IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 Crl.MC.No. 254 of 2009() ------------------------------------- (C.C.NO.178/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,PALA) PETITIONER(S): 1ST ACCUSED: ---------------------------------------------------- PRAKASH D.KANDATHIL, AGED 32 YEARS, S/O.DEVASYA, KANDATHIL HOUSE, KIZHUTHADIYOOR, MEENACHIL, PALA, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- 1. SUB INSPECTOR OF PPOLICE, PALA POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.KISHORE, AGED 28 YEARS, S/O.MANI, KISHORE HOUSE, MEENACHIL, PALA, KOTTAYAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J. ---------------------- Crl.M.C.No.254 of 2009 ---------------------------------------- Dated this the 27th day of January 2009 O R D E R The petitioner faces indictment as the 1st accused in a prosecution for offences punishable inter alia under Sections 406, 420 and 468 I.P.C. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. The petitioner is employed abroad. The crux of the allegations is that documents obtained from CWs 1 to 3 and 5 were misutilised by the petitioner in collusion with Accused 2 to 5. Forged documents were created and they were allegedly used to stake false claims against CWs 1 to 3 and 5. The victims contended that the blank signed documents were initially taken. Later the entire dispute was settled and all the available documents were said to have been returned and it was represented that the remaining documents were not available. It is such remaining documents which have allegedly been fraudulently misutilised to stake false claims against CWs 1 to 3 and 5. This, in short, is the allegation. 2. The learned counsel for the petitioner submits that the allegations raised are totally unsustainable. The charges are groundless, it is contended. Crl.M.C.No. 254/09 2 3. An indictee facing undeserved criminal prosecution can certainly claim premature termination of proceedings. Ordinarily and normally, such premature termination must be claimed in accordance with the ordinary provisions of the Code of Criminal Procedure. In a warrant offence, cognizance in which has been taken on the basis of a final report submitted by the police, such premature termination can be claimed under Section 239 Cr.P.C. Of course, in an exceptional case where compelling reasons are shown to exist, this court, in the interests of justice, can invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C. 4. I shall not delve deeper into the facts and the controversies. Suffice it to say that, on an anxious consideration of all the relevant inputs, I am not persuaded to agree that this is a fit case where such extraordinary inherent jurisdiction can or ought to be invoked. This, I am satisfied, is a fit case where the petitioner/1st accused must be relegated to claim premature termination of proceedings by claiming discharge under Section 239 Cr.P.C. 5. The learned counsel for the petitioner submits that the petitioner is employed abroad. He is hence not able to immediately appear before the learned Magistrate to stake his claim for premature termination under Section 239 Cr.P.C. The learned counsel for the petitioner prays that appropriate orders may be passed in the interests of justice to enable the petitioner to stake his Crl.M.C.No. 254/09 3 claim for discharge without and before personally appearing before the learned Magistrate. 6. I reckon the said request as one that is reasonable. I am satisfied that, while dismissing this Crl.M.C, appropriate observations/directions can be issued. 7. In the result, a) This Crl.M.C is dismissed. b) It is observed that the petitioner shall be entitled to stake his claim for premature termination of proceedings by discharge under Section 239 Cr.P.C and the learned Magistrate must expeditiously consider such plea and pass appropriate orders under Section 239/240 Cr.P.C. c) It is further directed that coercive processes shall not be executed against the petitioner until a decision is taken on the question of framing charge under Section 239/240 Cr.P.C and till then, the petitioner shall be permitted to be represented by a counsel of his choice. If he so appears through his counsel, personal appearance of the petitioner need not be insisted by the learned Magistrate until a decision is taken on the question of charge/discharge at the stage of Section 239/240 Cr.P.C. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No. 254/09 4 Crl.M.C.No. 254/09 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008