Greik Xavier vs Sub Inspector Of Police, Angamaly
2023 Latest Caselaw 9289 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                 THE HONOURABLE MR.JUSTICE K. BABU
     FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
                      CRL.MC NO. 149 OF 2023
(CRIME NO.865 OF 2011 OF ANGAMALI POLICE STATION, ERNAKULAM)


PETITIONER/ACCUSED:

             GREIK XAVIER,
             S/O.XAVIER MULAPPAMADOM THOMAS,
             36/2552, AZAD ROAD, KALOOR P O,
             ERNAKULAM, PIN - 682017.

             BY ADVS.K.RAKESH ROSHAN
             C.VATHSALAN
             THUSHARA.V

RESPONDENTS/STATE/COMPLAINANT:

     1     SUB INSPECTOR OF POLICE , ANGAMALY POLICE STATION,
           ANGAMALY.P.O, ERNAKULAM DISTRICT,, PIN - 683572.
     2     THE DISTRICT SUPERINTEDENT OF POLICE,
           (ERNAKULAM RURAL), RURAL DISTRICT,
           ALUVA, ERNAKULAM, PIN - 683101.
     3     THE SUPERINTENDENT OF POLICE, UTHARA KANNADA
           KARWAR, KARWAR DISTRICT,
           KARANATAKA STATE, PIN - 581301.
     4     MARY,PUTHUSSERIL HOUSE, NAYATHODE, KAVARAPARAMBU,
           ANGAMALY, ERNAKULAM, PIN - 683572.
     5     STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
           KERALA, PIN - 682031.

             BY PP-SRI.N.R.SANGEETHARAJ


         THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   25.08.2023,    THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
 Crl.M.C.No.149 of 2023

                                     2




                                                                 "C.R."


                                    ORDER

The petitioner, the accused in FIR No.865 of 2011 of

Angamaly Police Station, seeks to quash all further proceedings

pursuant to the registration of the crime.

2. The petitioner is alleged to have committed an offence

punishable under Section 498-A r/w Section 34 of the Indian Penal

Code.

3. Heard both sides.

4. The petitioner was the husband of respondent No.4. A

child was born in their wedlock. While they were living together, a

difference of opinion arose in 2011. Respondent No.4 filed a complaint

against the petitioner and others, which formed the basis of registration

of the crime by the Angamaly Police on 9.6.2011. There were other

matrimonial cases pending between the petitioner and respondent No.4.

They settled the entire dispute in the presence of mediators. They filed

a joint petition as O.P.No.283/2014 seeking divorce before the Family

Court, Ernakulam. Their marriage was dissolved as per Annexure-3

judgment dated 19.8.2014.

Crl.M.C.No.149 of 2023

5. Based on the agreement entered into between the

parties, payments were made by the petitioner to respondent No.4 and

his child towards maintenance and other expenses. All other litigations

were closed based on the settlement arrived at between the parties.

6. Respondent No.4 filed a petition before the Station House

Officer, Angamaly, requesting to close the matter in view of the

settlement. However, it was informed that, as per Annexure-6, the CD

file was forwarded to the Superintendent of Police, Karwar, Karnataka,

as the place of occurrence is within the territorial limits of Mundgod

Police Station, Karnataka.

7. The crime was registered based on a complaint filed by

respondent No.4 in June, 2011. Respondent No.1 registered FIR on

9.6.2011. The parties arrived at a settlement and thereby resolved

their entire disputes, which is evident from Annexures-1 to 5. The

marriage between the petitioner and respondent No.4 was dissolved by

a decree of divorce in O.P.No.283 of 2014 on 19.8.2014. Respondent

No.4 thereafter filed an application before respondent No.1 requesting

to close the entire proceedings. The petitioner and respondent No.4

had no information regarding the further proceedings in the FIR Crl.M.C.No.149 of 2023

registered against the petitioner and others. When the petitioner

approached the Regional Passport Officer, Cochin, for the issuance of a

passport, as per Annexure-8, he was informed that he was the accused

in FIR.No.865/2011 of Angamaly Police Station.

8. The learned Public Prosecutor submitted that no final

report has so far been submitted against the petitioner in Crime

No.865/2011 of Angamaly Police Station.

9. Speedy investigations and trial are mandated by the

letter and spirit of the provisions of the Code and the constitutional

protection enshrined in Article 21 of the Constitution.

