IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3060 of 2008()
1. JAFFARUDEEN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.M.HABEEB
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :13/08/2008
O R D E R
R. BASANT, J.
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Crl.M.C.No. 3060 of 2008
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Dated this the 13th day of August, 2008
O R D E R
The petitioners face indictment in a prosecution for the
offence punishable under Section 498A I.P.C. Cognizance has
been taken on the basis of the final report submitted by the police
after due investigation. I do note that cognizance has been taken
only for the offence under Section 498A I.P.C. The petitioners
have come to this Court with a prayer that the prosecution
initiated against them may be quashed. The case now stands
posted for appearance before the learned Magistrate on
18.11.2008. It is prayed that the powers under Section 482
Cr.P.C. may be invoked to quash the proceedings against them.
2. What is the reason? The learned counsel for the
petitioners submits that as far as accused/petitioners 2 to 5 are
concerned, there is absolutely no justifiable material against
them. The marriage between the spouses had taken place in
1996. For about a decade they had lived together happily. Three
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children were born in the wedlock. The spouses with the children were
residing abroad. They returned on 30.5.2005 and it is thereafter that
the F.I.R. was lodged on 30.7.2005. Long later on 20.10.2005 an
original petition was filed before the Family Court claiming past and
future maintenance. In such original petition the precise allegations
raised earlier in the F.I. Statement were not raised. Even in the F.I.
Statement no specific allegations whatsoever were raised against
petitioners 2 to 5. They have not been shown as accused in the F.I.R.
It is after investigation on such F.I.R. that petitioners 2 to 5 have been
brought on the array of accused. In these circumstances the
prosecution against them may be quashed, it is submitted first of all.
3. The learned counsel for the petitioners then submits that as
regards the first petitioner also the allegations are totally unjustified.
Counsel points out that in 2007 there was a settlement in the original
petition for past and future maintenance filed before the Family Court.
Even when that settlement was arrived at, it was not mentioned to or
known to the petitioners that such an F.I.R. has been registered and
proceedings are pending against them before the police. Suppressing
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that fact the claim for maintenance filed in 2005 was settled in 2007
and it is later that the petitioners have come to know that cognizance
has been taken in the present case under Section 498A I.P.C. In these
circumstances the counsel submits that the case as against the first
accused also deserves to be quashed invoking the jurisdiction under
Section 482 Cr.P.C.
4. I am afraid I am unable to agree with the learned counsel for
the petitioners. The fact that the allegations raised in the F.I.R.
registered on 30.7.2005 have not been reiterated in the original petition
claiming maintenance filed later in 2005 is too meager and inadequate
a reason to invoke the jurisdiction under Section 482 Cr.P.C. to quash
the proceedings. The allegations in the F.I.R. having already been
raised earlier, the mere fact that they were not raised again in the
original petition filed later is of no consequence at all except in the
matter of appreciation of evidence at later stages.
5. In so far as the claim of petitioners 2 to 5 are concerned, the
materials collected in the course of evidence are not placed before me.
The report, on the basis of which those petitioners were brought on the
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array of accused, is also not revealed to me. The counsel contends that
even in the 173 documents there is nothing to implicate petitioners 2
to 5. That question must of course be raised at the appropriate stage
before the learned Magistrate.
6. The mere fact that the spouses have lived together for 10
years, that three children were born in the wedlock and that the
maintenance petition filed is settled and compromised is no reason by
itself to justify the invocation of the powers under Section 482 Cr.P.C.
Premature termination of a proceedings can be claimed under the
ordinary provisions of the Code. In a warrant trial initiated on the
basis of a final report submitted by the police such premature
termination of proceedings can be claimed by discharge at the stage of
Section 239/240 Cr.P.C.
7. Of course, this court has jurisdictional competence under
Section 482 Cr.P.C. in an appropriate case to invoke the extra ordinary
inherent jurisdiction to prematurely terminate the criminal proceedings
against indictees. But such powers cannot be invoked as a matter of
course. Sufficient, satisfactory and exceptional reasons must be
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shown to exist to justify such invocation. I repeat that normally and
ordinarily a person wanting to claim premature termination must claim
such premature termination under Section 239 Cr.P.C. The petitioners’
option to claim such premature termination by discharge at the stage of
Section 239 Cr.P.C. shall remain unfettered notwithstanding the
dismissal of this Crl.M.C. The petitioners can appear before the
learned Magistrate and claim discharge under Section 239 Cr.P.C. The
learned Magistrate must consider such plea and take appropriate
decision.
8. I find merit in the contention of the learned counsel for the
petitioners that petitioners 2 to 5 ought to be given the option to
appear through their counsel and claim discharge under Section 239
Cr.P.C. In the peculiar facts and circumstances of the case, I find such
request to be absolutely justified.
9. This Crl.M.C. Is hence dismissed with the observation that
the petitioners can appear before the learned Magistrate and claim
discharge at the stage of Section 239/240 Cr.P.C. It is further directed
that the personal presence of petitioners 2 to 5 shall not be insisted to
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consider such plea for discharge. If they appear through counsel and
advance the plea for discharge, their personal presence shall not be
insisted until and if the learned Magistrate finds that charges are to be
framed against them also. Only if the learned Magistrate finds that
such charges are liable to be framed, need petitioners 2 to 5 appear in
person before the learned Magistrate.
(R. BASANT)
Judge
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