Nandakumar Nedungadi 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. 362 of 2009 on the file of the Judicial First Class Magistrate Court No. 1, Attingal for speedy disposal of the case under Article 227 of constitution of India.

It is alleged in the petition that the petitioner is a de facto complainant in C.C. No. 362 of 2009 pending before the Judicial First Class Magistrate Court No. 1, Attingal. The case was originated on the basis of a case registered as Crime No. 64 of 2008 of Pothencode Police Station on the basis of the statement given by the petitioner as de facto complainant against the accused persons who are arrayed as respondents 3 to 5 alleging offences under Section 406, 465, 467, 468, 420 r/w Section 34 of the Indian Penal Code. After investigation, final report was filed on 13.4.2009 and it was taken on file as C.C. No. 362 of 2009 and pending before the Judicial First Class Magistrate Court No. 1, Attingal. The petitioner is aged 70 years and he is the prime witness in the above case. The accused persons are Government servants and they are enjoying high reputation in the society. He is keen in prosecuting them and unless a direction is given, there is no possibility of the case being taken up at the earliest possible time. Being a senior citizen and person whose statement, the case has been registered has got a right to get the case expedited as well. So the petitioner has no other remedy except to approach this court seeking the following relief:-

"Issue a Direction to the Judicial First Class Magistrate Court-1, Attingal to try and dispose of C.C. No. 362/2009 as expeditiously as possible at any rate within a time frame to be fixed by this Hon''ble Court."

On the basis of the allegations on the petition and also the nature of relief claimed, 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 Pubic Prosecutor and getting a report from the concerned court and accordingly, a report has been called for and the learned Magistrate sent a report which reads as follows:

"With reference to the above information, most respectfully submitting the present stage of CC 362/2009 in Crime No. 64 of 2008 of Pothencode Police Station on the file of this Court.

This crime 64/2008 has been registered by Pothencode Police against the accused persons in 3 numbers alleging offences u/ss. 406, 465, 467, 468, 420 & 34 IPC. Final report u/s. 173 Cr.P.C. is filed on 13/4/2009.

Now this case stands posed for prosecution evidence. Before that, I would like to submit, the previous stages of the postings of this case. This case, all accused are bailed out on 24.8.2013. On 21.10.2013, charge framed u/s. 406, 420 and 34 IPC. Accused were discharged for the offences u/s. 465, 468 and 467 IPC. When charge read over and explained to them they all pleaded not guilty and claims to be tried. A2 filed an application for permanent exemption. Petition allowed, now he is permanently exempted. On the same day, summons issued to CW 1 and CW 2 case posted to 20.01.2014. On 20.01.2014 all accused absent, applied. CW 1 present. CW 2 present. But APP is on leave. So CW 1 bound over. Bailable warrant issued to CW 2, case adjourned to 29.4.2014. On 29.4.2014 there was no sitting. Since the Presiding Officer of this Court was promoted and transferred to Neyyattinkara as Sub Judge. Hence, case adjourned by notification to 29.9.2014.

These being the facts, I most respectfully submitted that I will try my level best to dispose the case within 6 months. I humbly requested that sufficient time may be allowed in this regard."

The counsel for the petitioner submitted that he is an aged person and senior citizen and grave offences have been committed by the Government servants who have been arrayed as accused. He is the prime witness and if the prosecution of the case is delayed, the possibility of getting his evidence recorded will not be possible due to his old age. So he prays for allowing the application.

The learned Public Prosecutor submitted that old cases are pending before that court.

It is an admitted fact that on the basis of the statement given by the present petitioner as de facto complainant, Crime No. 64 of 2008 of Pothencode Police Station was registered against respondents 3 to 5 alleging offences under Section 406, 465, 467, 468, 420 r/w Section 34 of the Indian Penal Code and after investigation, final report was filed on 13.4.2009 and it was taken on file as C.C. No. 362 of 2009 and pending before the Judicial First Class Magistrate Court-1, Attingal.

It is true that Article 21 of constitution of India gives right for the accused for speedy disposal of prosecution pending against them. At the same time, it cannot be said that the same right will not be available for a de facto complainant as well as he is a person who has to prosecute the case and seek the criminal action in motion. He is also equally an interested person in the prosecution. In this case the petitioner is aged 70 years, and he apprehends that if it is unnecessary delayed, his evidence will not be available, which ultimately will allow the accused to get an acquittal. So under the circumstances and also considering the report of the presiding officer of the court below, this court feels that the petition can be disposed of as follows:-

The Judicial First Class Magistrate Court-1, Attingal is directed to dispose of C.C. No. 362 of 2009 pending before that court as expeditiously, as possible, at any rate within six months from 29.9.2014 on the date on which the case is now posted for evidence of the prosecution witnesses.

Office is directed to communicate this order to the concerned court immediately.