how a criminal trial can be
protracted can have no better school on that aspect and they
must visit the facts of this case. In the course of arguments
before the learned Sessions Judge whose order passed in
revision is challenged in these criminal miscellaneous cases, it
was reported that a national agency from North India has
forwarded a request to the Public Prosecutor for perusal of the
records in this case for enabling them to conduct a research as
to how a criminal trial can be deleted. This case can certainly
claim that dubious distinction of offering lessons in the attempt
for protraction of criminal proceedings.
2. This decision must be read in continuation of the
order passed by the learned Magistrate and the fairly elaborate
and detailed order passed by the learned Sessions Judge in
revision. The challenge is raised against the decision of the
learned Magistrate that the delay in filing the final report by the
C.B.I can be condoned, which decision was endorsed by the
learned Sessions Judge in the impugned revisional order.
Crl.M.C.No.3708/06 & 3737/06 2
3. A synoptic resume of the sequence of events in this
case can be attempted at the very outset. The alleged incident
took place on 12-2-1988. One Maniyeri Madhavan a journalist
was allegedly assaulted by the police officials who took him into
custody in connection with another crime-allegedly a false and
vexatious one. It was alleged that such high handed action was
taken at the instance of a serious police official who had an axe
to grind against him. On the allegations raised by the said
Madhavan a crime was registered by the local police.
Dissatisfied with the investigation he had come before this
Court. Later he was constrained to approach the Supreme
Court. Very senior officers of the Kerala Police were initially
directed to conduct the investigation. The Supreme Court
ultimately came to the conclusion that there was no proper
investigation conducted by the officials of the Kerala Police and
they were only colluding with the accused to thwart a proper
investigation. It is unnecessary to advert to the details . But
ultimately by the order dated 22-9-1993 which is reported in
Maniyeri Madhavan Vs Sub-Inspector of Police and others [1994
(1) SCC 536] the C.B.I. was directed by the Supreme Court to
conduct the investigation.
Crl.M.C.No.3708/06 & 3737/06 3
4. From 22-9-1993 to 26-10-1993 the C.B.I. took time to
get a copy of the order and to continue with the investigation.
From 26-10-1993 to 1-3-1995 time was allegedly taken up by
the C.B.I. team for obtaining sanction for prosecution of the
accused as also for obtaining clarification from the Central
Government. The charge sheet was filed on 27-4-1995.
Cognizance was taken. Objections were raised against that
cognizance which has been taken ignoring and violating the
provisions relating to the limitation in Chapter 36 of the Code
of Criminal Procedure. The learned Chief Judicial Magistrate
rejected the said objections. There was a revision petition filed
against the said rejection before the special judge of the C.B.I.
Court and that court by order dated 20-11-1995 set aside the
cognizance taken and directed the learned Chief Judicial
Magistrate to consider the matter afresh giving the C.B.I the
option/liberty to file a fresh application for condonation of
delay. There was also a direction that the parties must appear
before the learned Chief Judicial Magistrate on 11-12-1995.
That order of the revisional court was challenged and by order
dated 11-6-1998 reported in Premshankar Vs.Central Bureau of
Investigation [1998 (2) KLT 103] the challenge was turned
Crl.M.C.No.3708/06 & 3737/06 4
down.
5. Thereafter on 20-7-1998 the C.B.I filed the present
application for condonation of the delay in filing the chargesheet
on 27-4-1995.
6. The decision in Premshankar Vs.Central Bureau of
Investigation [1998 (2) KLT 103] was challenged before the
Supreme Court and the Supreme Court by the decision dated 12-
9-2002 reported in K.G.Premshankar Vs.Inspector of Police and
Another [2002 (8) SCC 87] rejected the challenge and directed
the C.J.M. to proceed further.
7. Even thereafter an original petition and writ petition
were filed by the accused to quash the proceedings as O.P.
23400/2002 and W.P.C 27289/2003. Those petitions were
disposed of by the common order dated 24-8-2004. A learned
Single Judge of this Court quashed the proceedings against the
accused persons.
