IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 Crl.MC.No. 2037 of 2008() ------------------------- CC.583/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEYYATTINKARA .................... PETITIONER: ------------ 1. SULAIKHA, PALLISTREET, POONTHURA P.O., THIRUVANANTHAPURAM. 2. SUBAIR KHAIS, S/O.SUBAIR, T.C. 46/131, PALLI STREET, POONTHURA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.D.AJITHKUMAR RESPONDENTS: ------------- THE STATE OF KERALA - REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.C. SANTHOSH KUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2037 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2008 O R D E R The petitioners are accused 4 and 5 in a prosecution for offences punishable under Section 420 r/w. 34 I.P.C. Altogether there are five accused persons. Crime was registered on the information furnished by the defacto complainant before the police. Investigation was conducted. Final report was filed. Cognizance has been taken. The petitioners are arrayed as accused 4 and 5. 2. To put it in a nut shell, the allegation is that the accused, in furtherance of their common intention, induced the defacto complainant to part with an amount on the promise that VISA for employment abroad shall be secured for the defacto complainant. VISA was not secured. Amount was not returned. It is in these circumstances that the complaint was filed and after competing the investigation the police filed the final report. Crl.M.C.No. 2037 of 2008 2 3. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. They have been brought on the array of accused solely to vex and harass them and to compel them to settle the disputes. In any view of the matter, the petitioners do not deserve to endure the trauma of arrest and detention. The proceedings against them may be quashed invoking the powers under Section 482 Cr.P.C., it is prayed. 4. I have considered all the relevant inputs. I shall carefully avoid any expression of opinion on the acceptability of the allegations raised or the credibility of the data collected. Suffice it to say that I am of the opinion that the petitioners must appear before the learned Magistrate and claim discharge at the stage of Section 239/240 Cr.P.C. 5. An indictee, who faces indictment, can claim premature termination of the proceedings in accordance with the ordinary provisions of the Cr.P.C. In every such case, where premature termination is a possibility, it is not necessary for this Court to invoke the jurisdiction under Section 482 Cr.P.C. In the absence of exceptional and compelling reasons the indictees can be relegated to Crl.M.C.No. 2037 of 2008 3 claim premature termination by discharge before the learned Magistrate, who has taken cognizance of the offence. 6. Having considered all the relevant inputs, I am not persuaded to agree that there are any such circumstances in this case which should persuade this Court to permit the petitioners to short circuit the ordinary procedure under the Cr.P.C. and direct premature termination of the proceedings by invoking the jurisdiction under Section 482 Cr.P.C. I agree with the learned counsel for the petitioners that the petitioners have a case to advance to claim discharge. They can certainly appear before the learned Magistrate and claim discharge at the stage of Section 239/240 Cr.P.C. 7. The learned counsel for the petitioners submits that if unnecessary insistence is made on the personal presence of the petitioners, that would cause great hardship and loss to the petitioners. I am satisfied that a direction can be issued to the learned Magistrate to permit the petitioners to appear through counsel and raise the plea for discharge under Section 239/240 Cr.P.C. Till a decision is taken on the question of charge/discharge, personal presence of the petitioners need Crl.M.C.No. 2037 of 2008 4 not be insisted and they can be permitted to be represented through counsel. 8. With the above observations/directions, this Crl.M.C. is dismissed. (R. BASANT) Judge tm