IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 Crl.MC.No. 3230 of 2008() ------------------------- CC.700/2008 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... PETITIONER: ACCUSED 2 TO 5 -------------------------- 1. NUSAIBA, W/O. MUHAMMED KUTTY, AGED 50, PALMTHURUTHU VEEDU, WEST OF NARAKATAHARA JUNCTION, KUMARAPURAM PANCHAYATH, HARIPAD. 2. NABEESATH, W/O. RASHEED, AGED 48, THOTTUNGAL PURAYIDAM, ZACHARIA WARD, VATTAPPALLY ROAD, ALAPPUZHA DISTRICT. 3. ABIDA, W/O. SHAMSUDEEN, AGED 45, KOCHIPARAMBIL VEEDU, NEAR VELLANA JUNCTION, VEEYAPURAM PANCHAYATH. 4. SUBAIDA, W/O. ABDUL AZIZ, AGED 43, CHINGOLIMURI, CHINGOLI PANCHAYATH, KARTHIKAPPALLY. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3230 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August, 2008 O R D E R The petitioners are accused Nos. 2 to 5 and they face indictment along with the first accused for offences punishable, inter alia, under Section 498A I.P.C. The defacto complainant is the wife of the first accused and the petitioners are the relative of the first accused. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. The crime in turn was registered on the basis of the statement of the defacto complainant recorded while she was undergoing treatment as an inpatient in the hospital. 2. The petitioners have received directions to appear before the learned Magistrate. They have not so far appeared before the learned Magistrate. The petitioners at this stage have come before this Court with a prayer that the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. may be invoked to bring to premature termination the undeserved prosecution Crl.M.C.No. 3230 of 2008 2 against them. The counsel for the petitioners in particular relies on the F.I. Statement lodged by the defacto complainant when she was admitted in the hospital, which does not disclose any culpable or contumacious conduct on the part of the petitioners. 3. I have heard the learned counsel for the petitioners. I have perused Annex.A1 F.I. Statement. At this early stage of the proceedings I shall carefully avoid any detailed discussion on the acceptability of the allegations or the credibility of the data collected. Suffice it to say that a perusal of Annex.A1 F.I. Statement does reveal to me that the contention of the learned counsel for the petitioners that they do not deserve to endure the trauma of criminal indictment deserves to be considered in greater detail. The averments in the F.I. Statement may not be the be all and the end of all in a criminal indictment. Contents thereof are certainly relevant. Premature termination of criminal proceedings initiated against an indictee can be achieved under the ordinary provisions of the Code. In a case in which cognizance was taken on the basis of the final report submitted by the police such premature termination can be claimed at the stage of Section 239/240 Cr.P.C. by an indictee. In an exceptional case where Crl.M.C.No. 3230 of 2008 3 the interests of justice so demand, notwithstanding the availability of that option for the indictee this court may be justified in invoking the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. I need only mention that at the present stage and with the available inputs, I am not persuaded to invoke such jurisdiction in favour of the petitioners. 4. I note that the case diary statements of various witnesses have not been placed before me to enable me to come to the conclusion whether the allegations against the petitioners are justified or not. I am, in these circumstances, satisfied that this is an eminently fit case where the petitioners must be relegated to claim premature termination before the learned Magistrate. No circumstances exist to justify the invocation of the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. 5. I find merit in the submission of the learned counsel for the petitioners that if the learned Magistrate were to insist on the personal presence of the petitioners before the plea for discharge is considered, that would work out great hardship and loss to the petitioners. Appropriate direction can, in these circumstances, be issued. Crl.M.C.No. 3230 of 2008 4 5. This Crl.M.C. is dismissed. It is made clear that the petitioners shall be entitled to claim discharge at the stage of Section 239/240 Cr.P.C. and if such a plea is raised, the learned Magistrate must anxiously consider the claim of the petitioners for discharge. In the peculiar facts and circumstances of this case, I do further direct that until a decision is taken on the question of charge/discharge under Section 239/240 Cr.P.C. it is not necessary for the learned Magistrate to insist on the personal presence of the petitioners. If the petitioners appear through counsel, they shall be permitted to advance such plea of discharge under Section 239 Cr.P.C. without insisting on their personal presence. If and only if the court finds that charges are liable to be framed against the petitioners, need their personal presence be insisted by the learned Magistrate if until then they appear through their counsel. (R. BASANT) Judge tm