IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.MC.No. 4091 of 2008() -------------------------------------- ( C.C.109/08 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR) ........... PETITIONER(S): ACCUSED 1 TO 5: --------------------------------------------------- 1. VARGHESE, S/O.ANTHONY, 75 YEARS, THEKKINIYATH PANTHAMPURACKAL HOUSE, MISSION QUARTERS, THRISSUR. 2. ELSY, D/O.KOCHUVAREETH, 42 YEARS, CHERUVATHUR HOUSE, CHRISTOPHER NAGAR, OLLUR VILLAGE, THRISSUR. 3. ELLYA, D/O.ANTONY, 90 YEARS, ST.ANTONY'S ALMAYA CHARITY SOCIETY, MISSION QUARTERS, THRISSUR. 4. GRACY, W/O.VARGHESE, 65 YEARS, THEKKINIYATH PANTHAMPURACKAL HOUSE, MISSION QUARTERS, THRISSUR. 5. ANTONY, S/O.VARGHESE, 29 YEARS, THEKKINIYATH PANTHAMPURACKAL HOUSE, MISSION QUARTERS, THRISSUR. BY ADV. SRI.DILIP J. AKKARA RESPONDENT(S): COMPLAINANT,STATE: -------------------------------------------------------------- 1. ABI, S/O.OUSEPH, CHEMMANNUR HOUSE, KUTTOOR DESOM, VILLAGE, THRISSUR TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4091 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2008 O R D E R The petitioners face indictment in a prosecution for offences punishable under Sections 406, 417 and 420 r/w. 34 I.P.C. Cognizance has been taken by the learned Chief Judicial Magistrate on the basis of a private complaint. 2. The crux of the allegations is that the five petitioners/ accused had committed the said offences in respect to certain transactions/dealings in their capacity as trustees of a Charitable Society – Trust. Cognizance has been taken on the basis of a final report submitted by the police. They have already appeared before the learned Magistrate and have been enlarged on bail. 3. At this stage the petitioners have come before this Court with the submission that the petitioners include persons aged 65 years, 75 years and 90 years and that they do not really deserve to stand the trauma of such unjustified prosecution against them. Premature termination of proceedings is claimed. It is prayed Crl.M.C.No. 4091 of 2008 2 that the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. may be invoked to bring to premature termination the undeserved prosecution against them. 4. I have heard the learned counsel for the petitioners. I have perused the records. 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 am not persuaded at the moment and with the available inputs to invoke the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. 5. An indictee facing unjustified and undeserved criminal prosecution can certainly claim premature termination of proceedings. It is not necessary for the system to insist that such person should stand the tedium and trauma of a criminal trial. Ordinarily and normally such premature termination must be claimed according to the ordinary provisions of the Code. In a warrant offence, cognizance in which has been taken on the basis of a police report, such premature termination must ordinarily be claimed by discharge under Section 239 Cr.P.C. Not that this Court does not have the jurisdictional Crl.M.C.No. 4091 of 2008 3 competence under Section 482 Cr.P.C. to bring to termination such unjustified prosecution by invoking the extra ordinary inherent jurisdiction, but such powers are not to be invoked as a matter of course. Satisfactory, compelling and exceptional reasons, in the interests of justice, must be shown to exist to justify the invocation of such extra ordinary provisions of the Code. I take the view that in the facts and circumstances of this case that the petitioners can justly be relegated to claim the relief of premature termination under Section 239 Cr.P.C. and it is not necessary for this Court to contemplate invocation of the jurisdiction under Section 482 Cr.P.C. 6. The learned counsel for the petitioners submits that if unnecessary insistence is made on the personal presence of the petitioners till such plea of discharge is considered on merits and decision taken, that would result in great prejudice and hardship. I am satisfied that while dismissing this Crl.M.C. appropriate direction can be issued. 7. This Crl.M.C. is accordingly dismissed. I may hasten to observe that the petitioners shall be entitled to stake their claim for Crl.M.C.No. 4091 of 2008 4 premature termination by discharge on the ground that the allegations against them are groundless. It is further observed that till a decision is taken under Section 239/240 Cr.P.C. the personal presence of the petitioners shall not be ritualistically insisted by the learned Magistrate and their presence need be insisted (they having already been enlarged on bail) only if the learned Magistrate takes the view that charges are liable to be framed under Section 240 Cr.P.C. Till then the petitioners shall be permitted to appear through their counsel. (R. BASANT) Judge tm