8. That decision was challenged by the C.B.I and by
order dated 30-11-2004 which is reported in C.B.I Vs
Premshankar [2005 (1) KLT 343] a Division Bench of this Court
set aside the judgment of the learned single judge. Thereafter
the learned C.J.M. proceeded to consider the application for
Crl.M.C.No.3708/06 & 3737/06 5
condonation of delay and it is thereafter that the impugned order
was passed by the learned Chief Judicial Magistrate condoning
the delay.
9. The order condoning the delay was challenged before
the the Learned Sessions Judge (Special Judge for C.B.I cases)
and by the impugned order in Crl.R.P dated 30-9-2006 the
learned Special judge upheld the order of the learned C.J.M. A
second revision petition is not maintainable and that obviously is
the reason why these petitions have come with the label of
Crl.M.Cs under section 482 of the Cr.P.C
10. The incident having taken place on 12-2-1988
following the mandate of section 468 (2) (c), cognizance must
have been taken within three years- on or before 11-2-1991. The
complaint was filed on 27-4-1995. The period from 12-2-1988
to 27-4-1995 has hence got explained.
11. There can be no serious dispute regarding the
direction to condone delay till 22-9-1993. That was the date
on which the Supreme Court rendered the decision reported in
Maniyeri Madhavan Vs.Sub-inspector of Police and others [1994
(1) KLT SCC 536]. Whatever happened till that day was taken
note of the Supreme Court and the C.B.I. was directed to
Crl.M.C.No.3708/06 & 3737/06 6
continue with the investigation.
12. From 22-9-1993 to 26-10-1993 is the time allegedly
taken for getting copies and to continue the investigation. From
26-10-1993 to 1-3-1995 is the time taken for getting the sanction
The C.B.I. contends that it cannot be reckoned as delay as the
said period is liable to be excluded under Section 470 (3) of the
Cr.P.C The details will be considered later. From 1-3-1995 to
27-4-1995 according to the C.B.I. is the time taken for finalising
the chargsheet and filing the same.
13. The learned counsel for the petitioners further submit
that at any rate there is absolutely no justification for the delay
in filing the application for condonation of the delay. That
application was filed only on 20-7-1980. The counsel for the
petitioners contends that the delay from 11-12-1995 to 20-7-
1998 is not explained at all. That reveals abuse of due
diligence and bonafides on the part of the C.B.I. That delay in
filing the petition for condonation of delay must persuade the
Court to reject the plea for condonation, submits the learned
counsel for the petitioners. The learned standing counsel for
C.B.I in turn contends that the same cannot be reckoned as delay
at all. Limitation has to be considered as on the date of filing
Crl.M.C.No.3708/06 & 3737/06 7
the final report and not as on the date of cognizance or as on the
date of filing of the petition for condonation of delay.
14. I shall now proceed to consider the contentions
raised.
15. The period of time between the incident proper and
the date of filing of the complaint can be divided into three
definite and distinct parts. The first is the period from
12/2/1988, the date of the offence to 22/09/1993 when the
Supreme Court, frustrated by the inadequate investigation by
the local police, finally directed the C.B.I to conduct the
investigation and file a final report. The courts below have
concurrently come to the conclusion that this period deserves to
be condoned. The learned counsel for the petitioners contends
that the mere fact that the Supreme Court had directed the C.B.I
to conduct the investigation is no reason to mechanically
condone the said delay.
