IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2118 of 2008()
1. MATHAI, AGED 49 YEARS, S/O.EAPEN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.V.EAPEN MATHAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :25/07/2008
O R D E R
R.BASANT, J
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Crl.M.C. No.2118 of 2008
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Dated this the 25th day of July, 2008
ORDER
Petitioner has come before this Court with this petition under
Section 482 Cr.P.C for quashing of proceedings initiated against
him (and two co-accused) in C.C.No.278 of 1991 of Chief Judicial
Magistrate Court, Ernakulam. The petitioner along with a co-
accused faced allegations in that Calendar Case on the basis of a
final report filed by the police alleging offences punishable under
Section 120 (B), 465, 466, 468, 471, 109 and 420 r/w 34 I.P.C.
2. This case have a had chequered history. The crux of
the allegations is that the accused persons had conspired
together to bring into existence a forged B.Com degree certificate
for the petitioner herein. Making use of such forged B.Com
certificate, the petitioner had allegedly secured admission for the
L.LB course and later obtained the L.LB degree and had enrolled
himself as a lawyer. He was practicing as a lawyer on the basis of
such enrollment. No allegations are raised in respect of the L.LB
degree or subsequent enrollment, but the charge is that he
secured admission in the L.LB course with a forged B.Com degree
certificate.
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3. Cognizance was taken by the learned C.J.M, Ernakulam
and C.C.No.278 of 1991 was registered.
4. The learned C.J.M, by order dated 10.04.92, discharged
the petitioner holding that the allegations against him are all
groundless. At that time though the 3rd accused had expired, the
2nd accused was also facing allegations along with the petitioner.
Now the 2nd accused is also no more, it is submitted.
5. By the detailed order dated 10.04.92, the petitioner
was discharged under Section 239 Cr.P.C.
6. The State filed a revision petition against the said
order of discharge. Suo motu revision proceedings was also
initiated by the learned Sessions Judge. By common order dated
20.03.93 in Crl.R.P.Nos.50 of 1992 and 58 of 1992, the learned
IInd additional Sessions Judge set aside the order of discharge and
directed the learned C.J.M to “take back C.C.No.278 of 1991 to file
and dispose of the same afresh in accordance with law
untrammeled by any observations contained in this order”.
7. That order of the learned Sessions Judge was
challenged before this Court. A learned Judge of this Court as per
order dated 20.06.1991 in Crl.R.P.No.246 of 1993 dismissed the
said challenge and upheld the order of the learned Sessions
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Judge. This Court also directed the learned C.J.M “to proceed with
C.C.No.278 of 1991 and dispose of the same in accordance with
law untrammeled by any observations contained in the
judgment”.
8. That order of the learned Single Judge was challenged
before the Supreme Court and the Supreme Court, by order dated
22.01.2004 in Crl.Appeal No.215 of 1998, dismissed the said
appeal.
9. Thereafter the matter came before the learned C.J.M
and at that stage, the Public Prosecutor filed an application for
withdrawal of the case under Section 321 Cr.P.C. The learned
C.J.M, by order dt.30.05.2008 in Crl.M.P.No.63 of 2006, refused to
grant leave to the Public Prosecutor to withdraw from the
prosecution. Thereafter the learned C.J.M had posted the case to
24.06.08 for hearing on the question of charge and further steps.
Charges have not been framed so far. The matter stands posted
for framing charge.
10. It is at this stage that the petitioner has come before
this Court with this petition under Section 482 Cr.P.C. The order
passed by the learned Magistrate refusing to grant leave for
withdrawal is significantly not challenged at all. I am of the
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opinion that in the sequence of events referred above, it is for the
petitioner now to appear before the learned C.J.M and advance
arguments, if any, to show that charges are not liable to be
framed. Instead of doing that, the petitioner has unnecessarily
come to this Court with this petition under Section 482 Cr.P.C to
quash the proceedings. The learned Sessions Judge had already
held that the allegations are not groundless and that the
discharge on that ground is not justified. That order of the
learned Sessions Judge has been upheld by this Court and the
Supreme Court. It is too late in the day for the petitioner now to
contend that on merits, the prosecution against the petitioner is
liable to be quashed invoking the jurisdiction under Section 482
Cr.P.C.
11. At the Bar in the course of submissions, the learned
counsel for the petitioner submits that there has been inordinate
delay in the disposal of the case and that in turn results in denial
of the right to life of the petitioner under Article 21 of the
Constitution of India. It is submitted that speedy trial is an axiom
of the right to life under Article 21 of the Constitution and
inasmuch as the same has been denied to the petitioner, the
proceedings are liable to be quashed. Significantly such a
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contention is not seen raised at all in the petition filed under
Section 482 Cr.P.C. Respondent/State has been denied an
opportunity to raise the contention that there has been no denial
of the fundamental right to speedy trial in the facts and
circumstances of this case. I do note that though the learned
Sessions Judge had passed the order as early as on 20.03.93, it
was the successive challenges raised before this Court and the
Supreme Court by the petitioner that led to the delay in the case
making further progress. In any view of the matter, I am not
persuaded to agree that powers under Section 482 Cr.P.C can or
ought to be invoked in favour of the petitioner now. It is for the
petitioner to appear before the learned Chief Judicial Magistrate
and raise his contention, if he has any such contention, to claim
discharge afresh.
12. I need only mention that the learned Magistrate must
dispose of the case in accordance with law as expeditiously as
possible.
13. With the above observations, this Crl.M.C is dismissed.
(R.BASANT, JUDGE)
rtr/-
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