IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 Crl.MC.No. 3060 of 2008() ------------------------- CRIME NO. 535/05 OF KAZHAKKOOTTAM POLICE STATION CC.403/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... PETITIONERS: ------------ 1. JAFFARUDEEN, AGED 38 YEARS, S/O. ABDUL SALAM, K.K. HOUSE DECENTUMUKKU, NAVAIKULAM DESOM KUDAVOOR VILLAGE, TRIVANDRUM DIST. 2. ABDUL SALAM, AGED 73 YEARS, S/O. KOYAKUTTY, K.K. HOUSE, DO. DO. 3. RAHUMATH BEEVI, AGED 63 YEARS D/O. FATHIMA BEEVI, K.K. HOUSE DO. DO. 4. SHAFEEK, AGED 27 YEARS, S/O. ABDUL SALAM, K.K. HOUSE, DO. DO. 5. SHAJITHA, AGED 38 YEARS, D/O. RAHUMATH BEEVI, K.K. HOUSE DO. DO. BY ADV. SRI.P.M.HABEEB RESPONDENT/COMPLAINANT: ------------------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. MUBEENA, D/O. NASEEMA BEEVI J.J. MANZIL, VETTU ROAD JUNCTION KAZHAKKOOTTAM VILLAGE, TRIVANDRUM DIST. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3060 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August, 2008 O R D E R The petitioners face indictment in a prosecution for the offence punishable under Section 498A I.P.C. Cognizance has been taken on the basis of the final report submitted by the police after due investigation. I do note that cognizance has been taken only for the offence under Section 498A I.P.C. The petitioners have come to this Court with a prayer that the prosecution initiated against them may be quashed. The case now stands posted for appearance before the learned Magistrate on 18.11.2008. It is prayed that the powers under Section 482 Cr.P.C. may be invoked to quash the proceedings against them. 2. What is the reason? The learned counsel for the petitioners submits that as far as accused/petitioners 2 to 5 are concerned, there is absolutely no justifiable material against them. The marriage between the spouses had taken place in 1996. For about a decade they had lived together happily. Three Crl.M.C.No. 3060 of 2008 2 children were born in the wedlock. The spouses with the children were residing abroad. They returned on 30.5.2005 and it is thereafter that the F.I.R. was lodged on 30.7.2005. Long later on 20.10.2005 an original petition was filed before the Family Court claiming past and future maintenance. In such original petition the precise allegations raised earlier in the F.I. Statement were not raised. Even in the F.I. Statement no specific allegations whatsoever were raised against petitioners 2 to 5. They have not been shown as accused in the F.I.R. It is after investigation on such F.I.R. that petitioners 2 to 5 have been brought on the array of accused. In these circumstances the prosecution against them may be quashed, it is submitted first of all. 3. The learned counsel for the petitioners then submits that as regards the first petitioner also the allegations are totally unjustified. Counsel points out that in 2007 there was a settlement in the original petition for past and future maintenance filed before the Family Court. Even when that settlement was arrived at, it was not mentioned to or known to the petitioners that such an F.I.R. has been registered and proceedings are pending against them before the police. Suppressing Crl.M.C.No. 3060 of 2008 3 that fact the claim for maintenance filed in 2005 was settled in 2007 and it is later that the petitioners have come to know that cognizance has been taken in the present case under Section 498A I.P.C. In these circumstances the counsel submits that the case as against the first accused also deserves to be quashed invoking the jurisdiction under Section 482 Cr.P.C. 4. I am afraid I am unable to agree with the learned counsel for the petitioners. The fact that the allegations raised in the F.I.R. registered on 30.7.2005 have not been reiterated in the original petition claiming maintenance filed later in 2005 is too meager and inadequate a reason to invoke the jurisdiction under Section 482 Cr.P.C. to quash the proceedings. The allegations in the F.I.R. having already been raised earlier, the mere fact that they were not raised again in the original petition filed later is of no consequence at all except in the matter of appreciation of evidence at later stages. 5. In so far as the claim of petitioners 2 to 5 are concerned, the materials collected in the course of evidence are not placed before me. The report, on the basis of which those petitioners were brought on the Crl.M.C.No. 3060 of 2008 4 array of accused, is also not revealed to me. The counsel contends that even in the 173 documents there is nothing to implicate petitioners 2 to 5. That question must of course be raised at the appropriate stage before the learned Magistrate. 6. The mere fact that the spouses have lived together for 10 years, that three children were born in the wedlock and that the maintenance petition filed is settled and compromised is no reason by itself to justify the invocation of the powers under Section 482 Cr.P.C. Premature termination of a proceedings can be claimed under the ordinary provisions of the Code. In a warrant trial initiated on the basis of a final report submitted by the police such premature termination of proceedings can be claimed by discharge at the stage of Section 239/240 Cr.P.C. 7. Of course, this court has jurisdictional competence under Section 482 Cr.P.C. in an appropriate case to invoke the extra ordinary inherent jurisdiction to prematurely terminate the criminal proceedings against indictees. But such powers cannot be invoked as a matter of course. Sufficient, satisfactory and exceptional reasons must be Crl.M.C.No. 3060 of 2008 5 shown to exist to justify such invocation. I repeat that normally and ordinarily a person wanting to claim premature termination must claim such premature termination under Section 239 Cr.P.C. The petitioners' option to claim such premature termination by discharge at the stage of Section 239 Cr.P.C. shall remain unfettered notwithstanding the dismissal of this Crl.M.C. The petitioners can appear before the learned Magistrate and claim discharge under Section 239 Cr.P.C. The learned Magistrate must consider such plea and take appropriate decision. 8. I find merit in the contention of the learned counsel for the petitioners that petitioners 2 to 5 ought to be given the option to appear through their counsel and claim discharge under Section 239 Cr.P.C. In the peculiar facts and circumstances of the case, I find such request to be absolutely justified. 9. This Crl.M.C. Is hence dismissed with the observation that the petitioners can appear before the learned Magistrate and claim discharge at the stage of Section 239/240 Cr.P.C. It is further directed that the personal presence of petitioners 2 to 5 shall not be insisted to Crl.M.C.No. 3060 of 2008 6 consider such plea for discharge. If they appear through counsel and advance the plea for discharge, their personal presence shall not be insisted until and if the learned Magistrate finds that charges are to be framed against them also. Only if the learned Magistrate finds that such charges are liable to be framed, need petitioners 2 to 5 appear in person before the learned Magistrate. (R. BASANT) Judge tm