IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 Crl.MC.No. 3040 of 2008() ------------------------- CC.1130/2007 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... PETITIONER: FIRST ACCUSED ------------------------- JAYASREE, W/O.K.B.RAJEEV, SOLAR, PALLITHOTTAM, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENTS: STATE AND DEFACTO COMPLAINANT ------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRAYIKATTU.N.KESAVA PILLAI, PRESIDENT, NSS TALUK UNION, KUNNATHOOR, PRAYIKATTU VEEDU, KIDANGAYAM NORTH, PATHARAM.P.O, SOORANADU SOUTH, KOLLAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3040 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August, 2008 O R D E R The petitioner is the second accused, who faces indictment along with her husband/A1, for offences punishable under Sections 406 and 420 r/w. 34 I.P.C. Investigation is complete. Final report has already been filed. The crime was registered on the basis of a complaint filed by the defacto complainant before the Superintendent of Police. In such complaint no allegation whatsoever is raised against the petitioner. But in the course of the investigation the petitioner has been brought on the array of accused and in the final report allegations have been raised against the petitioner. 2. The crux of the allegations is that the husband of the petitioner/A1 had sold an item of property to the defacto complainant suppressing vital information regarding the encumbrance on that property. The counsel contends that the only allegation against the petitioner is that she had received consideration for the property along with her husband. Crl.M.C.No. 3040 of 2008 2 3. The learned counsel for the petitioner submits that the petitioner is absolutely innocent and that a perusal of the records would reveal that there is no worthwhile allegation against the petitioner. In these circumstances it is prayed that she may not be compelled to endure the undeserved trauma of arrest and detention. Proceeding against her may be directed to be quashed invoking the jurisdiction under Section 482 Cr.P.C., submits the counsel. 4. I have considered the submissions made, the complaint filed by the defacto complainant as also the final report filed. I have not had access to the case diary statements of various witnesses. Suffice it to say that I am satisfied that the petitioner's case for premature termination of proceedings initiated against her deserves to be considered anxiously. 5. Premature termination of proceedings can be sought in a complaint instituted upon a police report by discharge under Section 239/240 Cr.P.C. Ordinarily and normally an accused person must claim premature termination of proceedings in accordance with the specific stipulation in the Code. Of course, in an exceptional case in Crl.M.C.No. 3040 of 2008 3 aid of justice this Court will be justified in invoking the extra ordinary inherent jurisdiction. The effort must be in identifying such a case in which the extra ordinary inherent jurisdiction deserves to be invoked. Such jurisdiction is not to be invoked as a matter of course. The mere fact that the petitioner has a good case to be advanced to claim premature termination by discharge under Section 239 Cr.P.C. is by itself not a sufficient or compelling reason for this Court to invoke such jurisdiction. 6. I am satisfied, in the facts and circumstances of this case, that it is not necessary for this Court to wait for production of the entire case diary and the materials relied on by the prosecution. I am of the opinion that it will be sufficient that subject to appropriate safeguards the petitioner can be permitted to seek premature termination by discharge before the learned Magistrate at the stage of Section 239/240 Cr.P.C. 7. This Crl.M.C. is accordingly dismissed. But I proceed to specifically observe that at the stage of Section 239/240 Cr.P.C. the learned Magistrate must consider the plea of the petitioner for Crl.M.C.No. 3040 of 2008 4 discharge in accordance with law. Such consideration must be made expeditiously also. 8. In the peculiar facts and circumstances of this case, I am satisfied that a further direction can be issued in favour of the petitioner. It is is hence directed that personal presence of the petitioner shall not be insisted by the learned Magistrate until the claim of the petitioner for discharge under Section 239 Cr.P.C. is considered on merits and a decision taken. Till such decision is taken, the petitioner shall be permitted to appear through counsel. Only if the court takes a decision to frame charges against the petitioner, need the court below insist on the personal presence of the petitioner. Until then the petitioner shall be permitted to appear through counsel. 9. Hand over the order. (R. BASANT) Judge tm