IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3915 of 2009()
1. KALARIKKAL BEEVATHU, W/O.KUNHALI HAJI,
... Petitioner
2. JAMEELA, W/O.MUHMMED BAVA,
3. SAINABHA, W/O.MUHAMMED,
Vs
1. THE STATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :SRI.P.CHANDRASEKHAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :29/10/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.3915 OF 2009
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Dated 29th October, 2010
O R D E R
Petitioners are mother-in-law and
sister-in-laws of the second respondent.
Petitioners are accused 2 to 4 and second
respondent, the de facto complainant in
C.C.228/2007 on the file of Judicial First
Class Magistrate’s Court, Tirur. Second
respondent filed Annexure-A1 complaint before
Judicial First Class Magistrate, Tirur
alleging that petitioners along with the
first accused, husband of the second
respondent, committed offences under Section
498 A of Indian Penal Code. It was sent for
investigation under Section 156(3) of Code of
Criminal Procedure. Annexure-A2 FIR in Crime
No.179/2007 of Tirur Police Station was
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registered accordingly. After investigation,
Annexure-A3 final report was submitted before
learned Magistrate on 13/3/2007 and cognizance
for the offence under Section 498 A of Indian
Penal Code was taken on 16/3/2007. Petition is
filed under Section 482 of Code of Criminal
Procedure to quash the cognizance taken against
them contending that even as per the
allegations in the complaint, the alleged
cruelty by the petitioners three years prior to
the filing of Annexure-A1 complaint and
therefore, learned Magistrate should not have
taken cognizance, in view of Section 468 of
Code of Criminal Procedure.
2. Learned counsel appearing for the
petitioners and learned Public Prosecutor were
heard. Though notice was served on the second
respondent, she did not appear.
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3. As it was found that cognizance was
taken beyond the period of three years, from
the date of the alleged cruelty committed by
the petitioners, a report was called for from
the learned Magistrate whether, any petition
was filed to condone the delay to take the
cognizance showing the reasons for the delay
and whether the cognizance was taken after
condoning the delay. Learned Magistrate
submitted that no petition was submitted to
condone the delay showing any reason and delay
was not condoned and instead, the cognizance
was taken on receipt of the final report.
4. A reading of Annexure-A1 complaint
establishes that the specific case of the
second respondent against petitioners is that
till first of 2003, she was living with the
husband and the in-laws, after her marriage
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with the first accused on 27/4/1998. The
husband was employed in Gulf. Allegation in
paragraph 4 of the complaint is that finding
that it was intolerable for her to continue to
live in the matrimonial home, Subair her
brother came and took her to her house and
thereafter, none of the petitioners had seen
her or made any enquiry. In paragraph 5, it is
alleged that during the first week of 2004,
first accused the husband returned from Gulf
and pursuant to a mediation, under the belief
that she could live happily there, second
respondent had gone with the first petitioner
to their house and though she stayed there for
some days, she experienced cruelty and the
first accused had gone to Gulf and she was
sent to her house. It is specifically alleged
that for more than three years, earlir to the
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filing of the complaint there was no enquiry
from the petitioners. The said allegation
itself establishes that, even if there was
any cruelty by the petitioners, it was either
before the first of 2003 or some days during 1st
of 2004. As provided under Section 468 of Code
of Criminal Procedure, when the maximum
sentence provided for an offence under Section
498 A is imprisonment for three years, the
period of limitation is three years. Annexure-
A3 final report does not show any reason for
condoning the delay. Report of the learned
Magistrate also shows that there was no
petition showing the reason for the delay or
any order to condone the delay, before taking
cognizance as provided under Section 473 of
Code of Criminal Procedure. In such
circumstances, cognizance taken against the
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petitioners could only be quashed.
Petition is allowed. Cognizance taken
against the petitioners, the accused 2 to 4 in
C.C.228/2007 on the file Judicial First Class
Magistrate’s Court, Tirur is quashed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.