2010 (6) TMI 866 - HC - Indian Laws

Summary

Issues Involved:
1. Issuance of process u/s 498A IPC against petitioners.
2. Compliance with amended provisions of Section 202 CrPC.
3. Limitation period for taking cognizance of the offence.

Summary:

1. Issuance of Process u/s 498A IPC Against Petitioners:
The petitioners challenged the order dated 14.8.2008 by J.M.F.C. Kamptee in Criminal Complaint Case No. 660 of 2007, which issued process u/s 498A IPC against them. The complainant/respondent No. 2 had initially lodged an FIR against her husband and his family members. The police investigation led to a chargesheet only against the husband (petitioner No. 1), not the other family members (petitioners 2 to 4). Subsequently, the complainant filed a private complaint leading to the issuance of process against all petitioners, which the petitioners argued was mala fide and an abuse of process.

2. Compliance with Amended Provisions of Section 202 CrPC:
The petitioners contended that the trial court failed to comply with the amended provisions of Section 202 CrPC, which mandates an enquiry before issuing process when the accused resides outside the court's territorial jurisdiction. The court noted that the Magistrate issued the process mechanically without conducting the required enquiry, thus violating Section 202 CrPC. The court emphasized that the enquiry should be "good, satisfactory and sufficient" and not merely based on the complaint and verification statement.

3. Limitation Period for Taking Cognizance of the Offence:
The petitioners argued that the complaint was barred by limitation as the last incident of alleged ill-treatment occurred on 19.7.2004, and the complaint was filed on 15.12.2007, beyond the three-year limitation period u/s 498A IPC. The court agreed, noting that the complainant did not seek condonation of delay and that her actions appeared to be an abuse of process. The court rejected the argument that the delay was due to the police's failure to file charges against all petitioners and held that the complaint was clearly barred by limitation.

Conclusion:
The court quashed the order issuing process against the petitioners, holding that the Magistrate erred in law by not complying with the amended provisions of Section 202 CrPC and that the complaint was barred by limitation. The Criminal Writ Petition No. 431 of 2009 was allowed, and the rule was made absolute in terms of prayer Clause (1).