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Judgment
Rathnakala, J.—This petition is filed by the de facto Complainant - wife in criminal proceedings pending before the learned Magistrate at Tumkur in respect of offences punishable under Section 323, 504, 506 and 498-A of IPC and Sections 3 and 4 of the Dowry Prohibition Act.
The respondent No. 2 is and husband and respondent No. 3 and 4 are the parents-in-law of the petitioner. After investigation the Investigation Officer submitted charge sheet on 14.11.2008. The Investigation Officer submitted final report by showing the accused No. 1 - husband as absconding. Cognizance of the said offences was taken by the Court and summons were issued.
In response to the summons, accused No. 2 and 3 appeared before the Court. Learned Magistrate has ordered splitting up of the case as against accused No. 1 by taking note of the fact that accused No. 1 has remained absconding for more than a year. The accused No. 2 and 3 are aged persons.
The learned counsel for petitioner submits that the respondent No. 2--husband of the petitioner herein, is intentionally avoiding the service of notice, though his passport is impounded he managed to escape abroad and not available for process of the Court for more than a year. The prosecution without making proper attempt to procure him have shown him as absconding. If the case as against accused No. 1 is split up for ever he will remain away from the process of the Court.
In reply, the learned Government Pleader submits that the Investigating Officer had made proper effort to procure him. The warrant issued to his address is returned unserved with the note that "Dowry offences are not extraditable under the applicable extradition treaty between the US and India.
It is to be noted that the prosecution is not seeking for extradition of the accused No. 1, it sought for service of warrant of the Court with summons and though indulgence of the US Authorities. It is not that the Investigation Officer is disabled to procure the absconding accused No. 1 from the US where he is allegedly put up. Further, as per US India MLET agreement he can make request to serve the process of the Court through Department of Justice. Order of treating and splitting the case of the accused No. 1 from that of the accused No. 2 and 3, cannot be said to be prejudice the Complaint. The Complainant is of the year 2007. The respondent No. 3 and 4 are aged persons. For the fault on the part of the accused No. 1 they shall not be made to wait, for indefinite period.
I find no illegality and impropriety on the part of the learned Magistrate in splitting the case of accused No. 1 and accused No. 2 from that of accused No. 3. However, the Investigation Officer is directed to make all necessary attempt as contemplated under US India MLET through concerned authority to serve process on accused No. 1 and compliance shall be reported to the learned Magistrate within 90 days from the date of receipt of the copy of this order.
With the above observations and direction the present petition stands disposed of.
Registry is directed to make available copy of the order to the concerned through learned Government Pleader.
In view of the disposal of the main petition IA No. 1/14 do not survive for consideration and it is accordingly disposed of.