IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 Crl.MC.No. 2514 of 2008() ------------------------- CC.569/2007 of JUDL.MAGISTRATE OF FIRST CLASS, PERAMBRA .................... PETITIONERs: ACCUSED ------------------- 1. SUKUMARI, AGED 49 YEARS, D/O.NARAYANAN NAIR, KAPPUMMAL VEEDU, AVITANALLUR AMSOM AND DESOM, KOLIKADAVU KOZHIKODE DISTRICT. 2. RAJAN NAIR, @ VELAYUDHAN NAIR, AGED 55 YEARS, S/O.VELAYUDHAN NAIR, KAPPUMMAL VEEDU, AVITANALLUR AMSOM AND DESOM, KOLIKADAVU, KOZHIKODE DISTRICT. 3. RAJESH, AGED 23 YEARS, RAJAN NAIR @ VELAYUDHAN NAIR, KAPPUMMAL VEEDU, AVITANALLUR AMSOM AND DESOM, KOLIKADAVU, KOZHIKODE DISTRICT. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENTS: COMPLAINANTS ------------------------- 1. SUB INSPECTOR OF POLICE, BALUSSERY REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MOHANDAS, S/O.RAMACHANDRAN NAIR, GANGOTHRI HOUSE, EDAKKADU, WEST HILL, KOZHIKODE. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2514 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of July, 2008 O R D E R The petitioners face indictment in a prosecution for the offence punishable under Section 420 I.P.C. The F.I.R. was registered on the basis of a private complaint filed by the complainant and referred by the learned Magistrate to the police under Section 156(3) Cr.P.C. Cognizance was taken on the final report submitted by the police after due investigation. The petitioners have already entered appearance before the learned Magistrate and have been enlarged on bail. They have come to this Court with a grievance that the prosecution against them is a clear abuse of process of the court. According to the petitioners even if the entire allegations were accepted, there is only a civil dispute about specific performance of an agreement for sale. There is no necessity to convert the proceedings into a criminal proceedings. In these circumstances powers under Section 482 Cr.P.C. may be invoked and the proceedings may be quashed. Crl.M.C.No. 2514 of 2008 2 2. I find that the petitioners have a reasonable cause to claim discharge under Section 239 Cr.P.C. The matter has to be heard at length. All the records have to be perused. Certainly premature termination of proceedings by discharge under Section 239 Cr.P.C. is a distinct possibility in this case. For that reason alone it is not for this Court to invoke the powers under Section 482 Cr.P.C. and quash the proceedings. 3. The Code contemplates premature termination of unjustified indictment against indictees. Ordinarily and normally the powers under Section 239 Cr.P.C. can be invoked to bring to premature termination such proceedings. Not that this court does not have jurisdictional competence in an appropriate case to invoke such jurisdiction under Section 482 Cr.P.C. to quash the proceedings, but satisfactory and compelling reasons must be shown to exist. I find that the petitioners can apply for discharge under section 239 Cr.P.C. and claim premature termination of the proceedings. I do further note that the petitioners have already entered appearance before the court below. They have been released on bail also, it is submitted. Crl.M.C.No. 2514 of 2008 3 4. I am, in these circumstances, satisfied that this Crl.M.C. can be dismissed subject to appropriate observations. The grievance of the petitioners that insistence of unnecessary personal appearance of the petitioners would cause them great prejudice and inconvenience can be allayed by giving appropriate directions. 5. This Crl.M.C. is accordingly dismissed, but with the specific observation that the petitioners' plea for premature termination of the proceedings by discharge under Section 239 Cr.P.C. must be considered by the learned Magistrate on merits and in accordance with law as expeditiously as possible, at at any rate, within a period of three months from the date on which a copy of this order is produced before the Magistrate. Till such question of discharge is decided, the learned Magistrate shall not insist on the personal presence of the petitioners. They shall be permitted to appear through counsel and advance their plea for discharge. 6. Hand over the order. Crl.M.C.No. 2514 of 2008 4 (R. BASANT) Judge tm