Kerala High Court
Dr.K.R.Haridas vs The Dy.S.P.(Vacb) on 24 October, 2024
Author: K. Babu
Bench: K. Babu
O.P(.Crl) No.801/2023
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"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA,
1946
OP(CRL.) NO. 801 OF 2023
CRIME NO.05/2017 OF VACB, KANNUR, Kannur
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.9 OF 2020
OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, KANNUR AT
THALASSERY
PETITIONER/S:
DR.K.R.HARIDAS
AGED 56 YEARS
FORMERLY RESISDING AT KARIKKEN
VEEDU,MEVALLOOR.P.O. VAIKKOM,FORMER HOD AND NOW
PROFESSOR,DEPARMENT OF CHEMISTRY,SWAMY
ANANDATHEERTHA SAT CAMPUS, KANNUR UNIVERSITY
CAMPUS,PAYYANNUR, NOW RESIDING AT SWAROOPAM
THAMARAKULANGARA,POST EDAT,KANNUR DIST.,KERALA,
PIN - 670327
BY ADVS.
T.ASAFALI
LALIZA.T.Y.
O.P(.Crl) No.801/2023
2
2024:KER:79822
RESPONDENT/S:
1 THE DY.S.P.(VACB)
VACB OFFICE,THAVAKKARA, KANNUR, PIN - 670002
2 STATE OF KERALA(DIRECTOR, VIGILANCE AND ANTI
CORRUPTION BUREAU,KANNUR)
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY SRI A RAJESH SPL PUBLIC PROSECUTOR
(VIGILANCE)
SMT S REKHA SR PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 24.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P(.Crl) No.801/2023
3
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"C.R."
K. BABU, J
-------------------------------------------------
O.P.(CrL) No.801 of 2023
-------------------------------------------------
Dated this the24th day of October, 2024
JUDGMENT
The prayers in the Original Petition filed under
Article 227 of the Constitution of India are as follows:-
(i)to call for the records relating to No.9/2020 (VC
5/2017/KNR) on the file of the Court of Enquiry
Commissioner & Special Judge, Thalassery and after
hearing the petitioner and the respondents orders may
be passed quashing all proceedings as against the
petitioner initiated in pursuance of Exhibit P2 Final
Report by exercising the supervisory jurisdiction vested
with this Hon'ble Court under Article 227 of the
Constitution of India
(ii)Granting such other interim reliefs which this Hon'ble
Court may deem fit and proper to meet the ends of
justice;
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2. The petitioner is accused No.1 in C.C.No.9 of
2020 (VC 5/2017/KNR) on the file of the Enquiry
Commissioner and Special Judge, Thalassry. The
petitioner and the other accused face charges under
Section 13(2) r/w 13(1)(c)(d) of the Prevention of
Corruption Act, 1988 and Sections 468 and 471 r/w
Section 34 of the Indian Penal Code.
3. The prosecution case is as follows:-
3.1 The petitioner was the Head of the Department
of Chemistry at the SAT Campus, Kannur University.
Accused No.2 was the Head of the Department of Physics.
Accused No.2 sought permission from the Vice Chancellor
to appoint a Professional Assistant in the Department of
Physics. The University permitted Accused No.2 to
appoint a Professional Assistant on a Daily Wage basis.
One Sajith Kumar K. (CW 15) was employed as a
Professional Assistant in the Chemistry Department.
Accused No.2 obtained a copy of the educational
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qualification of one Vinod Kumar.D (CW14) and
fraudulently added the address of the family house of
CW15 and made records to the effect that the
Department appointed Shri. Vinod Kumar D. as
Professional Assistant in the Department of Physics on
18.08.2008. Accused No.2 misappropriated the salary of
the Professional Assistant, stating that the same was
disbursed to Shri Vinod Kumar D. Accused No.2 availed
leave to attend an orientation programme from
10.10.2008 to 06.11.2008. The petitioner was given
charge of the Department of Physics when accused No.2
was on leave.
3.2. The petitioner, while officiating as the Head of
the Department of Physics, made documents showing that
Shri. Vinod Kumar D. was transferred to the Department
of Chemistry, knowing that appointment in the name of
Shri. Vinod Kumar D. was fraudulently made by accused
No.2. He also created documents showing that since
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October 2008 to June 2011 Shri.Vinod Kumar D. worked as
a Professional Assistant and received a sum of
Rs.1,84,450/- from the University.
