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. 3904 of 2008() ------------------------- CC.544/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... PETITIONER(S): ACCUSED 1 TO 3 --------------- 1. JOSHY, S/O.MATHEW, PUTHUPULLIPARAMBIL MULANGU DESOM THOPPIL VILLAGE, MUKUNDAPURAM. 2. DIVYA JOSHY, W/O.JOSHY PUTHUPULLIPARAMBIL, MULANGU DESOM THOPPIL VILLAGE, MUKUNDAPURAM. 3. USHA MOHANAN, W/O.LATE MOHANAN, CHEERAMBATHU HOUSE, MULANGU DESOM, THOPPIL VILLAGE, MUKUNDAPURAM. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): COMPLAINANT & STATE --------------- 1. RALY SANTHOSH, W/O.SANTHOSH CHEERAMBATHU CHEERAMBATHU HOUSE, MULANGU DESOM THOPPIL VILLAGE, MUKUNDAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU ADV. SRI.P.K.MOHANAN(PALAKKAD) FOR R1 SRI.M.N.UNNIKRISHNAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3904 of 2008 ------------------------------------- Dated this the 2nd day of December, 2008 ORDER Petitioners face indictment in a prosecution for the offence punishable under Section 498 A I.P.C. Cognizance has been taken on the basis of a private complaint filed by the 1st respondent herein. The 1st respondent is married to the son of the 3rd petitioner/accused. The 2nd petitioner/accused is the sister in law of the 1st respondent and the 1st petitioner/accused is the husband of the 2nd accused. 2. In the complaint, the 1st respondent made allegations against her mother in law, sister in law and the husband of the sister in law and significantly did not make any allegations against her husband. She is residing along with her husband. The learned Magistrate in the peculiar nature of the allegations, did, it appears, think of the necessity of getting an investigation conducted under Section 202 Cr.P.C. Report was obtained. The report of the police officer did not support the allegations of the 1st respondent. The learned Magistrate, it is evident, was not satisfied with the report and proceeded to examine the Crl.M.C. No.3904 of 2008 2 witnesses. The complainant and two witnesses were examined. After completing the enquiry under Section 202 Cr.P.C, the learned Magistrate decided to take cognizance of the offences alleged against the petitioners. Accordingly process was issued to them under Section 204 Cr.P.C. The petitioners claim to be aggrieved by the said order taking cognizance. 3. The learned counsel for the petitioners contends that the petitioners are absolutely innocent. The defacto complainant along with her husband is making false allegations against the petitioners. There are certain disputes between the parties about property and it is hence that such allegations are being raised. 4. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this Court under Section 482 Cr.P.C. Complicated and disputed questions of fact cannot be attempted to be resolved. The learned Magistrate, despite the report of investigation secured under Section 202 Cr.P.C, does appear to have been satisfied on the basis of the sworn statement of the complainant and 2 witnesses that cognizance can be taken. At the moment and with the available inputs, I am unable to agree that such cognizance taken is perverse or unjust Crl.M.C. No.3904 of 2008 3 as to warrant invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C. I am satisfied that, in the facts and circumstances of this case, the petitioners must be relegated to claim discharge under Section 245(2) Cr.P.C and if that be not available, under Section 245 (1) Cr.P.C at a later stage or claim acquittal at still later stages. 5. The learned counsel for the petitioners submits that if personal appearance of the petitioners were insisted till such question of discharge is considered, that would cause great hardship and inconvenience to the petitioners. In the peculiar facts and circumstances of this case, I am satisfied that appropriate directions can be issued to safeguard the interests of the petitioners. 6. In the result: a) This Crl.M.C is dismissed; b) But it is specifically observed that the petitioners shall be entitled to claim discharge at the stage of Section 245(2) Cr.P.C and if that be not granted to them, later under Section 245(1) Cr.P.C after pre charge enquiry is conducted under Section 244 Cr.P.C. Until the learned Magistrate takes a decision that charges are liable to be framed under Section 246 Crl.M.C. No.3904 of 2008 4 Cr.P.C, personal presence of the petitioners need not be insisted and they shall be ordinarily permitted to be represented by their counsel; c) It is further directed that the question of discharge under Section 245(2) and/or 245(1) Cr.P.C shall be considered by the learned Magistrate as expeditiously as possible - at any rate, within a period of 2 months from the date on which a copy of this order is placed before the learned Magistrate. 7. Hand over a copy of this order to the learned counsel for the petitioners. (R.BASANT, JUDGE) rtr/-