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/