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2013 Supreme(Ker) 1077

IN THE HIGH COURT OF KERALA
C.T. RAVIKUMAR, J.
Pinarai Vijayan - Petitioner
v.
Deputy Superintedent of Police - Respondent
O.P.(Crl.) Nos.1068 of 2013
Decided On : 18-06-2013

Advocates:
Advocate Appeared:
For the Petitioners:C.P. Sudhakaraprasad (Sr. Advocate), K.K. Ravindranath, S. Ramesh., T. Naveen & Pooja Surendran
For the Respondents: P. Chandrasekharan Pillai

Headnote:

Constitution of India, 1950 - Article. 226 and 21 - Kerala Criminal Rules of Practice 1982 - Rule. 16 - Right of Speedy trial - When can accused claim - whether the presence of the other accused could be secured within a reasonable time - Violation of right - Under challenged - Held, 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 - 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

JUDGMENT :

1. A thought provoking quotation of adage nature that caught my attention “ Law is long but life is short” will be the apt prelude for this judgment considering the questions involved in the captioned Original Petitions and the arguments advanced before me. The petitioner in the former Original Petition is the 5th accused in C.C.No.44 of 2011 pending on the files of the Court of Special Judge (SPE/CBI)-I, Thiruvananthapuram and the petitioner in the latter Original Petition is the 7th accused therein. The petitioners and their co-accused are charged for commission of offences punishable under S.120B read with S.420 of the Indian Penal Code and also under S.13(2) read with S.13(1)(d) of the Prevention of Corruption Act, 1988. The final report was filed before the Court of the Special Judge for CBI Cases-1, Ernakulam on 12.6.2009. Thereafter, cognizance of offences was taken on 23.6.2009 and it was taken on file as C.C.No.9 of 2009. Upon serving the summons accused Nos.1, 3, 4, 5 and 8 personally appeared before the Court and accused Nos.2 and 7 appeared through counsel on 24.9.2009. Thereafter, they too appeared personally before the Court. They are all enlarged on bail. Summons to accused Nos.6 and 9 could not be served despite several postings and thereupon, warrant of arrest against the 6th accused and fresh summons to 9th accused were issued and the case was posted to 19.12.2011. Meanwhile, as per the order of this Court, the case was transferred to the Court of Special Judge (SPE/CBI)-I, Thiruvananthapuram and was re-numbered as C.C.44/2011. The gist of the charge against the petitioners and accused Nos.1 to 4 and 8 is that they conspired with the 6th accused Klaus Triendl, the Senior Vice President of M/s.SNC Lavalin, a Canadian based Company to award the renovation and modernisation (R & M) contracts of Pallivasal, Sengulam and Panniyar Hydro Electric Projects of the Kerala State Electricity Board to M/s.SNC Lavalin, Canada, the 9th accused and in pursuance of the conspiracy, the petitioners, accused 1 to 4 and the 8th accused had abused their respective official positions with fraudulent and dishonest intention and awarded the said contracts at an exorbitant rate violating all rules and regulations and did not execute a binding agreement with M/s.SNC Lavalin, Canada in the matter of receiving a grant of `98.3 crores as assured for M/s. Malabar Cancer Centre and caused wrongful loss to the K.S.E.B./Government Exchequer and corresponding wrongful gain to M/s.SNC Lavalin, Canada and thereby cheated the KSEB and the Government of Kerala. Summons could not be served on the 6th and 9th accused despite several adjournments. A memo regarding the receipt of extradition request by the Canadian Authority and also receipt of communication from the Department of Justice, Canada through Interpol, India seeking certain clarifications in the matter and requisition to submit separate documents namely Record of the Case and General Legal Statement for further processing of the extradition request, was filed by the Special Prosecutor for C.B.I. Ext.P4 viz., Communication No.3700-IND-T2 dated 13.6.2012 along with enclosures were sent to the court. On 10.8.2012, the petitioner in the former Original Petition filed Crl.M.P.No.24/2012 praying for discharge under S.227 of the Code of Criminal Procedure. Crl.M.P.Nos.83/2012 and 84/2012 were filed by accused Nos.1 and 8 respectively praying for dropping the further proceedings and for discharge under S.239, Cr.P.C. On 16.8.2012, a common order was passed on the said Crl.M.Ps. viz., Ext.P3 in O.P.(Crl). No.1025/2013 and Ext.P1 in O.P. (Crl.).No.1068 of 2013. For the sake of convenience, the said common order is hereinafter referred to in this judgment as Ext.P1. As per Ext.Pl, two months time was granted to the prosecution for effecting service of process of the court on accused Nos. 6 and 9 and to procure their presence before the Court. It was further observed that after the expiry of




















































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