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HIGH COURT OF KERALA
P. G. Ajithkumar, J
MUHSINA BINTH MHAMMED HABEEB – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 8724 2023
Quash - Criminal Procedure - IPC Section List - The court allowed the petitioner to file a discharge petition before the trial court and directed consideration within a specified timeframe, thus emphasizing the importance of procedural rights and the discretion of the magistrate.
Fact of the Case:
The petitioner, facing charges under IPC for certain offences, is seeking to quash proceedings in a particular case. The petition arises due to concerns about the necessity of the petitioner's presence in court for a discharge petition.
Finding of the Court:
The court concluded that the petitioner should file a discharge petition in the trial court. It recognized the argument concerning the petitioner's absence and decided to allow the petition to proceed without necessitating the petitioner's appearance until the discharge petition was resolved.
Issues: Whether the petitioner needs to be present in the trial court to file a discharge petition or if the petition can be processed without the petitioner's physical presence.
Ratio Decidendi: The court determined that procedural rules allow the filing and consideration of discharge petitions without the compulsory presence of the accused, thereby upholding fair trial rights.
Final Decision: The petitioner may file a discharge petition within three weeks without being present until final orders are made.
ORDER
This Criminal Miscellaneous Case is filed to quash the proceedings in C.C.No.225/2022 on the file of the Judicial First Class Magistrate Court-VIII, Ernakulam (Temporary) arising from Crime No.824/2021 of Kadavanthara Police Station. Petitioner is the 1st accused in the above case. The above case is charge- sheeted alleging offences punishable under Section
406, 420 r/w 34 IPC .
2. After hearing both sides, I am of the considered opinion that the contentions raised by the petitioner should be raised before the trial court by filing a discharge petition. Counsel for the petitioner submitted that the petitioner is not in station and the learned Magistrate may insist for the presence of the petitioner for considering the discharge petition. Therefore, the petitioner can be allowed to file a discharge petition before the court below if charge is not framed and there can be a direction to consider the same within three weeks from today. The discharge petition can be argued through a lawyer engaged by the petitioner before the Magistrate court. The presence of the petitioner can be dispensed with till final orders are passed in the discharge petition. Therefore, this Criminal Miscellaneous Case is disposed of in the following manner:
1. The petitioner is free to file a discharge petition before the Judicial First Class Magistrate Court-VIII, Ernakulam (Temporary) within three weeks from today, if charge is not framed.
2. Once such a discharge petition is received, the Magistrate will consider the same and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner and the Prosecutor concerned, within a period of six weeks from the date of receipt of the discharge petition.
3. If a discharge petition is filed as directed above, the presence of the petitioner shall not be insisted by the Magistrate, till final orders are passed in the discharge petition.
4. If a discharge petition is filed as directed above, coercive steps against the petitioner shall be deferred till the discharge petition is disposed of.
5. All the contentions raised by the petitioner in this criminal miscellaneous case are left open.
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