16. Under Section 473 Cr.P.C, notwithstanding anything
contained in Chapter 36 of Cr.P.C, the court is competent to take
cognizance notwithstanding the expiry of the period of limitation
if it is satisfied in the facts and circumstances of this case that
the delay has been properly explained or that it is necessary so
Crl.M.C.No.3708/06 & 3737/06 8
to do in the interests of justice. The sequence of events during
this period 12/2/1988 to 22/09/1993 clearly shows that inspite of
the defacto complainant Maniyeri Madhavan running from pillar
to post and knocking at the doors of the courts of law, he did not
get justice until finally the Supreme Court passed the order on
22/09/1993. The said period of alleged delay, I am satisfied,
would not be attributable to any fault on the part of the defacto
complainant or the person or the agency who had filed the final
report. The Supreme Court was constrained to pass that final
order dated 22/09/1993 to the C.B.I to conduct the investigation
after the very active efforts made by various courts including the
Supreme Court till then bore no fruit. It was thus that the said
directions to the C.B.I was issued on 22/09/1993. The period of
delay from 12/2/1988 to 22/09/1993 can in these circumstances
be safely condoned. The concurrent view taken by both courts
on that aspect of the matter does not, at any rate, warrant
interference.
17. The next segment of the delay is from 22/09/1993 to
01/03/1995. It took some time for the C.B.I to get the copy of the
order dated 22/09/1993. Any person acquainted with the judicial
proceedings and procedures adopted by the court would know
Crl.M.C.No.3708/06 & 3737/06 9
and readily accept that some time will be taken by the parties to
get copies of the judgment. According to the C.B.I, from
22/09/1993 to 26/10/1993, time was taken to get the copy and
from 26/10/1993 to 01/03/1995, time was taken for completing
the investigation and to obtain sanction for prosecution of the
accused. Initially sanction was obtained but certain
clarifications were required and it was in these circumstances
that ultimately all the requisite formalities of investigation
including obtaining of sanction was completed by 01/03/1995. It
would be myopic and unrealistic for this court to assume that the
CBI could have resorted to the requisite steps on 22/09/1993
when the order was passed by the Supreme Court. It would be
unrealistic for this court to insist that the CBI should explain to
this court every minute, hour and day between 22/9/1993 to
26/10/93. The explanation that time was taken up from
22/9/1993 to 26/10/1993 for the CBI to get copy of the order and
complete the investigation commends itself for acceptance on
broad probabilities and undisputed facts.
18. The records clearly show that request for sanction
was made initially on 26/10/1993 and sanction was finally
obtained only on 01/03/1995. This period cannot be reckoned as
Crl.M.C.No.3708/06 & 3737/06 10
delay and is liable to be excluded under Section 470(3). It is
contended that there can be no mechanical condonation of the
delay for the period 26/10/1993 to 01/03/1995 – the period
between the date of the initial request for sanction and the date
on which the sanction was finally obtained. Due and diligent
pursuit by the investigating agency must also be shown, it is
submitted. The sanction order makes it clear that the initial
request for sanction was made on 26/10/1993 and the final
sanction, after clarification, was obtained on 01/03/1995. In
these circumstances, I am of the opinion that the said gap of time
and the delay can be excluded and condoned. The learned
counsel for the petitioner contends that a detailed affidavit
explaining each day of delay and the sequence of events during
this period has not been filed by the C.B.I but that alleged
inadequacy, according to me, cannot stand in the way of the
delay being condoned. If there is any contumacious
responsibility for the Investigating Agency for such gap of time
that can certainly be considered. But in this case, no such
contumacious lethargy on the part of the CBI is pointed out or
perceived by me. That period i.e. 26/10/93 to 01/03/95 is hence
no delay and the same is hence liable to be excluded and
Crl.M.C.No.3708/06 & 3737/06 11
condoned.
19. The third segment of the delay is from 01/03/1995 to
27/04/1995. The charge sheet was filed only on 27/04/1995.
From 01/03/1995, the date on which the sanction orders with
clarifications were finally secured to 27/4/1995, the date of filing
the charge sheet, the C.B.I claims that time was taken to finalise
the charge sheet and file the same before the court. It is
contended that the C.B.I’s request for condonation of the delay
during this period is not justified. At any rate, I am satisfied
that this court cannot be persuaded to invoke its powers under
Section 482 Cr.P.C to interfere with the concurrent decision of
the court below to condone that delay.
20. On 27/4/1995 when the charge sheet was filed, it was
not accompanied by any application for condonation of delay.
