{"id":52354,"date":"2007-01-12T00:00:00","date_gmt":"2007-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-g-premshankar-vs-inspector-of-police-on-12-january-2007"},"modified":"2018-04-19T04:09:13","modified_gmt":"2018-04-18T22:39:13","slug":"k-g-premshankar-vs-inspector-of-police-on-12-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-g-premshankar-vs-inspector-of-police-on-12-january-2007","title":{"rendered":"K.G.Premshankar vs Inspector Of Police on 12 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
K.G.Premshankar vs Inspector Of Police on 12 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl MC No. 3737 of 2006()\n\n\n1. K.G.PREMSHANKAR, THE SUPDT. OF POLICE,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. INSPECTOR OF POLICE,\n                       ...       Respondent\n\n2. STATE OF KERALA, REPRESENTED BY\n\n                For Petitioner  :SRI.M.K.DAMODARAN (SR.)\n\n                For Respondent  :SRI.S.SREEKUMAR, SC FOR CBI\n\nThe Hon'ble MR. Justice R.BASANT\n\n Dated :12\/01\/2007\n\n O R D E R\n                                   R.BASANT, J\n\n                                ----------------------\n\n               Crl.M.C.Nos.3708 of 2006 & 3737 of 2006\n\n               --------------------------------------------------------------\n\n                Dated this the 12th day of January   2007\n\n\n\n\n                                     O R D E R\n<\/pre>\n
      Those   who   want   lessons   on   how   a   criminal   trial   can   be<\/p>\n
protracted   can   have   no   better   school   on   that   aspect   and   they<\/p>\n
must   visit   the   facts   of   this   case.     In   the   course   of   arguments<\/p>\n
before   the   learned   Sessions   Judge   whose   order   passed   in<\/p>\n
revision   is   challenged   in   these   criminal   miscellaneous   cases,   it<\/p>\n
was   reported   that   a   national   agency   from   North   India   has<\/p>\n
forwarded a request to the Public Prosecutor for perusal  of the<\/p>\n
records in this case for enabling them to conduct a research as<\/p>\n
to  how  a criminal  trial  can  be  deleted.   This   case  can certainly<\/p>\n
claim that dubious distinction of offering lessons in the attempt<\/p>\n
for protraction of criminal proceedings.\n<\/p>\n<\/p>\n
      2.     This   decision   must   be   read   in   continuation   of   the<\/p>\n
order passed by the learned Magistrate and the fairly elaborate<\/p>\n
and   detailed   order   passed   by   the   learned   Sessions   Judge   in<\/p>\n
revision.     The   challenge   is   raised   against   the   decision   of   the<\/p>\n
learned Magistrate  that the delay in filing the final report by the<\/p>\n
C.B.I   can   be   condoned,   which   decision   was   endorsed   by   the<\/p>\n
learned Sessions Judge in the impugned revisional order.<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06              2<\/span><\/p>\n
       3.     A   synoptic  resume  of  the   sequence  of    events   in  this<\/p>\n
case  can be attempted  at the very outset.    The alleged incident<\/p>\n
took   place   on   12-2-1988.     One   Maniyeri   Madhavan   a   journalist<\/p>\n
was allegedly assaulted by the  police officials  who took him into<\/p>\n
custody   in   connection   with   another   crime-allegedly   a   false   and<\/p>\n
vexatious one. It was alleged that such high handed action   was<\/p>\n
taken at the instance of a serious police official who had  an axe<\/p>\n
to   grind     against   him.     On   the   allegations   raised   by   the   said<\/p>\n
Madhavan     a   crime   was   registered   by     the   local   police.<\/p>\n
Dissatisfied   with   the   investigation   he     had   come   before   this<\/p>\n
Court.     Later     he     was     constrained   to   approach   the   Supreme<\/p>\n
Court.     Very   senior   officers   of   the   Kerala   Police   were   initially<\/p>\n
directed   to   conduct   the     investigation.     The   Supreme   Court<\/p>\n
ultimately     came   to   the   conclusion   that   there   was   no   proper<\/p>\n
