COMPLAINT TO MAGISTRATE

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This article is written by Kratika Singhal of 3^rd Year of Government Law College Kota, Rajasthan

Abstract:

This article examines the importance of a complaint given to the Magistrate. It emphasises on giving a short introduction of the concept of complaints under the Code of Criminal Procedure,1973. And this article gives a brief explanation on the various provisions that specifically deal with the process of complaints to the Magistrate. A proper process, from making a complaint to a Magistrate to the proceedings and trial is all described in a detailed manner from Section 200 to Section 210 of Criminal Procedure Code, 1973. Every detailed requirement like competence of the court where the complaint needs to be filed and proceeded with, the nature of the complaint, the circumstances under which the cases can be transferred so that no court interferes with the jurisdiction of the other court, etc. has been mentioned explicitly in the Code to avoid any kind of ambiguity when it comes to filing complaints to the Magistrate.

Keywords: Jurisdiction, cognizance, contention, non-bailable, warrant, humiliated, summon, voyage, abduction, allegations.

INTRODUCTION

Chapter XV of Criminal Procedure Code, 1973 deals with the provisions for complaints to a magistrate. Sections 200 to 203 of Criminal Procedure Code,1973 describes a proper formal legal process of complaints before the Magistrate.

The term “complaint” has been defined in Section 2(d) of Criminal Procedure Code, 1973 as “any allegation made orally or in writing to a Magistrate, with a view to taking an action under the Code that some person, whether unknown or known, has committed an offense, but the complaint does not include a police report.” In ordinary language the term “complaint” refers to any assertion either orally or in writing made before a magistrate, according to the Code of Criminal Procedure. It is done without a police report but with the intention of initiating action under this Code against some person, known or unknown, who has committed an offence.

Once the complaint is made to the Magistrate, a further process that is meant to be followed by the Magistrate is mentioned in the prescribed sections of Chapter XV of Criminal Procedure Code, 1973. The complainant may file a complaint either in oral or written form before the Magistrate and the same needs to be examined or tried by the court of competent jurisdiction. If by any case, the complaint so made is not before the court having jurisdiction of the same, it may transfer the case to the competent court to carry-on further proceedings or dismiss it.

ESSENTIALS OF A LEGITIMATE COMPLAINT:

A complaint must include an allegation that the offender committed an offence.
The complaint can be made either written or verbal.
A complaint should be filed with a Magistrate.
The complaint must be designed in order for the Magistrate to take action.

[1]COGNIZANCE BY MAGISTRATE (SECTION 190):

The phrase “cognizance of offence” is not described with in the CRPC. Sections 190-199 deal with the constraints and techniques under which different criminal courts are constituted to take cognizance of crimes. The meaning of the phrase “Cognizance by Magistrate”, however, is very well determined by the Courts. Taking notice is the most important step on the path. Before proceeding with the trial or conduct, the judicial officer must take cognizance of the offence.

Cognizance is defined as “knowledge or notice” and taking cognizance of criminal acts as “taking note of, or becoming aware of, the suspected conduct.” The definition of cognizance in the dictionary is “judicial hearing of a subject.” Before proceeding with the trial, the judicial officer must take cognizance of the offence. It involves a purpose to initiate a judicial proceeding in connection with an offence or to determine a basis for initiating the judicial proceeding. It is self-evident that even before taking notice, the court must determine whether the elements of the offence accused are present or not. A court can only take cognizance once before becoming functus officio (having performed his or her service).

According to Section 190 of Criminal Procedure Code,1973, any Magistrate of first class or Second Class might take account of any offence: The Magistrate has the authority to issue the summons against the individuals who have been suspected in the charge sheet or charged in First Information Report(FIR).

[2]EXAMINATION OF COMPLAINANT (SECTION 200 OF CRIMINAL PROCEDURE CODE, 1973):

When a Magistrate takes cognizance of an offence based on a complaint, the very first step is to analyse the complainant and any witnesses present, and the matter will be in writing for the investigation purposes and this must be sign by the complainant, witness, as well as the Magistrate. The provision of Section 200 of Criminal Procedure Code,1973 is not just a formality but instead drafted by Legislature to safeguards the interests and rights of accused persons. Improper examination is considered as a big injustice to the accused. So proper examination must be done to avoid any kind of injustice to the accused. It may also be considered that non-examination of the complainant by the magistrate may cause harm to the Complainant.

