IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 Crl.MC.No. 3251 of 2008() ------------------------- CRIME NO. 267/07 OF KALIYAR POLICE STAITON CC.252/2008 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA .................... PETITIONER/ACCUSED: -------------------------------- FIROZKHAN @ FIROZ, S/O. K.M. SHAMSUDHEEN AGED 29 YEARS, KALARIKKAL HOUSE NETTOOR P.O., MARADU, ERNAKULAM DIST. BY ADV. SRI.P.M.ZIRAJ RESPONDENT/COMPLAINANT: ----------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY SUB INPECTOR OF POLICE, KALIYAR POLICE STAITON, IDUKKI DIST. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3251 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of August, 2008 O R D E R The petitioner faces indictment in a prosecution for offences punishable under Sections 418 and 201 I.P.C. The F.I.R. was registered. Investigation was conducted and completed. Final report has already been filed. Cognizance has been taken. The petitioner had obtained anticipatory bail. He was arrested and released. After taking cognizance the petitioner has not entered appearance so far. Reckoning him as absconding coercive processes have been issued against the petitioner. He apprehends imminent arrest. 2. According to the petitioner he is absolutely innocent. His absence was not wilful or deliberate. He had entered appearance through counsel and had made an application. The counsel further submits that the allegations raised do not reveal any offence as alleged. At worst there is only a breach of a civil liability under an agreement for transfer of a vehicle. In any Crl.M.C.No. 3251 of 2008 2 view of the matter, the allegations of culpable conduct are not legally sustainable. The transparent purpose is to vex and harass the petitioner. He is entitled to quashing of proceedings invoking the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. The petitioner does not deserve to endure the trauma of such a criminal prosecution. 3. I have been taken through the allegations in detail. I shall at this early stage of the proceedings not hazard any opinion on the acceptability of the allegations or the credibility of the data collected. I do agree with the learned counsel for the petitioner that the petitioner's case for premature termination of proceedings deserves to be considered anxiously. In every case where there is scope for such premature termination it is not necessary for this Court to invoke the jurisdiction under Section 482 Cr.P.C. Normally and ordinarily such premature termination can be claimed by invoking the provisions of the Code. In an extra ordinary case where the interests of justice compellingly demand such course, it is of course open for this Court to make use of the reservoir of powers reserved to it under Section 482 Cr.P.C. But that can only be in an extra ordinary case. Normally and Crl.M.C.No. 3251 of 2008 3 ordinarily an indictee, who claims premature termination, must take resort to the ordinary provisions of the Code. I do not in the facts and circumstances of the case find any exceptional reasons justifying the invocation of the powers under Section 482 Cr.P.C. This is a fit case where the petitioner must be relegated to seek premature termination by resort to the provisions of Section 239 Cr.P.C. Where cognizance is taken on the final report submitted by the police after due investigation in a warrant offence, premature termination can be claimed by discharge under Section 239 Cr.P.C. 3. The learned counsel for the petitioners submits that if unnecessary insistence on the personal presence of the petitioner is made, that would cause great hardship and prejudice to him. In the peculiar facts and circumstances of this case, I find merit in that submission. I am satisfied that appropriate directions can be issued to safeguard the interests of the petitioner while dismissing this Crl.M.C. 4. This Crl.M.C. is dismissed with the observation that the petitioner can claim premature termination by discharge under Section 239 Cr.P.C. and when such a claim is made the learned Magistrate Crl.M.C.No. 3251 of 2008 4 must consider the same on merits and take appropriate decision expeditiously. It is further observed that until a decision is taken on the question of discharge/framing of charge under Section 239/240 Cr.P.C. the personal presence of the petitioner need not be insisted by the learned Magistrate if the petitioner appears through a counsel and pleads discharge. Only if the court finds that charges are liable to be framed under Section 240 Cr.P.C., need the learned Magistrate insist on the personal presence of the petitioner. Till then coercive processes issued against the petitioner need not be executed if the petitioner is represented by a counsel before the court below. (R. BASANT) Judge tm