investigation  conducted by the officials of the Kerala Police and<\/p>\n
they were  only colluding with the accused   to  thwart  a proper<\/p>\n
investigation.     It  is   unnecessary   to     advert   to   the   details   .    But<\/p>\n
ultimately   by   the   order   dated   22-9-1993   which     is   reported   in<\/p>\n
Maniyeri Madhavan Vs Sub-Inspector of Police  and others [1994<\/p>\n
(1) SCC  536]  the C.B.I. was directed by the  Supreme Court   to<\/p>\n
conduct  the investigation.\n<\/p>\n
\nCrl.M.C.No.3708\/06 & 3737\/06             3<\/span><\/p>\n
      4.     From 22-9-1993 to 26-10-1993  the C.B.I. took time to<\/p>\n
get   a   copy   of   the   order   and   to   continue   with   the   investigation.<\/p>\n
From  26-10-1993   to   1-3-1995     time    was  allegedly  taken  up   by<\/p>\n
the   C.B.I.   team   for   obtaining     sanction     for   prosecution   of   the<\/p>\n
accused   as   also   for   obtaining     clarification   from   the   Central<\/p>\n
Government.   The   charge   sheet   was   filed   on   27-4-1995.<\/p>\n
Cognizance   was   taken.       Objections   were   raised   against     that<\/p>\n
cognizance     which     has   been   taken   ignoring     and   violating   the<\/p>\n
provisions   relating to   the limitation in Chapter 36 of the Code<\/p>\n
of  Criminal Procedure.  The learned   Chief Judicial  Magistrate<\/p>\n
rejected the said objections.   There was a revision petition filed<\/p>\n
against   the   said   rejection   before   the  special   judge   of   the   C.B.I.<\/p>\n
Court   and   that     court   by   order   dated   20-11-1995   set   aside   the<\/p>\n
cognizance   taken   and   directed   the   learned   Chief   Judicial<\/p>\n
Magistrate   to   consider   the   matter   afresh   giving   the     C.B.I   the<\/p>\n
option\/liberty   to   file   a   fresh   application     for     condonation   of<\/p>\n
delay.  There was also a  direction that the  parties must appear<\/p>\n
before   the   learned   Chief   Judicial   Magistrate   on   11-12-1995.<\/p>\n
That order of the revisional  court was challenged  and by order<\/p>\n
dated 11-6-1998   reported in  Premshankar Vs.Central Bureau of<\/p>\n
Investigation   [1998   (2)   KLT   103]  the     challenge   was     turned<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06           4<\/span><\/p>\n
down.\n<\/p>\n<\/p>\n
      5.     Thereafter   on   20-7-1998   the   C.B.I   filed   the   present<\/p>\n
application for condonation of the delay in filing the chargesheet<\/p>\n
on 27-4-1995.\n<\/p>\n<\/p>\n
      6.     The   decision     in  Premshankar   Vs.Central   Bureau   of<\/p>\n
Investigation   [1998   (2)   KLT   103]  was   challenged   before   the<\/p>\n
Supreme Court and the Supreme Court by the decision dated 12-<\/p>\n
9-2002  reported in  K.G.Premshankar Vs.Inspector of Police and<\/p>\n
Another  [2002  (8)   SCC   87]  rejected  the  challenge   and  directed<\/p>\n
the C.J.M. to proceed further.\n<\/p>\n<\/p>\n
      7.     Even thereafter an   original petition and writ petition<\/p>\n
were   filed   by   the   accused   to   quash   the   proceedings   as   O.P.<\/p>\n
23400\/2002   and   W.P.C     27289\/2003.     Those   petitions     were<\/p>\n
disposed     of   by   the   common   order   dated   24-8-2004.   A   learned<\/p>\n
Single Judge of this Court quashed   the proceedings against the<\/p>\n
accused persons.\n<\/p>\n<\/p>\n
      8.     That   decision   was   challenged   by   the   C.B.I   and   by<\/p>\n
order   dated   30-11-2004   which   is     reported   in  C.B.I   Vs<\/p>\n
Premshankar  [2005 (1) KLT 343] a Division Bench of this Court<\/p>\n
set   aside   the   judgment   of   the   learned   single   judge.   Thereafter<\/p>\n
the   learned   C.J.M.   proceeded   to   consider   the   application   for<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06           5<\/span><\/p>\n
condonation of delay and it is thereafter that the impugned order<\/p>\n
was passed by the learned Chief Judicial Magistrate   condoning<\/p>\n
