IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17291 of 2008(H)
1. K.P.VARGHESE, AGED 64 YEARS,
... Petitioner
2. P.J.MARIAMMA, AGED 60 YEARS,
3. RENJITH VARGHESE, AGED 32 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. VINEETHA MATHEW, D/O.MATHEW CHACKO,
For Petitioner :SRI.K.SHRIHARI RAO
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :10/06/2008
O R D E R
R.BASANT, J.
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W.P.C.No.17291 of 2008
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Dated this the 10th day of June 2008
J U D G M E N T
In this writ petition, the petitioners pray that the criminal
prosecution initiated against them alleging offences punishable
inter alia under Section 498A I.P.C may be quashed.
2. They are the father-in-law, mother-in-law and brother-
in-law respectively of the de facto complainant. They are
arrayed as accused 2 to 4. The first accused is the husband of
the de facto complainant. He works abroad. Anticipatory bail
was granted to the petitioners and the petitioners had complied
with the terms of the anticipatory bail order. Investigation is
now complete. Final report has already been filed. Petitioners
are already on bail. After cognizance, they have not appeared
before the learned Magistrate. The learned counsel for the
petitioners submits that the petitioners do not deserve to stand
the trauma of a criminal prosecution. There are no materials
whatsoever against the petitioners. The petitioners may in these
circumstances be permitted to claim premature termination of
proceedings by invocation of the extraordinary constitutional
W.P.C.No.17291/08 2
jurisdiction available to this court under Article 226 of the
Constitution of India, if not the jurisdiction under Section 482
Cr.P.C. The petitioners claim premature termination of a
criminal prosecution. Under the ordinary provisions of the Code,
an indictee is entitled to claim premature termination of the
criminal prosecution against him even when such prosecution is
initiated on the basis of a final report submitted by the police.
Section 239/240 Cr.P.C oblige the courts to consider such plea of
discharge and take appropriate decision.
3. No doubt, this court has the extraordinary jurisdiction
under Article 226 of the Constitution of India or Section 482
Cr.P.C to bring such prosecutions to premature termination; but
normally and ordinarily, in the absence of convincing reasons an
indictee must be relegated to seek the ordinary remedy under
the Code and should not be permitted to invoke the
extraordinary Constitutional jurisdiction under Article 226 of the
Constitution of India I am satisfied, having considered all the
relevant inputs that there are no circumstances which can justify
or warrant the invocation of such constitutional jurisdiction.
This, I am satisfied is an eminently fit case where the petitioners
must be relegated to claim premature termination by claiming
discharge under Section 239 Cr.P.C.
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4. The learned counsel for the petitioners submits that if
unnecessary insistence were made on the personal appearance
of the petitioners who are already on bail to claim discharge.
that would work out great hardship and prejudice to the
petitioners.
5. Having considered all the relevant circumstances and
in the peculiar facts and circumstances of this case, I am
satisfied that a direction can be issued that the personal
presence of the petitioners need be insisted by the learned
Magistrate only if the learned Magistrate after considering the
plea of discharge finds it necessary to frame charges against the
petitioners at the stage of 240 Cr.P.C. Until then the personal
presence of the petitioners who are already on bail need not be
insisted. They shall be permitted to appear through their
counsel and raise such plea of discharge.
6. In the result, this writ petition is dismissed; but with
the above observations.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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W.P.C.No.17291/08 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007