Central Bureau of Investigation vs Premsankar

K.S. Radhakrishnan, J.—Central Bureau of Investigation (hereinafter referred to as CBI) have come up with these appeals aggrieved by the common judgment in W.P.C. No. 27289 of 2003 and O.P. No. 23400 of 2002 quashing all proceedings in C.C. No. 513 of 1995 on the file of the Chief Judicial Magistrate, Ernakulam, under Article 226 of the Constitution of India. Writ Appeals have also been filed by the widow of Maniyeri Madhavan, the complainant.

Counsel appearing for the CBI Sri. S. Sreekumar submitted that the judgment of the learned Single Judge has the effect of nullifying the decisions of the Apex Court in Maniyeri Madhavan Vs. Sub-Inspector of Police and others, , Prem Shankar v. CBI, 1998 (2) KLT 103 and K.G. Premshanker Vs. Inspector of Police and Another, , and the various directions contained therein with regard to the same subject matter.

Senior Counsel Sri. T.P. Kelu Nambiar, appearing for the respondents in W. A. No. 1979 of 2004 as well as the counsel appearing for the respondent in the other case supported the judgment of the learned Single Judge and submitted that the learned Single Judge has correctly applied the principle laid down by the Apex Court in Antony v. State of Kerala 2003 (1) KLT 1 (SC) to quash the criminal proceedings. Placing reliance on the decision of the Apex Court in State of Karnataka v. L. Muniswamy and Ors. 1977 SCC 404, counsel submitted that on facts also no case has been made out against the accused u/s 120B of the Indian Penal Code. Counsel submitted, in any view of the matter, since the complainant is no more the principle laid down by the Apex Court in Shanker v. State of U.P. 1975 SCC (Crl.) 270, would squarely apply and there is no purpose in proceeding with the case C.C. No. 513 of 1995.

We need not elaborately state the facts for the disposal of these cases since facts have been stated, discussed and reiterated by the Apex Court in Maniyeri Madhavan Vs. Sub-Inspector of Police and others, , and this Court in Prem Shankar v. CBI 1998 (2) KLT 103 and K.G. Premshankar v. Inspector General of Police, (supra). We may refer only to bare facts. Respondent in W.A. No. 1979 of 2004 is the first accused and the appellant in W.A. No. 2021 of 2004 is the 7th accused in C.C. No. 513 of 1995 on the file of the Chief Judicial Magistrate, Ernakulam, for offences under Sections 120B read with Sections 323, 342, 427, 465 and 201 of the Indian Penal Code and under Sections 323, 342, 357, 427, 465 and 201 IPC. Charges levelled against the respondent in W.A. No. 1979 of 2004 is that while he was holding the post of Superintendent of Police, Kannur had entered into a , criminal conspiracy along with the other accused reached the "Sudhinam" office on 12.12.1988 picked upon Maniyeri Madhavan by using imminent force and detained him in custody and also caused loss and damages to the press and caused voluntary hurt and wrongful confinement of Maniyeri Madhavan, the printer and publisher of "Sudhinam", an evening daily. Offences charged against the other accused are also almost identical.

Maniyeri Madhavan was a journalist. On 2.2.1988 Madhavan published the name and details of a tribal minor girl namely Manja, rape victim, in his newspaper. On the complaint of the parents of the minor girl, crime No. 50 of 1988 of Kannur Police Station was registered as against Madhavan u/s 228A IPC and Section 7(1)(d) of the Protection of Civil Rights Act. During the course of investigation of the Crime Circle Inspector of Police, Kannur Police Station searched the printing press of Madhavan on 12.2.1988 and seized the printing parts of the press and arrested Madhavan on the same day. Madhavan was produced before the Magistrate when he complained about police assault. Madhavan was enlarged on bail and on the same day he was admitted in a hospital for treatment of the injuries sustained during police custody. Madhavan lodged a complaint before Kannur police station complaining of assault during police custody. On the basis of the said complaint, Crime No. 52 of 1988 of Kannur Police Station was registered under Sections 143, 223 and 324 of the Indian Penal Code against the Sub Inspector of Police and other six or seven identifiable policemen. On the allegation that Crime No. 52 of 1988 was against Superintendent of Police, Kannur and apprehending that he would not get justice, Madhavan approached this Court by filing Crl.M.C. No. 228 of 1988 seeking investigation of Crime No. 52 of 1988 by the CBI. This Court by order dated 8.4.1989 directed the D.LG. of Police, Northern Range to look into the complaint of Madhavan if he makes representation in that behalf. Being dissatisfied by the order of this Court, Madhavan filed SLP before the Supreme Court seeking CBI investigation. The Supreme Court by order dated 22.12.1989 directed the DIG of Police, Central Range to investigate the crime and file the report within two months. Since there was no progress in the investigation consequent to the order of the Supreme Court, Madhavan moved the Supreme Court again and the Supreme Court by order dated 13.10.1992 directed the CBI to investigate into the complaint and complete the investigation and file a report within four months. Consequently CBI took up the investigation into the complaint and filed a report before the Supreme Court on 5.5.1993. The Supreme Court disposed of the matter finally by judgment reported in Maniyeri Madhavan Vs. Sub-Inspector of Police and others, and held as follows:

