IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3521 of 2008()
1. NIJO @ JOSEPH, S/O. DEVASSY,
... Petitioner
2. DEVASSY, PULLELI HOUSE,
3. ANNA, W/O. DEVASSY,
4. BABY S/O. ANTONY, PALLISSERY HOUSE,
Vs
1. KURIACHAN, S/O. ITTOOP,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.SANTHOSH (PODUVAL)
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :24/09/2008
O R D E R
R. BASANT, J.
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Crl.M.C.No. 3521 of 2008
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Dated this the 24th day of September, 2008
O R D E R
The petitioners, members of a family, face indictment in a
prosecution, inter alia, under Section 420 I.P.C. Cognizance has
been taken on the basis of the final report submitted by the police
after due investigation. Except the first petitioner, the others
have already entered appearance and were enlarged on bail. The
first petitioner is abroad and coercive processes have been issued
against the said petitioner. According to the petitioners, the
allegations raised against them are totally false and incorrect.
They are raised vexatiously. There is absolutely nothing to show
that the allegations against them are true, correct or justifiable.
They are groundless. Allegations do not constitute any offence.
Proceedings against them may, in these circumstances, be
quashed invoking the extra ordinary inherent jurisdiction under
Section 482 Cr.P.C., it is prayed. The petitioners do not deserve
Crl.M.C.No. 3521 of 2008
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to stand the trauma of a criminal trial and they are entitled for
premature termination of the proceedings, urges the learned counsel.
2. An indictee facing criminal prosecution is certainly entitled
to claim premature termination of the proceedings initiated against
him. Normally and ordinarily he must invoke the ordinary provisions
of the Code to claim such premature termination of proceedings.
Ordinarily the parties should claim premature termination from the
Magistrate. In a case instituted upon police report relating to a warrant
offence, such premature termination can be claimed by discharge at
the stage of Section 239/240 Cr.P.C.
4. Of course, in an exceptional case where the interests of
justice so demand compellingly, this court has jurisdictional
competence under Section 482 Cr.P.C. to invoke the extra ordinary
inherent jurisdiction to prematurely terminate the criminal proceedings
against indictees.
5. But having considered all the relevant inputs, I must say,
without intending to express any opinion on merits, that this is a fit
case where the petitioners must be relegated to seek the relief of
premature termination by discharge under Section 239/240 Cr.P.C.
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5. The learned counsel for the petitioners submits that warrant
of arrest has been issued against the first petitioner, who is now
employed abroad. Unnecessary and needless harassment would result
if personal presence of the petitioners is insisted to facilitate
consideration of the plea for discharge. I am satisfied that appropriate
directions can be issued to safeguard the interests of justice.
9. This Crl.M.C. is allowed in part. The learned Magistrate
shall permit the petitioners to appear through counsel and claim
discharge at the stage of Section 239/240 Cr.P.C. Only if the learned
Magistrate enters a finding that charges are liable to be framed, need
the Magistrate insist on the personal presence of the petitioners . Until
then they shall be permitted to appear through counsel. This is so in
spite of the fact that warrant of arrest is pending against the first
petitioner. The warrant of arrest shall not be executed until a decision
is taken on the question of discharge under Section 239/240 Cr.P.C.
(R. BASANT)
Judge
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