the delay.\n<\/p>\n<\/p>\n
      9.       The order condoning the delay was challenged before<\/p>\n
the   the Learned Sessions Judge (Special Judge for C.B.I cases)<\/p>\n
and     by   the   impugned   order   in     Crl.R.P   dated   30-9-2006   the<\/p>\n
learned Special judge upheld the order of the learned C.J.M.   A<\/p>\n
second revision  petition is not maintainable and that obviously is<\/p>\n
the   reason   why   these   petitions   have   come   with   the   label   of<\/p>\n
Crl.M.Cs under section 482 of the Cr.P.C<\/p>\n
      10.        The     incident   having   taken   place   on   12-2-1988<\/p>\n
following   the   mandate   of   section   468   (2)   (c),   cognizance   must<\/p>\n
have been taken  within three years- on or before 11-2-1991. The<\/p>\n
complaint was filed   on 27-4-1995.   The   period from 12-2-1988<\/p>\n
to 27-4-1995 has hence got  explained.\n<\/p>\n<\/p>\n
      11.      There   can   be     no   serious   dispute     regarding   the<\/p>\n
direction to condone   delay till    22-9-1993.  That was  the date<\/p>\n
on which the Supreme Court rendered the  decision  reported in<\/p>\n
Maniyeri Madhavan Vs.Sub-inspector of Police and others [1994<\/p>\n
(1) KLT SCC 536].  Whatever happened   till that day  was taken<\/p>\n
note   of   the   Supreme   Court   and   the   C.B.I.   was   directed   to<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06             6<\/span><\/p>\n
continue with the investigation.\n<\/p>\n<\/p>\n
      12.    From   22-9-1993   to   26-10-1993   is   the   time   allegedly<\/p>\n
taken for getting  copies and to continue  the investigation. From<\/p>\n
26-10-1993 to 1-3-1995 is the time taken for getting the sanction<\/p>\n
The   C.B.I.   contends   that   it   cannot   be   reckoned   as   delay   as   the<\/p>\n
said period is liable to be excluded under Section 470 (3) of the<\/p>\n
Cr.P.C  The details  will  be considered later.   From 1-3-1995  to<\/p>\n
27-4-1995 according to the C.B.I.  is the time taken for  finalising<\/p>\n
the chargsheet and filing the same.\n<\/p>\n<\/p>\n
      13.    The learned counsel for the petitioners further  submit<\/p>\n
that at any rate there is absolutely no justification for the delay<\/p>\n
in   filing   the   application   for   condonation   of   the   delay.     That<\/p>\n
application   was   filed   only   on   20-7-1980.   The   counsel       for   the<\/p>\n
petitioners   contends   that   the   delay     from   11-12-1995   to   20-7-<\/p>\n
1998   is   not   explained   at   all.       That     reveals   abuse   of     due<\/p>\n
diligence and   bonafides on the part of the C.B.I.   That delay in<\/p>\n
filing   the   petition   for   condonation   of   delay   must   persuade   the<\/p>\n
Court   to   reject the plea for condonation, submits   the learned<\/p>\n
counsel   for   the   petitioners.     The   learned   standing   counsel   for<\/p>\n
C.B.I in turn contends that the same cannot be reckoned as delay<\/p>\n
at all.   Limitation has to be   considered as on the date of   filing<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06            7<\/span><\/p>\n
the final report and not  as on the date of cognizance or as on the<\/p>\n
date of filing of the petition for condonation of delay.<\/p>\n
      14.    I   shall   now   proceed     to   consider   the   contentions<\/p>\n
raised.\n<\/p>\n<\/p>\n
      15.    The   period   of   time   between   the   incident   proper   and<\/p>\n
the   date   of   filing   of   the   complaint   can   be   divided   into   three<\/p>\n
definite   and   distinct   parts.     The   first   is   the   period   from<\/p>\n
12\/2\/1988,   the   date   of   the   offence   to   22\/09\/1993   when   the<\/p>\n
Supreme   Court,   frustrated   by   the   inadequate   investigation   by<\/p>\n
the   local   police,   finally   directed   the   C.B.I   to   conduct   the<\/p>\n
investigation   and   file   a   final   report.     The   courts   below   have<\/p>\n
concurrently come to the conclusion that this period deserves to<\/p>\n
