Andhra HC (Pre-Telangana)
L. Ramesh Kumar And Anr. vs Smt. L. Lalitha And Anr. on 7 March, 2003
Equivalent citations: 2003(1)ALD(CRI)686, 2003(2)ALT(CRI)358, 2003CRILJ2477, I(2004)DMC771, 2003 CRI. L. J. 2477, 2004 (5) SCC 236, (2004) 3 CRIMES 111, (2004) 28 OCR 648, (2004) 3 RAJ CRI C 671, (2004) 4 SUPREME 247, (2004) 4 ALLCRILR 49, (2004) 1 DMC 771, (2003) 4 RECCRIR 593, (2004) 2 CURCRIR 350, (2004) 5 SCALE 662, (2004) 3 ALLCRIR 2383, (2004) 3 CHANDCRIC 178, (2004) 3 RECCRIR 566, (2004) 50 ALLCRIC 695, (2004) 2 EFR 675, (2004) 114 ECR 753, 2003 (1) ALD(CRL) 686, 2003 (2) ANDHLT(CRI) 358 AP, (2004) 2 ANDHLT(CRI) 223, (2003) 2 ANDHLT(CRI) 358, 2004 SCC (CRI) 1586, (2004) 2 JCJR 16 (SC), 2004 CRILR(SC&MP) 621, (2004) 2 KHCACJ 466 (SC)
ORDER G. Yethirajulu, J.
1. This application under Section 482, Cr.P.C. is filed by two petitioners praying to quash the proceedings in C.C. No. 50 of 2000 on the file of the XXII Metropolitan Magistrate, Hyderabad.
2. The petitioners are accused in C.C. No. 50 of 2000. The 1st respondent herein is the de facto complainant in the said case which was registered under Sections 498-A, IPC, 406, IPC and Sections 4 and 6 of the Dowry Prohibition Act.
3. The de facto complainant filed a private complaint before the XXII Metropolitan Magistrate, Hyderabad on 3-9-1997 alleging that she was married to the 1st petitioner on 13-5-1979. They led marital life and blessed with four children. At the time of marriage her parents gave Rs. 25,000/- as nazrana and 10 tulas of gold ornaments, 25 talus of silver ornaments and other household articles totally worth Rs. 2,50,000/- besides bearing the marriage expenses. During her stay with the 1st petitioner, the petitioners were demanding more dowry and started harassing the complainant to get Rs. 40,000/- from her parents to construct their old house. The parents of the complainant arranged Rs. 25,000/-, Rs. 1,00,000/- from the financiers and Rs. 25,000/- from a chit fund company. The de facto complainant obtained loan from her sister to fulfil the demands of the petitioners, but they continued the harassment. The petitioners ill-treated, and tortured the complainant mentally and physically whenever she expressed her inability to fulfil their demand to bring more dowry amount. They abused her in filthy language and beat her. They did not provide proper food to her and ill-treated her. On 5-6-1996 they necked her out retaining all gold ornaments and valuables in their custody.
4. On 6-9-1997 the learned XXII Metropolitan Magistrate, Hyderabad forwarded the complaint of the 1st respondent to Women Police Station, Hyderabad under Section 156(3), Cr.P.C. The police registered Crime No. 360 of 1997 against the petitioners under Sections 498-A, 406, IPC and Sections 4 and 6 of the Dowry Prohibition Act. During the course of investigation the complainant was examined and while the investigation was in progress, she went to the police station on 26-9-1997 and submitted another petition stating that the elders have discussed the matter and decided to make her to live along with her husband and she started living with her husband and therefore requested to drop further action in the matter. On the basis of the above statement of the 1st respondent, the police submitted a final report to the learned Magistrate in December, 1997 treating the case as a 'mistake of fact'. The learned Magistrate accepted the final report on 3-12-1997.
5. Subsequently on 20-1-2000 the 1st respondent filed an application under Section 200, Cr.P.C. before the learned XXII Metropolitan Magistrate praying to review the order dated 3-12-1997 even after accepting the final report submitted by the investigating agency and to re-open the case, record her sworn statement and to issue summons to the petitioners and punish them according to law.
6. The learned Magistrate, after recording the sworn statement of the complainant and recording the statement of another witness, took the case on file for the offences mentioned in the complaint.