"We have given our careful consideration to the above submissions. We do not think we can come to the rescue of police officer. Whether they are guilty of not of the offence charged is a matter to be established in a criminal trial".

CBI later filed its final report on 24.7.1995 before the Chief Judicial Magistrate which was numbered as C.C. No. 513 of 1995.

Respondents herein had raised a preliminary objection before the Chief Judicial Magistrate''s Court by filing Crl.M.P. Nos. 6332, 6334 and 6335 of 1995 stating that the Court could not have taken cognizance of the offence as the same was barred by limitation. Chief Judicial Magistrate overruled the objections against which the respondent filed Crl.R.P. No. 59 of 1995 before the Sessions Court, Ernakulam which remitted the matter back to the Trial Court for fresh disposal. Respondents then filed Crl.M.C. No. 2290 of 1995 before this Court u/s 482 of the Code of Criminal Procedure challenging the order of the Sessions Judge. Learned Single Judge of this Court in the decision in Prem Shankar v. CBI 1998 (2) KLT 103, dismissed the petition. Before this Court respondents herein had advanced various contentions. It is worthwhile to extract portion of the judgment which reads as follows:

"The submissions of the learned counsel appearing for all the petitioners would be that the cognizance of those offences have been taken by the Chief Judicial Magistrate beyond the period of limitation prescribed u/s 468 Crl.P.C. Hence the proceedings pending before the Magistrate in C.C. No. 513 of 1995 can be quashed and in support of their arguments they placed reliance on the propositions settled; by the Apex Court and on some of the judgments delivered by High Courts".

After referring to various decisions cited by the respondents herein the Court held as follows:

"On the above principles, now let me look into the facts in the present case before me. The Supreme Court passed the final order on 22.9.1993 entrusting the investigation of this case to CBI. CBI then filed the chargesheet on 27.4.1995. The period taken by CBI from 22.9.1993 till 27.4.1995 was explained by the learned Public Prosecutor of CBI. According to him, they had to obtain the sanction from the State Government and the matter had also to be clarified in approaching the Government of India as one of the accused is an IPS Officer. The above submission of the learned Public Prosecutor is fortified by the records placed before this Court. On the date of the final order passed by the Supreme Courton 22.9.1993, as a matter of fact, the period of limitation of taking cognizance of these offences was barred. The Supreme Court, taking into consideration of the above aspect, has passed the order on that day directing CBI to investigate the matter. Therefore, it is idle now to advance an argument that the Supreme Court was not aware of the aspect of limitation already barred prior to 22.9.1993. However, the learned Public Prosecutor, CBI is not standing in the way of considering the period of limitation in the light of the settled principles of the Supreme Court and this Court. In this context it is pertinent to note once again that in all the citations, stated supra, the final orders have been passed in the petition u/s 473 Cr.P.C. In the instant case before me, the learned Single Judge has only remitted the matter to the Chief Judicial Magistrate to consider the petition to be filed by the CBI u/s 473 Cr.P.C. Hence it is needless to say that no final order has been passed by the Court below in a petition u/s 473 Cr.P.C. What that be so. in mooving cases like the present u/s 482 Crl.P.C. there will not prevail a healthy atmosphere in the administration of justice. For, only in order to prevent the abuse of process of Courts, and miscarriage of justice and to secure the ends of justice in the rarest of rare case Section 482 Cr.P.C. can be invoked during investigation and enquiry or trial before the Court."

Learned Judge dismissed the petitions and refused to quash the proceedings initiated against the respondents in C.C. No. 513 of 1995.

Aggrieved by the said order respondents herein took up the matter before the Apex Court and the Apex Court in K.G. Premshanker v. Inspector General of Police, (supra) did not interfere with the order of this Court and dismissed the SLP holding as follows:

"In the present case, after remand by the High Court, civil proceedings as well as criminal proceedings are required to be decided on the evidence, which may be brought on record by the parties".

