Citation: 2013(3)KLJ726,2014 CR l J 1157 kerala
IN THE HIGH COURT OF KERALA
Decided On: 18.06.2013
Appellants: P.A. Sidhartha Menon
Vs.
Respondent: The Deputy Superintendent of Police
Vs.
Respondent: The Deputy Superintendent of Police
Hon'ble Judges/Coram:C.T. Ravikumar , J.
B. Constitution of India, 1950 - Article 21 - Speedy trial - Courts have a duty to proceed with the criminal cases at a reasonable pace. Court has to weigh several factors and perform a balancing process and determine whether the right of speedy trial has been denied.
C. Criminal Rules of Practice - Rule 16 - Application for splitting up of a case in which some accused have not appeared, despite the passage of reasonable time, cannot be declined on the ground that the process have not been served on them and hence they cannot be considered absconding. When the denial of the right to speedy trial is established, it is inevitable to invoke the powers under R. 16.
2. I may firstly, consider the question whether right to speedy trial is guaranteed under Article 21 of the Constitution of India. The petitioners relied on the decisions of the Hon'ble Apex Court in Hussainara Khatoon v. State of Bihar MANU/SC/0119/1979 : (AIR 1979 SC 1360) : 1979 ICO 16, Abdul Rehman Antulay v. R.S. Nayak MANU/SC/0326/1992 : ((1992) 1 SCC 225) : 1991 ICO 106, P. Ramachandra Rao v. State of KarnatakaMANU/SC/0328/2002 : ((2002) 4 SCC 578) : 2002 ICO 325, Pankaj Kumar v. State of Maharashtra (MANU/SC/7818/2008 : (2008) 16 SCC 117) : 2008 ICO 4785 to substantiate their contention that it is guaranteed under Article 21 of the Constitution of India. Per contra, the respondent attempted to counter the petitioners' contention by approaching the question in a different angle. It is contended that the concept of fair trial entails the triangulation of the interests of the accused, the victim and the society and therefore, speedy trial is not to be achieved at the cost of fair trial. To drive home the point, reliance was placed on the decision of the Hon'ble Supreme Court in Zahira Habibulla H. Sheikh v. State of Gujarat MANU/SC/0322/2004 : ((2004) 4 SCC 158) : 2004 ICO 822 and V.S. Sasikala v. State, MANU/SC/0792/2012: AIR 2013 SC 613 : 2012 ICO 1144. According to the respondent, in the concerned calendar case, fair trial is possible only after procuring the presence of accused Nos. 6 and 9 and splitting the case against them and proceeding with the case against others would be antithesis to fair trial.
3. As a matter of fact, the question whether speedy trial is a fundamental right under Article 21 of the Constitution of India is no more res integra. In Hussainara Khatoon's case (supra), the Hon'ble Apex Court gave anxious consideration to the pathetic plight of under trial prisoners languishing in jail for years together and held that any procedure which would not ensure a speedy trial could be regarded as reasonable, fair or just and that the right of an accused to speedy trial rather 'a reasonably expeditious trial' is imbibed in Article 21 of the Constitution of India. In paragraph 5 thereunder, it was held thus:-
We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of IndiaMANU/SC/0133/1978 : (AIR 1978 SC 597) : 1978 ICO 106. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, far or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.(emphasis added)
4. In Abdul Rehman Antulay's case (supra), a Constitution Bench of the Hon'ble Supreme Court held that right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in S. 309, Cr.RC and that the said right comprehends all stages viz., investigation, inquiry, trial, appeal, revision and retrial. In paragraph 81, it was held:-
81. Article 21 declares that no person shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The main procedural law in this country is the Code of Criminal Procedure, 1973. Several other enactments too contain many a procedural provision. After Maneka Gandhi v. Union of India (MANU/SC/0133/1978 : AIR 1978 SC 597), it can hardly be disputed that the 'law' [which has to be understood in the sense the expression has been defined in clause (3)(a) of Article 13 of the Constitution] in Article 21 has to answer the test of reasonableness and fairness inherent in Articles 19and 14. In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary, such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Social interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable dispatch -- reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes.(emphasis added)
In paragraph 865 it was held thus:-
86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive.It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.(3) The concerns underlying the right to speedy trial from the point of view of the accused are:(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.(4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is -- who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on -- what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.(6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell in the following words:... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.(8) Ultimately, the court has to balance and weigh the several relevant factors -- 'balancing test' or 'balancing process' -- and determine in each case whether the right to speedy trial has been denied in a given case.(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order -- including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded -- as may be deemed just and equitable in the circumstances of the case.(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit in effectuates the guarantee of right to speedy trial.(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.(emphasis added)
5. In P. Ramachandra Rao's case (supra), a Seven Judges Bench of the Hon'ble Supreme Court held that criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. In paragraph 29 in P. Ramachandra Rao's case (supra), the Hon'ble Supreme Court upheld and reaffirmed the propositions laid down in the matter of speedy trial in Abdul Rehman Antulay's case (supra). It was held thus:-
The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay case adequately take care of right to speedy trial. We uphold and reaffirm the said propositions.
