IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3995 of 2008()
1. SRI.VISWANATHAN NAIR,
... Petitioner
2. SRI. NANAPPAN, MANCHERIL VEEDU,
3. SRI. SAJITH KUMAR, NAMPIYIL PUTHEN
4. SRI. SANAL KUMAR, NAMPIYIL PUTHEN
5. SRI.GOPAKUMAR, VADASSERI KIZHAKKETHIL,
6. SRI. MURUKAN, POOVAKKATTU MOOLAYIL,
7. SRI. GOPALAKRISHNAN NAIR,
8. SRI.GOPLAKAKRISHNAN NAIR,
9. SRI. VISWANATHAN,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE SUB INSPECTOR OF POLICE,
3. SRI. VINOD KUMAR, S/O. RAJASEKHARAN
For Petitioner :SRI.S.HARIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :23/10/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 3995 OF 2008
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Dated this the 23rd day of October, 2008
O R D E R
The petitioners, 9 in number, face indictment in a
prosecution for offences punishable, inter alia, under Section 380
IPC. 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 a private complaint filed before the
Magistrate which was referred to the Police under Section 156(3)
Cr.P.C . The crux of the allegations is that the petitioners who had
no right to interfere with the management of a temple in violation
of the specific orders passed by the Civil Court interfered in the
management of the temple and took away by force amounts which
were available in the ‘Kanikka Vanchi’ maintained by the temple.
Cognizance has already been taken. Process has been issued to
the petitioners. They have entered appearance before the learned
Magistrate. Charges have not been framed so far. At this
juncture, petitioners have come before this Court with a prayer that
powers under Section 482 Cr.P.C may be invoked to quash the
prosecution against them. The fact that there was in fact an order
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of the Civil Court restraining them from interfering with the
management of the temple by the defacto complainant is not
seriously disputed. The contention raised is that the defacto
complainant and the former committee of the temple did not
manage the affairs of the temple properly. They abandoned the
temple obliging the newly elected Committee to take appropriate
action. In the light of this contention, it is prayed that the
petitioners may be saved of the trauma of undeserved
prosecution. Premature termination of the proceedings may be
brought about by invoking the extraordinary inherent jurisdiction
under Sec.482 Cr.P.C., it is prayed.
2. An indictee facing an undeserved criminal prosecution
does certainly have the right to claim premature termination of
such criminal prosecution. Ordinarily and normally, such
premature termination must be claimed under the ordinary
provisions of the Code. The Code does provide for such
premature termination of proceedings. In a prosecution for
warrant offence of which cognizance is taken on the basis of a
final report submitted by the police, such premature termination
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must be claimed at the threshold of the proceedings by claiming
discharge under Sec.239 Cr.P.C. That is the ordinary and normal
method to claim premature termination of a criminal prosecution.
3. But this does not mean that the High Court does not have
jurisdictional competence to prematurely terminate an undeserved
prosecution against an indictee. The question is not one of
jurisdictional competence at all which the High Court certainly has.
Sobriety and sagacity lies in identifying a proper case in which
such extraordinary inherent jurisdiction can and ought to be
invoked. Merely because such powers are available with the
court, such jurisdiction shall not be invoked. Satisfactory,
compelling and exceptional reasons must be shown to exist to
persuade the court to invoke such extraordinary inherent
jurisdiction. Even the mere possibility that the accused may be
successful in his claim for discharge under Sec.239 Cr.P.C. shall
not by itself persuade a court to invoke such extraordinary inherent
jurisdiction.
4. I shall be circumspect. I shall not embark on a detailed
discussion about the acceptability of the allegations or the
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credibility of the materials collected. Suffice it to say that on an
anxious consideration of all the relevant inputs, I am not
persuaded to agree that this is a fit case where such extraordinary
inherent jurisdiction under Sec.482 Cr.P.C. can or ought to be
invoked in favour of the petitioners now. The petitioners must be
relegated to invoke the ordinary provisions of the Code to claim
such premature termination of proceedings.
5. In the result, this Crl.M.C. is dismissed. I may hasten to
observe that I have only chosen to take the view that the powers
under Sec.482 Cr.P.C. do not deserve to be invoked. I have not
intended to express any opinion on merits of the claim of the
petitioner for discharge at the stage of Sec.239/240 Cr.P.C. and in
case they do not succeed that stage, their claim for acquittal at
later stages.
6. The learned counsel for the petitioners submits that the
petitioners are already on bail. They shall suffer great prejudice if
their personal presence were insisted on all dates of posting
before the court takes a decision on the question of discharge. I
find no reason why such presence should be insisted. The
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petitioners can apply for exemption and until a decision is tak
n on the question of framing charge and the court finds it necess
ry to frame charges under Sec.240 Cr.P.C., the personal presen
e of the petitioners need not be insisted if they are represented
by their counsel.
7. With the above observations, this Crl.M.C. is dismissed.
R. BASANT, JUDGE
ttb
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