IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 929 of 2010()
1. ASHOK KUMAR, S/O.REGHUNATHAN,
... Petitioner
2. DEEPA ASHOK KUMAR,
3. SUSHEELA @ LEELA,
Vs
1. STATE OF KERALA,
... Respondent
2. RENJU,
For Petitioner :SRI.M.V.THAMBAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/10/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.929 of 2010
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ORDER
Petitioners are accused 4 to 6 in C.C.No.
778/2009 on the file of Judicial First Class
Magistrate’s Court, Kayamkulam, taken cognizance
for the offence under Section 498A read with
Section 34 of Indian Penal Code. First petitioner
is the brother of the first accused. First accused
is the husband of second respondent, the defacto
complainant. Second petitioner is the wife of the
first petitioner. Third petitioner is the mother of
petitioners 1 and 2. This petition is filed under
Section 482 of Code of Criminal Procedure to quash
the cognizance taken against them contending that
petitioners 2 and 3 are not relatives of the
husband of the second respondent and therefore, an
offence under Section 498A of Indian Penal Code
will not lie against them and there is no material
to take cognizance against the first petitioner.
CRMC 929/10 2
2. Learned counsel appearing for the
petitioners, second respondent and learned Public
Prosecutor were heard.
3. Argument of the learned counsel appearing
for the petitioners, relying on the decision of the
Apex Court in Preeti Gupta v. State of Jharkhand
(2010 (1) KLD 391), is that when petitioners 2 and
3 are not relatives of the husband of the second
respondent, learned Magistrate should not have
taken cognizance of the offence under Section 498A
of Indian Penal Code against them and therefore,
the cognizance taken is to be quashed.
4. Crime was registered based on Annexure-A1
complaint filed by the second respondent before
Judicial First Class Magistrate’s Court, Kayamkulam
and sent for investigation under Section 156(3) of
Code of Criminal Procedure. After completing the
investigation, Annexure-A3 final report was
submitted. The final report discloses that
prosecution case is that first accused married the
second respondent and complaining that cash of
CRMC 929/10 3
Rupees Two lakhs and thirty sovereigns of gold
ornaments paid at the time of the marriage were
insufficient, from 17.04.2009 onwards, the date of
the marriage, demanding more dowry, first accused
husband was treating second respondent with cruelty
and when second respondent refused to give the
dowry demanded, accused 1 to 5 insulted her and
fifth accused caused hurt to her. When she cried,
fourth accused pushed her on the ground and caused
hurt to her and did not permit her to even use the
toilet. In furtherance of the common intention, the
accused had taken away the Thali of the second
respondent and thereafter, deserted her and thereby
committed the offences.
5. True, petitioners 2 and 3, the sister-in-law
of the husband of the second respondent and mother-
in-law of the brother of the husband of the second
respondent, cannot be termed as relatives of the
husband. But, first petitioner is definitely a
relative of the husband. In the light of the
allegations raised, it cannot be said that an
CRMC 929/10 4
offence under Section 498A of Indian Penal Code is
not attracted against the first petitioner. Hence,
the cognizance taken against him cannot be quashed.
But, as far as third petitioner is concerned, there
is absolutely no material. In any case, third
petitioner cannot be termed as a relative of the
husband of the second respondent. Therefore, third
petitioner cannot be prosecuted for the offence
under Section 498A of Indian Penal Code and on the
allegations raised against her, no other offence is
attracted. Hence, the cognizance taken against her
is bad.
6. That is not the case against the second
petitioner. The specific allegation against her is
that she caused hurt to the second respondent. It
is for the learned Magistrate to consider whether
any other offence under the Indian Penal Code is
attracted, on the materials furnished, against
second petitioner, when charge is framed. Though
learned counsel appearing for the petitioners
argued that allegations against the second
CRMC 929/10 5
petitioner are not correct and it cannot be relied
on, it is for the learned Magistrate to consider
the same.
Petition is allowed in part. Cognizance taken
in C.C.No.778/2009 on the file of Judicial First
Class Magistrate’s Court, Kayamkulam against third
petitioner (sixth accused) is quashed. Petitioners
1 and 2 are entitled to seek an order of discharge
under Section 239 of Code of Criminal Procedure,
raising all the contentions raised herein. If
petitioners 1 and 2 file an application under
Section 205 of Code of Criminal Procedure to
dispense with their presence for claiming an order
of discharge, learned Magistrate not to insist for
their presence.
1st October, 2010 (M.Sasidharan Nambiar, Judge)
tkv