IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 467 of 2008()
1. SARA ISSAC, AGED 44 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. PRAVEEN XAVIER, EDAKKATTUKUDY (H),
For Petitioner :SRI.JACOB MATHEW MANALIL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :15/09/2008
O R D E R
R.BASANT, J
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Crl.M.C. No.467 of 2008
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Dated this the 15th day of September, 2008
ORDER
Petitioner is the 3rd accused and she along with 3 others
faces indictment in a prosecution under Section 420 I.P.C. The
crux of the allegations is that all the 4 accused persons in
furtherance of their common intention with fraudulent purpose,
deceived the defacto complainant to accept a cheque without any
intention of getting the same honoured. Cognizance was taken
on the basis of a final report filed after due investigation by the
Investigating Officer. Crime in turn was registered on the basis
of a private complaint filed by the defacto complainant and
referred to the police under Section 156(3) Cr.P.C. The
petitioner has already entered appearance and has been
enlarged on bail. She, a woman, now has come to this Court
with this petition under Section 482 Cr.P.C to quash the
proceedings against her.
2. Under law, premature termination of criminal
proceedings can be claimed by an indictee under the ordinary
provisions of the Code of Criminal Procedure. In a case in which
cognizance has been taken of a warrant offence on the basis of a
Crl.M.C. No.467 of 2008 2
final report filed by the police, such premature termination can
be claimed at the stage of Section 239/240 Cr.P.C. If the
allegations are groundless, the learned Magistrate should not
frame a charge against the indictee and must discharge such
indictee.
3. Of course in exceptional circumstances there is ample
jurisdictional competence for this Court under Section 482
Cr.P.C to invoke its inherent jurisdiction to bring to premature
termination such undeserved prosecutions against indictees. But
such powers are not to be invoked as a matter of course. Unless
satisfactory and exceptional reasons are there and unless the
Court is satisfied that failure/miscarriage of justice would
otherwise result, such extraordinary inherent jurisdiction is not
to be invoked.
4. Having considered all the relevant circumstances, I
am satisfied that this is a fit case where the petitioner must be
relegated to claim premature termination by discharge under
Section 239 Cr.P.C. I find no extraordinary circumstances which
can persuade this Court to invoke such jurisdiction under
Section 482 Cr.P.C.
5. The learned counsel for the petitioner points out that
the petitioner, a woman, will be forced to endure undeserved
Crl.M.C. No.467 of 2008 3
trauma if her personal appearance were to be insisted by the
learned Magistrate. I am satisfied that appropriate direction can
be issued/provided to save the petitioner from such apprehended
undeserved trauma. The petitioner can appear through counsel
and raise the plea of discharge. The petitioner’s personal
presence shall not be insisted by the learned Magistrate until the
plea of discharge is considered on merits and appropriate
decision taken. Until then, she shall be permitted to be
represented by her counsel. Only if the learned Magistrate finds
that charges are liable to be framed under Section 240 Cr.P.C,
can and need the petitioner appear in person before the learned
Magistrate.
6. I may hasten to observe that the dismissal of this
petition will not in any way fetter the rights of the petitioner to
raise all appropriate and relevant contentions at the stage of
discharge under Section 239/240 Cr.P.C. The learned
Magistrate must consider the same on merits and take
appropriate decision.
7. With the above observations, this Crl.M.C is
dismissed.
(R.BASANT, JUDGE)
rtr/-