IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.MC.No. 828 of 2008() ------------------------ CC.3072/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER: ACCUSED ------------------- 1. P.S.HASHIM, AGED 44 YEARS, S/O. LATE SHAMSUDHEEN, PEEDIYEKKAL, KANJIRAMATTOM P.O., ERNAKULAM. 2. SALMA BEEVI, AGED 70 YEARS, W/O. LATE SHAMSUDHEEN, PEEDIYEKKAL HOUSE, KANJIRAMATTOM PO., ERNAKULAM. BY ADV. SRI.SHAJI P.CHALY SMT.K.S.SUMITHA SMT.M.M.JASMIN SRI.ABDUL JALEEL.A SRI.S.GOPAKUMAR RESPONDENTS: COMPLAINANT ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, MULAMTHURUTHY POLICE STATION, ERNAKULAM DISTRICT. 2. CEILIA, AGED 35 YEARS, D/O. SEETHI, PUTHANPARAMBIL, PAKMKADAVU, THALAYOLAPARAMBU, VADAYAR VILLAGE, VAIKOM P.O., KOTTAYAM DISTRICT. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB SRI.S.RAJEEV FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.828 of 2008 ---------------------------------------- Dated this the 17th day of September 2008 O R D E R The petitioners are accused 1 and 2 and they face indictment in a prosecution for the offences punishable under Section 498A I.P.C read with 34 I.P.C. The crime has been registered on the basis of a private complaint filed by the complainant before the learned Magistrate and referred by the learned Magistrate to the police under Section 156(3) Cr.P.C. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. The petitioners have now come before this court with the prayer that powers under Section 482 Cr.P.C may be invoked to quash the proceedings against the petitioners. 2. What is the ground? The learned counsel for the petitioners submits first of all that the allegations are totally false. Whether the allegations are true or false, cannot obviously be decided by this court on the basis of the materials presently available and in exercise of the jurisdiction under Section 482 Cr.P.C disputed questions of facts cannot be attempted to Crl.M.C.No.828/08 2 resolve at this stage. The learned counsel for the petitioners then contends that there is incongruity between the allegations raised in the private complaint filed and the allegations raised in the final report filed by the police. I shall scrupulously avoid any detailed expression of opinion on merits. I am however satisfied that on the said ground, It is not necessary to invoke the jurisdiction under Section 482 Cr.P.C and bring to premature termination the prosecution against the petitioners. 3. Indictees who face indictment in criminal offences have the option under the Code of Criminal Procedure to claim premature termination. In a case alleging warrant offences instituted on the basis of a final report submitted by the police such premature termination can be brought about by discharge under Section 239/240 Cr.P.C. Having considered all the relevant circumstances I am not persuaded to agree that there are any such compelling reasons which should persuade this court not to relegate the petitioners to resort to the ordinary and normal procedure under code and choose to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C. Crl.M.C.No.828/08 3 4. The learned counsel for the petitioners submits that the second petitioner is a woman of advanced age - above seventy years. Great hardship and inconvenience would result if her personal presence were insisted to consider the plea of discharge under Section 239 Cr.P.C. The petitioners can certainly apply for exemption and I find no reason why her personal presence must be insisted by the learned Magistrate to consider the plea of discharge under Section 239/240 Cr.P.C. I would observe that her personal presence need be insisted only if the learned Magistrate feels that she is not entitled for discharge and takes a decision under Section 240 Cr.P.C to frame charge against her. 5. With the above observations this Crl.M.C is dismissed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.828/08 4 Crl.M.C.No.828/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008