CRITICAL ANALYSIS ON 233RD LAW COMMISSION REPORT ON – AMENDMENT OF CODE OF CRIMINAL PROCEDURE ENABLING RESTORATION OF COMPLAINT

Abstract

There is a huge difference when it comes to the powers at each level of judiciary. Is that difference necessary to provide justice to the people. Even when it comes to the comparison to civil courts and criminal courts it is necessary that the justice should be delivered properly. In this article we talk about on aspect of it in which we see is it really necessary to amend some sections in The Code of Criminal Procedure 1973 and comply it with the orders and sections of The Code of Civil Procedure 1908.

Keywords: The Code of Criminal Procedure 1973, The Code of Civil Procedure 1908, Order, Section, Amend, Subordinate Court, Complaint.

Introduction

Complaint is generally the first step to start any criminal trial, whether it is a civil wrong or a criminal offence. Under The Code of Criminal Procedure 1973, complaint is defined as any allegation written or oral to the magistrate [1]. On the basis of which magistrate take his cognizance under the same code. There are three ways from which magistrate can take cognizance which are (a) Complaint of facts; (b) Police report; (c) information receiving from any person [2]. Complaint often sees as any allegation which is not a police report. While taking the cognizance magistrate should apply his/her judicial mind to it depending on the facts of each case [3].

There are many differences when it comes to powers of a criminal court and a civil court. The major difference is to restore the complaint dismissed in default. Now, that can happen in many different ways but we restrict ourselves in the purview of sections 249 and 256 of The Code of Criminal Procedure 1973 for criminal offence and order 9 rule 4, 8 and 9 of The Code of Civil Procedure for civil wrong.

In order to restore the complaint, for whatever reason so far, the complainant has to knock the door of the High court [4]. Now this is matter to think as magistrate have the power to dismiss a complaint in default but cannot restore it meaning magistrate cannot review his own decision when it comes to complaint. There are indeed many supreme court judgements over it which we will discuss later. Now, to understand it in more detail let’s see the provisions of the procedure codes individually so that we can see the bigger picture for the same.

Legislative provisions

In The Code of Civil Procedure 1908 order 9 named as Appearance of Parties and Consequence of Non-Appearance which states that what would happen if plaintiff or respondent or either or both didn’t present on the date of hearing of the suit decided by the court. It’s rule 2 and 3 talks about the dismissal of the suit firstly by the default of the plaintiff say plaintiff didn’t pay the court fee or process fee etc., and secondly where neither of the parties appears on the date of hearing. Rule 4 of Order 9 is the remedy to the plaintiff in case the suit is dismissed under rule 2 or 3 under the same order. Rule 4 of Order 9 enable the plaintiff that if the suit is dismissed by the virtue of rule 2 or 3 of the same order the plaintiff can institute a new suit on the same cause of action which is subject to the Limitation Act 1963. Now if only one of the parties present before the court on the date of suit set by the court rule 8 or 9 will come into play of the same order. Rule 8 contemplates the situation when the plaintiff is not present in the court on the date but the defendant appears, in that case there are three possible outcomes which are as follows:

The suit shall be dismissed if the defendant does not admit the claim of the plaintiff;
The defendant admits the claim, and a decree shall be passed against the defendant under Order 12 rule 6 of the code of civil procedure 1908;
The defendant only admits the part of the claim, then a decree shall be passed in response to such admitted claim and rest shall be dismissed.

Following that rule 9 of Order 9 provides the consequence or remedy for the dismissal of suit under rule 8 of the same order. Which says first that the plaintiff shall be barred from bringing a fresh suit with respect to the same cause of action or second plaintiff may apply for the restoration of the suit by providing sufficient cause of non-appearance within thirty days from that date of the order. The gist says even though a suit is dismissed because of the non-appearance of the plaintiff, he/she gets a chance to continue the suit under Order 9 of code of civil procedure 1908.

Now let’s see the same situation in criminal cases, under section 249 of The Code of Criminal Procedure 1973 which talks about the absence of the complainant. It gives the magistrate a discretion that if the complainant is absent on the date of hearing fixed by the court, magistrate in his discretion discharge the accused before the charge has been framed. One thing to note that this discretion only applies to the offences which are lawfully compoundable and of non-cognizable in nature defined both defined under the code of criminal procedure 1973 [5]. Chapter XIX of The Code of Criminal Procedure 1973 which is the procedure for trial of warrant cases by magistrates prescribes two procedures first for the trial of cases instituted on police reports and second for trial cases instituted on private companies. Lawmakers explicitly excluded non-compoundable and cognizable offence outside the purview of section 149 of The Code of Criminal Procedure 1973 as in those cases police explicitly files a chargesheet. This goes for the warrant case defined under section 2(x) of The Code of Criminal Procedure 1973, and same goes for section 256 for summons case defined under section 2(w) of The Code of Criminal Procedure.

If the sufficient cause is shown for the absence of complainant on the date of hearing fixed by the court, even in that case magistrates have no power to restore the complaint on file. One of the Karnataka high court judgements explicitly says that criminal court has no inherent power to restore the complaint even if the sufficient cause is shown by the complaint for his absence, he/she has to move the high court to restore his/her complaint [6]. The inherent powers of section 482 of The Code of Criminal Procedure 1973 is only for the High Courts and not for the District courts.