3.3. The petitioner and the other accused
dishonestly and fraudulently misappropriated the funds of
the University and obtained pecuniary advantage by
corrupt and illegal means by abusing their official
position, thereby committed the offences punishable
under Section 13(2) r/w 13(1)(c)(d) of the Prevention of
Corruption Act, 1988 and Sections 468 and 471 r/w
Section 34 of the Indian Penal Code.
4. The Crime was registered based on a complaint
filed by one P.Surendran, a staff of the University. The
VACB conducted investigation and submitted the Final
Report before the Court of the Enquiry Commissioner and
Special Judge. The petitioner challenges the final report
and all further proceedings in C.C.No.9 of 2020 (VC
5/2017/KNR ).
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5. I have heard Shri.T. Asaf Ali, the learned
Counsel for the petitioner and Shri. A. Rajesh, the
learned Special Government Pleader (Vigilance).
6. The learned counsel for the petitioner made the
following submissions:-
There is no material to show that the petitioner appointed
a person by name Vinod Kumar D. Shri. Vinod Kumar D.
was appointed as a Professional Assistant in the
Department of Physics by Dr. N.K. Deepak (Accused No.2)
who was the head of the Department of Physics. There is
no prima facie material to show that there was forgery of
any documents. The allegedly forged documents were
not sent to expert opinion. No forged documents were
seized at all. The acquittance register seized by the Police
during the investigation would show that Vinod Kumar
had worked in the Physics Department and that he was
appointed by Dr M.K. Deepak.
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7. The learned Senior Public Prosecutor submitted
the following:-
There are materials to show that forgery was
committed by the petitioner and the other accused. No
person named Vinod Kumar D. was actually engaged in
the University, but salary was received in his name. The
learned Special Government Pleader further submitted
that the Investigating Officer intends to conduct a further
investigation based on the information that fake and
forged documents had been submitted to the University
by the accused. The learned Special Government Pleader
contended that to exercise the power under Section 482
of Cr.P.C to quash the criminal proceedings, the High
Court would have to proceed entirely based on the
allegations made in the complaint or the documents
accompanying the same. The learned Special Government
Pleader further contended that the High Court has no
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jurisdiction to examine the correctness or otherwise of
the allegations
8. The VACB submitted the Final Report alleging
the following:-
(1)The petitioner was employed as the Head of the
Department of Chemistry, SAT Campus, Kannur
University.
(2)Accused No.2 was the Head of the Physics
Department.
(3)On 26.08.2008, Accused No.2 submitted a request to
the Vice Chancellor of the University seeking permission
to appoint a Professional Assistant in the Department of
Physics. The University accorded permission to appoint a
Professional Assistant. One Sajith Kumar (CW15) was
then employed as a Professional Assistant in the
Chemistry Department. Accused No.2, with the help of
Sajith Kumar, obtained a qualifying Certificate for BLISc
Course issued in the name of one Vinod Kumar D. (CW15)
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and created documents to make the impression that he
appointed Shri. Vinod Kumar D. as Professional Assistant
on Daily Wages in the Department of Physics.
(4)The University disbursed salary in the name of Shri
Vinod Kumar D. on the basis of the recommendation of
Accused No.2. Accused No.2 received salary in the name
of Shri. Vinod Kumar D. and used for his own purpose.
Accused No.2 went on leave to attend an orientation
course from 10.10.2008 to 06.11.2008. During the period
in which accused No.2 was on leave, the petitioner was
given the charge of the Physics Department. While he
was in charge of the Physics Department after fully aware
of the misappropriation and fraudulent acts done by
Accused No.2 , the petitioner created documents to the
effect that the person named Vinod Kumar was
transferred as Professional Assistant in the Department of
Chemistry. Salary was disbursed in the name of Shri.
Vinod Kumar D. from October 2008 to June 2011. No
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person named Vinod Kumar worked at the University.
The entire funds disbursed by the University as salary in
the name of Vinod Kumar were misappropriated by the
petitioner and the other accused.
9. Admittedly, accused No.2 made the
appointment in the name of Shri. Vinod Kumar D., which
is more evident from Ext.P5. The prosecution has no case
that the petitioner had any role in the initial appointment
of Shri. Vinod Kumar on 08.08.2008. The only allegation
of the prosecution against the petitioner is that when he
was in charge of the Department of Physics, at a time
when Accused No.2 was on leave, he created documents
showing that Shri. Vinod Kumar was transferred to the
Department of Chemistry.
