IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Crl.MC.No. 4504 of 2008() ------------------------- FINAL REPORT IN CC.726/2008 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... PETITIONER(S): ACCUSED --------------- 1. NURIDHEEN, AGED 60 YEARS, S/O.VEERAN PADINJAREPARAMBIL VEETIL, KUTTAMMASSERY KARAYIL, ALWAYE EAST VILLAGE, ALWAYE TALUK. 2. ADDULLA, AGED 49 YEARS, S/O.VEERAN PADINJAREPARAMBIL VEETIL, KUTTAMMASSERY KARAYIL, ALWAYE EAST VILLAGE, ALWAYE TALUK. 3. IBRAHIK KUTTY, AGED 58 YEARS, S/O.VEERAN PADINJAREPARAMBIL VEETIL, KUTTAMMASSERY KARAYIL, ALWAYE EAST VILLAGE, ALWAYE TALUK. 4. SAFIA, AGED 52 YEARS, W/O.NOORUDHEEN, PADINJAREPARAMBIL VEETIL, KUTTAMMASSERY KARAYIL, ALWAYE EAST VILLAGE, ALWAYE TALUK. 5. PATHUMMA, AGED 45 YEARS, S/O.IBRAHIM KUTTY, PADINJAREPARAMBIL VEETIL, KUTTAMMASSERY KARAYIL, ALWAYE EAST VILLAGE, ALWAYE TALUK. 6. C.A.ISMAIL, AGED 42 YEARS, S/O.C.A.ABOO, CHERIYIL VEETIL, NOW RESIDING AT: KARIMKUNNATH VEETIL, THOTTUMBIGHAM KARAYIL, ALWAYE EAST VILLAGE, ALWAYE TALUK. BY ADV. SRI.M.NARENDRA KUMAR Crl.MC.No. 4504 of 2008 - 2 - RESPONDENT(S):STATE AND COMPLAINANT --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. V.K.PAREED, S/O.KUNJEEN PILLAI, AGED 9 YEARS, VALLAPPILLIL VEETIL, RIONPURAM.P.O, KANJIRAKKAD KARAYIL, PERUMBAVOOR VILLAGE, KUNNATHUNAD TALUK. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.4504 of 2008 ------------------------------------- Dated this the 21st day of November, 2008 ORDER Petitioners face indictment in a prosecution for offences punishable, inter alia, under Section 420 I.P.C. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. The crux of the allegations against the petitioners is that they had fraudulently deceived the defacto complainant/2nd respondent herein. The 1st petitioner had allegedly entered into an agreement with the defacto complainant for sale of specific immovable property. A writtne agreement was entered into. Advance amount was paid. The agreement was not acted upon. The advance amount was not returned. A suit was filed for injunction against alienation and later for specific performance of the agreement. It is submitted at the Bar that the suit for specific performance has already been dismissed on merits and an appeal is pending. It is at such juncture that the final report has been filed on the basis of the complaint of the 2nd respondent and cognizance taken. All the petitioners except the 3rd petitioner have already entered appearance. Crl.M.C. No.4504 of 2008 2 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent and the allegations against them are groundless. In these circumstances they do not deserve to stand the trauma of such an undeserved and vexatious prosecution against them. They may be saved of the trauma of such a vexatious prosecution, it is prayed. The counsel prays that the extraordinary inherent jurisdiction under Section 482 Cr.P.C may be invoked. 3. I have heard the learned counsel for the petitioners in detail. I find that the plea that the proceedings are liable to be terminated at the threshold does deserve serious and anxious consideration. An indictee facing undeserved criminal prosecution is certainly entitled to claim premature termination of the prosecution against him. Such premature termination can ordinarily be claimed under the ordinary and normal provisions of the Code of Criminal Procedure. In a warrant offence, of which cognizance is taken on the basis of a final report submitted by the police, such premature termination can be claimed by discharge at the stage of Section 239/240 Cr.P.C. Of course the jurisdiction of this Court under Section 482 Cr.P.C can of course be invoked in an appropriate case to bring to premature termination such a prosecution. But ordinarily and Crl.M.C. No.4504 of 2008 3 normally parties have to be relegated to claim such premature termination by discharge under Section 239 Cr.P.C. 4. The counsel submits that if personal presence of the petitioners were insisted, that would cause great hardship and prejudice to the petitioners. Appropriate safeguards/conditions can of course be imposed, I am satisfied. 5. This Crl.M.C is, in these circumstances, dismissed but with the observation that the learned Magistrate must forthwith consider the plea of the petitioners for discharge. To consider such plea of discharge, personal presence of the petitioners need not be insisted. Until a decision is taken on the question of framing charges under Section 239/240 Cr.P.C, all the petitioners shall be permitted to be represented by their counsel. Only if the learned Magistrate finds that the charges are liable to be framed against the petitioners under Section 240 Cr.P.C need the Magistrate insist for personal appearance of the petitioner. Till then the petitioners shall be permitted to appear through counsel. 6. Hand over a copy of this order to the learned counsel for the petitioners. (R.BASANT, JUDGE) rtr/-