A.Krishna Swami vs State Of Kerala Represented By … on 4 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 2931 of 2008()


1. A.KRISHNA SWAMI, AGED 78 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY PUBLIC
                       ...       Respondent

                For Petitioner  :SRI.P.M.ZIRAJ

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :04/08/2008

 O R D E R
                           R. BASANT, J.
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                 Crl.M.C.No. 2931 of 2008
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             Dated this the 4th day of August, 2008

                              O R D E R

The petitioner is the third accused and he along with the

co-accused faces indictment in a prosecution for offences

punishable, inter alia, under Sections 406 and 420 I.P.C.

Cognizance has been taken on the basis of a final report

submitted by the police after due investigation in a crime

registered. That crime, in turn, was registered on the basis of a

private complaint filed by the defacto complainant before the

learned Magistrate and referred to the police under Section 156

(3) Cr.P.C. The petitioner has already been granted anticipatory

bail, it is submitted. Final report has already been filed.

Cognizance has been taken. Calender case has been registered, it

is submitted. The petitioner has in these circumstances come to

this Court with a prayer that the powers under Section 482

Cr.P.C. may be invoked to prematurely terminate the proceedings

against him.

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2. The petitioner has raised various contentions. First of all it is

contended that sufficient materials are not placed before court to justify

the cognizance taken against him. It is further submitted that at any

rate, even assuming that the establishment, of which he is the

Chairman, has been guilty of some indiscretion, the petitioner is not

shown to have any culpable responsibility for the same at all. At worst

the defacto complainant can only have a civil claim against the

institution, of which the petitioner happens to be an office bearer. In

these circumstances the petitioner does not deserve to stand the trauma

of an unjustified prosecution. Premature termination of the

proceedings may be brought about by the invocation of the extra

ordinary inherent jurisdiction under Section 482 Cr.P.C., submits the

counsel.

3. I have heard the learned counsel for the petitioner. At this

early stage of the proceedings exercising jurisdiction under Section

482 Cr.P.C. I shall carefully avoid any detailed discussion on merits

about the acceptability of the allegations or the contentions raised by

the learned counsel for the petitioner. Premature termination of an

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unjustified criminal prosecution/indictment can be brought about by

resort to the ordinary provisions of the Cr.P.C. Such premature

termination in a prosecution launched on the basis of a final report

submitted by the police can be brought about by claiming discharge

under section 239 Cr.P.C. Of course, in an appropriate case, this Court

has the power to bring about premature termination of the proceedings

under Section 482 Cr.P.C. But that cannot be a matter of course.

Satisfactory and exceptional reasons must be shown to exist to justify

invocation of such jurisdiction. Normally and ordinarily such

premature termination must be claimed under the ordinary provisions

of the Cr.P.C. – Section 239 in the facts and circumstances of this case.

4. I am satisfied that this petition can in these circumstances be

dismissed with the observation that the petitioner’s right to claim

premature termination by discharge under Section 239 Cr.P.C. shall

remain unfettered by the dismissal of this petition.

5. The learned counsel for the petitioner submits that the

petitioner has already been granted anticipatory bail and if the personal

presence of the petitioner were insisted to facilitate the hearing on the

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question of discharge under Section 239 Cr.P.C., that would cause very

great hardship, inconvenience and loss to him. I am satisfied in the

peculiar facts and circumstances of this case that appropriate directions

can be issued to obviate such alleged prejudice against the petitioner.

6. This Crl.M.C. is dismissed, subject to the above observations.

There shall be a further direction that if the petitioner is represented by

a counsel, personal presence of the petitioner shall not be insisted for

hearing on the question of discharge at the stage of Section 239/240

Cr.P.C. Until a decision is taken on the question of discharge, the

petitioner shall be permitted to appear through his counsel and advance

his plea.

7. Hand over the order.

(R. BASANT)
Judge
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