IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Crl.MC.No. 512 of 2009() ------------------------ CC.386/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER/ACCUSED: --------------- P.M.MOHAMMED SIDDIQUE, S/O LATE K.P.MOIDU, DOOR NO.5/1263, KOMBARAMUKKU, KOCHI- 682002. BY ADV. SRI.SAJAN MANNALI RESPONDENT/STATE & COMPLAINANT: --------------- 1. STATE OF KERALA REP.BY STATION HOUSE OFFICER, KODUNGALLUR POLICE STATION, KODUNGALLUR, TRISSUR DISTRICT. REPT.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.H.LATHEEF, S/O.LATE K.H.HUSSAINAR, AGED 47 YEARS, “A” CLASS PWD CONTRACTOR, XII/1216, KALATHIL HOUSE, PANAYAPILLY, KOCHI - 682 002. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.512 of 2009 ---------------------------------------- Dated this the 3rd day of February 2009 O R D E R The petitioner faces indictment in a prosecution for the offences punishable under Section 406 I.P.C. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. The crime in turn was registered on the basis of a private complaint filed by the other partner of the firm before the learned Magistrate which was referred to the police under Section 156(3) Cr.P.C. Investigation is complete. Final report has already been filed. Calender case has been registered. The petitioner has appeared before the learned Magistrate. The crux of the allegations against the petitioner is that he, who was a partner along with the de facto complainant, had misused certain documents which were available in the partnership fraudulently for some unjustified personal purposes. According to the petitioner, the allegations are totally false and even if accepted in toto, the prosecution against the petitioner is unjustified. The allegations being groundless, the prosecution against the petitioner is liable to the brought to premature termination, submits the learned counsel for the petitioner. Crl.M.C.No.512/09 2 2. An indictee who is constrained to face unjustified indictment is certainly entitled to claim premature termination of the proceedings against him. In a prosecution instituted on the basis of a police report raising allegations of warrant offences against an indictee, such premature termination can and ought ordinarily be claimed under the provisions of Section 239/240 Cr.P.C. If the learned Magistrate finds that the allegations are groundless, the petitioner is entitled for discharge. 3. Ordinarily and normally, a person entitled to claim premature termination must be relegated to claim such premature termination under the ordinary provisions of the Code. Of course, powers under Section 482 Cr.P.C are available with this court. In an appropriate case, where the interests of justice so warrant, such powers can be invoked to quash the proceedings notwithstanding the availability of the option for the indictee to claim discharge. But such extraordinary inherent jurisdiction is not to be invoked as a matter of course. Satisfactory, compelling and exceptional reasons must be shown to exist as to why this court must invoke the jurisdiction under Section 482 Cr.P.C and not relegate the parties to claim discharge under Section 239 Cr.P.C. I need only mention that I am not persuaded to agree that any such circumstances are Crl.M.C.No.512/09 3 available in this case which should prompt me to invoke the extraordinary inherent jurisdiction. This, I am satisfied, is an eminently fit case where the petitioner/indictee must be left to claim premature termination by discharge at the stage of Section 239 Cr.P.C before the learned Magistrate. 4. The learned counsel for the petitioner submits that if the personal presence of the petitioner were insisted on all dates of posting, that would work out great prejudice and hardship to the petitioner. In the peculiar facts and circumstances of this case, I am satisfied that there can be a direction to the learned Magistrate to permit the petitioner to be represented by his counsel until a decision is taken on the question of discharge under Section 239 Cr.P.C. Only if the learned Magistrate takes the decision that charges are liable to be framed, need the personal presence of the petitioner be insisted. Until then, he shall be permitted to be represented by his counsel. 6. With this observation, this petition is dismissed. 7. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr Crl.M.C.No.512/09 4 Crl.M.C.No.512/09 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008