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