Durthati Vijaya Kumari vs The State of A.P. and Others

R. Kantha Rao, J.—This Criminal Petition is filed by one Durthati Vijaya Kumari-defacto complainant u/s 482 Code of Criminal Procedure to quash the proceedings in Cr. No. 182 of 2004 of V. Town Police Station, Visakhapatnam.

The brief facts of the case are as follows:

The Petitioner/defacto-complainant lodged a report with the police on 22-7-2004 against the Respondents 2 to 6/A1 to A5 under Sections 498A, 494 IPC & 3 & 4 of the Dowry Prohibition Act. Subsequently, the police filed charge sheet deleting the names of A2 to A5 and the leaned Magistrate took cognizance of the offence only against A1 on 4.10.2004 and the case was numbered as C.C. No. 972 of 2004 on the file of I Additional Chief Metropolitan Magistrate, Visakhapatnam.

It is the version of the Petitioner/defacto-complainant that she came to know the fact that A2 to A5 were omitted in the charge sheet, only after receiving summons issued by the Court in the month of January 2008, and, thereafter, approached the Commissioner of Police with a fresh report on 22.1.008 leveling allegations against the Respondents 3 to 6 of demanding additional dowry. Basing on her subsequent report, the police conducted subsequent investigation u/s 173(8) Code of Criminal Procedure, examined her, and, summoned other witnesses, who were not earlier examined by the investigating officer, who initially conducted investigation. Thereafter, it appears that another charge sheet was also filed against the remaining accused. The learned Magistrate declined to take cognizance of the offences alleged in the subsequent charge sheet filed u/s 173(8) of Code of Criminal Procedure Since the subsequent report was given on the same facts after four years and the witnesses, who were earlier cited by the investigating officer, were not examined by the subsequent investigating officer, and, that he examined two other witnesses, and, thereby, coming to the conclusion that only it is at the behest of the Petitioner/defacto-complainant the police resorted to file charge sheet against the kith and kin of the accused-A1.

I have heard the learned Counsel appearing for the Petitioner/defacto-complainant and the learned Public Prosecutor representing the State.

The provisions of Section 482 Code of Criminal Procedure are intended to prevent miscarriage of justice and also curtail the abuse of process of Court. Here is a case where according to the Petitioner/defacto-complainant she only came to know about the omitting the Respondents/A2 to A5 from the charge sheet, after four years on receiving summons form the Court to give evidence. The said statement is highly unconvincing.

The Petitioner, after taking cognizance by the Magistrate against only A1 must have been aware of the said fact, she kept quite for four long years. It is true that the police have power to make further investigation if any fresh material is available to them. There is no dispute about the power of police to conduct further investigation as per the provision of Section 173(8) of Code of Criminal Procedure, but in the present case after a charge sheet is filed on the basis of subsequent investigation for the same offence, implicating some more accused, the learned Magistrate took cognizance of the offence against them in a mechanical way. The learned Magistrate has to apply his mind to the case before him to take cognizance. Since the Magistrate performs a judicial function, he can examine the truth or otherwise of the subsequent investigation taking into consideration the facts and circumstances of the case. In the instant case, the learned Magistrate in my view has rightly exercised his discretion and the order passed by him declining to take cognizance against the Respondents 2 to 6 being perfectly justified makes no interference, if it is otherwise, it will be result in undue hardship to the Respondents 2 to 6.

In the result, the Criminal Petition is devoid of any merits and the same is hereby dismissed.