IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 Crl.MC.No. 252 of 2009() ------------------------ SC.246/2008 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CRIME NO.1095/06 OF PATHANAMTHITTA POLICE STATION .................... PETITIONER(S): ACCUSED NO.1 ---------------------- BABU,S/O.BABY, MURUPPEL VEEDU, KUMBAZHA MURI, MYLAPRA VILLAGE, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA (S.I. OF POLICE, PATHANAMTITTA POLICE STATION-CRIME NO.1095/2006 REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.252 of 2009 ------------------------------------- Dated this the 19th day of January, 2009 ORDER Petitioner as the 1st accused faces indictment in a prosecution for offences punishable, inter alia, under Section 308 I.P.C. Investigation is complete. Final report has already been filed. Cognizance has been taken. Order of committal has already been passed. The matter is pending before the Sessions Court. At this stage the petitioner who had appeared before the committal court has come to this Court with a prayer that the prosecution under Section 308 I.P.C may be quashed in as much as there is absolutely no material to attract the allegation under Section 308 I.P.C. The petitioner is employed abroad. He is unable to appear before the learned Additional Sessions Judge immediately. The matter would drag on because of his inability to appear. In these circumstances taking all the relevant circumstances into account, the prosecution under Section 308 I.P.C may be quashed, it is prayed. 2. I do not find any merit in the said prayer. It is for the petitioner to appear before the learned Additional Sessions Crl.M.C. No.252 of 2009 2 Judge now in the Sessions Case and claim discharge under Section 227/228 Cr.P.C. I find absolutely no necessity for this Court at this juncture to invoke the extraordinary inherent jurisdiction to quash the prosecution under Section 308 I.P.C. The Petitioner can claim before the learned Additional Sessions Judge under Section 227/228 Cr.P.C that charges are not liable to be framed against him and if at all charges are liable to be framed that can only be for offences not exclusively triable by a court of Session. I find no reason to permit the petitioner to raise this prayer before this Court under Section 482 Cr.P.C. He must be relegated to claim his relief under Section 227/228 Cr.P.C. 3. The learned counsel for the petitioner submits that the petitioner is employed abroad and is unable to appear before the court. Consequently he may not be able to raise his prayer for discharge and the pendency of the matter is causing needless hardship and difficulties to the petitioner. Counsel prays that there may be a direction to the learned Magistrate to exempt the petitioner from his personal appearance until the plea for discharge under Section 227/228 to be raised by the petitioner is considered and a decision taken. Crl.M.C. No.252 of 2009 3 4. In the exceptional facts of this case, I am satisfied that while dismissing this Crl.M.C such a direction can be issued. 5. In the result: a) This Crl.M.C is dismissed; b) But it is observed that the petitioner shall be permitted to appear through counsel and stake his claim for discharge/reference back to the Magistrate under Section 227/228 Cr.P.C. If the petitioner is duly represented by a counsel in accordance with law, the learned Additional Sessions Judge shall proceed to consider the plea under Section 227/228 Cr.P.C without insisting on the personal appearance of the petitioner. Only if the learned Additional Sessions Judge feels that such charges are liable to be framed, need the learned Additional Sessions Judge insist on the personal appearance of the petitioner before court, ie. if the petitioner is duly represented by his counsel. (R.BASANT, JUDGE) rtr/-