IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Crl.MC.No. 510 of 2009() ------------------------ CP.2/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... PETITIONER/2ND ACCUSED: --------------- RATHEESH, S/O.RAJU, KAVINTEVADAKKATHIL, PUTHENPURAYIL, PADEETTATHIL, VETTUVENI MURI, PALLIPPADU VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENTS/COMPLAINANT & STATE: --------------- 1. SOMARAJAN, S/O.RAGHAVAN, AGED 36 YEARS, MANGALAPPILLY VADAKKETHIL, VETTUVENI MURI, KARTHIKAPPALLY VILLAGE. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.277 OF 2006 OF THE HARIPAD POLICE STATION ) PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.510 of 2009 ---------------------------------------- Dated this the 3rd day of February 2009 O R D E R The petitioner faces indictment as the 2nd accused in S.C.No.547/2008 before the learned Sessions Judge, Alappuzha. The petitioner has come to this court to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C to quash the proceedings. The petitioner has a long story to narrate. The alleged incident took place on 11/6/2006. The 1st respondent herein is the de facto complainant/victim in that incident. His signed statement was taken and crime No.257/2006 was registered at the Haripad police station. There was not a whisper of allegation against the petitioner herein nor was there any allegation raised under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as “the Act”). That crime was investigated. Final report was filed and C.C.No.533/2006 was registered before the learned J.F.C.M, Haripad. Cognizance was taken of the offences punishable under Sections 323 and 294(b) I.P.C against the 1st accused alone. The petitioner was not arrayed as an accused in such Crl.M.C.No.510/09 2 final report. It appears that another complaint about the same incident was filed before the learned Magistrate and the learned Magistrate had referred the same under Section 156(3) Cr.P.C to the police. Consequently, crime No.277/06 of the same police station was registered. It appears that the registration of crime No.257/2006 was not conveyed to the learned Magistrate and consequently steps under Section 210 Cr.P.C were not taken. In the fresh crime registered as crime No.277/2006, allegations were raised under the Act. Allegations were raised in such subsequent complaint not only against the 1st accused; but also against the petitioner herein The learned counsel for the petitioner points out that the allegations against the petitioner, it is transparently evident were the result of a subsequent interpolation in the complaint and a non-specific, vague and general allegation alone was raised against the petitioner herein in paragraph 7 of the complaint. Be that as it may, investigation continued in crime No.277/06. As an allegation was raised under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, the Deputy Superintendent of Police conducted the investigation. After completing the investigation, the Dy.S.P filed a negative final report before the learned Magistrate Crl.M.C.No.510/09 3 dropping further action on that complaint after referring to the earlier final report filed in crime No.257/2006 on the basis of which C.C.No.553/2006 had already been registered. 2. Dissatisfied with the final report submitted by the Dy.S.P., the first respondent filed a protest complaint. It is submitted at the Bar that the sworn statement of the complainant was taken. It is the information of the petitioner that no enquiry under Section 202 Cr.P.C was conducted nor the statements of all witnesses recorded under the proviso to Section 202 Cr.P.C. The petitioner raises the grievance that the learned Magistrate mechanically took cognizance of the offence and issued process to the petitioner after registering the committal proceedings. The learned counsel for the petitioner points out that even going by the sworn statement of the complainant which, according to him, is the sole material available, there is no specific allegation whatsoever against the petitioner. The petitioner appeared before the Committal court. The case has been committed to the Court of Session, Alappuzha and S.C.No.547/2008 has been registered before the Sessions Court, Alappuzha. C.C.No.553/2006 registered on the basis of the final report in crime No.257/2006 has also been committed to the Crl.M.C.No.510/09 4 Court of Session under Section 323 Cr.P.C, it is further submitted. That case is now pending as S.C.No.651/2008 before the learned Sessions Judge. The grievance raised by the petitioner is that S.C.No.547/2008 in so far as it relates to the petitioner is unjustified and is liable to be quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. It is prayed that the petitioner may be saved of the unnecessary and undeserved trauma of such a prosecution before the Sessions Court . 3. I am satisfied that the petitioner's grievance deserves to be considered anxiously. But the question is whether it is necessary at this juncture to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C. It is trite that the jurisdiction to be exercised under Section 482 Cr.P.C is the extraordinary inherent jurisdiction. Such jurisdiction is not to be invoked as a matter of course. Satisfactory, compelling and exceptional reasons must be shown to exist to justify the invocation of the extraordinary inherent jurisdiction. The question is not one of jurisdictional competence. The question is only as to whether it is expedient now in the interests of justice to invoke the jurisdiction. An indictee facing an undeserved Crl.M.C.No.510/09 5 criminal prosecution is certainly entitled to claim premature termination of such prosecution. Such premature termination must ordinarily be claimed in accordance with the ordinary and normal provisions of the Code of Criminal Procedure. In a sessions case which has been registered on a private complaint, such premature termination can legitimately be claimed at the stage of Section 227/228 Cr.P.C. Discharge under Section 227 Cr.P.C can certainly be claimed by the indictee in the given circumstances. The petitioner had appeared before the committal court and his case has already been committed to the court of Session. I am, in these circumstances, satisfied that the ideal course which the court can now follow is to permit the petitioner to raise his plea for premature termination of the prosecution against him before the learned Sessions Judge under Section 227/228 Cr.P.C. Such plea will have to be considered by the learned Sessions Judge and appropriate decision taken in the matter. I find no reason to invoke the extraordinary inherent jurisdiction and to call for all the records and compel the parties to appear before this court. 4. The learned counsel for the petitioner submits that if his personal presence were insisted by the learned Sessions Crl.M.C.No.510/09 6 Judge on all dates of posting to consider the claim for premature termination of proceedings that would cause needless hardship and inconvenience to the petitioner. In the peculiar facts and circumstances of this case, I am satisfied that the learned Sessions Judge can be directed to permit the petitioner to appear through a counsel and stake his claim for discharge under Section 227 Cr.P.C. If the petitioner is represented by a counsel, in accordance with law, the learned Sessions Judge shall not insist on his personal presence until the plea of discharge is considered under Section 227 Cr.P.C. Only if the learned Sessions Judge feels that charges are liable to be framed, need the personal presence of the petitioner be insisted by the learned Sessions Judge. 5. With the above observations, this Crl.M.C is dismissed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.510/09 7 Crl.M.C.No.510/09 8 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008