7. The learned counsel for the petitioners submitted in the light of the above circumstances, there is no alternative remedy for the petitioners except to approach this Court under Section 482, Cr.P.C. to quash the proceedings in C.C. No. 50 of 2000 on the file of the XXII Metropolitan Magistrate. The learned counsel raised two crucial points regarding the maintainability of the complaint before the Magistrate/Firstly, he submitted that a notice was not served on the petitioners in the protest petition covered by M.P. No. 185 of 2000 filed by the complainant on 20-1-2000 to reopen the case under Section 200, Cr.P.C. Secondly, he contended that the date of re-opening the complaint in taking cognizance was made on 16-3-2000 which was beyond the period of limitation.
8. Regarding the first point it may be mentioned that under the provisions of Section 200 of the Code of Criminal Procedure no notice is contemplated to the accused in the protest petition till the Court takes cognizance of the offences mentioned in the complaint. Regarding the second point, on verification it was found that complaint was originally filed by the 1st respondent on 3-9-1997 for the offences under Sections 498-A, 406, IPC and Sections 4 and 6 of the Dowry Prohibition Act. For the offence under Section 498-A the Indian Penal Code prescribed the punishment up to 3 years. The complainant was said to be necked out by the petitioners on 5-6-1996. That was the last date of harassment meted out by the complainant. Therefore, the period of limitation starts from 5-6-1996. Under Section 469(1)(a), Cr.P.C. the period of limitation in relation to an offence shall commence from the date of offence. The complaint was filed on 3-9-1997. The police filed final report under Section 173, Cr.P.C. on 26-9-1997. The learned Magistrate recorded the final report on 3-12-1997 in the absence of the complainant.
9. In the protest petition the complainant mentioned that she was served with the copy of the final report on 26-9-1997 by the Women Police Station and she could not understand the contents of the notice, that her counsel instructed her to protest the matter before the Court and she was under the impression that the case was still pending before the Court, but could not immediately approach the Court. She further mentioned in the petition that she never went and requested the S.H.O., Women Police Station to close the matter and wanted to live with the accused. She never stayed with the accused from the date of lodging the complaint and that the final report filed by the police is baseless and devoid of merits. She therefore requested to review the order dated 3-12-1997.
10. Though the permission of the protest petition for review of the earlier order was beyond the period of three years, since the order of the Magistrate was only reviewing the order dated 3-12-1997 and as the complainant did not file a fresh complaint requesting the Magistrate to take cognizance of the same, there is no scope to hold that the complaint was barred by limitation.
11. Though there is no statutory bar in filing the second complaint on the same facts, it has to be examined whether the Magistrate can review his order more than two years after the acceptance of the final report.
12. Though the Magistrate accepted the final report, the same by itself would not stand in his way to take cognizance of an offence on a protest petition, but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised. In this regard there are authoritative pronouncements. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, the Supreme Court held that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.
13. In Munilal Thakur v. Nawal Kishore Thakur, 1985 Cri LJ 437 a Division Bench of the Patna High Court considered the question whether a Magistrate even after accepting final report filed by the police, can take cognizance of offence upon a complaint or the protest petition on same or similar allegations of fact, and the answer was rendered in the affirmative.
14. In District Manager, Food Corporation of India v. Jayashankar Mund, 1989 Cri LJ 1576 the Orissa High Court held :
6. Even though a protest petition is in the nature of a complaint, it is referable to the investigation already held by the vigilance police culminating in the final report and because the informant was not examined on solemn affirmation under Section 202 of the Code, thereby no illegality or prejudice was caused to the accused. If such a view is accepted and there is no reason why such a view should not be accepted, the necessary consequence in this particular case shall be that the protest petition which is of the nature of a complaint petition filed by the petitioner shall be in continuation and in respect of the case instituted and investigated by the vigilance police.
15. In Mahesh Chand v. B. Janardhan Reddy, the Supreme Court while dealing with the scope of Sections 200, 190(1)(a), 204, 300 and 482 of the Code of Criminal Procedure, 1973 held that merely because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition.
16. The above judicial pronouncements makes the position clear that even after acceptance of the final report, the Magistrate may take cognizance of the offence on the basis of the protest/complaint petition.
17. In the protest petition the complainant pleaded that she did not approach the concerned police reporting that she is living with her husband and they entered into compromise at the instance of their elders. The police did not enclose the petition said to be presented by the 1st respondent to drop the proceedings. Since the offence under Section 498-A, IPC is a non-compound-able offence and as the statement of the complainant regarding the compromise between the parties was not recorded on oath, it would be appropriate in the ends of justice to allow the proceedings to continue to get the matter decided on merits.
18. In the light of the above circumstances, I do not find any grounds to quash the proceedings under Section 482, Cr.P.C. The petition is accordingly dismissed. No costs.