IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3230 of 2008()
1. NUSAIBA, W/O. MUHAMMED KUTTY,
... Petitioner
2. NABEESATH, W/O. RASHEED,
3. ABIDA, W/O. SHAMSUDEEN,
4. SUBAIDA, W/O. ABDUL AZIZ,
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.G.PRIYADARSAN THAMPI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :25/08/2008
O R D E R
R. BASANT, J.
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Crl.M.C.No. 3230 of 2008
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Dated this the 25th day of August, 2008
O R D E R
The petitioners are accused Nos. 2 to 5 and they face
indictment along with the first accused for offences punishable,
inter alia, under Section 498A I.P.C. The defacto complainant is
the wife of the first accused and the petitioners are the relative of
the first accused. Cognizance has been taken on the basis of a
final report submitted by the police after due investigation. The
crime in turn was registered on the basis of the statement of the
defacto complainant recorded while she was undergoing
treatment as an inpatient in the hospital.
2. The petitioners have received directions to appear
before the learned Magistrate. They have not so far appeared
before the learned Magistrate. The petitioners at this stage have
come before this Court with a prayer that the extra ordinary
inherent jurisdiction under Section 482 Cr.P.C. may be invoked
to bring to premature termination the undeserved prosecution
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against them. The counsel for the petitioners in particular relies on the
F.I. Statement lodged by the defacto complainant when she was
admitted in the hospital, which does not disclose any culpable or
contumacious conduct on the part of the petitioners.
3. I have heard the learned counsel for the petitioners. I have
perused Annex.A1 F.I. Statement. At this early stage of the
proceedings I shall carefully avoid any detailed discussion on the
acceptability of the allegations or the credibility of the data collected.
Suffice it to say that a perusal of Annex.A1 F.I. Statement does reveal
to me that the contention of the learned counsel for the petitioners that
they do not deserve to endure the trauma of criminal indictment
deserves to be considered in greater detail. The averments in the F.I.
Statement may not be the be all and the end of all in a criminal
indictment. Contents thereof are certainly relevant. Premature
termination of criminal proceedings initiated against an indictee can be
achieved under the ordinary provisions of the Code. In a case in which
cognizance was taken on the basis of the final report submitted by the
police such premature termination can be claimed at the stage of
Section 239/240 Cr.P.C. by an indictee. In an exceptional case where
Crl.M.C.No. 3230 of 2008
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the interests of justice so demand, notwithstanding the availability of
that option for the indictee this court may be justified in invoking the
extra ordinary inherent jurisdiction under Section 482 Cr.P.C. I need
only mention that at the present stage and with the available inputs, I
am not persuaded to invoke such jurisdiction in favour of the
petitioners.
4. I note that the case diary statements of various witnesses have
not been placed before me to enable me to come to the conclusion
whether the allegations against the petitioners are justified or not. I
am, in these circumstances, satisfied that this is an eminently fit case
where the petitioners must be relegated to claim premature termination
before the learned Magistrate. No circumstances exist to justify the
invocation of the extra ordinary inherent jurisdiction under Section 482
Cr.P.C.
5. I find merit in the submission of the learned counsel for the
petitioners that if the learned Magistrate were to insist on the personal
presence of the petitioners before the plea for discharge is considered,
that would work out great hardship and loss to the petitioners.
Appropriate direction can, in these circumstances, be issued.
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5. This Crl.M.C. is dismissed. It is made clear that the
petitioners shall be entitled to claim discharge at the stage of Section
239/240 Cr.P.C. and if such a plea is raised, the learned Magistrate
must anxiously consider the claim of the petitioners for discharge. In
the peculiar facts and circumstances of this case, I do further direct that
until a decision is taken on the question of charge/discharge under
Section 239/240 Cr.P.C. it is not necessary for the learned Magistrate
to insist on the personal presence of the petitioners. If the petitioners
appear through counsel, they shall be permitted to advance such plea of
discharge under Section 239 Cr.P.C. without insisting on their personal
presence. If and only if the court finds that charges are liable to be
framed against the petitioners, need their personal presence be insisted
by the learned Magistrate if until then they appear through their
counsel.
(R. BASANT)
Judge
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