In paragraph 29 (5) thereunder, it was held:-
The criminal courts should exercise their available powers, such as those under Sections 309, 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482 Cr.PC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions.(emphasis added)
6. In Pankaj Kumar's case (supra), the Hon'ble Supreme Court even considered the question of the duty of the court on infringement of the right to speedy trial. In the light of the aforesaid decisions of the Hon'ble Supreme Court, the contra contention of the respondent to the petitioners' contention that right to speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India can only be a claptrap and therefore, it must fail. In short, speedy trial is undoubtedly a right flowing from Article 21 of the Constitution of India.
7. In A.R. Antulay's case (supra), the Hon'ble Supreme Court observed that the very fact of being accused of a crime is a cause for concern and it affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. It is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes. Right to life means right to live with full human dignity, without humiliation and deprivation or degradation of any sort. The impact of being an accused is evident from the aforequoted observations of the Hon'ble Supreme Court and therefore, there can be no doubt that the tag of 'accused' would deprive a man the right to live with full human dignity. It is these facets and factors that fetched 'fair trial' the recognition as a human right. Speedy trial is an integral part of fair trial. Therefore, I ween that right to speedy trial is also a human right and no civilized society can deny the same to an accused. Furthermore, it should always be the concern of the society to see that a real culprit is given the condign punishment at the earliest and also to see that an accused is given an early opportunity to clear the cloud of suspicion shrouded around him and to remove the tag of 'accused'. The said purpose in view that is founded on social interest could not be achieved if trial is unduly delayed as trial is the sole device to decide the guilt or innocence of an accused. Therefore, while considering the grievance of denial of speedy trial, the decision in Zahira Habibulla H. Shaikh's case (supra) has to be borne in mind. At the same time, the propositions laid in the form of guidelines, as observed by the Hon'ble Supreme Court, in A.R. Antulay's case (supra), more particularly, the first and eighth propositions are also to be borne in mind. At the risk of repetition I may advert to and quote the said propositions. They read thus:-
(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.(8) Ultimately, the court has to balance and weigh the several relevant factors -- 'balancing test' or 'balancing process' -- and determine in each case whether the right to speedy trial has been denied in a given case.
