IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 Crl.MC.No. 3915 of 2009() ------------------------------ CC.228/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... PETITIONER(S): ACCUSED NOS.2 TO 4 --------------------------------------------- 1. KALARIKKAL BEEVATHU, W/O.KUNHALI HAJI, KUTTIALIKADAVATH HOUSE, ASAN PADI, MANGALAM AMSOM, KUTTAYI, MALAPPURAM DISTRICT. 2. JAMEELA, W/O.MUHMMED BAVA, POURAKATH HOUSE, ASANPADI, MANGALAM AMSOM, MALAPPURAM DISTRICT. 3. SAINABHA, W/O.MUHAMMED, AITHUVINTEPURAKKAL HOUSE, MANGALAM AMSOM, ASANPADI, MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): COMPLAINANT/STATE ----------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. * ADDL. R2 IMPLEADED 2. SALEENA, D/O. KOTTATHARA MAYIKKANAKATH MAMMASAN, P.O. THALAKKAD, EDAKKAD, TIRUR, MALAPPURAM DISTRICT. * ADDL. R2 IMPLEADED AS PER ORDER DATED 23/03/2010 IN CRL.MA.1455/2010. R1 PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3915 OF 2009 --------------------------------------------- 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 Crmc 3915/09 2 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. Crmc 3915/09 3 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 Crmc 3915/09 4 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 Crmc 3915/09 5 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 Crmc 3915/09 6 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.