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TMI Blog2010 (6) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out investigation in Crime No. 196 of 2004 registered for the offence punishable under Section 498A of Indian Penal Code and under Sections 3 and 4 of Dowry Prohibition Act and after thorough investigation police found that case was made out only against petitioner No. 1 and not other family members of the petitioner No. 1, i.e. petitioners 2 to 4. and therefore chargesheet was filed only against petitioner No. 1. Thereafter the complainant/respondent No. 2wife filed private criminal complaint case No. 660 of 2007 under Section 498A read with Section 406 and 506 of Indian Penal Code read with Sections 4 and 6 of Dowry Prohibition Act in the Court of J.M.F.C. Kamptee who issued process under Section 498A of Indian Penal Code against the petitioners. According to Mr. Patwardhan, respondent No. 2wife has decided to put the entire family to harassment and that is why she has filed false criminal complaint against all the family members and that is clearly mala fide and abuse of process of law. Inviting my attention to the amended provisions of Section 202 of Code of Criminal Procedure he argued that the said amendment came into force with effect from 23.6.2006 and the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 12.4.2006 . According to him, counting the limitation even from 12.4.2006 the complaint would be within limitation. These facts therefore clearly show that respondent No. 2 was at no fault and, on the contrary, it was police machinery who did not take action in time against the accused persons. Time was therefore lost in the above process, for which respondent No. 2 could not be blamed. According to him, in the matter of offence under Section 498A of Indian Penal Code the Hon'ble Supreme Court has taken a view that the courts should not be too technical in the matter of limitation for taking cognizance of the offences. According to him there was nothing wrong with the trial Court in taking cognizance of the offence even after the period of limitation. He argued that even otherwise offence under Section 498A of Indian Penal Code is a continuing offence and therefore the plea of limitation is not available. The counsel then went on to argue that the averments made in the complaint and the verification statement of the complainant that was recorded on oath is nothing but an enquiry made by the Magistrate and that is reflected in the impugned order and therefore it cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition was called out for hearing as is clear from the order made by this Court on 12.4.2006 in C.W.P. No. 157 of 2006 which reads thus: 1. On 5.4.2006 we have given last chance to the counsel for the petitioner. Today also Mr. Prashant Rawate, the learned Counsel, submits that the counsel for the petitioner are not available. There are four counsel appearing for the petitioner. 2. We have gone through the petition and find that it would be proper if the petitioner takes recourse to alternative remedy available to her considering the facts and circumstances stated in the petitioner and the delay in approaching this Court. 3. Petition is, therefore, dismissed with liberty to seek alternative remedy. 8. Respondent No. 2 thereafter filed private complaint case on 15.12.2007, cognizance in respect of which was taken on 14.8.2008 only in respect of offence under Section 498A of Indian Penal Code against petitioner No. 1. Perusal of the complaint and the verification statement impressed the Magistrate to issue process and the impugned order clearly shows that the Magistrate did not make any application of mind regarding the amended provision in respect of accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to ascertain as to what is pleaded by the complainant is true or not. It is with a view to separate chaff from the grain as many a times complaints do contain unfounded allegations and it is the duty of the Court to ensure that what is stated in the complaint is also stated by the complainant on oath and it is only then that based on such statement that process can be issued. The corollary of this would be that unless offences are disclosed from the statement on oath, no process can be issued only based on averments in the complaint. The complainant is bound to make a statement on oath as to how the offence was committed and how the offence was committed and how the accused persons are responsible therefor. After the statement on oath is recorded, a Magistrate is required to apply his judicial mind to the facts of the case and the law applicable thereto and find out what offence/s is made out, notwithstanding that the other party at that stage is unrepresented. As observed by the Apex Court time and again, summoning of an accused in a criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. A Magistrate is required to examine the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of complaint and the last incident is dated 20.7.2007 and thus it was clearly barred by limitation. The submission made by Mr. Gandhi that police having failed to file chargesheet against all the petitioners, except petitioner No. 1husband, it was not the fault of respondent No. 2wife and therefore the wife could not be blamed does not appeal to me for reasons more than one. In the first place nothing prevented respondent No. 2 from making application for taking cognizance beyond the period of limitation by applying for condonation of delay in filing private complaint. That apart, when the wife filed writ petition she never prosecuted the writ petition seriously which eventually came to be dismissed by this Court. She did not claim the relief to allow her to raise the objection to the final report filed by the police against only petitioner No. 1her husband and not against others. She never challenged the action of police in filing the chargesheet against the petitioner No. 1 alone. On the contrary, after the period of limitation she chose to file private complaint as aforesaid and obtained the order of issuance of process against all the petitioners. When petitioner No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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