Wednesday, July 24, 2013

elderly father and mother try quash but get only exemption of personal presence. No quash !! case to proceed and elders may appear unless magistrate needs them to appear

elderly father and mother try quash but get only exemption of personal presence. No quash !! case to proceed and elders may appear unless magistrate needs them to appear 


Key learnings / thoughts 
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* elders accused as usual
* all inquiry ...final report over... they try quash for elders
* HC say no quash
* HC says IF necessary try discharge 
* HC exempts elders from personal appearance 


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM INDIANKANOON SITE 
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Kerala High Court

K.P.Varghese, Aged 64 Years vs State Of Kerala, Represented By ... on 10 June, 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 17291 of 2008(H)

1. K.P.VARGHESE, AGED 64 YEARS, ... Petitioner

2. P.J.MARIAMMA, AGED 60 YEARS,

3. RENJITH VARGHESE, AGED 32 YEARS,

Vs

1. STATE OF KERALA, REPRESENTED BY ITS ... Respondent

2. VINEETHA MATHEW, D/O.MATHEW CHACKO, 


For Petitioner :SRI.K.SHRIHARI RAO

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :10/06/2008

O R D E R

R.BASANT, J.

**********************

W.P.C.No.17291 of 2008

**************************************** Dated this the 10th day of June 2008

J U D G M E N T

In this writ petition, the petitioners pray that the criminal prosecution initiated against them alleging offences punishable inter alia under Section 498A I.P.C may be quashed.

2. They are the father*in*law, mother*in*law and brother* in*law respectively of the de facto complainant. They are arrayed as accused 2 to 4. The first accused is the husband of the de facto complainant. He works abroad. Anticipatory bail was granted to the petitioners and the petitioners had complied with the terms of the anticipatory bail order. Investigation is now complete. Final report has already been filed. Petitioners are already on bail. After cognizance, they have not appeared before the learned Magistrate. The learned counsel for the petitioners submits that the petitioners do not deserve to stand the trauma of a criminal prosecution. There are no materials whatsoever against the petitioners. The petitioners may in these circumstances be permitted to claim premature termination of proceedings by invocation of the extraordinary constitutional jurisdiction available to this court under Article 226 of the Constitution of India, if not the jurisdiction under Section 482 Cr.P.C. The petitioners claim premature termination of a criminal prosecution. Under the ordinary provisions of the Code, an indictee is entitled to claim premature termination of the criminal prosecution against him even when such prosecution is initiated on the basis of a final report submitted by the police. Section 239/240 Cr.P.C oblige the courts to consider such plea of discharge and take appropriate decision.

3. No doubt, this court has the extraordinary jurisdiction under Article 226 of the Constitution of India or Section 482 Cr.P.C to bring such prosecutions to premature termination; but normally and ordinarily, in the absence of convincing reasons an indictee must be relegated to seek the ordinary remedy under the Code and should not be permitted to invoke the extraordinary Constitutional jurisdiction under Article 226 of the Constitution of India I am satisfied, having considered all the relevant inputs that there are no circumstances which can justify or warrant the invocation of such constitutional jurisdiction. This, I am satisfied is an eminently fit case where the petitioners must be relegated to claim premature termination by claiming discharge under Section 239 Cr.P.C.

4. The learned counsel for the petitioners submits that if unnecessary insistence were made on the personal appearance of the petitioners who are already on bail to claim discharge. that would work out great hardship and prejudice to the petitioners.

5. Having considered all the relevant circumstances and in the peculiar facts and circumstances of this case, I am satisfied that a direction can be issued that the personal presence of the petitioners need be insisted by the learned Magistrate only if the learned Magistrate after considering the plea of discharge finds it necessary to frame charges against the petitioners at the stage of 240 Cr.P.C. Until then the personal presence of the petitioners who are already on bail need not be insisted. They shall be permitted to appear through their counsel and raise such plea of discharge.

6. In the result, this writ petition is dismissed; but with the above observations.

(R.BASANT, JUDGE)

jsr

// True Copy// PA to Judge

W.P.C.No.17291/08 4

W.P.C.No.17291/08 5

R.BASANT, J.

CRL.M.CNo.

ORDER

21ST DAY OF MAY2007