IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 Crl.MC.No. 1885 of 2008() ------------------------- CC.245/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... PETITIONER: ACCUSED 1 TO 8 -------------------------- 1. ZAKEER HUSSAIN, AGED 32 YEARS, S/O MOIDEEN, PATTERIKUNNATH KATTIL VEEDU, VALLIYAMPURAM, P.O. THEYYALA, MALAPPURAM DISTRICT. 2. PACHAYI SHAREEFA, AGED 30 YEARS, W/O ZAKEER HUSSAIN, -DO- -DO-. 3. MOHAMMEDKUTTY HAJI, AGED 55 YEARS, S/O MOIDEEN, -DO- -DO- 4. ABU SUBAIR, AGED 24 YEARS, S/O MOHAMMEDKUTTY HAJI, -DO- -DO- 5. SULAIKHA, AGED 38 YEARS, W/O ABDU RAHIMAN, -DO- -DO-. 6. AYISHUMMU, AGED 45 YEARS, D/O MOIDEEN, -DO- -DO- 7. JAMEELA, AGED 43 YEARS, D/O MOIDEEN, -DO- -DO- 8. MOIDEENKUTTY, AGED 47 YEARS, S/O MOIDEEN, -DO- -DO-. BY ADV. SRI.K.P.SUDHEER RESPONDENTS: STATE & COMPLAINANT -------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. SAMEERA, AGED 24 YEARS, D/O KUNHEEDU, VALIYAKANDATHIL HOUSE, KODINHI. BY ADV. SMT.SANGEETHA LAKSHMANA FOR R2 SRI.P.ANUROOP FOR R2 PUBLIC PROSECUTOR SRI.JAI GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.1885 of 2008 ---------------------------------------- Dated this the 24th day of June 2008 O R D E R The petitioners are accused 1 to 8 in a prosecution launched against them by the second respondent. Second respondent is the wife of the first petitioner. The other petitioners are relatives of the first petitioner. It is alleged that the second petitioner is the widowed sister-in-law of the first petitioner and that subsequently the first petitioner has married the second petitioner. 2. On the complaint filed by the second respondent alleging commission of the offences punishable under Section 498A I.P.C cognizance has been taken by the learned Magistrate against all the petitioners. Summons has been issued to them. They have not entered appearance so far. 3. The petitioners have now come to this court with the prayer that the prosecution initiated against them by the second respondent may be quashed invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C. Crl.M.C.No.1885/08 2 4. What is the reason? The learned counsel for the petitioners contends that the allegations raised are totally false and are raised with vexatious and mala fide intent. Allegations are raised to cover up contumacious conduct of the second respondent which is reflected in Annexure A5 F.I.R registered by the police under the caption “woman missing” on a complaint lodged by none other than her own father. In the said Annexure A5 F.I.S, the father of the second respondent had alleged that the second respondent along with their children were found missing and that one Jabbar had called him and informed him that she is available at his house. The complaint lodged by the second respondent is produced as Annexure A1. The learned Magistrate had recorded the sworn statement of the complainant and one witness of hers, that is her father. The copies of the sworn statement is produced as Annexures A3 and A4. Annexure A2 is the order passed by the learned Magistrate under Section 204 Cr.P.C issuing process to the accused. It is prayed that Annexure A2 order may be set aside and the complaint may be quashed. Crl.M.C.No.1885/08 3 5. I have been taken through the averments in the complaint. Whether the averments in the complaint are true or are raised mala fide and with vexatious intent by the second respondent in order to make out a defence against Annexure A5 will certainly have to be considered by the court in the course of the proceedings. At the moment and with the available inputs, it appears to me to be ideal for this court to attempt a resolution of those disputed questions of fact. I am, in these circumstances, not persuaded to agree that the entire allegations and averments of the complainant must be reckoned as false, untrue and motivated merely because Annexure A5 F.I.R was registered on the basis of the statement of the father of the second respondent. 6. The learned counsel for the petitioners submits that even if the entire allegations are accepted, a careful reading of Annexure A1 complaint must convince this court that at any rate there is no tangible or valid allegations against the first accused and the prosecution atleast in so far as it relates to him must be quashed. I have given my anxious consideration to this contention also. I am unable to agree that the said contention can now be accepted. On the basis of the materials presently Crl.M.C.No.1885/08 4 available before court, I find it difficult, nay impossible to accept the contention of the petitioners. I am certainly of the opinion that the second respondent must be given an opportunity to substantiate her allegations before the learned Magistrate. I am unable to agree that on the materials available, the conclusions reached by the learned Magistrate that there is “sufficient ground to proceed” against the petitioners including the first petitioner is perverse or results in miscarriage as to justify the invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C. 7. I shall carefully avoid any more detailed discussion on merits about the allegations raised. Suffice it to say that there are allegations in Annexure A1 which indicate the complicity of the first petitioner also in the scheme of the other accused to somehow get the first accused married to his widowed sister-in- law to the second accused. That allegation does certainly deserve to be considered seriously by the learned Magistrate. I am, in these circumstances, of the opinion that this Crl.M.C only deserves to be dismissed. I may, however, hasten to observe that I have not intended to express any final opinion on merits Crl.M.C.No.1885/08 5 about the acceptability of the allegations or the credibility of the data which the second respondent claims to have against the petitioners. I am of the opinion that the petitioners must appear before the learned Magistrate and seek premature termination of proceedings in accordance with the provisions of the Code of Criminal Procedure. 8. The Code of Criminal Procedure provides for premature termination of proceedings of an indictee. It is not necessary or essential that the indictee must wait for the entire proceedings to be over to claim termination of proceedings against him by acquittal. The petitioners can certainly claim discharge at the stage of Section 245(2) Cr.P.C or at the later stage of 245(1) Cr.P.C. The learned Magistrate must certainly consider at the stage of 245(2) Cr.P.C whether the allegations are groundless or at the stage of 245(1) Cr.P.C whether the materials placed before the court if unrebutted would warrant a conviction. 9. With the above observations, this Crl.M.C is dismissed. The learned counsel for the petitioners finally submits that if unnecessary insistence were made on the Crl.M.C.No.1885/08 6 personal presence of the petitioners ritualistically before the learned Magistrate on all dates of posting, it would work out great prejudice and hardship against the petitioners. I find no reason why in the facts and circumstances of a case like the instant one such unnecessary personal appearance must be insisted. The petitioners can certainly apply for exemption from appearance and the learned Magistrate must consider such application on merits, in accordance with law and expeditiously. I find no reason why the personal presence of the petitioner must be so insisted. They can certainly be permitted to be represented by counsel in the course of evidence and till a decision is taken on the question of charge/discharge. (R.BASANT, JUDGE) jsr Crl.M.C.No.1885/08 7 Crl.M.C.No.1885/08 8 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007