THUMPERTHI VANIDEVI Vs. THE S.H.O.

JUDGEMENT

(1.) This Criminal Petition is filed to quash cognizance taken for offences under section 447, 427 and 506 of IPC in C.C. No. 48 of 2011 on the file of Special Judicial Magistrate of First Class for Excise, Ongole.

(2.) Heard Advocate for Petitioner. He submitted that before taking cognizance on the charge sheet filed by the Investigating Officer court has not issued notice to the de facto complainant and that complainant is aggrieved by the said act of the Magistrate, therefore, cognizance has to be quashed. Advocate for petitioner referring to section 173 Cr.P.C. submitted that it is mandatory for the Magistrate to give notice to the complainant, as the cognizance was taken against only one accused and not against both accused as mentioned in the F.I.R. He relied on a decision of Supreme Court in Union Public Service Commission v. S. Papaiah and Ors., 1997 7 SCC 614 and also decision of this Court in Dommetl Madhuri v. Dommetl Parameswara Rao and Ors, 2006 2 ALT(Cri) 43

(3.) I have gone through both the decisions. In these two decisions police after investigation filed final report referring the case as 'mistake of fact' and some other ground and before accepting that final report the officer has not issued notice to the de facto complainant that was found fault by the Hon'ble Supreme Court. That legal position is not in dispute when a final report is filed stating that no offence appears to have been committed and before accepting that final report the Magistrate has to issue notice to the complainant to enable the complainant to file objections. But here in our case police have filed the charge sheet against the second respondent herein but the grievance of the complainant is that police have not filed charge sheet against the wife of the second respondent though allegations are made in the F.I.R.