IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 Crl.MC.No. 2876 of 2008() ------------------------- CRIME NO. 238/03 OF VIZHINJAM POLICE STATION CC.927/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEYYATTINKARA .................... PETITIONERS: -------------- 1. NORBERT LAWRENCE, S/O. LAWRENCE FERNANDEZ AGED 48 YEARS, PROP. AZHIMALA BEACH RESORTS PALINKUDY, THIRUVANANTHAPURAM DIST. 2. SUKUMARAN, S/O. LAKSHMANAN, AGED 69 YEARS PALAZHI HOUSE, NEAR AZHIMALA TEMPLE PULINKUDY, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM. 3. KUMAR, S/O. SREEDHARAN, AGED 24 YEARS MELEVEETTIL HOUSE, THALAYAL, BALARAMAPURAM THIRUVANTHAPURAM DIST. 4. BIJU, S/O. SASI, AGED 9 YEARS, KAROTTUKAVU VILLA PUTHENVEETTIL, VILAYIL, VILAYIL VILLAGE THIRUVANANTHAPURAM DIST. 5. SAJIKUMAR, S/O. THANKAPPAN PANICKER, AGED 36 YRS ELANTHIVILA VEETTIL, KONNIYOOR PERUMKULAM VILLAGE, THIRUVANANTHAPURAM DIST. 6. SIVAN, S/O. CHELLAYYAN AGED 25 YEARS VANDITHALAM MULUVILA, PACHALLOOR, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM DIST. 7. MAHINDRAN, S/O. THANKACHAN NADAR, AGED 29 YEARS PUNCHAKARI MELEPARAMBATHU HOUSE,PACHALLOORE DO. DO. BY ADV. SRI.JOHN JOSEPH(ROY) SRI.LAWRENCE D'CUNHA RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY THE S.I. OF POLICE VIZHINJAM POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2876 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2008 O R D E R The petitioners face indictment in a prosecution for offences punishable, inter alia, under Sections 427 and 188 r/w. 149 I.P.C. The alleged incident occurred in 2003. Cognizance was taken and the calender case was registered in 2003. All offences are summons offences. All the accused have not entered appearance so far. In these circumstances the case has been dragging on from 2003. The petitioners are unnecessarily being obliged to appear before the court below on all dates of posting awaiting the appearance of the other accused. It is in these circumstances, fed up with the unending pendency of the case, that the petitioners have come to this Court with this petition. 2. The learned counsel for the petitioners submits that the petitioners do not deserve to endure the trauma of this prosecution and the proceedings are liable to be brought to termination by invoking the jurisdiction under Section 258 Crl.M.C.No. 2876 of 2008 2 Cr.P.C. The learned Magistrate is not considering the question of framing charge/reading over the particulars of the charges against the petitioners as the co-accused have not entered appearance so far. Both against the co-accused, who have not appeared, as also against the petitioners, proceedings are not liable to be continued, submits the counsel. The counsel submits that there is admittedly a civil dispute between the parties. The learned Munsiff had earlier considered the question whether there has been any violation of the order of injunction and a finding in favour of the petitioners has already been recorded. Even otherwise no complaint by any public servant has been made alleging the offence punishable under Section 188 I.P.C. In these circumstances proceedings against the petitioners are liable to be stopped invoking the powers under section 258 Cr.P.C., submits the counsel 3. I have considered all the relevant inputs. I am satisfied that the petitioners, in the facts and circumstances of this case, must be given an opportunity to advance their arguments that the proceedings are liable to be stopped invoking the powers under Section 258 Cr.P.C. Crl.M.C.No. 2876 of 2008 3 I am satisfied that appropriate directions can be issued. The mere fact that some of the co-accused have not so far entered appearance is not, according to me, sufficient reason for the Magistrate not to consider the plea of stopping the proceedings under Section 258 Cr.P.C. - atleast in so far it relates to the petitioners. 4. In the result: (a) This Crl.M.C. is dismissed. (b) But it is directed that it shall be open to the accused persons, who have already entered appearance, to raise their plea before the learned Magistrate that the proceedings against them are liable to be terminated by discharge or by stoppage of proceedings under Section 258 Cr.P.C. © The petitioners can make an application to stop the further proceedings in C.C. 927 of 2003 of the learned JFMC-II, Neyyattinkara before whom the case is now pending. The learned Magistrate must consider such plea of the petitioners for stoppage of the proceedings under Section 258 Cr.P.C. The plea in so far as it relates to the petitioners as also the other accused can be considered by Crl.M.C.No. 2876 of 2008 4 the learned Magistrate without waiting any longer to secure the presence of the accused, who have not entered appearance so far. If such a petition for stoppage of the proceedings is filed under Section 258 Cr.P.C., the learned Magistrate must consider such plea and pass appropriate orders as expeditiously as possible, at any rate within a period of 30 days from the date on which such application is filed. 5. Hand over a copy of the order to the learned counsel for the petitioners for production before the learned Magistrate. (R. BASANT) Judge tm