IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 Crl.MC.No. 3124 of 2008() ------------------------- CC.312/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... PETITIONER: ACCUSED 1 TO 8 -------------------------- 1. SALIN C. NARAYANAN, CHORIYAN MAKKAL VEEDU, KURIVIKKOODU BHAGAM, ELIKKULAM KARA, ELIKKULAM VILLAGE. 2. HEMALATHA RAMANATHAN, SAKETHAM HOUSE, IYMKOMBU KARA, VELLIYEPPILLY VILLAGE. 3. PURUSHOTHAMAN NAIR, THULASI BHAVANAM HOUSE, URULIKKUNNAM KARA, ELIKKULAM VILLAGE, KANJIRAPPALLY TALUK. 4. SUNIL KUMAR, CHORIYAN MAKKAL VEEDU, KURIVIKKOODU BHAGAM, ELIKKULAM KARA, ELIKKULAM VILLAGE. 5. RADHAMANY, W/O. SUNIL KUMAR, CHORIYAN MAKKAL VEEDU, KURIVIKKOODU BHAGAM, ELIKKULAM KARA, ELIKKULAM VILLAGE. 6. AMMINIKUTTY AMMA, CHORIYAM MAKKAL VEEDU, KURIVIKOODU BHAGAM, ELIKKULAM KARA, ELIKKULAM VILLAGE. 7. BHASKARAN NAIR, KALYANI NILAYAM, MARIDAM KARA, KIDANGUR VILLAGE. 8. RADHAMANY.C.M, W/O. BHASKARAN NAIR, KALYANI NILAYAM, MARIDAM KARA, KIDANGUR VILLAGE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENTS: DEFACTO COMPLAINANT AND STATE ------------------------------------------ 1. V.M. THANKAPPAN NAIR, VENDANATH VEEDU, UULIKUNNAM, NJANDU PARA.P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.3124 of 2008 ---------------------------------------- Dated this the 18th day of August 2008 O R D E R The petitioners are accused 1 to 8 in C.C.No.312/2007 pending before the learned J.F.C.M-II, Kanjirappally. Cognizance was taken in that case on the basis of a final report submitted by the police after due investigation in crime 190/05 of Ponkunnam police station. Allegations are raised against the petitioners herein who are the only accused in that case for offences punishable under Sections 143, 120B, 465 and 468, 471 and 420 read with 149 I.P.C. That crime in turn was registered on the basis of a private complaint filed by the first respondent herein. In such complaint allegations were raised only against petitioners 1 and 2 herein. When the final report was submitted the police had brought in the array of accused in addition to petitioners/accused 1 and 2, petitioners 3 to 8 also. Petitioners have received summons to appear before the learned Magistrate. 2. The crux of the allegations is that the property purchased in the name of one Bhajana yogam was transferred from the name of the said Bhajana Yogam to the name of one Bhajana Sangam by a registered document. The said Bhajana Crl.M.C.No.3124/08 2 Sangam is the society registered and incorporated under the relevant provisions of law. One member of the Bhajana Yogam who did not approve the transfer of property by the Bhajana Yogam to the Bhajana Sangam by registered document is the first respondent. 3. According to the petitioners, the allegations are totally unjustified. At any rate, the allegations against petitioners 3 to 8 who were not arrayed as accused in the complaint filed before the learned Magistrate and forwarded to the police under Section 156(3) Cr.P.C is totally and wholly unjustified. Even as against petitioners 1 and 2 it must be noted that the allegations are false and are raised with vexatious intent. The civil court is seized of the dispute and the trial court has already disposed of two suits filed by the rival contestants by a common judgment. The same is challenged before the superior courts and the challenge is pending. The initiation of proceedings under the criminal law at this stage is totally unjustified and is calculated only to vex and harass the petitioners. In these circumstances, it is prayed that extraordinary inherent jurisdiction under Section 482 Cr.P.C Crl.M.C.No.3124/08 3 may be invoked to bring to premature termination the proceedings against the petitioners. 4. At this early stage of the proceedings, I shall carefully avoid any detailed discussion on merits about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that I take note of the fact that premature termination of criminal proceedings can be claimed by an indictee under the normal and ordinary provisions of the Code of Criminal Procedure. In a prosecution for a warrant offence initiated on the basis of a final report submitted by the police such premature termination can be claimed by discharge at the stage of Section 239 Cr.P.C. Ordinarily and normally it is for such indictees to claim premature termination of proceedings by discharge at the stage of Section 239 Cr.P.C. 5. This is not to say that this court does not have jurisdictional competence in an appropriate case to invoke the extraordinary inherent jurisdiction in aid of justice and to quash the proceedings. The challenge before this court in proceedings under Section 482 Cr.P.C is to identify such a fit case which has extraordinary features in which such extraordinary jurisdiction Crl.M.C.No.3124/08 4 must be invoked notwithstanding the availability of the normal and ordinary course to claim premature termination of proceedings. I need only say that having considered all the relevant inputs, no such extraordinary features are perceived by me in this case and I am satisfied that interests of justice will be served ideally by relegating the petitioners to seek premature termination by discharge at the stage of 239 Cr.P.C in the ordinary and normal course. 6. The learned counsel for the petitioners submits that unnecessary hardship and difficulties will be caused to the petitioners if their personal presence were insisted before their claim for discharge is considered on merits. I find merit in that submission. In the peculiar facts and circumstances of this case I am satisfied that while dismissing this Crl.M.C and directing the petitioners to seek premature termination by discharge at the stage of 239/240 Cr.P.C, appropriate directions/safeguards can be insisted and stipulated which shall serve the interests of justice ideally. 7. In the result, this Crl.M.C is dismissed but with the specific directions that the petitioners shall be entitled to claim Crl.M.C.No.3124/08 5 discharge at the stage of Section 239/240 Cr.P.C and at that stage, the learned Magistrate shall have to consider the petitioners' plea for such discharge expeditiously and in accordance with law. Till such plea is considered, I am satisfied that the personal presence of the petitioners need not be insisted. Till such time that such plea is considered on merits and a decision taken by the learned Magistrate on the question of charge/discharge at the stage of Section 240/239 Cr.P.C, the personal presence of the petitioners need not be insisted by the learned Magistrate. Until a decision is taken on the question of discharge by the learned Magistrate, the petitioners shall be permitted to appear through their counsel. If they appear through counsel, their personal presence need not be insisted until and if the court finds that charges are liable to be framed against the petitioners or any one of them. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr Crl.M.C.No.3124/08 6 Crl.M.C.No.3124/08 7 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008