K.G. Thomas vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner who is the de facto complainant in C.C. No. 2397/2009 on the file of Additional Chief Judicial Magistrate Court, Ernakulam for speedy disposal of the case under Section 482 of Code of Criminal Procedure.

It is alleged in the petition that petitioner who is the de facto complainant in C.C. No. 2397/2009 pending before Additional Chief Judicial Magistrate Court, Ernakulam. The case was registered on the basis of a complaint filed by the petitioner as de facto complainant against the accused in the case alleging offences under Sections 324, 341, 452, 294(b) of the Indian Penal Code. After investigation, final report was filed and the case was taken on file and pending as C.C. 2397/2009 before the Additional Chief Judicial Magistrate Court, Ernakulam. Though the case was registered in the year 2009, till date, accused have not appeared and the case could not be disposed of. Further, accused Nos. 7 & 11 are no more and the charge against them has been abated as well. The case came up for hearing lastly, on 25.05.2014 and thereafter non bailable warrant is issued against the remaining accused persons and the case is now posted to 25.07.2014. The magistrate has not initiated any coercive steps against the sureties to get their presence as well. The petitioner sustained injuries. If the trial of the case is not expedited, the accused will go unpunished as well. So, the petitioner has no other remedy except to approach this court seeking the following relief:

To direct Additional Chief Judicial Magistrate, Ernakulam to take necessary steps to secure the presence of the accused persons in C.C. No. 2397/2009 for framing charge and further direct the Learned Magistrate to dispose of the case as expeditiously as possible, within a period of 6 months.

Considering the nature of relief claimed in the petition, this Court felt that the petition can be disposed of at the admission stage itself after hearing the Counsel for the petitioner and the learned Public Prosecutor and after getting a report from the concerned magistrate court. Accordingly, a report has been called for and the Additional Chief Judicial Magistrate has sent a report which reads as follows:

The above referred case is based on a final report submitted in Crime No. 1236/08 against 13 accused. None of the accused appeared before the court. Non-bailable warrant ordered against them. Strict direction has been issued to the SHO, E.T. South police station to execute the warrants. During crime stage the investigating officer granted bail to accused. In the absence of accused I am unable to state the time required for disposal of this case.

The Counsel for the petitioner submitted that the incident occurred in the year 2009 and by the time, charge sheet was filed and case was taken on file, two of the accused persons died and the petitioner is also getting old and if it is delayed further, the possibility of conviction will be less and magistrate is also not taking coercive steps to get the presence of the accused as well.

The application was opposed by the Public Prosecutor on the ground that coercive steps have been taken and older cases than this are pending before the concerned court.

It is an admitted fact that on the basis of the complaint filed by the petitioner, Crime No. 1236/08 was registered against 13 accused persons and after completion of the investigation, final report was filed and the case is pending before the Additional Chief Judicial Magistrate Court, Ernakulam as C.C. No. 2397/2009. It is also seen from the report of the Additional Chief Judicial Magistrate that, none of the accused appeared and non bailable warrants were issued against them and strict instruction have been given to the Station House Officer, Ernakulam Town South Police Station to execute the warrants. Since the offences alleged at that time were bailable in nature, the bail was granted to them from the police station itself. Thereafter, they did not appear before the court. So, it cannot be said that magistrate is not taking any coercive steps to procure the presence of the accused persons as non bailable warrants already been issued against them and instructions were given to the Station House Officer to execute the warrant and procure the presence of the accused. So, without getting the presence of the accused, it is not possible for the magistrate to dispose of the case as well. So, at this stage, it is not possible to give any direction to the magistrate with a time frame to dispose of the case as it will be only a futile attempt. So, the magistrate is directed to take all earnest attempt to procure the presence of the accused and then dispose of the case as expeditiously as possible.

With the above direction and observation, the petition is disposed of.