10. Based on the allegations of forgery,
misappropriation, etc., the University appointed a
Committee consisting of Dr. John Joseph, Dr. M.J. Mathew
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and Dr. B.V. Lasitha to enquire into the matter. The
Committee recorded the following findings:-
"As per the letter No.AD.A4/3521/2008 dtd 10.06.2008,
the Registrar, Kannur University, issued sanction to the
HOD Department of Chemistry to engage a professional
assistant in the Department. Accordingly Sajith Kumar
joined the department on 16.06.2008. As per the
records of Department of Physics, Mr. Vinod Kumar D.
had been appointed as the Professional Assistant there
on 03.10.2008. The Heads of Departments of Physics
and Chemistry have averred that with the approval of
the University, the services of Sri. Vinod Kumar and Sri.
Sajith Kumar were interchanged. As per
U.O.No.AD.D3/3521/2008 dtd 15.11.2008, University has
approved the engagement of 117 daily wage staff at
various departments and sanctioned their wages. Vinod
Kumar D. is included as No.102 in this list.
According to the Erratum No.AD.D3/3521/2008
dtd 26.11.2008, issued by the Registrar, Kannur
University in reply to Letter
No.KU/SCS/Cont.Employee/06/dtd 20.11.2008, from the
HOD, School of Chemical Sciences, the designation of
Sri. Vinod Kumar D, serial No 102 in the UO of even no.
AD.D3/3521/2008 dtd 15.11.2008 is to be corrected as
Professional Assistant.
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The sheet rolls of labourers employed on daily
wage basis at School of Chemical Sciences submitted to
the University every month during the relevant period
includes the name of Vinod Kumar D. These rolls have
been approved by University and wages have been
sanctioned.
The commission, after hearing the department
heads and the office staff has come to the conclusion
that the sheet rolls were approved by the University.
Subsequently the cheque was issued to the Head of the
Departments. However the salary was disbursed by the
University office at Payyannur Campus. The month-wise
acquittance register was maintained in the department.
From the above documents it is evident that a
person named Vinod Kumar D has been engaged in the
Dept of Chemistry and salary was disbursed to him
every month. Hence the question of misappropriation of
fund does not arise. The university has not accrued any
financial loss on this account.
Regarding the second and third allegations it is
pertinent to examine the statement rendered by the
complainant Mr. Surendran before the Committee.
Mr.Surendran in his written complaint submitted to the
University had categorically sated that Dr.K.R.Haridas
had committed forgery and misappropriated the salary
that was to be disbursed to a Vinod Kumar. However
the enquiry committee was surprised by his stand in the
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hearing. He said he was not sure whether Dr K R
Haridas had forged the signature of Sri Vinod. He did
not know who signed the acquittance roll and claimed
the salary due to Vinod Kumar. He is not sure that
Vinod Kumar's salary had been claimed simultaneously
from Physics and Chemistry departments. He does not
know whether somebody else worked as Professional
Assistant during the period. However Vinod Kumar's
certificate had been used in the department. He
produced the application for BLISC Course of Vinod
Kumar bearing the signature of Vinod Kumar to
substantiate his claim that it was not the same as the
one in the acquittance rolls. The enquiry committee
cannot verify or discover the identity of a person solely
on the basis of a signature. Moreover the signatures on
the acquittance and sheet rolls are not full signatures.
Hence a comparison is not possible between the
signatures on the sheet/acquittance rolls and the
signature on the BLISC course application.
The Complainant himself informed the Committee
that he had no other documents to substantiate his
allegations (copy of the signed statement of the
complainant is attached herewith). The committee also
looked into the allegations subsequently raised by Mr.
Surendran against Dr. Deepak, HOD of Physics but the
Committee is convinced that the allegations are
baseless.
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In the light of the comprehensive and exhaustive
evidence cited above the Committee comes to the
conclusion that Dr.K.R.Haridas has not misappropriated
university funds or manipulated office records."
11. After recording the above findings, the
Committee further concluded that there are
administrative lapses on the part of Dr. K.R. Haridas, the
petitioner, and action be taken against him regarding the
administrative lapse. Smt. B.V.Lasitha, (CW 10), a
member of the Enquiry Committee, deposed before the
Vigilance that a person by the name of Shri. Vinod Kumar
had received salary from the department and that the
petitioner had not committed any misappropriation. Smt.
Lasitha further stated Shri.N.K. Deepak appointed Shri.