8. Nobody can dispute the position that courts have a duty to proceed criminal cases with a reasonable pace and according to me, it indeed is the cumulative conclusion possible and permissible in the light of all principles and propositions laid down in the decisions referred above. Then a question will sprout as to whether undue delay resulting in violation of right to speedy trial has occurred in this case. Proposition No. 5 in A.R. Antulay's case (supra), extracted earlier, assumes relevance in this context. The Hon'ble Supreme Court held that such a question has to be decided having regard to all the attendant circumstances. In these cases, the final report was laid on 11.6.2009 and the court took cognizance of offences on 23.6.2009. The fact is that despite the lapse of four years since the laying of the final report and about four years since taking of cognizance of the offences, charge is yet to be framed, if it is to be framed in the light of the materials available before the court. The summons issued and repeated to accused Nos. 6 and 9 were not served and the warrant issued against the sixth accused also remained unexecuted. It is also to be noted that the pendency of the extradition request made in respect of the 6th accused-Klaus Triendl was taken note of by the court below in Ext. P1 itself. This fact is evident from paragraph 3 of Ext. P1 and the relevant portion reads thus:-
The special Prosecutor for the CBI filed report stating that National Central Bureau India, Interpol, New Delhi informed that the request for extradition of Klaus Triendl (A6) received from the Special Judge-I Court, Ernakulam has been forwarded to the High Court of Ottawa for sending the same to Canadian Authorities and the copy of the letter was also produced. He prayed for time for filing objection to the discharge petitions and the case was posted to 10.08.2012 for objection and hearing on the discharge petitions and the report regarding the warrant against A6 and summons against A9. On 10.8.2012 another 3rd person filed Crl. M.P. 94/2012 to direct the CBI to conduct further investigation in the case. The Special Prosecutor for the CBI submitted that the extradition proceedings against A6 is pending and he is ready to make arguments regarding the petitions for further investigation. The petitioners in those petitions prayed for time stating that they got copy of the objection only on that day. The counsels for the accused persons submitted that the case against A6 and A9 may be splitted and the case against the other accused persons who appeared before the court may be proceeded since there is no possibility of getting the presence of A6 and A9 in the near future. The counsels for the accused persons submitted that the case may be splitted against A6 and A9 and the case may be posted for preliminary hearing on framing charge, to consider whether the accused persons are to be discharged or charge has to be framed against them.
In paragraph 4 of Ext. P1, it is further stated:-
The Special Prosecutor for the CBI filed a Memo stating that the extradition request of A6, Klaus Triendl, to the Government of Canada has been received by the concerned Canadian Authority and the matter is under process. Communication has been received from the Canadian Department of Justice through Interpol, India that the Authorities in Canada need certain clarifications in the matter as per the required pattern for further processing the extradition request at their ends. The said request of the Canadian Authorities forwarded to the S.P., CBI/ACB, Chennai by Interpol, India vide their letter dated 04.07.2012 along with the enclosure were submitted before the court. He submitted that the matter is under further process as per the request of the Canadian Authorities. The Special Prosecutor for the CBI prayed that a reasonable time may be given to the prosecution for executing the warrant against A6.
9. Ext. P1 would further reveal that the court below had seen the report of the CBI and the documents produced by them. In the context of the rival contentions and the questions posed for consideration, it is relevant to look into the following portion from paragraph 5 of Ext. P1:-
From the report of the CBI and the documents produced by them, it can be seen that they are taking effective steps for the execution of warrant against A6, they are making earnest attempts to procure the presence of A6 before the Court. But at the same time the case cannot be dragged for a long time for obtaining the presence of A6 and A9. The right of the accused who appeared before the court for speedy trial has also to be taken into consideration. As per Rule 16 of the Criminal Rules of Practice in Kerala 'where there are several accused persons and only some of them have appeared or being produced before the court, if the Magistrate is satisfied that the presence of the other accused persons cannot be secured within a reasonable time, having due regard to the right of such of the accused as have appeared to have the case against them enquired into without delay, he shall proceed with the case as against such of the accused as have appeared and dispose of it according to the law'. It is to be noted that the process of the court were not served on A6 and A9 and they cannot be considered as absconding. From the documents produced by the prosecution, it can be seen that the prosecution has been making earnest attempts to secure the presence of A6 and A9 before the court. So at this stage, it cannot be considered that the presence of 6 and A9 before the court cannot be secured within a reasonable time. Considering the facts and circumstances of the case and the fact that the prosecution is taking effective steps to obtain the presence of A6 and A9 before the court, I consider that a reasonable time has to be given to the prosecution for effecting the service of the process against A6 and A9 and the splitting up of the case against A6 and A9 can be considered after that. Considering all these aspects, I find it just and reasonable to grant two months time to the prosecution for effecting service of the process of the court on A6 and A9, to obtain their presence before the court. After that, splitting of the case against A6 and A9, and the posting of the case for preliminary hearing on framing of charge, to consider whether the accused persons are to be discharged or change has to be framed against them, can be considered. (CrLM.P. 24/12, Crl. M.P. 83/12 and Crl. M.P. 84/12 can be considered at that time).
