MAHAMMAD ISAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under section 482 Cr.P.C. filed by the petitioner Mahammad Isak challenging the proceeding in C.T. Case No.319 of 2012 arising out of Tigiria P.S. Case No.76 of 2012 which was pending the Court of learned S.D.J.M., Athagarh (now pending on transfer in the Court of learned J.M.F.C., Tigiria, Cuttack) for commission of offences under sections 498 -A/34 of the Indian Penal Code.

(2.) The prosecution case, as per the First Information Report submitted by Soreya Begum, the opposite party no.2 who is the wife of the petitioner before the Officer in charge, Tigiria Police Station on 23.05.2012 is that the marriage between the petitioner and the opposite party no.2 was solemnized in accordance with the Muslim rites and customs on 24.07.1987 and five to six months after marriage, the mother -in -law of the informant namely Nusharat Nisha as well as the petitioner subjected the informant to physical and mental torture. The informant gave birth to five daughters and stayed with the petitioner for seven years. She complained before Odisha State Commission for Women, D.G. of Police as well as Tigiria Police Station regarding her torture and sometimes there used to be settlement between the parties and she was taken back to her in -laws' house. It is further stated in the First Information Report that as the informant was subjected to torture, she left her in - laws' house on 11.04.2004 while she was pregnant. Five to six years thereafter, on 03.10.2011 the informant contacted her advocate and sent a legal notice to the petitioner which was replied by the petitioner through his advocate on 01.02.2012 and on 23.05.2012 the informant came to know that the petitioner was going to marry at another place and accordingly, she lodged the First Information Report. On the basis of such F.I.R., Tigiria P.S. Case No.76 of 2012 was registered under section 498 -A of the Indian Penal Code against the petitioner Mahammad Isak and his mother Nusharat Nisha on 23.05.2012 and the investigation was taken up. The Investigating Officer visited the spot, examined the informant and other witnesses, seized two numbers of compromise petitions and after completion of investigation, on 21.09.2012 he submitted charge sheet under sections 498 -A/34 of the Indian Penal Code against the petitioner Mahammad Isak and Nusharat Nisha and accordingly on 22.09.2012, cognizance of offence was taken under sections 498 -A/34 of the Indian Penal Code. The order of cognizance reads as follows: - "C.S. No.110 dated 21.09.2012 under sections 498 -A/34 I.P.C. is received from the I.O. against accused persons (1) Mohammad Isak (52 years) S/o -late Mohammad Kayum (2) Nisharat Nisha @ Nusarat Nisha (77) W/o - Late Mohammad Kayum, both are village - Karadapalli, P.S -Tigiria, Dist -Cuttack. Perused the case record. A prima facie case is well made out against the accused persons. Hence, cognizance of offence u/s.498 - A/34 I.P.C. is taken against them. The above noted accused are bailed by the police."

(3.) Learned counsel for the petitioner Mr. Subhendu Kumar Nayak contended that the parties are residing separately since 2004 and the petitioner and the opposite party no.2 have executed khulanama/divorce deed in presence of witnesses under Annexure -2 on 09.02.2008 before the Subai Amir, President of Odisha, Cuttack of Ahamadia Muslim Community. He further submits that there are no materials on record to show that the petitioner subjected the opposite party no.2 to physical and mental torture after she left the house of the petitioner in 2004 and therefore, the ingredients of the offence under section 498 -A of the Indian Penal Code are not attracted. Learned counsel for the petitioner further contended that since the maximum prescribed punishment under section 498 -A of the Indian Penal Code is three years, in view of provision under section 468(2)(c) of Cr.P.C., there is bar in taking cognizance after lapse of period of limitation which in this case is three years which shall commence from the date of offence in view of section 469 of Cr.P.C. It is further contended that since the learned Magistrate has taken cognizance beyond the prescribed period of limitation without condoning the delay as envisaged under section 473 of Cr.P.C., the proceeding should be quashed. Learned counsel for the State has produced the case diary and placed the F.I.R. as well as charge sheet and contended that prima facie case under section 498 -A of the Indian Penal Code is clearly made out. Learned counsel for the informant also opposed the prayer made by the petitioner to quash the proceeding.