IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 447 of 2009()
1. JAMES ANTONY,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
2. N.K.GOPINATHAN, S/O.KUNJUKUTTY,
For Petitioner :SRI.S.SACHITHANANDA PAI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :30/01/2009
O R D E R
R. BASANT, J.
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Crl.M.C. No. 447 of 2009
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Dated this the 30th day of January, 2009
ORDER
The petitioner faces indictment in a prosecution for
offences punishable under Secs.418 and 420 IPC. Cognizance
has been taken on the basis of a final report submitted by the
police after due investigation in a crime. That crime, in turn,
was registered on the basis of a private complaint filed by the
complainant and referred to the police by the learned
Magistrate under Sec.156(3) Cr.P.C. The crux of the
allegations is that the offences under Secs.418 and 420 have
been committed in respect of a transaction in partnership in
which the petitioner’s wife and the de facto complainant were
partners.
2. The learned counsel for the petitioner submits that the
prosecution is totally unjustified and allegations have been
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raised without specifically adverting to the relevant aspects.
The petitioner is alleged to be a partner; whereas, as a matter of
fact, not he but his wife is the partner. It would be injustice to
compel the petitioner to face trial on the basis of such
allegations. In these circumstances, the extraordinary inherent
jurisdiction under Sec.482 Cr.P.C. may be invoked to bring to
premature termination the prosecution against the petitioner. It
is submitted that the petitioner is already on bail at the crime
stage. After cognizance is taken, the petitioner has not entered
appearance before the learned Magistrate.
3. An indictee facing unjustified criminal prosecution is
certainly entitled to claim premature termination of proceedings.
Ordinarily and normally such premature termination must be
claimed in accordance with the ordinary provisions of the Code.
In a warrant offence in which cognizance has been taken on the
basis of a police report, such premature termination can be
claimed ordinarily under the Code by discharge under Sec.239
Cr.P.C. In an exceptional case where the interests of justice
compellingly demand such course, this Court definitely has the
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reservoir of powers under Sec.482 Cr.P.C. to act in aid of justice
and bring such prosecution to premature termination. But
invocation of the powers under Sec.482 Cr.P.C. cannot be a
matter of course. Satisfactory, compelling and exceptional
reasons must be shown to insist to justify invocation of such
jurisdiction. I am not persuaded to agree that there are such
reasons in this case which can persuade this Court to invoke
such extraordinary inherent jurisdiction. Appropriate
observations can be made and the interests of the petitioner can
be protected. The petitioner can be relegated to claim
premature termination by discharge at the stage of Sec.239/240
Cr.P.C. – the instant prosecution being one for a warrant offence
on the basis of a police report.
4. In the result:
(a) This Crl.M.C. is allowed in part.
(b) The petitioner is relegated to stake his claim for
discharge before the learned Magistrate.
(c) It is further directed that until a decision is taken on
the question of framing charges under Sec.240 Cr.P.C. the
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personal presence of the petitioner shall not be insisted by the
learned Magistrate and the petitioner shall be permitted to
appear through his pleader and stake his claim for discharge in
accordance with law.
5. Hand over a copy of this order to the learned counsel for
the petitioner.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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