be condoned.   The  learned counsel for  the petitioners contends<\/p>\n
that the mere fact that the Supreme Court had directed the C.B.I<\/p>\n
to   conduct   the   investigation   is   no   reason   to   mechanically<\/p>\n
condone the said delay.\n<\/p>\n<\/p>\n
      16.    Under   Section   473   Cr.P.C,   notwithstanding   anything<\/p>\n
contained in Chapter 36 of Cr.P.C, the court is competent to take<\/p>\n
cognizance notwithstanding the expiry of the period of limitation<\/p>\n
if  it is  satisfied  in  the  facts and circumstances of this  case that<\/p>\n
the delay has been properly explained or that it is necessary so<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06           8<\/span><\/p>\n
to do in the interests of justice.   The sequence of events during<\/p>\n
this period 12\/2\/1988 to 22\/09\/1993 clearly shows that inspite of<\/p>\n
the defacto complainant Maniyeri Madhavan running from pillar<\/p>\n
to post and knocking at the doors of the courts of law, he did not<\/p>\n
get justice  until  finally   the  Supreme  Court  passed the  order  on<\/p>\n
22\/09\/1993.     The   said   period   of   alleged   delay,   I   am   satisfied,<\/p>\n
would not be attributable to any fault on the part of the defacto<\/p>\n
complainant or the person or the agency who had filed the final<\/p>\n
report.     The   Supreme   Court   was   constrained   to   pass   that   final<\/p>\n
order dated 22\/09\/1993 to the C.B.I to conduct the investigation<\/p>\n
after the very active efforts made by various courts including the<\/p>\n
Supreme Court till then bore no fruit.   It was thus that the said<\/p>\n
directions to the C.B.I was issued on 22\/09\/1993.   The period of<\/p>\n
delay from 12\/2\/1988 to 22\/09\/1993 can in these circumstances<\/p>\n
be safely  condoned.   The  concurrent  view taken by both courts<\/p>\n
on   that   aspect   of   the   matter   does   not,   at   any   rate,   warrant<\/p>\n
interference.\n<\/p>\n<\/p>\n
      17.    The  next  segment  of the  delay  is from 22\/09\/1993 to<\/p>\n
01\/03\/1995.  It took some time for the C.B.I to get the copy of the<\/p>\n
order dated 22\/09\/1993.  Any person acquainted with the judicial<\/p>\n
proceedings   and   procedures   adopted   by   the   court   would   know<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06           9<\/span><\/p>\n
and readily accept  that some time will be taken by the parties to<\/p>\n
get   copies   of   the   judgment.     According   to   the   C.B.I,   from<\/p>\n
22\/09\/1993   to   26\/10\/1993,   time   was  taken   to   get   the   copy   and<\/p>\n
from   26\/10\/1993   to   01\/03\/1995,   time   was   taken   for   completing<\/p>\n
the   investigation   and   to   obtain   sanction   for   prosecution   of   the<\/p>\n
accused.         Initially   sanction   was   obtained   but   certain<\/p>\n
clarifications   were   required   and   it   was   in   these   circumstances<\/p>\n
that   ultimately   all   the   requisite   formalities   of   investigation<\/p>\n
including obtaining of sanction was completed by 01\/03\/1995.  It<\/p>\n
would be myopic and unrealistic for this court to assume that the<\/p>\n
CBI   could   have   resorted   to   the   requisite   steps   on   22\/09\/1993<\/p>\n
when the order was passed by the Supreme Court.   It would be<\/p>\n
unrealistic for this court to insist that the CBI should explain to<\/p>\n
this   court   every   minute,   hour   and   day   between   22\/9\/1993   to<\/p>\n
26\/10\/93.     The   explanation   that   time   was   taken   up   from<\/p>\n
22\/9\/1993 to 26\/10\/1993 for the CBI to get copy of the order and<\/p>\n
complete   the   investigation   commends   itself   for   acceptance   on<\/p>\n
broad probabilities and undisputed facts.\n<\/p>\n<\/p>\n
      18.     The   records   clearly   show   that   request   for   sanction<\/p>\n
was   made   initially   on   26\/10\/1993   and   sanction   was   finally<\/p>\n
