IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 Crl.MC.No. 339 of 2009() ------------------------------------ CC.1613/08 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, CHERTHALA. ................ PETITIONER(S): ACCUSED: ------------------------------------------ M.K. VISWAMBHARAN, AGED 54 YEARS, S/O. KUNJAN, WORKING AS MANAGER, STATE BANK OF INDIA, SOUTH KUTHIATHODU BRANCH, RESIDING AT 'PUNARTHAM' VAYALAR P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.K.K.CHANDRAN PILLAI RESPONDENT(S): COMPLAINANT AND ANOTHER: --------------------------------------------------------------------------- 1. MUHAMMED ANWAR K.H., AL-MUBARAK, KODAMTHURUTH CHERTHALA, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.A.SALIM FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J. ---------------------- Crl.M.C.No.339 of 2009 ---------------------------------------- Dated this the 22nd day of January 2009 O R D E R The petitioner faces indictment in a prosecution for offences punishable inter alia under Section 418 I.P.C. The petitioner is the Manager of the State Bank of India and proceedings have been initiated against him alleging that his conduct amounts to culpable offences. According to the petitioner, he has only discharged his official legal functions and the alleged acts have been committed not by him; but by an authorised officer of the State Bank of India under the relevant statute. Cognizance was taken on the basis of a private complaint. The petitioner has received summons to appear before the learned Magistrate. According to the petitioner, cognizance taken against him is totally unjustified. He is not liable to stand the trauma of such an undeserved criminal prosecution. The learned counsel for the petitioner prays that the powers under Section 482 Cr.P.C may be invoked to save the petitioner of the undeserved trauma of such prosecution. 2. An indictee facing an unjustified criminal prosecution is certainly entitled to claim premature termination of such Crl.M.C.No. 339/09 2 proceedings. The law provides for premature termination of such unjustified proceedings against an indictee. In a private complaint filed alleging warrant offence, such premature termination can be claimed at the threshold under Section 245 (2) Cr.P.C or later after the necessary enquiry under Section 244 Cr.P.C at the stage of Section 245(1) Cr.P.C. Ordinarily and normally, an indictee must be relegated to claim such premature termination in accordance with the ordinary provisions of the Code. Of course, in an exceptional case where the interests of justice compellingly demand such course, this court has the reservoir of powers under Section 482 Cr.P.C to pass orders to bring premature termination of such undeserved prosecution. . I do not find any such exceptional reasons which can persuade me to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C. I am satisfied that this is an eminently fit case where the petitioner must be relegated to claim discharge under Section 245(2) Cr.P.C and if that be not successful under Section 245(1) Cr.P.C. 3. The learned counsel for the petitioner submits that insistence on personal appearance of the petitioner before the criminal court would cause unnecessary hardship and Crl.M.C.No. 339/09 3 inconvenience to the petitioner. I find absolutely no reason why the personal presence of the petitioner must be insisted for considering the plea for premature termination of proceedings by discharge under Section 245(2) Cr.P.C. The petitioner can appear through his counsel and stake his claim for discharge under Section 245(2) Cr.P.C. 4. Similarly, at the stage of enquiry under Section 244 Cr.P.C also, unless there are compelling reasons, the personal presence of the petitioner need not be insisted. The petitioner can be permitted to appear through pleader and stake his claim for discharge under Section 245(1) Cr.P.C. Unless there are exceptional reasons, I am satisfied, in the facts and circumstances of this case, that the personal presence of the petitioner need not be insisted by the learned Magistrate until and unless the learned Magistrate comes to a conclusion that charges are liable to be framed under Section 246 Cr.P.C. 5. In the result, this Crl.M.C is dismissed but with the specific observations made above. (R.BASANT, JUDGE) jsr Crl.M.C.No. 339/09 4 Crl.M.C.No. 339/09 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008