Obviously, that requirement was overlooked. The learned
Magistrate took cognizance even without an application for
condonation of delay. The accused, by filing an application,
raised objections against the cognizance taken and the C.B.I
opposed the said application at that point of time. The learned
Magistrate had considered whether there is delay and the
cognizance could be taken notwithstanding the delay though a
Crl.M.C.No.3708/06 & 3737/06 12
formal application for condonation of delay was not filed along
with the charge sheet on 27/4/1995. The learned Magistrate
held that cognizance taken need not be disturbed. However, the
revisional court took the view that such cognizance taken was
bad and set aside the order and directed the learned Magistrate
to consider the taking of cognizance afresh, giving the C.B.I an
opportunity to file an application for condonation of delay. The
said application for condonation of delay was, of course, filed
only on 20/07/1998. It is contended that the gap of time between
27/4/1995 to 20/7/1998 has also not been explained by the C.B.I.
21. It is not really necessary for me to consider whether
the gap of time from 27/4/1995 to 20/7/1998 – the alleged delay
during that period deserves to be condoned. The question of
delay has to be considered with reference to the date on which
the final report is filed and not with reference to the date on
which cognizance is taken. The law on this aspect is well settled
in Zain Sait v. Intex-Painter, Interior Decorators [1993(1) KLT
532] and the various subsequent decisions on the point. The
investigating agency can only file the complaint and the
cognizance to be taken is by the court. The gap of time between
the filing of the report/complaint and the cognizance being taken
Crl.M.C.No.3708/06 & 3737/06 13
by the learned Magistrate, cannot certainly be reckoned as
delay in filing the final report/complaint. In that view of the
matter, the gap of time between 27/4/1995 to 20/7/1998 cannot
certainly be construed as delay in filing the complaint/final
report. Therefore, the C.B.I is strictly not bound to explain that
period of time. That period cannot certainly be reckoned as
delay in the filing of the complaint.
22. The learned counsel for the petitioners submits that
even if that be not reckoned as delay proper, the conduct of the
C.B.I not filing the application for condonation of delay [which
they ought to have filed along with the final report on 27/4/1995
and which they did not file inspite of the order of the revisional
court on 20/1/1995] till 20/7/1998 must be reckoned as having a
reflection on the bona fides of the C.B.I, when this court
considers the acceptability of the cause shown for the delay from
12/2/1988 to 27/4/1995.
23. I have already narrated the sequence of events that
occurred after the revisional court passed the order on
20/1/1995 and the C.B.I filed the application for condonation of
delay on 20/7/1998. The sequence of events must suggest
eminently that there was no delay or want of bonafides on the
Crl.M.C.No.3708/06 & 3737/06 14
part of the C.B.I in filing the application for condonation of delay.
The order passed by the revisional court on 20/11/1995 which
gave the C.B.I the option to appear before the learned
Magistrate and file the application for condonation on
11/12/1995 was the subject matter of proceedings before this
court and the Supreme Court and in these circumstances, the
delay from 20/11/1995 (or 11/12/1995) till 20/07/1998 cannot be
held to be an indication of want of bona fides or seriousness on
the part of the C.B.I to prosecute the complainant. That cannot,
at any rate, affect the prayer of the C.B.I to condone the delay
from 12/2/88 to 27/4/95.
24. The learned counsel for the petitioners submits that
the learned Magistrate had not considered the question in the
proper perspective. It is pointed out that though cognizance
taken was set aside by the revisional court, the learned
Magistrate proceeded as though cognizance had already been
taken and only considered whether the delay in the cognizance
already taken could be condoned or not. The learned counsel
points out that the number assigned to the case when cognizance
was taken initially was not altered and the same continues. Even
now the case is known or referred to by the number assigned at
Crl.M.C.No.3708/06 & 3737/06 15
the time of initial cognizance which was set aside by the
revisional court. The error in approach may be taken note, of it
is submitted.
