IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 615 of 2007()
1. BEEVATHU, W/O.LATE MUHAMMED, 70 YEARS,
... Petitioner
2. SHAMEERA, D/O.LATE MUHAMMED,
3. ABDUL MUNEER, D/O.LATE MUHAMMED,
Vs
1. BASHEERA, D/O.KUNHU MOHAMMED,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.S.RAJEEV
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :07/03/2007
O R D E R
R.BASANT, J
----------------------
Crl.M.C.No.615 of 2007
----------------------------------------
Dated this the 7th day of March 2007
O R D E R
The petitioners are accused 2,3 and 4 in a prosecution
under Section 498(A) I.P.C. Proceedings have been initiated on
the basis of a private complaint filed by the first respondent. The
first accused is the husband of the first respondent. The
petitioners are mother-in-law, sister-in-law and brother-in-law
respectively of the first respondent. The first respondent had
filed a complaint before the police against all the four accused
persons. The police, after investigation, had come to the
conclusion that only the first accused is guilty of the alleged
offences. The petitioners were deleted from the array of parties.
Cognizance was taken against the first accused on the basis of
such final report filed by the police. Dissatisfied by the final
report, the first respondent had approached the learned
Magistrate with a protest complaint. It is in that protest
complaint that cognizance has been taken against all the four
accused persons including the petitioners herein.
Crl.M.C.No.615/07 2
2. The learned counsel for the petitioners submits that
cognizance taken against the petitioners is bad in law and
unsustainable. The learned Magistrate had not considered all
the relevant inputs alertly. The learned Magistrate ought to
have taken note of the fact that the police had referred the
complaint against the petitioners as unsustainable. Greater
degree of care must have been employed in these circumstances
before cognizance was taken. The dictum in Kader vs. State of
Kerala [1999(3)KLT 262] was not alertly borne in mind by the
learned Magistrate when cognizance was taken. In these
circumstances, powers under Section 482 Cr.P.C may be
invoked and further proceedings may be quashed, it is prayed.
The learned counsel relies on the fact that in an earlier letter
addressed to the President of the Local Juma Masjid, no
allegations have been raised against the petitioners herein.
3. I shall scrupulously avoid any expression of opinion on
merits which would fetter the discretion of the learned
Magistrate when he considers the allegations at appropriate
later stages. I take note of the submission of the learned counsel
for the petitioners that the second accused, mother-in-law has
Crl.M.C.No.615/07 3
passed seventy years and she is critically ill. I take note of the
fact that the police, after investigation, had come to the
conclusion that the petitioners are not guilty of the alleged
offences. I am, in these circumstances, satisfied that though the
relief of quashing the proceedings cannot and need not be
granted to the petitioners, the petitioners can be granted an
opportunity to claim discharge and avoid the obligation to
appear personally before the learned Magistrate until the
learned Magistrate takes a decision on the question of discharge
under Section 245(2) or 245(1) Cr.P.C.
4. In all cases where cognizance is taken by the learned
Magistrate on a complaint/protest complaint, such cognizance is
taken ex parte without and before giving the indictees an
opportunity to be heard. The law does not leave such indictees
against whom cognizance of warrant offences has been taken
without any remedy against the ex parte cognizance taken
against them. They can appear before the learned Magistrate
and urge that they are entitled to be discharged at the threshold
itself under Section 245(2) Cr.P.C. The mere fact that
cognizance has been taken already will not fetter the jurisdiction
Crl.M.C.No.615/07 4
of the learned Magistrate to consider the plea of discharge under
Section 245(2) Cr.P.C on the materials then available. Such
indictees can also wait for the completion of the enquiry under
Section 244 Cr.P.C and then claim discharge under Section 245
(1) Cr.P.C.
5. In the peculiar facts and circumstances of this case, I
am satisfied that the interests of justice will be served eminently
by permitting the petitioner to appear through counsel until the
learned Magistrate decides (if he so decides) that charges
deserve to be framed under Section 246 Cr.P.C.
6. This Criminal Miscellaneous Case is, in these
circumstances, allowed in part. The prayer for quashing the
proceedings is turned down. But it is directed that the
petitioners shall be permitted by the learned Magistrate to
appear through their counsel until the learned Magistrate takes
a decision (if such decision be taken) that charges are liable to
be framed under Section 246 Cr.P.C.
(R.BASANT, JUDGE)
jsr
Crl.M.C.No.615/07 5
Crl.M.C.No.615/07 6
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006