P J SEBESTIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners have approached this Court invoking Articles 226 and 227 of the Constitution of India praying for the issue of a writ of certiorari for quashing a criminal complaint, C. C. No. 111 of 1997 on the file of the Chief Judicial Magistrate's Court, Pathanamthitta. At the hearing, it was submitted that the motion was really one under Article 227 of the Constitution of India, in the wake of the decision of this Court in Dr. Louis V. Pulickal v. State of Kerala, 1997 (2) KLT 233. The case was therefore argued on the basis that it was a motion under Article 227 of the Constitution of India.

(2.) The petitioners are accused Nos. 1 to 3 in C. C. No. 111 of 1997 on the file of the Chief Judicial Magistrate's Court, Pathanamthitta. The three accused were charged with offences punishable under Sections 409, 420 and 120-B read with Section 34 of the Indian Penal Code. The petitioners are alleged to be the partners of a financial institution by name 'Southern Financiers'. They had received deposits from the public promising to repay the deposits with good interest. But, they cheated the depositors by closing down the business concern without prior notice and without returning the deposits. They had thereby committed the offences they were charged with. The petitioners have raised various defences including the one that petitioners 2 and 3 were not partners of the firm, that there was no closing down of the business, that the petitioners have not cheated anyone and that they are not guilty of the offences charged. According to the petitioners, the First Information Report regarding the offences allegedly committed on 11-9-1985 was only dated 27-11-1987. In respect of the FIR registered in the year 1987, the charge sheet was filed before the Chief Judicial Magistrate's Court, Pathanamthitta only in the year 1997. The petitioners were also accused in C. C. No. 14 of 1995 before the Judicial First Class Magistrate's Court, Kottayam for offences under Sections 409 and 420 and 120-B of the Indian Penal Code based on the same facts and based on the same incident. There was also an insolvency case to which petitioner No. 1 was a party. A decade and more have elapsed since the alleged offences were committed, the documents have become moth eaten, memories of the witnesses have faded and the petitioners are constantly under threat and harassment. The prosecution hangs as a Democles Sword over their heads. The liberty of the petitioners has been curtailed and their fundamental rights have been trampled upon. The petitioners are therefore entitled to relief from this Court. The right to speedy trial was implicit under Article 21 of the Constitution of India. The petitioners are therefore entitled to have the criminal proceedings, C. C. No. 111 of 1997 on the file of the Chief Judicial Magistrate's Court, Pathanamthitta quashed.

(3.) Learned counsel for the petitioners referred to various decisions outlining the content and contours of the fundamental rights of a citizen under Article 21 of the Constitution. Referring to the decision in Deena v. Union of India, 1983 (4) SCC 645 : (1983 Cri LJ 1602) counsel pointed out the approach to be adopted by the Court. Starting from the decision in Sreekantan Nair v. Travancore Mineral Concerns, AIR 1955 SC 792 (sic) and ending with the decision in Biswanath Prasad Singh v. State of Bihar 1994 Supp (3) SCC 97 : (1994 Cri LJ 242), learned counsel urged that this was a fit case where the proceedings ought to be quashed under Article 227 of the Constitution of India. Great emphasis was laid by counsel on the decision in Dr. Louis V. Pulickal v. State of Kerala, 1997 (2) KLT 233, to urge that the proceedings must be set aside on the ground of delay. The learned Government Pleader answered this argument by pointing out that the petitioners had promised attractive interests to the people and had taken deposits from a large number of people and had simply closed down the firm without returning the amount taken in deposit, that, this was a crime against society, that the delay in the prosecution occurred because of the obstructive tactics adopted by the petitioners, that the accused were absconding and only later they appeared before the Court and got bail, that the complaint was filed in time and since this was a crime against society, this was not a fit case where this Court ought to exercise its discretionary jurisdiction under Article 227 of the Constitution of India. Counsel submitted that this was a fit case where the trial ought to be permitted to go on and the petitioners punished if they are found guilty.