obtained only on 01\/03\/1995.  This period cannot be reckoned as<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06             10<\/span><\/p>\n
delay   and   is   liable   to   be   excluded  under   Section    470(3).     It   is<\/p>\n
contended   that   there   can   be   no   mechanical   condonation   of   the<\/p>\n
delay   for   the   period   26\/10\/1993   to   01\/03\/1995   –   the   period<\/p>\n
between the date of the initial request for sanction and the date<\/p>\n
on   which   the   sanction   was   finally   obtained.     Due   and   diligent<\/p>\n
pursuit   by   the   investigating   agency   must   also   be   shown,   it   is<\/p>\n
submitted.     The   sanction   order   makes   it   clear   that   the   initial<\/p>\n
request   for   sanction   was   made   on   26\/10\/1993   and   the   final<\/p>\n
sanction,   after   clarification,   was   obtained   on   01\/03\/1995.     In<\/p>\n
these circumstances, I am of the opinion that the said gap of time<\/p>\n
and   the   delay   can   be   excluded   and   condoned.     The   learned<\/p>\n
counsel   for   the   petitioner   contends   that   a   detailed   affidavit<\/p>\n
explaining each day of delay and the sequence of events during<\/p>\n
this   period   has   not   been   filed   by   the   C.B.I   but   that   alleged<\/p>\n
inadequacy,   according   to   me,   cannot   stand   in   the   way   of   the<\/p>\n
delay   being   condoned.               If   there   is   any   contumacious<\/p>\n
responsibility   for the Investigating Agency for such gap of time<\/p>\n
that   can   certainly   be   considered.     But   in   this   case,   no   such<\/p>\n
contumacious  lethargy   on   the   part   of  the   CBI  is   pointed   out  or<\/p>\n
perceived by me.   That period i.e. 26\/10\/93 to 01\/03\/95 is hence<\/p>\n
no   delay   and   the   same   is   hence   liable   to   be   excluded   and<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06           11<\/span><\/p>\n
condoned.\n<\/p>\n<\/p>\n
      19.    The third segment of the delay is from 01\/03\/1995 to<\/p>\n
27\/04\/1995.     The   charge   sheet   was   filed   only   on   27\/04\/1995.<\/p>\n
From   01\/03\/1995,   the   date   on   which   the   sanction   orders   with<\/p>\n
clarifications were finally secured to 27\/4\/1995, the date of filing<\/p>\n
the charge sheet,  the C.B.I claims that time was taken to finalise<\/p>\n
the   charge   sheet   and   file   the   same   before   the   court.     It   is<\/p>\n
contended  that the  C.B.I’s  request  for  condonation   of the  delay<\/p>\n
during  this period  is not justified.       At any  rate, I am satisfied<\/p>\n
that this court cannot be persuaded to invoke  its powers under<\/p>\n
Section  482  Cr.P.C   to interfere  with  the   concurrent  decision  of<\/p>\n
the court below to condone that delay.\n<\/p>\n<\/p>\n
      20.    On 27\/4\/1995 when the charge sheet was filed, it was<\/p>\n
not   accompanied   by   any   application   for   condonation   of   delay.<\/p>\n
Obviously,   that   requirement   was   overlooked.     The   learned<\/p>\n
Magistrate     took   cognizance   even   without   an   application   for<\/p>\n
condonation   of   delay.   The   accused,   by   filing   an   application,<\/p>\n
raised   objections   against   the   cognizance   taken   and   the   C.B.I<\/p>\n
opposed the said application at that point of time.   The learned<\/p>\n
Magistrate     had   considered   whether   there   is   delay   and   the<\/p>\n
cognizance   could   be   taken   notwithstanding   the   delay   though   a<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06              12<\/span><\/p>\n
formal   application   for   condonation   of   delay   was  not   filed   along<\/p>\n
with   the   charge   sheet   on   27\/4\/1995.     The   learned   Magistrate<\/p>\n
held that cognizance taken need not be disturbed.  However, the<\/p>\n
revisional   court   took   the   view   that   such   cognizance   taken   was<\/p>\n
bad and set aside the order and directed the learned Magistrate<\/p>\n
to consider the taking of cognizance afresh, giving  the  C.B.I an<\/p>\n