Legal take on the same

It starts with the question that whether the District courts have the formula of ‘Interest of Justice’ . In case of State of Kerala v. Vijayam [7], Supreme court held that the formula of ‘Interest of Justice’ is not available to the District judiciary beyond the frontiers of the statutory provisions and does not enable entry into the corridors of investigation. All Criminal courts having an auxiliary power subject to the restrictions which justice, equity, good conscience and legal provisions demand provided it will not unnecessarily prejudice somebody else [8]. In In the matter of State Prosecutor [9] a division bench of Kerala High Court held that the District judiciary have inherent power to act in accordance with the requirement of justice i.e., ex Debito Justitiae to do real and substantial justice for which alone the exist. Courts may act on the presumption of the principle that every procedure should be understood permissible till it is shown to be prohibited by law.

Inherent powers of Sub-ordinate Courts

The most important facet is Sub-Ordinate Courts have no inherent power and the formula of interest of justice does not apply to Sub-Ordinate courts beyond the frontiers of statutory provisions and they should not enter into the arena of investigation. The inherent power of Section 482 of The Court of Criminal Procedure 1973 is only applied to High Court but only if there is not illegality is there not any miscarriage of justice happen only then criminal courts can operate otherwise not at all. Furtherance to it courts can work on the principle that every procedure is understood fair till it is shown that it is somehow derogatory to law in any ways.

In Raj Narain v. Mool Chand [10] and Janata Devi v. HS Choudhary [11] it is stated that reading section 482 of The Code of Criminal Procedure 1973 with section 151 of The Code of Civil Procedure 1908 we understand three conditions for justice:

Injustice which comes to light should be of grave character and not of a trivial character.
It should be clear and palpable and not doubtful.
There exist no other provision of law by which the party aggrieved could have sought relief.

High court can review, recall, revoke, or alter its own decisions given earlier in criminal revision and rehear the same by the virtue of the inherent power given by section 482 of The Code of Criminal Procedure 1973 [10] which includes the criminal proceedings in the District Courts.

Supreme court in AS Gauraya v. SN Thakkur [12] specifically ruled that any provision of The Code of Criminal Procedure 1973 does not enable magistrates to execute inherent power to restore a complaint by revoking his/her earlier order dismissing it for the non-appearance of the complainant.

Recommendation by 141^st report by law commission

In the year 1991 law commission gave various recommendation for the issue of amendment in the provisions, following are as follows:

Firstly- In furtherance of the discussion and to promote justice for the same a new section named Section 482A should be added in the Code of Criminal Procedure 1973, in which the discretion should be given to the court that “ Upon their satisfaction it should be the discretion of the court to whether revoke the dismissed matter or not”.

Secondly- Existing Section 256 of The Code of Criminal Procedure 1973 should also be amended and the power to set aside dismissed matter and restore it and it should be in accordance with law, conferred to the criminal court for further proceedings.

Thirdly- Another reason for this amendment as per previous reports of 14^th and 41^st Law Commission report it is necessary to follow this amendment as renewal of the matter by court other than high court. As if not even in Section 125 of The Code of Criminal Procedure 1973 the provision for maintenance if dismissed for the default in appearance say, it may not be restored on the reasoning that the courts are exercising its jurisdiction other than High Court.

So far even after four reports of the Law Commission which suggest that it should be the inherent power of the Criminal Courts other than High Court to renew any dismissed matter for the reason of non-appearance or further. But so far there is no provision which states explicitly that Criminal Courts can go this far. [13]

Recommendation by Law Commission

Firstly- Legislature should amend Section 256 of The Code of Criminal Procedure 1973, and where the accused have been acquitted for the reason of non-appearance of the complainant and there exist the sufficient cause for complainants’ non-appearance.

Secondly- Also Amend Section 482 of The Code of Criminal Procedure 1973, and made a conferment of inherent powers also on Sub-ordinate Criminal Court other than High Court.

Conclusion

The legislature should keep in mind that District courts are the base of the judicial system of our country. The more District judiciary work efficiently it will be easier for the High courts and The Supreme court to function in the most efficient form and provide justice. The recommendation made by 18^th Law commission should be implemented to amend Sections 249 and 256 of The Code of Criminal Procedure 1973 and there shall be a clause which give inherent power to the magistrate to restore the complaint which was dismissed due to the absence of the complainant on the date of hearing set but the respective court. It would indeed reduce the burden on the High Court as the District Judiciary itself depending on the facts and circumstances of each case in his discretion decide whether the complain should be restore or not. With that the legislature should see the Order 9 of The Code of Civil Procedure 1908 and made similar changes in The Code of Criminal Procedure 1973.

References

Section 2(d) of The Code of Criminal Procedure, 1973
Section 190 of The Code of Criminal Procedure, 1973
Tula Ram v. Kishore (1977)
Section 482 of The Code of Criminal Procedure, 1973
Section 2(c) of The Code of Criminal Procedure, 1973
Tulsamma v. Jayannath (2004)
Madhavi v. Thupran (1987)
141^st Report of Law Commission, 1991

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