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UNIVERSITY INSTITUTE OF LEGAL STUDIES,
PANJAB UNIVERSITY,
CHANDIGARH
CRIMINAL PROCEDURE
CODE
PROJECT ON
“COMPLAINT TO
MAGISTRATE”
Submitted To: Submitted By:-
Dr. Anju Berwal Raghav Gupta
B.Com LLB
th
Semester
Section-D
TABLE OF CASES
C
Chandra Deo Singh v. Prakash Chandra Bose
J
Jagannath Verma v. State of U.P.
S
S.W. Palanitkar and others v. State of Bihar and another
R
Rajendra Singh Vs State of Bihar
V
V.N.Talwar vs. Lakasha Maiya
INDEX
Topic Page Number Introduction 5 Examination of Complaint(Section200) 6 Procedure by magistrate not competent to take cognizance of the case(Section 201)
Postponement of issue of process(Section
Dismissal of complaint(Section 203) 13 Conclusion 16 Sources 17
EXAMINATION OF COMPLAINANT(SECTION 200)
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. The provisions of Section 200 are not a mere formality, but have been intended by the legislature to be given effect to for the protection of the accused persons against unwarranted complaints. The provisions are undoubtedly mandatory and not discretionary. The section requires the Magistrate to examine the complainant and the witnesses present. This duty being imperative, the Magistrate should ask the complainant whether any witnesses are present. If there are no such witnesses present, the Magistrate should also record this fact in the order sheet. It has also been stated that a list of witnesses is insisted upon to help the accused. However, the non-mention of the presence or otherwise of the witnesses of the complainant would not by itself vitiate the proceedings under Section 200. Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complainant; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
Section 200 lays down the preliminary procedure which a Magistrate shall follow on receiving a complaint. Under this section it is obligatory to examine the complainant and the witnesses and a summary dismissal without examining them is not legal. The provisions of this section apply to cases when the Magistrates take cognizance of an offence. The Magistrate should take the cognizance of the offence first and thereafter proceed to examine the complainant and his witnesses on oath. It is only after this stage that summons may be issued if necessary. The Magistrate must give the complainant an opportunity to be heard in person or through his pleader. An omission to examine the complainant and his witnesses by the Magistrate as required by this section is a serious irregularity, as such prejudice maybe caused to the accused. Having done so, he may order an inquiry under Section 202 or dismiss the complaint under Section 203 if he finds that there are no sufficient grounds to proceed with the case. It has been ruled that Magistrate can take cognizance of an offence without passing a speaking order. The Magistrate’s reliance on the statement of the complaint to the police given in connection with an earlier complaint was held proper. Even in respect of a complaint made by a public servant acting or purporting to act in the discharge of his official duties or in respect of a complaint made by a court, though it is not obligatory for the Magistrate to examine the complainant and the witnesses present if any, there is no bar for the Magistrate to make such examination of the complainant and the witnesses if it considers it necessary to do so.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. The object of this section is three fold: i. To ascertain the facts constituting offence; ii. ii. To prevent abuse of process resulting in wastage of time of the Court and harassment to the accused; iii. To help the Magistrate to judge if there is sufficient ground calling for investigation and for proceeding with the case. The object of an investigation under Section 202 of the Code is to enable the Magistrate to form an opinion as to whether the process should be issued or not, and to remove from his mind hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant’s evidence on oath. The function of the Magistrate holding a preliminary inquiry is only to be satisfied that a prima facie case is made out against the accused on the materials placed before him by the complainant.13 At this stage the Magistrate has to see whether there is evidence in support of the allegations made in the complaint and not whether the evidence is sufficient to warrant a conviction. In this section of the code the Magistrate has discretion to postpone the issue of process against the person complained against if he thinks fit but in that even he as to record its reasons in writing. Its reason should include the indication of application of his mind to the facts of the case in respect of which he considers inquiry necessary. Just a mere direction to a police office to enquire into the matter and to report is no
