IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3749 of 2006()
1. OUSEPH, AGED 66 YEARS, S/O. THOMAS,
... Petitioner
2. SHAJI, S/O. OUSEPH,
Vs
1. STATE OF KERALA, REP. BY
... Respondent
2. BINDU JOSE, D/O. JOSEPH,
For Petitioner :SRI.RAJESH VIJAYAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :02/03/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.3749 of 2006
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Dated this the 2nd day of March, 2007
ORDER
Petitioners are accused 2 and 3 in a prosecution under Section
498 A read with 34 I.P.C. Altogether there are 3 accused persons.
The 1st accused is the husband of the defacto complainant. The
petitioners are father-in-law and brother-in-law of the defacto
complainant. Cognizance has been taken on the basis of a final report
submitted by the police. Proceedings were initiated before the police
on a complaint filed by the defacto complainant. The defacto
complainant had alleged that all the 3 accused persons have been
guilty of matrimonial cruelty of the culpable variety against her. The
petitioners have already appeared before the learned Magistrate. They
have come before this Court with a prayer to invoke the powers under
Section 482 Cr.P.C to quash the proceedings.
2. What is the reason ? It is not disputed that the averments
in the complaint, that is the F.I statement (Annexure-A) do not reveal
any offence punishable under Section 498 A I.P.C. The case diary
statement of the defacto complainant has been produced as Annexure-
B. Wound certificate has been produced as Annexure-C. The crux of
the contention is that there is incongruity between the versions in
Crl.M.C.No.3749 of 2006 2
Annexures-A,B & C. The alleged incongruity is about the precise place
where the alleged cruel conduct of assault was resorted to by the
accused persons. While from the averments in the complaint and the
alleged cause narrated in Annexure-C it would appear that the alleged
incident took place at the Nedumbassery Airport, the statement given
by the defacto complainant before the police in the course of
investigation would suggest that the culpable conduct commenced at
the Airport and had continued and culminated at the house of the
defacto complainant.
3. I am not satisfied that this alleged incongruity in details in
the version of the complainant is sufficient justification for this Court to
invoke the powers under Section 482 Cr.P.C. I am satisfied that this
Crl.M.C cannot in these circumstances succeed.
4. The learned counsel for the petitioners submits that the 1st
accused is an old person, now aged about 70 years. He is sick also.
The 2nd petitioner is employed abroad. In these circumstances, the
counsel submits that unnecessary insistence on the personal
appearance of the petitioners before the learned Magistrate on all
dates of posting is likely to cause great hardship and prejudice to the
petitioners. I find no reason why the petitioners cannot apply for
exemption from personal appearance. I do not also find any reason
Crl.M.C.No.3749 of 2006 3
why such unnecessary insistence on the personal appearance of the
petitioners should be made by the learned Magistrate. Only if personal
presence of the petitioners is necessary for effective further progress
of the case, then alone, need the personal presence of the accused
persons be insisted by the learned Magistrate.
5. This Crl.M.C is dismissed, with the above observations.
(R.BASANT, JUDGE)
rtr/-