This is an application for quashing further proceedings against the petitioner in SC No.551 of 2010 pending before the Special Judge (SPE/CBI)-II (IV th Additional Sessions Court), Ernakulam under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code') 2. It is alleged in the petition that he is the sole accused now facing trial in SC 551/2010 pending before the Special Court (SPE/CBI)-II Ernakulam. The case was charge sheeted on the allegation that the petitioner who was shown as the 4th accused in the First Information Report had entered into a criminal conspiracy with accused Nos. 1 to 3 and 5 and with an intention to cheat the State Bank of Travancore in the matter of sanction and dispersal of agricultural loan of Rs.187 lakhs and agricultural cash credit of Rs.28 lakhs.
It is alleged that pursuant to the conspiracy, accused Nos. 1 and 2 who are public servants had dispersed the loan in favour of the petitioner on a false claim that 564 acres of land is being purchased by the petitioner from 5th accused, while the actual area of the land was only 219.97 acres. After investigation the Central Bureau of Investigation has sought sanction for prosecuting accused Nos. 1 to 3 in the matter for offences under Sections 467, 471 and 420 of the Indian Penal Code and Section 13(2) r/w section 13(1) (d) of Prevention of Corruption Act, 1986. But the sanctioning authority has not granted sanction as required under section 19 of the Prevention of Corruption Act to proceed against accused Nos.1 to 3 and so the investigating Officer submitted the final report only against accused Nos. 4 and 5. In the meantime 5th accused, in the case expressed his intention to become approver and accordingly he was examined under Section 306 of the Code and thereafter the case was committed to the CBI/Special court constituted for trial of cases investigated by the Central Bureau of Investigation where it was originally taken on file as SC 308/2003. During the course of proceedings, the Special Judge found that there is some irregularity in the committal and the procedure as required under Section 306(4) has not been fully complied with after framing charges and when it was posted for trial. Thereafter the learned Special Judge sent a reference to this Court to quash the committal and accordingly, as per Annexure -IV order, this Court had quashed the committal and sent it to Chief Judicial Magistrate's Court, for committing the case after complying with the procedure contemplated under Section 306 (4) (a) (i) of the Code. Thereafter, as per Annexure- V order, the records were returned to the Chief Judicial Magistrate's Court and as per Annexure-VI Order, the learned Magistrate after complying with the formality, committed the case to the Special Court and after committal, it was re-numbered as SC 551/2010. The petitioner appeared before that court on summons and after hearing both sides, charge was framed by the learned Special Judge. Before that, on getting summons from the Special Court, the petitioner challenged the same by filing Crl.M.C. 894/2011 to quash the proceedings before this Court and this Court by order dated 07/06/2011 dismissed the application. This was challenged by the petitioner before the Hon'ble Supreme Court by filing Special Leave to Appeal (Crl) No.5942 of 2012 and that petition was dismissed by the Hon'ble Supreme Court leaving of open the question of law if any, to be agitated by the petitioner. After dismissal of the petition filed by the petitioner by this Court, the learned Special Judge framed charge and it is thereafter the Special Leave petition filed by the petitioner was dismissed. Now the petitioner has come before this Court seeking the following relief:
to quash Annexure -VIII Charge and all further proceedings in SC 551 of 2010 pending before the Special Judge (SPE/CBI)-II (IVth Additional Sessions Court), Ernakulam.
3. On going through the allegations 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 Special Public Prosecutor appearing for the respondent Central Bureau of Investigation.
4. The counsel for the petitioner submitted that there was irregularity committed in committing the case and according to him, he had not received notice in the subsequent committal proceedings and since the offences alleged are triable by ordinary court namely Judicial First Class Magistrate's Court, there is no necessity to try the case by the Special Court merely because the investigation was conducted by the Central Bureau of Investigation. Further on account of the long delay caused in disposal of the case great prejudice has been caused him.
5. The application was opposed by the Special Public Prosecutor who is appearing for the first respondent Central Bureau of Investigation on the ground that there was no wilful delay in conducting the case and for some time the case was prolonged on the basis of the petition filed by the petitioner also. So he is not entitled to get the relief and all the contentions raised by him here were considered by this Court in the earlier proceedings and no new ground has been made out. So he prayed for dismissal of the petition.