10. Thus it is evident from paragraphs 3 and 4 of Ext. P1 itself that the request of the Canadian Authorities viz., Ext. P4 in the former original petition and the letter dated 4.7.2012 mentioned therein viz., Ext. P9 in the latter original petition were produced before the court and it was also submitted by the Special Prosecutor that the matter was under further process. In fact, it was in these circumstances that the Special Prosecutor sought for reasonable time for the prosecution to execute the warrant against the 6th accused. Paragraph 5 extracted above would reveal that the court below had seen the report of the CBI and the documents produced by them and then formed the opinion that CBI had been making earnest attempts to procure the presence of the 6th accused before the court. Paragraph 5 of Ext. P1 would further go to show that these circumstances made the court below to observe in Ext. P1 that the case could not be dragged for long time for obtaining the presence of the 6th and 9th accused and that the right of the accused who appeared before the court for speedy trial also to be taken into consideration. Rule 16 of the Rules of Criminal Rules of Practice (for short the "Rules") was also taken into consideration besides the steps taken by the CBI to obtain the presence of accused Nos. 6 and 9 for the purpose of fixing the reasonable time to be granted to the prosecution for effecting the service of process against accused Nos. 6 and 9 and splitting up the case against them. Accordingly, two months' time was granted for that purpose as per Ext. P1 and going by Ext. P1, thereafter, the question of splitting up the case against accused Nos. 6 and 9 could be considered. On 20.12.2012, a petition was filed for extension of the time stipulated as per Ext. P1 by three months, but time was granted only up to 4.12.2012. It was thereafter that the impugned Ext. P5 order was passed dismissing Crl. M.P. Nos. 154 and 155 of 2012 filed by the petitioners herein. A scanning of Ext. P5 would reveal the reasons for the dismissal of the said petitions. Firstly, it is stated therein that since the passing of Ext. P1 order dated 16.8.2012, the circumstances had changed. What is the changed circumstances? A close scrutiny of Exts. P1 and P5 would answer the question. I have already extracted the relevant portions from paragraphs 3 to 5 from Ext. P1 order dated 16.8.2012 which would reveal that the pendency of the extradition request against the 6th accused with the Canadian Authorities and that they sought for clarifications and to forward the same in the required pattern for further processing of the extradition request were taken note of by the court below while passing the same. At the same time, from paragraph 6 of Ext. P5 order it is evident that the learned Special Judge firstly took note of the statement in the memo filed by the Special Prosecutor for CBI to the effect that the extradition request of the 6th accused to Government of Canada was received by the concerned Canadian Authorities and that the matter was under process and then looked into the report filed by CBI and the documents produced by them revealing the receipt of the extradition request by the International Assistance Group, Ministry of Justice, Government of Canada and also their request for clarifications and for additional documents with the certification of the trial court. The fact that a guide was attached for assistance in the preparation of Record of Case and General Legal Statement as required by the Canadian Authorities, was also taken into account. It is those aspects that constrained the learned Special Judge to observe that there is changed circumstances. After carefully scanning Ext. P1, I have already found that these materials were already available before the trial court even while passing Ext. P1 order, as is obvious from the paragraphs extracted from Ext. P1 hereinbefore. The specific contention of the petitioners is that Ext. P4 was produced before the court much before the passing of Ext. P1 order dated 16.8.2012 and this assertion is not disputed by the respondent. That apart, the correctness of the said assertive statement of the petitioners is evident from Ext. P1 itself. True that those aspects were not seriously gone into at that time. In Ext. P1 itself it is stated that the special Prosecutor has filed a report and also a memo stating that the extradition request of the 6th accused was under process and that the Canadian Justice Department sought for clarifications and placement of matters in the required pattern for further processing. In paragraph 5 of Ext. P1, evidently, the court below stated that from the report of the CBI and the documents produced by them it could be seen that they had taken effective steps to procure the presence of the 6th accused before the Court. Ext. P4 assumes much relevance in the context of the contentions and the question under consideration. The very first sentence in Ext. P4 dated 13.6.2012 reads thus:-