Vinod Kumar D.. Shri.M.J. Mathew (CW11) also stated
that going by the acquittance register, a person by the
name of Vinod Kumar D. worked as a Professional
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Assistant, received salary and that Shri. N.K. Deepak
appointed him.
12. The principal allegation of the prosecution is
that the petitioner committed forgery. The definition of
forgery is contained in Sections 463 and 464 of the IPC.
It is useful to extract Sections 463 and 464 of the IPC.
"463. Forgery.-Whoever makes any false documents or
false electronic record or part of a document or
electronic record, with intent to cause damage or injury,
to the public or to any person, or to support any claim or
title, or to cause any person to part with property, or to
enter into any express or implied contract, or with intent
to commit fraud or that fraud may be committed,
commits forgery."
464.Making a false document.--A person is said to make a
false document or false electronic record--
First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or
part of a document;
(b) makes or transmits any electronic record or part
of any electronic record;
(c) affixes any electronic signature on any electronic
record;
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(d) makes any mark denoting the execution of a
document or the authenticity of the electronic
signature,
with the intention of causing it to be believed that
such document or part of document, electronic
record or electronic signature was made, signed,
sealed executed, transmitted or affixed by or by the
authority of a person by whom or by whose authority
he knows that it was not made, signed, sealed,
executed or affixed; or
Secondly.--Who, without lawful authority, dishonestly
or fraudulently, by cancellation or otherwise, alters a
document or an electronic record in any material
part thereof, after it has been made, executed or
affixed with electronic signature either by himself or
by any other person, whether such person be living
or dead at the time of such alteration; or
Thirdly.--Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or
an electronic record or to affix his electronic
signature]on any electronic record knowing that
such person by reason of unsoundness of mind or
intoxication cannot, or that by reason of deception
practised upon him, he does not know the contents
of the document or electronic record or the nature of
the alteration"
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13. The definition of false document is a part of the
definition of forgery. Both definitions are interlinked to
form the offence. On a reading of the ingredients of the
offence of forgery, the following are essential.
(1)Fraudulently signing a document or part of a
document with the intention of causing it to be
believed that such document or part of a
document was signed by another or under his
authority.
(2)making such document with the intention to
commit fraud or that fraud may be committed.
14. The prosecution has produced no materials to
show that the petitioner has fraudulently signed a
document or a part of a document with the intention of
causing it to be believed that such document or part of a
document was signed by another or under due authority
The petitioner relied on Ext.P5 to establish that it was
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Accused No.2 who appointed Sri. Vinod Kumar. There is
nothing to show that the petitioner has any nexus with
the alleged appointment of Shri. Vinod Kumar D.. The
Investigating Agency has not taken steps to establish that
the petitioner committed forgery of any documents.
15. I am fully conscious of the nature of the
power vested in the High Court while exercising
jurisdiction under Article 227 of the Constitution and
Section 482 of the Cr.PC to quash the criminal
proceedings at the stage of issuing process or framing
charges. The power vested in the High Court under
Section 482 of the Code should be used sparingly at the
stages of issuing process or committal or framing charges
as it would have far-reaching consequences in inasmuch
as it would negate the prosecution's case without
allowing the prosecution to lead evidence. Such a course
is to be taken with caution, care and circumspection.
When a prayer for quashing the FIR or Final Report is
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made by the accused, the Court, when it exercises the
power under Section 482 of the Code of Criminal
Procedure or Article 227 of the Constitution, only has to
consider whether the allegations in the FIR and Final
Report disclose the commission of the offences alleged or
not. The Court is not required to consider on merits
whether or not the merits of the allegations make out a
cognizable offence. At that stage, the Court is only
required to consider the records of the case and
documents to satisfy that there is ground for proceeding
against the accused. [vide: State of West Bengal v.
Swapan Kumar Guha [(1982) 1 SCC 561], Pratibha Rani
V. Suraj Kumar [(1985) 2 SCC 370], State of U.P. v. O.P.
Sharma [(1996) 7 SCC 705, State of Kerala v. O.C. Kuttan
[(1999) 2 SCC 651], Sajjan Kumar v. Central Bureau of
Investigation [(2010) 9 SCC 368], State through Central
Bureau of Investigation v. Dr Anup Kumar Srivastava [AIR
2017 SCC 3698], Amit Kapoor v. Ramesh Chander and
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another [(2012) 9 SCC 460], State of Madhya Pradesh v.
Virender Kumar Tripathi [(2009) 15 SCC 533] M/s.