6. It is an admitted fact that on the basis of the complaint given by the Bank a crime was registered against the Bank Officials, the petitioner and the person from whom the petitioner purchased the property alleging offences under Sections 461, 471, 420, r/w Section 34 of the Indian Penal Code and also under Section 13 (1) (d) of Prevention of Corruption Act 1986. The crime was registered in the year 2003. After investigation, the Investigating Officer found that the offences were established against all the persons and sought sanction to prosecute the bank officials from the sanctioning authority but it was declined by the sanctioning authority. So the Investigating Officer filed final report against the accused Nos. 4 and 5 in the original crime showing them as accused Nos. 1 and 2 in the final report filed before the Chief Judicial Magistrate's Court. In the meantime, when the case was pending before the Chief Judicial Magistrate's Court, the 5th accused expressed his intention to become approver and accordingly he was examined and the pardon was granted by the Chief Judicial Magistrate's Court after examining him and then committed the case to the Special Court for (SPE/CBI)-II (IV th Additional Sessions Court), Ernakulam where it it is originally taken as SC 308/2003. Thereafter charge was framed in spite of the objection raised by the petitioner regarding framing of charge and regarding committal proceedings and after it was posted for trial, it was revealed that the committal was not proper and so the learned Special Judge made a reference to this Court stating these facts. This Court by Annexure-III order taken this as Criminal reference No.9/2009 and by Annexure -III order, this Court quashed the committal as there was some procedural irregularity committed in the committal for non compliance of procedure provided under Section 306 (4) (a) (i) of the Code and on that basis it was sent back to the Chief Judicial Magistrate's Court as per Annexure -IV. Thereafter, after complying with the procedure, the Chief Judicial Magistrate has committed the case again as per Annexure-VI order and it is thereafter that the case was taken on file as again as SC No.551/2010 by Special Judge (SPE/CBI)-II (IVth Additional Sessions Court), Ernakulam.
7. This was challenged by the petitioner by filing Crl. M.C. 894/2011 before this Court and this Court by Annexure-VII order, considering all the contentions raised by the petitioner including the contentions now raised, rejected the contentions and dismissed the application stating that the committal is proper and Special Court has jurisdiction to try the case. It is thereafter that the learned Special Judge had framed charge against the petitioner. Though the petitioner had challenged Annexure -VII order before the Hon'ble Supreme Court by filing petition for Special Leave to appeal (Crl) No.5942/2012, that Special Leave petition was dismissed by the Hon'ble Supreme Court at the admission stage itself without granting leave. But however, there was an observation made as “However the question of law is kept open”. It is on the basis of this statement that the petitioner has now come before this Court by filing this petition. In fact, there is no new ground raised in this petition that what is raised in the earlier petition filed by the petitioner before this Court which rejected by this Court and the Special Leave Petition filed by the petitioner was dismissed by the Honourable Supreme Court. There is no further legal question also raised.
8. The learned counsel for the petitioner relied on the jurisdiction reported in Dr.Louis V.Pulickal V. State of Kerala [1997 (2) KLT 233] and argued that on account of the long delay in proceeding with the case, he is entitled to get quashing of the complaint as Article 21 of the Constitution guarantees speedy trial. The facts of the above case is not applicable to the facts of this case. In this case after the second committal, petitioner himself was responsible for the delay for some period as he obtained stay of proceedings which is evident from Annexure-VII order. So the person who is partly responsible for the delay is not entitled to come before this Court and seek quashing of the proceedings on the ground of delay in disposal of the case. He is not entitled to get that benefit. However now the case has already been posted for trial. So there is no question of further delay arises. The attempt on the part of the petitioner is only to protract the proceedings and to avoid the trial being conducted. So I don't find any merit in the petition and the same is liable to be dismissed.
In the result the petition is dismissed.
Communicate this order to the court below at the earliest.
Sd/-K.RAMAKRISHNAN JUDGE MJL