High Court Kerala High Court

Nijo @ Joseph vs Kuriachan on 24 September, 2008

Kerala High Court
Nijo @ Joseph vs Kuriachan on 24 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3521 of 2008()


1. NIJO @ JOSEPH, S/O. DEVASSY,
                      ...  Petitioner
2. DEVASSY, PULLELI HOUSE,
3. ANNA, W/O. DEVASSY,
4. BABY S/O. ANTONY, PALLISSERY HOUSE,

                        Vs



1. KURIACHAN, S/O. ITTOOP,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.P.SANTHOSH  (PODUVAL)

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :24/09/2008

 O R D E R
                              R. BASANT, J.
                    - - - - - - - - - - - - - - - - - - - - - -
                    Crl.M.C.No. 3521 of 2008
                    - - - - - - - - - - - - - - - - - - - - - -
            Dated this the 24th day of September, 2008

                                 O R D E R

The petitioners, members of a family, face indictment in a

prosecution, inter alia, under Section 420 I.P.C. Cognizance has

been taken on the basis of the final report submitted by the police

after due investigation. Except the first petitioner, the others

have already entered appearance and were enlarged on bail. The

first petitioner is abroad and coercive processes have been issued

against the said petitioner. According to the petitioners, the

allegations raised against them are totally false and incorrect.

They are raised vexatiously. There is absolutely nothing to show

that the allegations against them are true, correct or justifiable.

They are groundless. Allegations do not constitute any offence.

Proceedings against them may, in these circumstances, be

quashed invoking the extra ordinary inherent jurisdiction under

Section 482 Cr.P.C., it is prayed. The petitioners do not deserve

Crl.M.C.No. 3521 of 2008
2

to stand the trauma of a criminal trial and they are entitled for

premature termination of the proceedings, urges the learned counsel.

2. An indictee facing criminal prosecution is certainly entitled

to claim premature termination of the proceedings initiated against

him. Normally and ordinarily he must invoke the ordinary provisions

of the Code to claim such premature termination of proceedings.

Ordinarily the parties should claim premature termination from the

Magistrate. In a case instituted upon police report relating to a warrant

offence, such premature termination can be claimed by discharge at

the stage of Section 239/240 Cr.P.C.

4. Of course, in an exceptional case where the interests of

justice so demand compellingly, this court has jurisdictional

competence under Section 482 Cr.P.C. to invoke the extra ordinary

inherent jurisdiction to prematurely terminate the criminal proceedings

against indictees.

5. But having considered all the relevant inputs, I must say,

without intending to express any opinion on merits, that this is a fit

case where the petitioners must be relegated to seek the relief of

premature termination by discharge under Section 239/240 Cr.P.C.

Crl.M.C.No. 3521 of 2008
3

5. The learned counsel for the petitioners submits that warrant

of arrest has been issued against the first petitioner, who is now

employed abroad. Unnecessary and needless harassment would result

if personal presence of the petitioners is insisted to facilitate

consideration of the plea for discharge. I am satisfied that appropriate

directions can be issued to safeguard the interests of justice.

9. This Crl.M.C. is allowed in part. The learned Magistrate

shall permit the petitioners to appear through counsel and claim

discharge at the stage of Section 239/240 Cr.P.C. Only if the learned

Magistrate enters a finding that charges are liable to be framed, need

the Magistrate insist on the personal presence of the petitioners . Until

then they shall be permitted to appear through counsel. This is so in

spite of the fact that warrant of arrest is pending against the first

petitioner. The warrant of arrest shall not be executed until a decision

is taken on the question of discharge under Section 239/240 Cr.P.C.

(R. BASANT)
Judge
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