Neeharika Infrastructure Pvt. Ltd. v State of Maharashtra
and others (AIR 2021 SC 1918).]
16. However, if the High Court is fully satisfied that
the materials produced by the accused are such that
would lead to the conclusion that his defence is based on
sound, reasonable and indubitable facts, or the same
would rule out or displace the assertions in the complaint
or the materials relied on by the accused would reject and
overrule the veracity of the allegations, the judicial
conscience of the High Court would persuade to exercise
its power under Section 482 of Cr.P.C and to quash such
criminal proceedings to avoid or to prevent the abuse of
the process of the court and secure the ends of justice.
17. While exercising the jurisdiction under Section
482 of Cr.P.C, the High Court is guided by the following
two objectives:
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(i) Prevent the abuse of the process of the court.
(ii) Secure the ends of justice.
18. In Rajiv Thapar and Others v. Madan Lal
Kapoor [(2013) 3 SCC 330)], the Apex Court delineated
the following steps to determine the veracity of a prayer
for quashment raised by an accused by invoking the
power vested in the High Court under Section 482 of
Cr.P.C.:-
"Step one: Whether the material relied upon by the
accused is sound, reasonable, and indubitable ie. the
materials is of sterling and impeccable quality?
Step two: whether the material relied upon by the
accused would rule out the assertions contained in the
charges levelled against the accused ie. the material is
sufficient to reject and overrule the factual assertions
contained in the complaint ie. the material is such as
would persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as false?
Step three: whether the material relied upon by the
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accused has not been refuted by the
prosecution/complainant; and/or the material is such that
it cannot be justifiably refuted by the
prosecution/complainant?
Step four: whether proceeding with the trial would
result in an abuse of process of the court, and would not
serve the ends of justice?
If the answer to all the steps is in the affirmative,
the judicial conscience of the High Court should persuade
it to quash such criminal proceedings in exercise of power
vested in it under Section 482 Cr.P.C. Such exercise of
power, besides doing justice to the accused, would save
precious court time, which would otherwise be wasted in
holding such a trial (as well as proceedings arising
therefrom) especially when it is clear that the same would
not conclude in the conviction of the accused."
19. The principles enumerated in Rajiv Thapar
(Supra) are reiterated by the Supreme Court in Prashant
Bharti v. State (NCT of Delhi) [(2013) 9 SCC 293].
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20. I shall now consider whether the parameters as
suggested by the Apex Court have been satisfied in the
present case.
21. In the prosecution evidence, there is nothing to
show that the petitioner dishonestly and fraudulently
misappropriated the funds of the University. The Internal
Enquriy Committee has come to the conclusion that Vinod
Kumar D. was appointed by Accused No.2 and that the
acquittance register and the relevant materials would
show that a person named Vinod Kumar received salary.
It is also pertinent to note that the Enquiry Committee
has recorded a finding that, on some occasions, Shri.
Vinod Kumar engaged a substitute during his absence,
and he himself received salary from the University.
22. Ext.P5 shows that a person named Vinod Kumar
D. was appointed by Dr. N.K. Deepak (Accused No.2). The
prosecution has no case that the petitioner had
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knowledge regarding the appointment of Shri. Vinod
Kumar.
23. The specific case of the prosecution is that
during the period from 10.10.2008 to 06.11.2008 while
the petitioner was in charge of the Physics Department
Shri. Vinod Kumar D. was transferred to the Chemistry
Department, the head of which is the petitioner. The
prosecution further alleges that the petitioner had
knowledge regarding the misappropriation and
fraudulent acts allegedly done by accused No.2 in the
appointment of the person named Vinod Kumar D. It is
the case of the prosecution that after having known that
by way of a fraudulent act accused No.2 made the
appointment of Shri. Vinod Kumar D, the petitioner,
created a document to the effect that the said person was
transferred to the Chemistry Department.
24. The prosecution has placed no material so far to
prima facie establish that the petitioner had any
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knowledge or information regarding any irregularities in
the appointment of a person named Shri. Vinod Kumar D.
It may be true that while holding charge of the Physics
Department, the petitioner might have issued
proceedings to the effect that the person appointed by
accused No.2 was transferred to the Chemistry
Department. At the most, the prosecution may allege
administrative lapses or procedural irregularity in the
alleged transfer as found by the Committee appointed by
the University to enquire into the matter. The
prosecution failed to produce any material to show the
dishonest intention of the petitioner in any of the acts
allegedly committed by him. The mens rea of the
petitioner is a sine qua non to attract the offences alleged
against him.