We acknowledge receipt of your request for extradition of Kalous Trendl dated November 3, 2011, which was sent under diplomatic note No. OTT/CONS/413/2011 dated December 21, 2011.(emphasis added)
11. It is evident from the aforequoted portion from Ext. P4 that the extradition request of the 6th accused is dated 3.11.2011 and it was sent under diplomatic note dated 21.12.2011. In other words, it is evident from Ext. P4 that from the part of the prosecution, the steps for extradition of the 6th accused commenced in November, 2011 itself. The only development which was not before the learned Special Judge at the time of passing of Ext. P1 is the details and documents revealing preparation of Record of Case and General Legal Statement in the required format and the supporting documents for onward transmission to the concerned Canadian Authorities. At the same time, in Ext. P5 itself it is noted that some more materials were to be collected and submitted before the court even as on 24.12.2012. It is an admitted position that the steps for extradition of the 6th accused commenced in the year 2011 are still to be placed finally with all required documents and in the prescribed format before the concerned Canadian Authority.
12. The learned counsel for the petitioners submitted that it is evident from the preparation of the "Record of Case' and 'General Legal Statement' that they were not prepared in the prescribed format and this may cause further delay in the lengthy process of consideration of extradition request by the Canadian Authorities. Admittedly, the steps initiated for extradition of the 6th accused in the year 2011 are yet to turn fruitful on account of the failure to conform to the prescribed procedures for that purpose. Obviously, the Canadian Justice Department sought for clarifications and submission of matters in the required format. Two separate documents namely the 'Records of Case' and 'General Legal Statements' have to be filed to enable them to process the extradition request of the 6th accused. The 'Records of Case' is required for placing before a Canadian Court to consider the facts and circumstances and to determine whether the conduct alleged against Mr. Klaus Triendl would constitute a Canadian offence if the conduct had occurred in Canada. The Records of Case should not contain any reference to any Indian offences or Indian law, going by their instructions. Specific reference to Indian law and Indian offences are prohibited as is evident from Ext. P4. It is to assist in the preparation of the 'Record of the Case' and the 'General Legal Statement' that they attached guide to prepare extradition requests, in Ext. P4. The sufficiency or otherwise of the materials or any violation in the matter of preparation of 'Record of Case' or 'General Legal Statement' are not matters for this Court to consider as they are to be considered by appropriate Canadian Court/the concerned Canadian Authority. In such circumstances, though the petitioners specifically pointed out certain flaws in the matter of preparation of Records of Case and also certification of the Records of Case, I am of the considered view that merits of such contentions cannot be looked into by this Court. At the same time, the contentions relating to failure to conform to the prescribed procedures could be gone into by this Court for the limited purpose of considering whether there is any basis for the apprehension entertained by the petitioners herein in the matter of occurrence of further delay. At the same time, I do not propose to make a detail endeavour in that regard. As noticed hereinbefore, going by the instructions for preparation of records of case reference to the Indian offence or Indian law is prohibited. Ext. P7 in the latter original petition is the certified copy of the extradition request for Mr. Klaus Triendl carrying the Record of the Case prepared for onward transmission. In the opening paragraph itself and then in paragraphs 15 and 17 there is reference to the Indian offences and Indian Laws despite specific prohibition. In such circumstances, it cannot be said that there is no basis at all for the petitioners to entertain an apprehension regarding the likelihood of occurrence of further delay in the matter of extradition of the 6th accused. The impact of such acts is not called for consideration by this Court. It is also to be noted that there is nothing on record to show that subsequent to the failure to serve the summons on the 9th accused fresh steps have to be taken for that purpose. The report received from the trial court would reveal that no such steps have been taken. In short, the fact remains is that despite the lapse of more than four years since the laying of the final report and about four years after the taking of cognizance of the offences the charges against the petitioners and the other accused who appeared before the court are yet to be framed if framing of charge is called for based on the available materials.
