IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 6392 of 2008(J) ------------------------- AGAINST THE ORDER IN CRMP.6326/2007 IN CC.871/2004 of J.M.F.C.-I,KOYILANDY .................... PETITIONER: ------------ SHYAMALA SATHYAN, W/O. SATHYAN KALLARUMKETTIL, 'SHYAMALA', PUTHIYANGADI, KOZHIKODE DISTRICT. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.SATHYAN, S/O. RARICHAN, KALLARUMKETTIL, PUTHIYANGADI, KOZHIKODE DISTRICT. BY ADV. SRI.P.V.KUNHIKRISHNAN FOR R2 R1 BY GOVT. PLEADER SRI. GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF ORDER OF JFCM, KOYILANDY IN CRL.M.P. 6326/07 IN C.C. 871/04 DT.8.2.2008. /TRUE COPY/ R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 6392 of 2008 J - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of August, 2008 JUDGMENT The petitioner, a woman, is the defacto complainant in a prosecution for the offence punishable under Section 409 I.P.C. She filed an application under Section 302 Cr.P.C. to permit her to engage a counsel to conduct the prosecution. The learned Magistrate, by the impugned order, rejected the application holding virtually that the Prosecutor has a role to play in the prosecution in the circumstances of the case and he cannot be ousted from the prosecution. However, the learned Magistrate carefully and cautiously made the following observations in paragraph 16 of the order: The counsel instructed by the petitioner can act as provided under Sec. 301(1) of the Code of Criminal Procedure to supply the possible inadvertence and omissions on the part of the Asst. Public Prosecutor who is in charge of the case by rendering an effective assistance to him.” 2. After discussions at the Bar, the learned counsel for the petitioner submits the petitioner is now satisfied and shall engage W.P.C.No. 6392 of 2008 2 a private counsel to assist the learned Prosecutor, who is in charge of the case. The learned counsel for the respondent, on the contrary, submits that there is a serious attempt afoot before another Bench of this Court, where a connected matter is pending, to settle the disputes between the spouses. 3. Be that as it may, in the light of the submissions made by the learned counsel for the petitioner, I am satisfied that no further directions are necessary in this writ petition. The petitioner shall be granted opportunity by the learned Magistrate as already indicated in paragraph 16 of the impugned order. 4. The learned counsel for the petitioner submits that there was no Prosecutor in charge of the case and that had obliged the petitioner to come to this Court with this petition. The new Prosecutor has now taken charge. The learned counsel submits that the question of framing charge/discharge under Section 239/240 Cr.P.C. may be decided by the court below only after hearing the learned Prosecutor in detail and after considering the further submissions which the counsel for the petitioner wants to make. That request can certainly be accepted by the learned Magistrate. W.P.C.No. 6392 of 2008 3 5. This writ petition is accordingly dismissed as agreed. (R. BASANT) Judge tm