IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.MC.No. 4943 of 2008 ---------------------------------- (CRIME NO. 449/2008 OF THE MAVELIKKARA POLICE STATION) ............... PETITIONER/ 1ST ACCUSED: ----------------------------------------- MURUKESAN, AGED 54 YEARS, S/O. MADHAVAN, MADHAVA NIVAS, KERALAPURAM, VELLLIMON, KOLLAM. BY ADV. SRI.K.S.MANU (PUNUKKONNOOR), ADV. SRI.P.SREEKUMAR. RESPONDENTS: ----------------------- 1. THE SUB INSPECTOR OF POLICE, MAVELIKARA POLICE STATION. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4943 of 2008 ------------------------------------------------- Dated this the 18th day of December, 2008 ORDER The petitioner faces indictment as the 1st accused in a prosecution under Sec.2 of the Prevention of Insults to National Honour Act, 1971. The crux of the allegations is that he, in furtherance of his common intention with the co- accused, committed the offence under Sec.2 of the said Act in having dishonoured the national flag. Investigation is complete. Final report has already been filed. Cognizance has been taken by the learned Magistrate. The petitioner has entered appearance before the learned Magistrate and has been enlarged on bail. 2. It is prayed that the prosecution against the petitioner may be quashed invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. Crl.M.C. No. 4943 of 2008 -: 2 :- 3. An indictee facing unjustified criminal prosecution can certainly claim premature termination of such prosecution. But ordinarily and normally, such premature termination must be claimed under the ordinary provisions of the Code. In a warrant offence in which cognizance has been taken on the basis of a final report submitted by the police, such premature termination can be claimed at the stage of Sec.239/240 Cr.P.C. 4. This Court does, of course, have extraordinary inherent jurisdiction under Sec.482 Cr.P.C. to bring such undeserved criminal prosecution to premature termination by invoking the powers under Sec.482 Cr.P.C. But such powers are not to be invoked as a matter of course. Sufficient, compelling and exceptional reasons must be shown to exist to justify resort to such powers. In all other cases the indictee can legitimately be relegated to claim such premature termination under the provisions of the Code. 5. I shall carefully avoid any detailed reference to the facts. Suffice it to say that I am not persuaded to agree that there are any such circumstances in this case which can justify or warrant the invocation of the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. The petitioner must be left to claim premature termination by discharge under Sec.239 Cr.P.C. Crl.M.C. No. 4943 of 2008 -: 3 :- 6. With the above observations, this Crl.M.C. is dismissed. I may, however, hasten to observe that the personal presence of the petitioner need not be insisted by the learned Magistrate, if he is already on bail, to consider such plea of discharge under Sec.239 Cr.P.C. Until a decision is taken under Sec.239/240 Cr.P.C. on the question of framing charge/discharge, the petitioner, if he is represented by a counsel, shall not be compelled to appear personally. 7. With the above observations, this Crl.M.C. is dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 4943 of 2008 -: 4 :-