13. The petitioners have filed Crl. M.P. Nos. 154 of 2012 and 155 of 2012 praying for splitting up the case against the 6th and 9th accused and for proceeding with the case against the remaining accused who appeared before the court, essentially, under Rule 16 of the Rules. Obviously, the court below dismissed the petitions on coming to the conclusion that accused Nos. 6 and 9 could not be considered as absconding as the processes of the court were not served on them. It appears that the trial court is of the view that splitting up of cases is possible and permissible under Rule 16 of the Rules only if the co-accused of the accused who appeared in a particular case before the court, is found absconding after service of process of the court on him/her and for drawing such a conclusion, the learned Special Judge relied on heading prefixed to the said rule: "Cases in which some of the accused have absconded." The first question is whether it is a wrong legal approach to the admitted position of law. In that context, it is relevant to refer to the decision of the Hon'ble Supreme Court in M/s. Frick India Ltd. v. Union of India MANU/SC/0787/1989 : (AIR 1990 SC 689) : 1989 ICO 10. It was held by the Hon'ble Supreme Court that when the provisions are very clear and unambiguous, the heading prefixed to the section or marginal note could not control the meaning of the relevant provision. For a proper consideration of the aforesaid question in the light of the decision in M/s. Frick India Ltd.'s case (supra), Rule 16 of the Rules, together with its head note is worthy for reference and it reads thus:-
16. Cases in which some of the accused have absconded.- (1) Where there are several accused persons and only some of them have appeared or been produced before the Court, if the Magistrate is satisfied that presence of the other accused cannot be secured within a reasonable time, having due regard to the right of such of the accused as have appeared to have the case against them enquired into without delay, he shall proceed with the case as against such of the accused as have appeared and dispose of it according to law. As regards the accused who have not appeared, he shall give the case a new number and enter it in the register of cases received, and if it remains pending for a long time and efforts to secure the presence of the accused have failed and the case against the accused who have appeared has been disposed of, the Magistrate shall report the whole matter as regards all accused to the Chief Judicial Magistrate and the Chief Judicial Magistrate may direct that the case against the absent accused be removed to the register of long pending cases, or, if the Chief Judicial Magistrate is of opinion that the case against the absent accused is wholly false, he may direct that the case be omitted from the register and the returns altogether:Provided that the Chief Judicial Magistrate may at any subsequent time order the case to be entered in the register of long pending cases.(2) If subsequently any of the absent accused is produced or appeared before the Court or the accused who was insane ceased to be insane, the case against him shall be registered under a new number.(emphasis added)
14. In the light of the decision of the Hon'ble Supreme Court, there cannot be any doubt whatsoever on the admitted position of law that any provision of law has to be understood and applied based on the content and purpose after reading it in its entirety and when its meaning is clear and unambiguous from the body the headnote or marginal note could not control its meaning and therefore, for its application. Viewing Rule 16 of the Rules in the light of the said decision it can only be said that the action on the part of the learned Special Judge in relying on its headnote 'Cases in which some of the accused have absconded' while considering CrLM.P. Nos. 154/2012 and 155/2012 and the scope of splitting up the case as against the accused Nos. 6 and 9, is a wrong approach to the admitted position of law. The provision thereunder in unambiguous terms mandates that in cases where there are several accused persons and only some of them appeared or produced before the court, having due regard to the right of the accused appeared in the court, it shall proceed with his/their case and dispose of it according to law provided the Magistrate is satisfied that the presence of the other accused could not be secured within a reasonable time. Thus, it is evident that the decisive factor is the satisfaction regarding the question whether the presence of the other accused could be secured within a reasonable time. That satisfaction should necessarily be a satisfaction drawn from all the attending circumstances legally liable to take notice and adhere. It is evident from Ext. P1 dated 16.8.2012 that the learned Special Judge after taking into account all such circumstances reckoned two months as the reasonable time to procure the presence of accused Nos. 6 and 9. Later, the time so stipulated was extended and the impugned Ext. P5 order was then passed dismissing the petition after adopting a wrong legal