compliance with the provisions of this section. Therefore, if the records do not show the reasons because of which the Magistrate postponed the issue of process the order is erroneous and liable to be set aside. Where the case is one triable exclusively by a Court of Session under the proviso to Section 202(2), it is clearly and unambiguously mandatory on the part of the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. The provision has been enacted so that the accused has full information about the allegations about him and to enable him to prepare for his defence. The complainant need not remain present in court during such inquiry. There is no provision in the Code to compel the complainant to be present when the inquiry under Section 202. is conducted, especially when the complainant has been already examined on oath. Dismissal of the complaint in such a situation would be illegal. It is unnecessary and even unfair procedure to issue notice to the accused person to attend the inquiry. Such a procedure is entirely unwarranted by the Code. The whole scheme is that the accused person does not come in the picture unless and until process is issued. If the accused chooses to remain present either personally or through an advocates at the time of such inquiry, he cannot take part or he cannot be allowed to take part in the inquiry. Further, it would not be open to the Magistrate to put any question to the witnesses at the instance of the accused person nor can he examine any witnesses at the instance of the person named as accused. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice but beyond that he cannot go. Where a Magistrate, on receiving a complaint, chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused, but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
The Hon‘ble Allahabad High Court has recently held in case law Jagannath Verma v. State of U.P.^3 , that when a written complaint disclosing commission of a cognizable offence is made before a Magistrate, Magistrate may take cognizance and proceed in accordance with the provisions of chapter xv, Cr.PC.-Other option available to him to transmit the complaint to the police station concerned for investigation. Once the Magistrate has taken cognizance and adopted procedure under chapter xv, Cr.PC.-Not open to him to go back to the pre - cognizance stage and avail section 156(3) Cr.PC., 1973.
DISMISSAL OF COMPLAINT (SECTION 203)
(^3) 2015 (88)A.C.C.1(Full Bench)ALL
The Section mention that, “If, after considering the statements on oath(if any of the complainant and of the witnesses and the result of the inquiry or investigation(if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reason for so doing.” As per Section 203 of the Code of Criminal Procedure, it requires the Magistrate before taking cognizance of a case to apply his mind on the basis of statements made by the complainant and his witnesses and the result of the inquiry/investigation under Section 202, if any, whether there are sufficient grounds to proceed with the case in absence of such ground, he shall dismiss the complaint under this section and briefly record his reasons for doing so. In other word, after considering the statements on oath (if any) of the complaint and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. The expression “sufficient ground” in this Section points exclusively to the facts which the complainant brings to the knowledge of the Magistrate and to their establishing a prima facie case against the accused. In exercising his discretionary power of summary dismissal of the complaint, the Magistrate should not allow himself to be influenced by considerations altogether apart from the facts adduced by the complainant in support of the charge, nor by a consideration of the motive by which the complainant is accused. The Magistrate cannot refuse to issue the process unless the evidence led before him is self- contradictory or intrinsically untrustworthy and is insufficient to make out a prima facie case. The decision whether there is sufficient ground must be reached by the exercise of discretion based upon judicial consideration. A Magistrate should not dismiss a complaint without hearing the witnesses of the complainant present in Court. The reasons for dismissing a complaint should be based on the inference of facts arising from or discovered by the complaint, the examination of the complaint, and the investigation, if any, made under Section 202. A Magistrate may dismiss a complaint—
Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case.
CONCLUSION
Complaint to Magistrate is a procedural guidelines under which a complainant can be made directly to the Magistrate apart from filing a First Information Report(FIR) to the police against an offender. Complaint to Magistrate dealt with the proceeding which follow the taking of the ‘cognizance’ by the magistrate and which are preparatory to the trial of the case. Section 200-203 would found useful for weeding out false, frivolous and vexatious complaints aimed at harassing the accused person. As, everyday of experience of the courts shows that many complaints are ill founded, and it is necessary therefore that they should at the very start be carefully considered and those which are not on their face convincing should be subjected to further scrutiny so that only in substantial cases should the court summon the accused person, this layout has be inserted in the code of Criminal Procedure, 1973 with the scope to distinguish unfounded from genuine cases so as to root them out at the very outset without calling upon the party complained against.
SOURCES
