Partly allowed

Ashok Kumar v. State of Kerala

Kerala HC1 Oct 2010Crl.MC/929/2010

Case brief

AI extract

What is this about?

Criminal Miscellaneous petition to quash cognizance under Section 498A IPC and claim discharge. Court held cognizance against third petitioner is quashed, allowing petition partially. Petitioners 1 and 2 entitled to seek discharge.

What did the court decide?

Cognizance against third petitioner quashed; Petitioners 1 and 2 entitled to seek order of discharge under Section 239 CrPC; Magistrate not to insist on presence for discharge application.

Ashok Kumar Vs State of Kerala — Cheque Dishonour | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932

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Crl.MC.No. 929 of 2010(C)

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-----------------------------------[CMP.NO.14196/2009 OF JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM]

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PETITIONERS/A4 TO A6:

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-----------------------------------

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1. ASHOK KUMAR, S/O.REGHUNATHAN, PUTHEN PURAKKAL, THEKKE MANKKUZHI MURI, BHARANIKAVU VILLAGE.

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2. DEEPA ASHOK KUMAR, W/O.ASHOK KUMAR, --DO-- --DO--

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3. SUSHEELA @ LEELA, RESIDING AT PATHIYOOR PADINJAR, PATHIYOOR, KAREELAKULANGARA.

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BY ADVS. SRI.M.V.THAMBAN,

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SRI.R.REJI, SRI.B.BIPIN .

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RESPONDENTS/STATE & DEFACTO COMPLAINANT:

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---------------------------------------------------------------------------

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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, VALLIKUNNAM POLICE STATION, ALAPUZHA DISTRICT.

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2. RENJU, D/O.RADHAMONEY, AGED 23 YEARS, RESIDING AT MUTHALASSERI VADAKATHEL, PATHIYOOR THOTHATHIL MURI, PATHIYOOR VILLAGE, MAVELIKKARA, ALAPUZHA DISTRICT.

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R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM, R2 BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), SRI.V.SUNIL KUMAR (PANACHAMOODU), SRI.A.R.DILEEP, SRI.H.JAWHAR.

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/10/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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prv.

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M.Sasidharan Nambiar, J.

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Crl.M.C.No.929 of 2010

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ORDER

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Petitioners are accused 4 to 6 in C.C.No.

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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.

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CRMC 929/10

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Learned counsel appearing for the

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petitioners, second respondent and learned Public Prosecutor were heard.

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Argument of the learned counsel appearing for the petitioners, relying on the decision of the

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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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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

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submitted. The final report discloses that

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prosecution case is that first accused married the second respondent and complaining that cash of

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CRMC 929/10 3

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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.

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True, petitioners 2 and 3, the sister-in-law of the husband of the second respondent and motherin-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

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CRMC 929/10

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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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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

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CRMC 929/10

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petitioner are not correct and it cannot be relied on, it is for the learned Magistrate to consider the same.

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Petition is allowed in part. Cognizance taken in C.C.No.778/2009 on the file of Judicial First

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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.

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1^st October, 2010 (M.Sasidharan Nambiar, Judge) tkv

Ashok Kumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ashok Kumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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