IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 Crl.MC.No. 446 of 2009() ------------------------ CC.136/2008 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA CRIME NO.1063/08 OF THE THODUPUZHA POLICE STATION .................... PETITIONER(S): ACCUSED ---------------------- ROSLIN JOSEPH, W/O. JOSEPH, MANATHOOR HOUSE, KUDAYATHOOR KARA, VELLIYAMATTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADV. SRI.C.J.JOY RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION, THODUPUZHA.P.O, IDUKKI DISTRICT (CRIME NO. 1063/2008 OF THODUPUZHA POLICE STATION) BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 446 of 2009 ------------------------------------------------- Dated this the 30th day of January, 2009 ORDER The petitioner – the Principal of an educational institution, faces indictment for an offence punishable under the provisions of the Prevention of Insults to National Honour Act, 1971. The crux of the allegations is that the petitioner had shown disrespect to the national flag and without de-hoisting it at sun set allowed the flag to remain at the mast during night. Investigation is complete. Final report has already been filed. Cognizance has been taken. Trial has not commenced. The petitioner is already on bail. 2. The learned counsel for the petitioner submits that the petitioner has not shown any wilful disrespect or insult to the national flag. At best, it is only an inadvertent omission. She was not doing well and the indiscretion occurred Crl.M.C. No. 446 of 2009 -: 2 :- unintentionally. In these circumstances, it is prayed that the prosecution may be quashed. 3. An indictee facing unjustified criminal prosecution is certainly entitled to claim premature termination of proceedings. Usually, ordinarily and normally such premature termination must be claimed in accordance with the ordinary provisions of the Code. In a warrant offence in which cognizance has been taken on the basis of a police report, such premature termination can be claimed ordinarily under the Code by discharge under Sec.239 Cr.P.C. In an exceptional case where the interests of justice compellingly demand such course, this Court definitely has the reservoir of powers under Sec.482 Cr.P.C. to act in aid of justice and bring such prosecution to premature termination. But invocation of the powers under Sec.482 Cr.P.C. cannot be a matter of course. Satisfactory, compelling and exceptional reasons must be shown to insist to justify invocation of such jurisdiction. I shall not embark on any detained discussions of the various contentions raised by the learned counsel for the petitioner. Suffice it to say that I am not satisfied that there is any need, justification or warrant for invocation of such extraordinary inherent jurisdiction in the facts and circumstances of this case. Implicit respect and reverence to Crl.M.C. No. 446 of 2009 -: 3 :- the national flat is certainly expected from all dutiful citizens. I am satisfied that the petitioner must be relegated to advance all contentions before the learned Magistrate and claim termination of prosecution prematurely or claim acquittal at the end of the trial. In a warrant offence in which cognizance has been taken on the basis of a police report, such premature termination must ordinarily be claimed at the stage of Sec.239/240 Cr.P.C. by discharge. 4. The learned counsel for the petitioner submits that the petitioner was not given a reasonable opportunity to claim discharge and charges have now been framed. The learned counsel for the petitioner submits that the petitioner – a Principal, shall be put to unnecessary hardship and inconvenience if her personal presence were insisted on all dates of posting. 5. I have considered all the relevant inputs. I am satisfied that this Crl.M.C. only deserves to be dismissed with appropriate observations. I am satisfied that the petitioner can be given an opportunity to claim discharge afresh under Sec.239/240 Cr.P.C. The learned Magistrate shall consider the claim for discharge at the stage of Sec.239 Cr.P.C. and take appropriate decision. Appropriate direction to save the petitioner of the obligation to Crl.M.C. No. 446 of 2009 -: 4 :- appear personally cannot also be issued. 6. In the result: (a) This Crl.M.C. is allowed in part. (b) The order framing charge under Sec.240 Cr.P.C. is set aside and the learned Magistrate is directed to consider the question of framing charge at the stage of Sec.239/240 Cr.P.C. afresh in accordance with law. (c) It is further directed that until a decision is taken on the question of framing charge, personal presence of the petitioner need not be insisted and the petitioner can be permitted to appear through her counsel till a decision is taken on the question of framing charge. 7. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 446 of 2009 -: 5 :-