ROSY Vs. STATE OF KERALA

JUDGEMENT

(1.) I have read the draft judgment prepared by my learned brother M. B. Shah, J. and I respectfully agree with the conclusion that the judgment of the High Court should be interfered with and the Sessions Judge be directed to proceed from where he stopped. But I have a different approach regarding the interpretation of Section 202 of the Code of Criminal Procedure (for short 'the Code'). Interpretation of the said provision is of great practical importance in inquiries and trials. Hence I deem it appropriate to express my views on the interpretation of the proviso to Section 202(2) of the Code.

(2.) The facts of this case reflect the glaring example of how failure to raise objection at the appropriate stage could procrastinate criminal proceedings unduly to unpalatable levels. Almost eleven years have passed since the alleged offence was committed (being in possession of arrack containing methyl alcohol) and except the first two years which the Excise Officers took for completing the formalities to launch the prosecution, the rest of the years rolled on due to the delay in Court procedures. If the impugned order of the High Court is to sustain the already protracted criminal proceedings which reached almost final stage in the trial Court alone would stand relegated to square one for commencing all the legal steps over again and if the progress thereafter is at the same pace quite possibly another decade would be consumed for the trial to reach where it has already reached. Is it so inevitable a course to be adopted

(3.) It was on 16-11-1990 that one Excise Inspector, in his capacity as such, filed the complaint against the appellants and a few others before a Judicial Magistrate of Second Class alleging certain offences which were exclusively triable by the Court of Session and on 26-5-1990 the said Magistrate, without examining any witness, committed the case to the Sessions Court. In the list of witnesses appended to the complaint names of ten persons were included. For almost six years the case remained in limbo in the sessions Court presumably due to orders passed by the High Court. However, by the end of 1993 the decks were cleared for the Sessions Court to commence proceedings. Neither then nor when charges were framed by the Sessions Court on 2-9-1996 nor even thereafter did any of the accused raise any objection that the order of committal was wrong due to non-examination of any witness in the committal Court.