IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 Crl.MC.No. 4655 of 2008() -------------------------------------- (C.C.NO.250/2008 OF CHIEF JUDICIAL MAGISTRATE COURT,ERNAKULAM) ...... (CRIME NO.516/2002 OF CENTRAL POLICE STATION,ERNAKULAM) PETITIONER(S): ACCUSED NO.4 ------------------------------------------------- SAIGAL, S/O.RAGHAVAN, AGED 29 YEARS, NAGAMBADITHARAVEETTIL, H.NO.IV/265, NEAR EROOR RAILWAY GATE, NADAMA VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.P.M.ZIRAJ RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM REP. BY SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/12/2008 ALONG WITH CRMC.NO.4656 OF 2008, CRMC.NO. 4657 OF 2008 AND CRMC.NO.4658 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. Nos.4655, 4656, 4657 & 4658 of 2008 ------------------------------------------------- Dated this the 2nd day of December, 2008 ORDER The common petitioner faces indictment in four different prosecutions – all under Sec.420 read with Sec.34 IPC. The crux of the allegations is that the 1st accused had obtained certain documents from the de facto complainants and had fraudulently utilised the same to collect loans. The de facto complainants were ignorant about such fraudulent design of the 1st accused. It is alleged that accused 2 to 4 are partners along with the 1st accused and they had also shared the common intention of the 1st accused. One of the accused stood trial before the court below and in such trial the court below found that there is nothing to show that the other accused were partners of the firm along with the 1st accused. It is contended that there is absolutely no material to implicate the Crl.M.C. Nos.4655, 4656, 4657 & 4658 of 2008 -: 2 :- petitioner in these four cases and the continuance of the prosecutions amounts to abuse of process of the court. The charges being groundless, the petitioner is entitled to be discharged, it is contended. It is prayed that the powers under Sec.482 Cr.P.C. may be invoked to quash all these four prosecutions against the petitioner. It is further submitted that the petitioner has entered appearance in all these four cases. He is employed abroad. He has come to India on coming to know of the pending prosecutions. It is prayed that the prosecutions may be quashed. In the alternative, it is contended that the learned Magistrate may be directed to consider the plea for discharge of the petitioner within a stipulated period of time. 2. I have considered all the relevant circumstances. The crux of the contention is that the charge against the petitioner in all these four cases is groundless. An indictee who is constrained to face undeserved prosecution against him is certainly entitled to claim premature termination of proceedings at the threshold. In a case in which cognizance is taken of a warrant offence on a police report such premature termination of proceedings must be claimed under Sec.239 Cr.P.C. by discharge. This Court does of course have jurisdictional competence to invoke the powers under Sec.482 Cr.P.C. in an Crl.M.C. Nos.4655, 4656, 4657 & 4658 of 2008 -: 3 :- appropriate case, but certainly such powers cannot be invoked as a matter of course. I do not find any circumstances in the facts of these cases to justify the invocation of such extraordinary inherent jurisdiction. It is for the petitioner to stake the claim for premature termination by discharge under Sec.239 Cr.P.C. before the learned Magistrate. The learned Magistrate shall consider such plea and take appropriate decision on merits. 3. The learned counsel for the petitioner submits that the petitioner is employed abroad and, in these circumstances, insistence of personal appearance of the petitioner would work out great prejudice and hardship. He further submits that if the plea for discharge is not expeditiously considered, that would also result in prejudice and hardship to the petitioner. I am satisfied that while dismissing these Crl.M.Cs. appropriate observations can be made to protect and safeguard the interest of the petitioner. 4. In the result: (a) These Crl.M.Cs. are allowed. (b) It is observed that the petitioner shall be at liberty to stake the claim for discharge under Sec.239 Cr.P.C. before the learned Magistrate and the learned Magistrate must consider Crl.M.C. Nos.4655, 4656, 4657 & 4658 of 2008 -: 4 :- such plea for discharge and take a decision within a period of 45 days from the date on which a copy of this order is placed before the learned Magistrate. (c) Until such plea for discharge is considered and appropriate decision taken, personal presence of the petitioner shall not be insisted by the learned Magistrate if the petitioner is represented by his counsel. Sd/- (R. BASANT, JUDGE) Nan/ HO //true copy// P.S. to Judge Crl.M.C. Nos.4655, 4656, 4657 & 4658 of 2008 -: 5 :-