Accused 1 and 7 in C.C. No. 513 of 1995 having failed in their attempt u/s 482 of the Cr.P.C. have approached this Court by filing the present Writ Petitions invoking the jurisdiction under Article 226 of the Constitution of India to quash the proceedings in C.C. No. 513 of 1995 on the file of the Chief Judicial Magistrate, Ernakulam which was refused to be quashed u/s 482 of the Code of Criminal Procedure.

Learned Single Judge relied upon several decisions of the Apex Court in State of Andhra Pradesh Vs. P.V. Pavithran, , Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., , Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , P. Ramachandra Rao Vs. State of Karnataka, , Biswanath Prasad Singh Vs. State of Bihar, , Nazir Khan and Others Vs. State of Delhi, , and Antony v. State of Kerala 2001 (3) KLT 1, and opined that the delay in completing the investigation and the mistake committed in placing reliance on more than one First Information Reports have caused prejudice to the accused persons. Learned Judge also held that the allegations levelled against the accused would not disclose the ingredients of the offence of criminal conspiracy and therefore quashed the proceedings.

In our view, the above reasonings cannot be sustained since those grounds were earlier raised for quashing the criminal proceedings invoking Section 482 of the Code of Criminal Procedure. Plea was rejected by the Chief Judicial Magistrate''s Court, this Court and later upheld by the Supreme Court. Petitioners have now filed the present Writ Petitions u/s 226 of the Constitution of India contending that the right of speedy trial guaranteed under Article 21 of the Constitution of India has been violated. Further, it was pleaded that even accepting the case of the prosecution, no offence has been made out and there was delay in registering the offence. Learned Single Judge completely lost sight of the history of the case and its background and has gone beyond the pleadings and allowed the Writ Petitions by quashing the criminal proceedings.

CBI took up the investigation on the specific direction of the Apex Court and a report was submitted before the Supreme Court on 5.5.1993, Final report was submitted by the CBI in the year 1995 before the Chief Judicial Magistrate''s Court, Ernakulam. Though the crime was registered on 13.2.1988 investigation was handed over to the CBI by the order of the Supreme Court in 13.12.1992 and there was a direction to complete the investigation and file report within four months. Objection was raised by the respondents before the Chief Judicial Magistrate stating that the Court could not have taken cognizance of the matter since it was barred by limitation and also at the instance of the respondents matter got stayed by the Supreme Court and later the SLP was dismissed. In any view of the matter, as we have already indicated, contentions raised by the respondents have already been rejected by this Court which was upheld by the Apex Court.

The present Writ Petitions have been preferred under Article 226 of the Constitution of India to quash the proceedings in C.C. No. 513 of 1995 which this refused to do in proceeding u/s 482 of the Code of Criminal Procedure. Counsel pointed out that even if this Court rejected the petition filed u/s 482 Cr.P.C. still petition under Article 226 is maintainable since speedy trial is fundamental right of a citizen. We find it difficult to accept the contention advanced on behalf of the Writ Petitioners. It is held by the Apex Court in State through CBI Vs. Dr. Narayan Waman Nerukar and Another, , that while considering the question of delay the Court has a duty to see whether the prolongation was on account of any delaying tactics adopted by the accused and other relevant aspects which contributed to the delay. In Abdul Rehman Antulay Vs. R.S. Nayak and another etc. etc., , the Apex Court held that it must be left, to the judicious discretion of the Court seized to a new case to find out from the totality of circumstances to a given case if the quantum of time consumed upto a given point of time amounted to violation of Article 21 and if so, then to proceed ahead. Facts would indicate at every stage of the proceedings the matter was got delayed at the instance of the writ petitioner. The writ petitioners were litigating before this Court and the Apex Court on various occasions which contributed for the delay. Of late, petitioner also challenged the same in a proceeding u/s 482 of the Code of Criminal Procedure and without success and later took up the matter before the Supreme Court which was also dismissed. Now the present Writ Petition has been filed under Article 226 of the Constitution of India which in our view, in the facts and circumstances of this case, cannot be entertained and only to be rejected.

We cannot also accept the contention of the writ petitioner that offence u/s 120B would not lie. It is well established that charge u/s 120B can be proved by direct evidence or by circumstantial evidence. Reference was made to the statement made by the CBI which according to it would show involvement of the accused and the conspiracy hatched. We may not express any opinion on those matters since the matter is pending before the Chief Judicial Magistrate''s Court. Counsel appearing for the respondents also submitted that the complainant is no more and therefore there is no purpose in proceeding with the matter at this point of time, a plea cannot be answered by us in a petition under Article 226 of the Constitution of India and in any view, the wife of the complainant is still prosecuting the matter.

In such circumstances, we are of the view, learned Single Judge has committed grave error in quashing criminal proceedings. Judgment of the learned Single Judge is set aside and the appeals stand allowed.