25. I am of the opinion that the number assigned cannot
be held to clinch the issue. The fact remains that the final report
was filed on 27/4/1995 and the C.B.I has to explain the gap of
time from 12/2/1988 to 27/4/1995. Whatever be the number
assigned, the learned Magistrate and the court of revision have
considered the question whether this gap of time / delay from
12/2/1988 to 27/4/1995 can be condoned. The mere fact that
the learned Magistrate did not follow the ideal procedure of
assigning the number to the cases, only after condonation of
delay is, according to me, one of procedural propriety and not
certainly one which affects the core of the decision taken that
the delay is liable to be condoned. Ideally the learned Chief
Judicial Magistrate must have recorded that the cognizance
taken earlier in C.C.No.513/1995 has come to an end and
cognizance was taken afresh on the final report filed on
27/4/1995 long later in 2006 when the impugned order dated
27/3/2006 was passed by the learned Chief Judicial Magistrate.
That innocuous and innocent inadequacy/procedural impropriety
Crl.M.C.No.3708/06 & 3737/06 16
does not at all persuade me to take any decision against the
C.B.I.
26. The learned Standing Counsel for the C.B.I wants this
court to take particular note of the sequence of events that took
place after the revisional court passed the order dated
20/11/1995 till 20/7/1998. When the application for condonation
was filed and even thereafter – of the accused persons bringing
the matter to various other and this court (single judge) once
setting aside the cognizance and the Division Bench later
reversing it. I have adverted to these aspects in the synoptic
resume of events given already.
27. The learned counsel for the petitioners submits that
the Supreme Court had no occasion when it passed the order
dated 22/9/1993 to consider the question of condonation of
delay. At that time, different and graver offences were alleged
also, submits the learned counsel. I am not reckoning the order
dated 22/9/1993 of the Supreme Court as one holding that the
delay till that date can be condoned. I only look at that order
passed by the Supreme Court dated 22/9/1993 to satisfy myself
of the travails of the defacto complainant, who was moving on
heaven and earth from 12/2/1998 to get his grievance remedied.
Crl.M.C.No.3708/06 & 3737/06 17
He achieved success only on 22/09/1993. The accused persons
were influential officials of the higher levels of the police and in
these circumstances, the fact that, despite earlier orders of this
court and the Supreme Court, proper investigation was delayed –
till ultimately the order dated 22/9/1993 was passed by the
Supreme Court, cannot deliver any advantage to the accused. It
is only in that context that I have referred to the order dated
22/09/1993 passed by the Supreme Court and proceeded to take
the view that the gap of time between 12/2/1988 and 22/09/1993
deserves to be condoned.
28. No other contentions are raised. Of course,
precedents have been cited before me – and I do not it find
necessary to make specific reference to then, about the right of
speedy trial of the accused under Article 21 as also the
difficulties which the accused persons may have to face if they
are called upon to face the trial now. Substantial portion of the
delay, I note, was on account of the acts of the accused persons
and their grievances about the denial of the right to speedy trial
does not, in the least, impress me.
29. In any view of the matter, I am satisfied that the
powers under Section 482 Cr.P.C which are to be invoked only
Crl.M.C.No.3708/06 & 3737/06 18
sparingly and in exceptional cases in aid of justice do not deserve
to be invoked to interfere with the impugned concurrent orders
of the courts below condoning the delay in taking cognizance.
The impugned orders eminently cater to the interests of justice.
No failure/miscarriage of justice results from the impugned
orders. They send out the message that law and justice will
ultimately triumph and the attempts at procrastination cannot
finally succeed.
30. These criminal miscellaneous cases are in these
circumstances dismissed. I am of the opinion that unless a
specific direction for expeditious trial is issued by this court, it
will be abdication of the responsibilities. I do, in these
circumstances, direct the learned Chief Judicial Magistrate to
hold day to day trials and ensure expeditious disposal of
C.C.No.513/1995 – at any rate, within a period of six months
from the date on which copy of this order is placed before the
learned Magistrate.
Communicate this order to the learned Chief Judicial
Magistrate forthwith.
(R.BASANT, JUDGE)
jsr
Crl.M.C.No.3708/06 & 3737/06 19
Crl.M.C.No.3708/06 & 3737/06 20
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006