approach as aforesaid. As noticed hereinbefore, the charge sheet was filed on 12.6.2009 and the cognizance of the offence was taken on 23.6.2009. The summons issued to the 6th and 9th accused could not be served and the warrant of arrest issued against the 6th accused even now, remains unexecuted. Though the extradition request of the 6th accused was made in the year 2011, it is not placed before the competent Canadian court and also before the concerned Canadian Authorities in the required format. The time of two months granted earlier to the prosecution to procure the presence of the 6th accused had expired long ago and virtually, it was extended twice. Even now, with regard to the time within which the presence of the 6th and 9th accused could be obtained, there is no certainty. The processing of extradition request of the 6th accused is a lengthy process even according to the respondent. In the circumstances expatiated earlier, the only satisfaction that could be arrived in the matter of procuring the presence of accused Nos. 6 and 9 is that their presence could not be procured within a reasonable time. There is absolutely no reason for escaping such a conclusion considering the passage of four years since the filing of charge sheet and the lack of exactitude in the matter of extradition of the 6th accused and the failure to take fresh steps for serving summons on the 9th accused. Rule 16 of the Rules is meant to apply in such circumstances and its application cannot be declined on the ground that the process of the court is yet to be served on them and hence, the 6th accused could not be considered as absconding. In the totality of the circumstances, without all peradventure I can say that it is a case where splitting up of the case against the accused whose presence is yet to be procured and proceeding with the case of the accused who appeared before the court, in accordance with law, are required in terms of Rule 16 of the Rules and to alleviate the grievance regarding the denial of the right to speedy trial the petitioners are justified in approaching this Court. When the denial of the right to speedy trial is established and the requirement of invocation of powers under Rule 16 of the Rules is felt inevitable this Court has a duty to remedy the grievance of infringement of the right to speedy trial guaranteed under Article 21 of the Constitution of India. The petitioner in the former original petition is a septuagenarian and the petitioner in the latter original petition is a politician and their limited prayer for a speedy trial, in accordance with law, cannot be declined in the circumstances mentioned above and taking into account the position of law in Rule 16 of the Rules which virtually recognizes the soul of the quotation 'Law is long but life is short'. In paragraph 86 of the judgment in A.R. Antulay's case (supra), it was held thus:-
An objection based on denial of right to speedy trial and for relief on that account, first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings except in case a grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.(emphasis added)
15. In paragraph 5 of the decision in Ramachandra Rao's case (supra), it was held that the criminal courts should exercise their available powers under the Code of Criminal Procedure to effectuate the right to speedy trial. Further, it was held that in appropriate cases, jurisdiction of the High Court under section 482 Cr.P.C. and Articles 226 and 227 of the Constitution of India could be invoked for seeking appropriate relief or suitable directions. Indisputably, the petitioners approached this Court only for effectuating the speedy trial. On the mere ground of existence of an alternative remedy, this Court would not be justified in declining the exercise of extraordinary jurisdiction and above all, securing ends of justice is the ultimate goal of any legal proceeding. In the result, Ext. P5 to the extent it rejects the prayer of the petitioners for taking appropriate steps for splitting up of the case as against accused Nos. 6 and 9 and to proceed their case strictly in terms of the provisions under Rule 16 of the Rules, is set aside. There will be a consequential direction to the Court of Special Judge (SPE/CBI)-I, Thiruvananthapuram to split up the case viz., C.C. No. 44 of 2011 as against accused Nos. 6 and 9 in terms of the provisions of Rule 16(1) of the Rules and to proceed with the trial of the case against the remaining accused including the petitioners, in accordance with law. It is made clear that in case the presence of the 6th accused is procured pursuant to the extradition request made to the authorities of the Canadian Government and if the summons is served on the 9th accused in C.C. No. 44 of 2011 pending before that court, the case as against them shall be considered in accordance law, after taking into account the provisions under Rule 16(2) of the Rules, the other relevant provisions of law and also the judicial pronouncements on the subject.
The original petitions are allowed to the extent aforenoted.
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