opportunity to file an application for condonation of delay.   The<\/p>\n
said   application   for   condonation   of   delay   was,   of   course,   filed<\/p>\n
only on 20\/07\/1998.  It is contended that the gap of time between<\/p>\n
27\/4\/1995 to 20\/7\/1998 has also not been explained by the C.B.I.<\/p>\n
       21.    It is not really  necessary  for  me to consider  whether<\/p>\n
the gap of time from 27\/4\/1995 to 20\/7\/1998 – the alleged delay<\/p>\n
during   that   period   deserves   to   be   condoned.     The   question   of<\/p>\n
delay has to be considered with reference to the date on which<\/p>\n
the   final   report   is   filed   and   not   with   reference   to   the   date   on<\/p>\n
which cognizance is taken.   The law on this aspect is well settled<\/p>\n
in  Zain   Sait   v.   Intex-Painter,   Interior   Decorators<\/a>   [1993(1)   KLT<\/p>\n
532]  and   the   various   subsequent   decisions   on   the   point.     The<\/p>\n
investigating   agency   can   only   file   the   complaint   and   the<\/p>\n
cognizance to be taken is by the court.  The gap of time between<\/p>\n
the filing of the report\/complaint and the cognizance being taken<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06             13<\/span><\/p>\n
by   the   learned   Magistrate,     cannot   certainly   be   reckoned   as<\/p>\n
delay   in   filing   the   final   report\/complaint.     In   that   view   of   the<\/p>\n
matter, the gap of time between 27\/4\/1995 to 20\/7\/1998 cannot<\/p>\n
certainly   be   construed   as   delay   in   filing   the   complaint\/final<\/p>\n
report.   Therefore, the C.B.I is strictly not bound to explain that<\/p>\n
period   of   time.     That   period   cannot   certainly   be   reckoned   as<\/p>\n
delay in the filing of the complaint.\n<\/p>\n<\/p>\n
      22.    The   learned   counsel   for   the   petitioners   submits   that<\/p>\n
even if that be not reckoned as delay proper, the conduct of the<\/p>\n
C.B.I   not   filing   the   application   for   condonation   of   delay   [which<\/p>\n
they ought to have filed along with the final report on 27\/4\/1995<\/p>\n
and which they did not file inspite of the order of the revisional<\/p>\n
court on 20\/1\/1995] till 20\/7\/1998 must be reckoned as having a<\/p>\n
reflection   on   the   bona   fides   of   the   C.B.I,   when   this   court<\/p>\n
considers the acceptability of the cause shown for the delay from<\/p>\n
12\/2\/1988 to 27\/4\/1995.\n<\/p>\n<\/p>\n
      23.    I   have   already   narrated   the   sequence   of   events   that<\/p>\n
occurred   after   the   revisional   court   passed   the   order   on<\/p>\n
20\/1\/1995 and the C.B.I filed the application for condonation of<\/p>\n
delay   on   20\/7\/1998.     The   sequence   of   events   must   suggest<\/p>\n
eminently   that   there   was   no   delay   or   want   of   bonafides   on   the<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06          14<\/span><\/p>\n
part of the C.B.I in filing the application for condonation of delay.<\/p>\n
The   order   passed   by   the   revisional   court   on   20\/11\/1995   which<\/p>\n
gave   the   C.B.I   the   option   to   appear   before   the   learned<\/p>\n
Magistrate     and   file   the   application   for   condonation   on<\/p>\n
11\/12\/1995   was   the   subject   matter   of   proceedings   before   this<\/p>\n
court   and   the   Supreme   Court   and   in   these   circumstances,   the<\/p>\n
delay from 20\/11\/1995 (or 11\/12\/1995) till 20\/07\/1998 cannot be<\/p>\n
held to be an indication of want of bona fides or seriousness on<\/p>\n
the part of the C.B.I to prosecute the complainant.  That cannot,<\/p>\n
at any  rate, affect the  prayer  of  the  C.B.I   to  condone   the  delay<\/p>\n
from 12\/2\/88 to 27\/4\/95.\n<\/p>\n<\/p>\n
      24.    The   learned   counsel   for   the   petitioners   submits   that<\/p>\n
the  learned   Magistrate  had   not   considered   the   question   in   the<\/p>\n
