IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 Crl.MC.No. 3463 of 2008() ------------------------- CC.350/2008 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... PETITIONER: ACCUSED ------------------- 1. MOOSA HAJI, CHERUVATHU VEEDU, VADAKARA TAZHE ANGADI, VADAKARA. 2. SIDDIQUE, CHERUVATHU VEEDU, VADAKARA THAZHE ANGADI, VADAKARA. BY ADV. SRI.K.I.SAGEER RESPONDENTS: COMPLAINANT AND STATE ---------------------------------- 1. STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, NADAPURAM POLICE STATION (CRIME 270/2006) NADAPURAM 2. SUBAIDHA, W/O. ABDUL LATHEEF, POONATHILIDATHIL VEEDU, P.O. KARANGODE, VADAKARA, KOZHIKODE. R1 BY PUBLIC PROSOECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3463 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of September, 2008 O R D E R The petitioners face indictment in a prosecution for offences punishable under Section 420 I.P.C. Altogether there are two accused, i.e. the petitioners herein. Cognizance has been taken by the learned Magistrate on the basis of a final report submitted by the police after due investigation. The crime in turn was registered on the basis of the private complaint filed by the complainant before the learned Magistrate and referred to the police under Section 156(3) Cr.P.C. The first petitioner is employed abroad and he has not entered appearance so far. The second petitioner has already entered appearance before the learned Magistrate. At this stage, the petitioners have come before this Court with a prayer that the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. may be invoked to quash the proceedings against them. Crl.M.C.No. 3463 of 2008 2 2. What is the reason? The learned counsel for the petitioners submits that the allegations are totally false, are vindictive and are raised with the sole intention of vexing and harassing them. The allegations even if accepted, will not constitute any offence. In these circumstances it is prayed that the proceedings against them may be quashed. 3. I have gone through the averments in the complaint as also the allegations raised against the petitioners. I am satisfied that the petitioners must be heard in detail on the question whether the proceedings against them are liable to be terminated prematurely. Premature termination of an undeserved criminal indictment can be claimed by the indictee under the ordinary provisions of the Code. In a case instituted upon police report relating to a warrant offence, such premature termination can be claimed by discharge at the stage of Section 239/240 Cr.P.C. Ordinarily I would hence relegate the parties to claim premature termination from the Magistrate at that stage. It is not as though this Court does not have the jurisdictional competence in an appropriate case to invoke the jurisdiction under Section 482 Crl.M.C.No. 3463 of 2008 3 Cr.P.C. and quash the proceedings. But ordinarily and normally in the absence of exceptional reasons the indictee must resort to the ordinary provisions of the Code. I do not in the facts and circumstances of this case find any extra ordinary or exceptional reasons which can persuade this court to invoke the jurisdiction under Section 482 Cr.P.C. which it is now trite can be invoked only in rare cases, where such invocation is absolutely essential to serve the interests of justice and to prevent failure/miscarriage of justice. I am, in these circumstances, satisfied that this is an eminently fit case where the petitioners must be relegated to seek the relief of premature termination by discharge under Section 239 Cr.P.C. 4. The learned counsel for the petitioners submits that unnecessary insistence on the personal presence of the petitioners to enable them to claim discharge would work out great hardship and inconvenience to them. The first petitioner is abroad. A warrant of arrest is pending against him. In these circumstances it is prayed that appropriate directions may be issued to save the petitioners from harassment and embarrassment because of the pendency of this Crl.M.C.No. 3463 of 2008 4 proceedings. I am satisfied that appropriate directions can be issued and the petitioners can be directed to claim premature termination by discharge under section 239 Cr.P.C. 5. This Crl.M.C. is dismissed. But it is specifically observed and directed that the personal presence of petitioners shall not be insisted to consider such plea for discharge under Section 239 Cr.P.C. Both the petitioners (notwithstanding the fact that a warrant of arrest has been issued against the first accused) shall be permitted to appear through counsel and advance their plea for discharge. Only if the learned Magistrate finds that charges are liable to be framed against the petitioners under Section 240 Cr.P.C., can/need the personal presence of the petitioners be insisted by the learned Magistrate. (R. BASANT) Judge tm