Disposed

Dr Laila M Iliyas v. State of Karnataka

Karnataka HC6 Sept 2016WP/33938/2015

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition seeking to quash criminal proceedings for forgery and cheating. It held that delay and the minor nature of the potential fine are not grounds for quashing. The court granted the petitioner general exemption from appearing in court.

What did the court decide?

Petition disposed of granting general exemption from appearance unless absolutely necessary for witness examination.

Dr Laila M Iliyas Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF SEPTEMBER 2016

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No.33938 OF 2015 (GM-RES)

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BETWEEN:

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Dr. Laila M. Iliyas, Daughter of Dr.P.M.Mohammed Ilias, Aged about 40 years, “Shell”, Court Road, Mangeri P.O., Mallapuram, Kerala – 676 121.

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…PETITIONER

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(By Shri Amar Correa, Advocate)

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AND:

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State of Karnataka, By Lokayuktha Police, M.S.Building, Dr. Ambedkar Veedhi, Bangalore – 560 001. Represented by its Registrar.

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…RESPONDENT

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(By Shri Venkatsh S. Arabatti, Advocate)

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This Writ Petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 code of Criminal Procedure, 1973, praying to quash the entire proceedings in J.C.No.173/2013 [originally in Spl.C.No.116/2004] for the offences punishable under Section 120-B, 420, 468, IPC read with 13[1][d][1] of Prevention of Corruption Act, 1988 against this petitioner [accused No.1], pending on the file of Juvenile Justice Road, Bengaluru vide Annexure-D.

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This Writ Petition coming on for Orders this day, the court made the following:

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O R D E R

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Heard the learned counsel for the petitioner and the

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learned counsel for the respondent. The petition coming on for orders on the application for extension of stay, it is considered on merits.

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The petitioner along with five others was alleged with

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the offences punishable under Sections 120-B, 420 and 468 of

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the Indian Penal Code, 1860 read with Section 13(1)(d)(i) of the Prevention of Corruption Act, 1988. The allegations were, the petitioner being a candidate seeking admission to the I year

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M.B.B.S. course, had forged certain documents and certificates in conspiracy with the officers of the Karnataka Board of Medical Education, who are arraigned as Accused Nos. 2 to 6 and had facilitated her to get a payment seat wrongfully. It is specifically alleged that the application made by the petitioner was dated 29.10.1993 as on which date she is said to have committed the offence in conspiracy with the other accused. The investigation having commenced, it was only after 10 years, namely on 23.04.2004 that the respondent – police had filed a charge-sheet before the Special Court for Lokayuktha cases, Bengaluru. Thereby the Special Court took cognizance of the offence and issued summons.

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The progress of the case has been longwinded. In that, on 5.7.2004, the petitioner for the first time, made her appearance before the court and sought bail and thereafter on 14.06.2005, charges were framed. On 2.7.2005, it was found by the court that there were 26 other identical cases and there was a stay granted by this court and that there were several

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other revision petitions filed which were also pending. On 3.12.2005, this Court in some cases directed the learned Trial Judge to freshly consider the charges framed. On 1.3.2006, the Trial Judge noted that there were also other matters pending before this Court. Subsequently, on 19.09.2009, summons was issued to the complainant witnesses No.1 and 2. On 13.12.2010, the Trial Court after noting that one of the witnesses who was in Udupi was totally bed-ridden, issued a commission warrant for his examination. The evidence was recorded of nine witnesses and the witness summons were served on 29 witnesses, examining them as PWs 1 to 9. On 19.04.2013, the petitioner had made an application under Section 7(a) of the Juvenile justice Act, 1986 before the Special Judge for Lokayuktha Cases, Bangalore, on the ground that she was a juvenile as on the date of the commission of the offence and sought her case to be transferred to the Juvenile Justice Board. Subsequently, the case having been transferred to the Juvenile Justice Board, it was renumbered as J.C.No.173/2013

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and summons was issued to the petitioner in June 2013. In March 2014, the petitioner appeared before the Board through her counsel. The plea of the counsel was recorded in November 2014 and on the said date, summons was issued to CWs 1 to 3. Since such date and despite three other hearing dates having

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lapsed, no witnesses have been present before the said court.