25. Dishonest intention is the crux of the offences
alleged against him, which the prosecution failed to
establish. The prosecution had not produced any
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material to prove the association of the petitioner with
the other accused in any of the acts.
26. The learned Special Government Pleader
highlighted that the investigating agency intends to
collect materials from the University to show that fake
and forged documents were created. The crime was
registered in 2017. The major allegation levelled against
the petitioner is based on forgery by way of making false
documents. Seven years have elapsed after the
registration of the crime. The prosecution submitted the
Final Report after completing the investigation on
02.11.2020. Is there any bona fides in the submission of
the Investigating officer that he intends to collect
materials to prove forgery and falsification of documents?
At this juncture, it is profitable to refer to the observation
of this Court in Greik Xavier v. Sub Inspector of
Police, Angamaly {[2023(5) KHC 455]: [2023 (5) KLT
225]}, which is extracted below:-
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"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 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
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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?;
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(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; (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)].
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27. As of now, the prosecution has not produced
any credible materials to connect the petitioner with the
alleged offences. At the most, the prosecution could
place some material to create 'mere suspicion' regarding
the involvement of the petitioner in the alleged offences.
To proceed against the petitioner by framing charges, the
prosecution has to place materials that give rise to a
'grave suspicion'. This view is fortified by the decision of
the Apex Court in State, by the Inspector of Police,
Chennai v. S. Selvi and another[(2018) 13 SCC 455]
and Sajjan Kumar v. CBI [(2010) 9 SCC 368]. I am of
the firm view that in the given facts, if the prosecution is
permitted to proceed with further investigation in search
of any material to connect him in the crime, which they
failed to collect even seven years after the registration of
the crime, it will amount to violation of his fundamental
right as enshrined in Article 21 of the Constitution of
India.
2024:KER:79822
28. I am of the considered view that no useful
purpose is likely to be served by allowing the criminal
prosecution against the petitioner 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].
29. The petitioner has placed materials which are
of sterling and impeccable quality to rule out the
assertions contained in the allegations. Those materials
are sufficient to reject the factual assertions in the FIR
and the Final Report against the petitioner. The materials
relied on by the petitioner are enough to destroy the
factual basis of the accusation against him. No materials
have been placed from the side of the prosecution to
refute the materials relied on by the petitioner.
Therefore, the proceedings initiated against the petitioner
2024:KER:79822
would result in the abuse of the process of the Court and
would not serve the ends of justice.
The Original Petition is allowed. The FIR, Final
Report and all further proceedings in C.C.No.9 of 2020
(VC 5/2017/KNR) on the file of the Enquiry Commissioner
and Special Judge, Thalassry, as against the petitioner
shall stand quashed. It is made clear that the
observations made in this judgment are restricted to the
petitioner.
Sd/-
K.BABU, JUDGE
kkj
2024:KER:79822
APPENDIX OF OP(CRL.) 801/2023
PETITIONER EXHIBITS
Exhibit P-1 CERTIFIED COPY OF THE FIR
NO.05/2017/VACB/KNR
Exhibit P-2 CERTIFIED COPY OF THE FINAL REPORT
VIDE NO.10 OF 2020DATED 2-11-2020
Exhibit P-3 TRUE COPY OF THE ORDER DATED 29TH JULY
2023 ON THE FILE OF THE SPECIAL COURT.
Exhibit P-4 TRUE COPY OF THE MEMO OF EVIDENCE.
Exhibit P-5 TRUE COPY OF THE COMMUNICATION DATED
5-9-2008 VIDE NO.DP-KU/PA/08/01 SENT
BY DR.N.K.DEEPAK TO THE
REGISTRAR,KANNUR UNIVERSITY.
Exhibit P-6 TRUE COPY OF THE ORDER
NO.ACAD/B3/CTP/UGC-X/04(2) DATED 7-10-
2008 ISSUED BY THE REGISTRAR,KANNUR
UNIVERSITY.
Exhibit P-7 TRUE COPY OF THE REPORT OF THREE
MEMBER ENQUIRY COMMITTEE DATED
03-02-2015
Exhibit P-8 TRUE COPY OF THE STATEMENT OF
DR.B.V.LASITHA
Exhibit P-9 TRUE COPY OF THE STATEMENT OF CW-11,
M.J.MATHEW.
Exhibit P-10 TRUE COPY OF THE SATEMENT OF CW-12
JOHN JOSEPH.
