IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2037 of 2008()
1. SULAIKHA, PALLISTREET, POONTHURA P.O.,
... Petitioner
2. SUBAIR KHAIS, S/O.SUBAIR,
Vs
1. THE STATE OF KERALA - REP. BY THE
... Respondent
For Petitioner :SRI.D.AJITHKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :28/05/2008
O R D E R
R. BASANT, J.
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Crl.M.C.No. 2037 of 2008
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Dated this the 28th day of May, 2008
O R D E R
The petitioners are accused 4 and 5 in a prosecution for
offences punishable under Section 420 r/w. 34 I.P.C. Altogether
there are five accused persons. Crime was registered on the
information furnished by the defacto complainant before the
police. Investigation was conducted. Final report was filed.
Cognizance has been taken. The petitioners are arrayed as
accused 4 and 5.
2. To put it in a nut shell, the allegation is that the
accused, in furtherance of their common intention, induced the
defacto complainant to part with an amount on the promise that
VISA for employment abroad shall be secured for the defacto
complainant. VISA was not secured. Amount was not returned.
It is in these circumstances that the complaint was filed and after
competing the investigation the police filed the final report.
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3. The learned counsel for the petitioners submits that the
petitioners are absolutely innocent. They have been brought on the
array of accused solely to vex and harass them and to compel them to
settle the disputes. In any view of the matter, the petitioners do not
deserve to endure the trauma of arrest and detention. The proceedings
against them may be quashed invoking the powers under Section 482
Cr.P.C., it is prayed.
4. I have considered all the relevant inputs. I shall carefully
avoid any expression of opinion on the acceptability of the allegations
raised or the credibility of the data collected. Suffice it to say that I am
of the opinion that the petitioners must appear before the learned
Magistrate and claim discharge at the stage of Section 239/240 Cr.P.C.
5. An indictee, who faces indictment, can claim premature
termination of the proceedings in accordance with the ordinary
provisions of the Cr.P.C. In every such case, where premature
termination is a possibility, it is not necessary for this Court to invoke
the jurisdiction under Section 482 Cr.P.C. In the absence of
exceptional and compelling reasons the indictees can be relegated to
Crl.M.C.No. 2037 of 2008
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claim premature termination by discharge before the learned
Magistrate, who has taken cognizance of the offence.
6. Having considered all the relevant inputs, I am not persuaded
to agree that there are any such circumstances in this case which should
persuade this Court to permit the petitioners to short circuit the
ordinary procedure under the Cr.P.C. and direct premature termination
of the proceedings by invoking the jurisdiction under Section 482
Cr.P.C. I agree with the learned counsel for the petitioners that the
petitioners have a case to advance to claim discharge. They can
certainly appear before the learned Magistrate and claim discharge at
the stage of Section 239/240 Cr.P.C.
7. The learned counsel for the petitioners submits that if
unnecessary insistence is made on the personal presence of the
petitioners, that would cause great hardship and loss to the petitioners.
I am satisfied that a direction can be issued to the learned Magistrate to
permit the petitioners to appear through counsel and raise the plea for
discharge under Section 239/240 Cr.P.C. Till a decision is taken on the
question of charge/discharge, personal presence of the petitioners need
Crl.M.C.No. 2037 of 2008
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not be insisted and they can be permitted to be represented through
counsel.
8. With the above observations/directions, this Crl.M.C. is
dismissed.
(R. BASANT)
Judge
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