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The petitioner claims that on the alleged date of the

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offence, namely on 29.10.1993 when she is said to have made an application at the interview for first year MBBS, she was aged 17 years 4 months and 29 days. On the date of registration of the FIR, namely on 19.02.1994, she was aged 17 years 8 months and 19 days. Until now from the alleged date of offence or from the date of registration of the F.I.R., more than 21 years have lapsed and the case remains pending even until now. There was an inordinate delay of ten years taken for the investigation. It is in this background that the petitioner seeks that the proceedings be quashed, particularly, in the light of the

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decision of the Supreme Court in a similar case in Jitendra Singh and another vs. State of Uttar Pradesh (2013) 11 SCC 193, wherein it is held that as to what should ensue if a person who was a juvenile as on the date of committing an alleged offence attains adulthood and no longer a juvenile, as to how he is required to be treated to ensure that he is rehabilitated and reformed and in dealing with the said aspect, has held as follows:

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“32. A perusal of the punishments provided for under the Juvenile Justice Act, 1986 indicate the given the nature of the offence committed by the appellant, advising or admonishing him [clause (a)] is hardly a punishment that can be awarded since it is not at all commensurate with the gravity of the crime. Similarly, considering his age of about 40 years, it is completely illusory to expect the appellant to be released on probation of good conduct, to be placed under the care of any parent, guardian or fit person [clause (b)]. For the same reason, the appellant cannot be released on probation of good conduct under the care of a fit institution [clause (c)] nor can he be sent to a special home under Section 10 of the Juvenile

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Justice Act, 1986 which is intended to be for the rehabilitation and reformation of delinquent juveniles [clause (d)]. The only realistic punishment that can possibly be awarded to the appellant on the facts of this case is to require him to pay a fine under clause (e) of Section 21(1) of the Juvenile Justice Act, 1986.”

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4. Given that the present petitioner also stands on the

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same footing, since she is now aged 40 and the object of Juvenile Justice Act being to ensure that a juvenile is not punished but is said to be reformed and rehabilitated, there is no question of the petitioner being awarded any of those punishments or being placed on terms as proposed under the Juvenile Justice Act except that she could be imposed a fine under Clause (e) of Section 2(1) of Juvenile Justice Act, 1986.

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Therefore, the learned counsel would submit that if ultimately the only punishment that could be imposed on the petitioner even if found guilty of the alleged charges, is the imposition of fine. She has suffered several damages in having to defend the criminal case and the time and effort involved

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would far exceed the fine that would be imposed and hence seeks that the proceedings be quashed.

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However, the learned counsel for the respondent would point out that the question of quashing the proceedings on the ground of delay or that the ultimate punishment that could be imposed on the petitioner is that of fine, would not be any justification. It could clearly be a ground for quashing the proceedings.

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On the other hand, the allegations are serious of having tampered and forged certain documents in collusion with the officials who are alleged as Accused Nos.2 to 6 and added to this, there are 26 other cases as admitted by the petitioner herself which is also pending and if the proceedings against the petitioner are quashed, it would by a parity of reasoning, require that other proceedings pending against the other candidates also be quashed. Therefore, it is neither contemplated nor established just to quash the proceedings on the plea of the

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petitioner that there has been inordinate delay in the trial and that the ultimate punishment is minor.

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On the other hand, the officials who are arrayed as Accused Nos.2 to 6 would suffer a serious punishment and the trial would have to be taken to its logical conclusion and the delay is not attributable to the prosecution except that in the initial stage of investigation, there was delay owing to a large number of cases that had to be investigated simultaneously.

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Given the above facts and circumstances, the question

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of quashing the proceedings on the ground of delay or that the ultimate punishment that may be imposed on the petitioner is of a minor nature, is not a ground for quashing the proceedings. Since such a step would also dilute the case against the other accused and would enable the other similarly placed petitioners from seeking that the proceedings be quashed, hence, it is not advisable or prudent to do so. Except that, the petitioner now is practicing as a Doctor and is presently working abroad and it is stated that it would be insisted by the court below that she be

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present when witnesses are examined. The prospect of the witnesses being examined promptly is not guaranteed and the petitioner being called upon to return to India each time that the case is posted, would result in grave hardship to the petitioner and therefore, the concession that the learned counsel for the petitioner seeks is that the petitioner be exempted from appearance on all the dates of hearing, unless her presence is absolutely essential and in the opinion of the court if the petitioner’s presence is a must, she would make herself available and otherwise to generally exempt her from appearance.

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It is not an unreasonable request. Since the petitioner would only be ultimately imposed with a fine, which is a foregone conclusion, the court below may consider the petitioner’s application for exemption from appearance on all the dates of hearing, provided there was no condition imposed in the bail that was granted to the petitioner. If the court at any point of time feels that it is absolutely necessary for the

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petitioner to be present, she may be directed to be present. With that observation, the petition stands disposed of.

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Sd/- JUDGE

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Dr Laila M Iliyas v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Dr Laila M Iliyas v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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