498A quash of Non relative

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.

Crl.M.C.No.929 of 2010

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.

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.

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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 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 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.

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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 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

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