IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Crl.MC.No. 51 of 2009() ---------------------------------- C.C.192/2004 OF JUDICIAL FIRST CLASS MAGISTRATE I, KOZHIKODE, REFILED AS CC 413/2008 OF JUDICIAL FIRST CLASS MAGISTRATE I, KOZHIKODE. ......... PETITIONER(S): 3RD ACCUSED: ------------------------------------------------ AASHID KUMAR, S/O.SUKUMARAN MUNDOTH THAZHAM HOUSE, CHELAVOOR, KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT/STATE: -------------------------------------------------------------- 1. SUB INSPECTOR OF POLICE, CHEVAYUR POLICE STATION. 2. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 51 of 2009 ------------------------------------------------- Dated this the 6th day of January, 2009 ORDER The petitioner faces indictment as the 3rd accused in a prosecution for the offence punishable under Sec.498A read with Sec.34 IPC. Altogether, there were 4 accused persons. They are the husband and relatives of the husband of the de facto complainant/wife. The petitioner is the brother-in-law of the de facto complainant. The petitioner is employed abroad. Cognizance was taken on the basis of a final report submitted by the police after due investigation. As the petitioner was not available, the trial against the co-accused proceeded. They have been found not guilty and acquitted. The case against the petitioner has been split up. All the other co-accused have been found not guilty and acquitted. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent and the allegations against him are groundless. In the light of the decision in the trial Crl.M.C. No. 51 of 2009 -: 2 :- against the co-accused, the petitioner does not deserve to stand the trial at all, it is submitted. 3. An accused facing unjustified criminal prosecution is certainly entitled to claim premature termination of proceedings. But 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 am, in these circumstances, satisfied that it is for the petitioner to appear before the learned Magistrate and seek premature termination by discharge under Sec.239 Cr.P.C. 4. The learned counsel for the petitioner submits that the petitioner is employed abroad and the matter is unnecessarily dragging on. The petitioner may be permitted to appear Crl.M.C. No. 51 of 2009 -: 3 :- through counsel and stake his claim for discharge, it is prayed. I find merit in that prayer of the learned counsel for the petitioner. Appropriate observations/directions may be issued while dismissing this Crl.M.C. 5. In the result: (a) This Crl.M.C. is dismissed. (b) It is made clear that the dismissal of this Crl.M.C. will not in any way fetter the right of the petitioner to claim discharge under Sec.239 Cr.P.C. (c) It is further observed that if the petitioner appears through counsel and stakes his plea for discharge, the learned Magistrate must consider the same without insisting on personal presence of the petitioner. Until a decision is taken on the question of framing charge, the petitioner shall be permitted to appear through counsel and his personal presence shall not be insisted if he is adequately represented by counsel. 6. 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. 51 of 2009 -: 4 :-