IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 458 of 2007()
1. SHAHIDA BEEVI, AGED 48 YEARS,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. ABDUL RAZACK, S/O. IBRAHIMKUTTY,
For Petitioner :SRI.P.K.IBRAHIM
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :21/02/2007
O R D E R
R. BASANT, J.
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Crl.M.C.No. 458 of 2007
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Dated this the 21st day of February, 2007
O R D E R
The petitioner is the second accused and the learned Magistrate
has taken cognizance of the offence punishable under Section 420
I.P.C. against the petitioner also. Such cognizance has been taken on
the basis of a private complaint filed by the respondent/complainant
and after conducting an enquiry under Section 202 Cr.P.C.
Investigation has also been conducted under Section 202 Cr.P.C.
before cognizance was taken.
2. The petitioner has received summons. She has not appeared
before the learned Magistrate. She has rushed to this court with this
petition under Section 482 Cr.P.C. It is submitted that cognizance
does not deserve to be taken against the petitioner. No satisfactory
allegations have been raised against the petitioner. If at all only a
civil liability is revealed. In these circumstances initiation of
proceedings amount to abuse of process of the court. The same may
be prevented by invocation of the jurisdiction under Section 482
Cr.P.C., submits the learned counsel.
Crl.M.C.No. 458 of 2007 2
3. I have no hesitation to agree that this Court has jurisdiction under
Section 482 Cr.P.C. to deal with such a situation. But the crucial question
is whether this is a fit case in which such extra ordinary inherent
jurisdiction ought to be invoked. In every case where discharge under
Section 245(2) or 245(1) Cr.P.C. or a later acquittal is a possibility, this
court will not be justified in invoking such jurisdiction. Has justice failed?
Has there been failure/miscarriage of justice? These are the crucial
questions while considering the invocation of the powers under Section 482
Cr.P.C.
4. Why cannot the petitioner take resort to the provisions of Section
245(2) Cr.P.C.? Cognizance has been taken ex parte. It is possible that the
learned Magistrate may not have adverted to specific circumstances from
the point of view of the petitioner. Law does not leave a party like the
petitioner without remedy. This is an eminently fit case where the
petitioner must appear before the learned Magistrate and seek discharge
under Section 245(2) Cr.P.C. on the ground that the allegations raised
against her are groundless. I have no reason to assume that the learned
Magistrate would not consider that contention on merits, in accordance with
law and expeditiously. Every court must do the same. The mere fact that
Crl.M.C.No. 458 of 2007 3
cognizance has been taken by the learned Magistrate is no reason to assume
that the learned Magistrate will not take a different view when called upon
to exercise the functions under Section 245(2) Cr.P.C. No court would be
a prisoner of the adhoc decision reached earlier ex parte when the court
was not assisted by the other side. The counsel submits that the petitioner.
a woman, would be obliged unnecessarily to appear before the learned
Magistrate.
5. I am satisfied, in the peculiar facts and circumstances of this case
that there is no reason for the learned Magistrate to insist on personal
presence of the petitioner before a decision is taken on the claim for
discharge under Section 245(2) Cr.P.C. The petitioner shall be permitted to
appear through counsel and only if it is found that she is not entitled for
discharge under Section 245(2), her personal presence need be insisted.
6. With the above observations this Crl.M.C. is dismissed.
(R. BASANT)
Judge
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