proper   perspective.     It   is   pointed   out   that   though   cognizance<\/p>\n
taken   was   set   aside   by   the   revisional   court,   the   learned<\/p>\n
Magistrate     proceeded   as   though   cognizance   had   already   been<\/p>\n
taken and only  considered whether the delay  in the cognizance<\/p>\n
already   taken   could   be   condoned   or   not.     The   learned   counsel<\/p>\n
points out that the number assigned to the case when cognizance<\/p>\n
was taken initially was not altered and the same continues.  Even<\/p>\n
now the case is known or referred to by the number assigned at<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06             15<\/span><\/p>\n
the   time   of   initial   cognizance   which   was   set   aside   by   the<\/p>\n
revisional court.  The error in approach may be taken note, of it<\/p>\n
is submitted.\n<\/p>\n<\/p>\n
      25.    I am of the opinion  that the number assigned cannot<\/p>\n
be held to clinch the issue.  The fact remains that the final report<\/p>\n
was  filed   on   27\/4\/1995   and   the   C.B.I   has   to   explain   the   gap   of<\/p>\n
time   from   12\/2\/1988   to   27\/4\/1995.     Whatever   be   the   number<\/p>\n
assigned, the learned Magistrate   and the court of revision have<\/p>\n
considered   the   question   whether   this   gap   of   time   \/   delay   from<\/p>\n
12\/2\/1988   to   27\/4\/1995   can   be   condoned.       The   mere   fact   that<\/p>\n
the   learned   Magistrate     did   not   follow   the   ideal   procedure   of<\/p>\n
assigning   the   number   to   the   cases,   only   after   condonation   of<\/p>\n
delay   is,   according   to   me,   one   of   procedural   propriety   and   not<\/p>\n
certainly   one   which   affects   the   core   of   the   decision   taken   that<\/p>\n
the   delay   is   liable   to   be   condoned.       Ideally   the   learned   Chief<\/p>\n
Judicial   Magistrate   must   have   recorded   that   the   cognizance<\/p>\n
taken   earlier   in   C.C.No.513\/1995   has   come   to   an   end   and<\/p>\n
cognizance   was   taken   afresh   on   the   final   report   filed   on<\/p>\n
27\/4\/1995   long   later   in   2006   when   the   impugned   order   dated<\/p>\n
27\/3\/2006  was  passed by the   learned  Chief   Judicial  Magistrate.<\/p>\n
That innocuous and innocent inadequacy\/procedural impropriety<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06              16<\/span><\/p>\n
does   not   at   all   persuade   me   to   take   any   decision   against   the<\/p>\n
C.B.I.\n<\/p>\n<\/p>\n
       26.    The learned Standing Counsel for the C.B.I wants this<\/p>\n
court to take particular note of the sequence of events that took<\/p>\n
place   after   the   revisional   court   passed   the   order   dated<\/p>\n
20\/11\/1995 till 20\/7\/1998.  When the application for condonation<\/p>\n
was filed and even thereafter – of the accused persons bringing<\/p>\n
the   matter   to   various   other   and   this   court   (single   judge)   once<\/p>\n
setting   aside   the   cognizance   and   the   Division   Bench   later<\/p>\n
reversing   it.     I   have   adverted   to   these   aspects   in   the   synoptic<\/p>\n
resume of events given already.\n<\/p>\n<\/p>\n
       27.    The   learned   counsel   for   the   petitioners   submits   that<\/p>\n
the   Supreme   Court   had   no   occasion   when   it   passed   the   order<\/p>\n
dated   22\/9\/1993   to   consider   the   question   of   condonation   of<\/p>\n
delay.   At that time, different and graver offences were  alleged<\/p>\n
also, submits the learned counsel.  I am not reckoning the order<\/p>\n
dated   22\/9\/1993   of   the   Supreme   Court   as   one   holding   that   the<\/p>\n
delay   till   that   date   can  be   condoned.     I   only   look   at   that   order<\/p>\n
passed by the Supreme Court dated 22\/9\/1993  to satisfy myself<\/p>\n
of   the   travails   of   the   defacto   complainant,   who   was   moving   on<\/p>\n
