High Court Kerala High Court

A.P.Ayisha vs State Of Kerala on 29 November, 2007

Kerala High Court
A.P.Ayisha vs State Of Kerala on 29 November, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 3571 of 2007()


1. A.P.AYISHA, AGED 70 YEARS,
                      ...  Petitioner
2. A.P.KHADEEJA, AGED 45 YEARS,
3. A.P.ASMA, AGED 38 YEARS,
4. A.P.IRAHIM KUTTY, AGED 34 YEARS,
5. A.P.SALAM, S/O KAYIKKARAN MOIDEEN,
6. A.P.MUBASHEERA, D/O KAYIKKARAN MOIDEEN,

                        Vs



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

2. VADAKKE MUKKUVACHERRY SAKKEENA,

                For Petitioner  :SRI.A.K.ABDUL AZEEZ

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :29/11/2007

 O R D E R
                             R. BASANT, J.
                   - - - - - - - - - - - - - - - - - - - - - -
                   Crl.M.C.No. 3571 of 2007
                   - - - - - - - - - - - - - - - - - - - - - -
           Dated this the 29th day of November, 2007

                                O R D E R

The petitioners are accused 2 to 7 in a prosecution launched

on the basis of a private complaint filed by the second

respondent. She is the wife of the first accused, who is not a

party to this proceedings. The petitioners (A2 to A7) are the

relatives of the husband (A1) of the respondent. Cognizance

was taken by the learned Magistrate of the offence punishable

under Section 498A I.P.C. against all the seven accused persons.

The petitioners have already appeared before the learned

Magistrate and have been enlarged on bail, it is submitted.

2. The petitioners have now come before this Court with a

prayer that powers under Section 482 Cr.P.C. may be invoked

to quash the proceedings against them.

3. What is the reason? The learned counsel for the

petitioners raises two contentions. First of all it is contended that

the allegations are not true and are made with vexatious intent.

Crl.M.C.No. 3571 of 2007
2

The question as to whether the allegations are true or false cannot

obviously be decided by this Court at this stage with the available

inputs and invoking the powers under Section 482 Cr.P.C. It is for the

petitioners to urge such contentions before the learned Magistrate and

claim discharge under Section 245(2) or 245(1) Cr.P.C. or acquittal at

later stages. On the contention that the allegations are not true and are

incorrect, the powers under section 482 Cr.P.C. cannot be invoked to

quash the proceedings.

4. Secondly the learned counsel contends that the complaint in

so far as it relates to the petitioners is barred by limitation under

Chapter XXXVI of the Cr.P.C. The crux of the contention is that

under Section 468(2)(c), the complaint regarding an offence under

Section 498A I.P.C., which is punishable with a maximum sentence of

three years, must have been filed within three years of the date of the

offence. There can be no dispute on that proposition of law.

5. I have been taken through the averments in the complaint,

which clearly show that the alleged matrimonial cruelty continued till

3.10.2003, on which day, because of the alleged matrimonial cruelty

Crl.M.C.No. 3571 of 2007
3

the complainant was compelled to leave the marital home and proceed

to her parental home. That means, the complaint should have been

filed within three years of that date , i.e. 3.10.2003. The complaint

admittedly has been filed in May, 2006 (complaint bears the date

27.5.2006). In these circumstances the plea of limitation cannot also

be accepted. The plea of limitation has to be considered on the basis of

the averments raised in the complaint at this stage. I do not, in these

circumstances, find any valid reasons to invoke the extra ordinary

inherent jurisdiction under Section 482 Cr.P.C. and quash the

proceedings against the petitioners.

6. The learned counsel for the petitioners submits that if

unnecessary insistence were made on the personal presence of the

petitioners, it will cause great hardship and prejudice to them. If the

court ritualistically insist on the personal presence of the accused, who

include a 70 year old lady, the mother-in-law of the complainant (A2)

it will cause difficulties for the petitioners. The petitioners can apply

for exemption and needless to say, their prayer for exemption must be

considered by the learned Magistrate on merits and in accordance with

Crl.M.C.No. 3571 of 2007
4

law. Personal presence need be insisted only when such appearance is

necessary and inevitable for the progress of the case. On all other

days an accused can be represented by counsel.

7. With the above observations, this Crl.M.C. is dismissed.

(R. BASANT)
Judge
tm