10. The Honourable Apex Court had observed that Article 21

confers a fundamental right on every person not to be deprived of his

life or liberty except according to procedure established by law; that

such procedure is not some semblance of a procedure, but the

procedure should be 'reasonable, fair and just'; and therefrom flows,

without doubt, the right to speedy trial. It was also observed that no

procedure which does not ensure a reasonably quick trial can be

regarded as 'reasonable, fair or just' and it would fall foul of Article 21.

The Apex Court clarified that speedy trial means reasonably

expeditious trial which is an integral and essential part of the Crl.M.C.No.149 of 2023

fundamental right to life and liberty enshrined in Article 21 (See

Maneka Gandhi v. Union of India and Another [(1978) 1 SCC

248], Hussainara Khatoon and Others v. Home Secretary, State

of Bihar [(1980) 1 SCC 81].

11. In Abdul Rehman Antulay and Others v. R.S.Nayak

and Another [(1992) 1 SCC 225] the Honourable Apex Court again

considered the exposition of Article 21 of the Constitution and

formulated a comprehensive set of propositions, meant to serve as

guidelines, upholding the right to speedy and public trial a constitutional

guarantee. Those propositions include the following:

(i) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;

(ii) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial;

(iii) In every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay?;

(iv) 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 work-load of the court concerned, prevailing local conditions and so on - what is called, the systemic delays;

Crl.M.C.No.149 of 2023

(v) Ultimately, the court has to balance and weigh several relevant factors - 'balancing test' or 'balancing process'- and determine in each case whether the right to speedy trial has been denied;

12. The mental agony, expense and strain which a person

proceeded against in criminal law has to undergo and which, coupled

with delay, may result in impairing the capability or ability of the

accused to defend himself have persuaded the constitutional courts of

the country in holding the right to speedy trial a manifestation of fair,

just and reasonable procedure enshrined in Article 21 [Vide:

P.Ramachandra Rao v. State of Karnataka (AIR 2002 SC 1856)].

13. I am of the firm view that no useful purpose is likely to

be served by allowing the criminal prosecution based on FIR

No.865/2011, the investigation of which commenced twelve years back

but reached nowhere, to continue. When the chances of ultimate

conviction are very bleak, continuation of prosecution against the

accused will result in an abuse of the process of law. (vide: Manik

Taneja v. State of Karnataka [(2015) 7 SCC 423]. As the parties

have settled their entire disputes and the victim does not want to

prosecute the matter further, continuation of prosecution against the

petitioner will only result in an abuse of the process of law. Therefore, Crl.M.C.No.149 of 2023

the entire proceedings pursuant to the registration of FIR No.865/2011

are liable to be quashed.

In the result, the Crl.M.C. is allowed. All further

proceedings against the petitioner pursuant to the registration of FIR

No.865/2011 of Angamaly Police Station stand quashed.

Sd/-

K.BABU Judge

TKS Crl.M.C.No.149 of 2023

APPENDIX OF CRL.MC 149/2023

PETITIONER'S ANNEXURES

Annexure-1 CERTIFIED COPY OF THE COMPLAINT FILED BY 4TH RESPONDENT BEFORE 1ST RESPONDENT.

Annexure-2 CERTIFIED COPY OF THE FIR REGISTERED BY 1ST RESPONDENT AS CR.865/2011, ON THE BASIS OF ANNEXURE- 1 COMPLAINT.

Annexure-3 TRUE COPY OF THE JUDGMENT DATED 19/8/2014 IN O.P NO.283/2014 OF FAMILY COURT, ERNAKULAM Annexure-4 CERTIFIED COPY OF THE AFFIDAVIT FILED BY PETITIONER HEREIN IN ANNEXURE-3 PROCEEDINGS. Annexure-5 CERTIFIED COPY OF THE AFFIDAVIT FILED BY 4TH RESPONDENT HEREIN IN ANNEXURE-3 PROCEEDINGS. Annexure-6 TRUE COPY OF THE LETTER DATED 22/6/2011 BY 2ND RESPONDENT TO 3RD RESPONDENT.

Annexure-7 TRUE COPY OF THE LETTER DATED 2/7/2011 BY 3RD RESPONDENT POLICE INSPECTOR, MUNDOG.

Annexure 7(a) ENGLISH TRANSLATION OF ANNEXURE-7.

Annexure-8    TRUE COPY OF THE LETTER DATED 5/11/2021
              CALLING   FOR    CLARIFICATION    RELATING   TO
              ANNEXURE-2 FIR (CR. 865/2011)



TKS