heaven and earth from 12\/2\/1998 to get his grievance remedied.<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06              17<\/span><\/p>\n
He achieved success only  on 22\/09\/1993.    The  accused persons<\/p>\n
were influential officials of the higher levels of the police and in<\/p>\n
these circumstances, the fact that, despite earlier orders of this<\/p>\n
court and the Supreme Court, proper investigation was delayed –<\/p>\n
till   ultimately   the   order   dated   22\/9\/1993   was   passed   by   the<\/p>\n
Supreme Court, cannot deliver any advantage to the accused.  It<\/p>\n
is   only   in   that   context   that   I   have   referred   to   the   order   dated<\/p>\n
22\/09\/1993 passed by the Supreme Court and proceeded to take<\/p>\n
the view that the gap of time between 12\/2\/1988 and 22\/09\/1993<\/p>\n
deserves to be condoned.\n<\/p>\n<\/p>\n
       28.    No   other   contentions   are   raised.                 Of   course,<\/p>\n
precedents   have   been   cited   before   me   –   and   I   do   not   it   find<\/p>\n
necessary to make specific reference to then, about the right of<\/p>\n
speedy   trial   of   the   accused   under   Article   21   as   also   the<\/p>\n
difficulties   which   the   accused  persons   may  have   to   face   if   they<\/p>\n
are called upon to face the trial now.   Substantial portion of the<\/p>\n
delay, I note, was on account of the acts of the accused persons<\/p>\n
and their grievances about the denial of the right to speedy trial<\/p>\n
does not, in the least, impress me.\n<\/p>\n<\/p>\n
       29.    In   any   view   of   the   matter,   I   am   satisfied   that   the<\/p>\n
powers under  Section  482 Cr.P.C  which  are to be  invoked only<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06            18<\/span><\/p>\n
sparingly and in exceptional cases in aid of justice do not deserve<\/p>\n
to be invoked to interfere with the impugned concurrent orders<\/p>\n
of   the   courts   below   condoning   the   delay   in   taking   cognizance.<\/p>\n
The impugned orders eminently cater to the interests of justice.<\/p>\n
No   failure\/miscarriage   of   justice   results   from   the   impugned<\/p>\n
orders.     They   send   out   the   message   that   law   and   justice   will<\/p>\n
ultimately   triumph   and   the   attempts   at   procrastination   cannot<\/p>\n
finally succeed.\n<\/p>\n<\/p>\n
       30.      These   criminal   miscellaneous   cases   are   in   these<\/p>\n
circumstances   dismissed.     I   am   of   the   opinion   that   unless   a<\/p>\n
specific direction for expeditious trial is issued by this   court, it<\/p>\n
will   be   abdication   of   the   responsibilities.     I   do,   in   these<\/p>\n
circumstances,   direct   the   learned   Chief   Judicial   Magistrate   to<\/p>\n
hold   day   to   day   trials   and   ensure   expeditious   disposal   of<\/p>\n
C.C.No.513\/1995   –   at   any   rate,   within   a   period   of   six   months<\/p>\n
from  the   date   on   which   copy  of   this   order   is   placed   before   the<\/p>\n
learned Magistrate.\n<\/p>\n<\/p>\n
       Communicate   this   order   to   the   learned   Chief   Judicial<\/p>\n
Magistrate forthwith.\n<\/p>\n<\/p>\n
                                                       (R.BASANT, JUDGE)<\/p>\n
jsr<\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06    19<\/span><\/p>\n
Crl.M.C.No.3708\/06 & 3737\/06    20<\/span><\/p>\n
         R.BASANT, J<\/p>\n
           C.R.R.P.No.\n<\/p>\n
              ORDER<\/p>\n
21ST DAY OF JULY 2006<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court K.G.Premshankar vs Inspector Of Police on 12 January, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-52354","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK.G.Premshankar vs Inspector Of Police on 12 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-g-premshankar-vs-inspector-of-police-on-12-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.G.Premshankar vs Inspector Of Police on 12 January, 2007 - 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