This section provides that if a complaint is made before the Magistrate, then the Magistrate may examine the witness and the complainant and pen down such examination along with the signatures of the complainant, witnesses, and the Magistrate himself. However, the Magistrate does not need to examine the witness if the complaint is made in written by a public servant acting or purporting to act in discharge of his official duties or by a Court or by a Magistrate who makes over the case for inquiry or trial to another Magistrate under section 192 of Criminal Procedure Code, 1973. Once a Magistrate has examined the witness and the complainant, the latter Magistrate to whom the case has been transferred under Section 192 cannot re-examine the same. It lays down the procedure that a Magistrate needs to follow when receiving a complaint of an offense directly from a private individual (the complainant) and not through the police.

After the complaint is filed, the Magistrate shall examine the complainant and any witnesses present therein. The purpose of this examination is to ascertain whether there are sufficient grounds for proceeding with the complaint.

[3]Gurudas Balkrishna v. Chief Judicial Magistrate Goa [Miscellaneous Application. 202 Of 1992] In the aforementioned case, a complaint was filed before the learned Magistrate on July 31, 1992, however, it was taken on record on August 3, 1992, and nothing happened even thereafter till September 25, 1992. As per the [4]Roznamcha on September 25, some other cases required to be dealt with on priority basis before the Magistrate and hence, the case was therefore adjourned for the mentioned reason to February 19, 1993. The Honourable High Court then observed that engagement of the Court for a day in any other work delay the recording of complaints cannot be justified and that too for almost five months as it is likely to unjustify the very purpose for which the criminal complaints are being filed. As a result, the application was allowed by the High Court and the Honourable Court directed the Chief Judicial Magistrate, Panaji, to record the evidence of the complainant and his witnesses within a week from the date of its order.

[5]PROCEDURE BY MAGISTRATE NOT COMPETENT TO TAKE COGNIZANCE OF THE CASE SECTION 201 OF CRIMINAL PROCEDURE CODE, 1973:

If a written complaint is made to a Magistrate who is not competent to hear the case,

He shall return the complaint about the demonstration to the regular Court with authorization to that conclusion.
If the complaint was not in writing, the Magistrate would then refer the claimant to the appropriate Court.

If such an offence occurs while the Magistrate is present and the Magistrate have the authority to take Cognizance of the crime directly by submitting a complaint or designate his subordinate to record a formal complaint against the accused, as mentioned in Section 153(3) of the CRPC.

The section provides that if the complaint is made to the Magistrate who is not competent to take the cognizance of the offense, then if the complaint is written, he shall return it for presentation to the competent Court. However, if the complaint is not in a written form, then the Magistrate shall direct the complainant to file the complaint to the proper Court. If there are no sufficient grounds to proceed with the complaint, Section 201 comes into application.

[6]Rajendra Singh v. State of Bihar [2000 6 SCC 89] In this case, the trial court acquitted the accused on this ground that the court had no jurisdiction to proceed with any action over the complaint so filed. However, in an appeal before the Hon’ble Supreme Court, the Hon’ble Court held that the order of acquittal was illegal and in contravention of the provisions provided in the Criminal Procedure Code, 1973, as if the court did not have the competent jurisdiction in the concerned case, then it could have returned the complaint and asked for the presentation to the proper court of jurisdiction instead of acquitting the accused as a result.

[7]POSTPONEMENT OF ISSUE OF PROCESS SECTION 202 OF CRIMINAL PROCEDURE CODE, 1973:

The Section provides that if the magistrate receives a complaint of an offense of which either he is authorized or is made over to him under Section 192 of Criminal Procedure Code, 1973, then if he deems fit, may postpone the proceedings and ask for the investigation of such offense or may inquire himself to find out if the case is eligible for further proceedings or not. However, no investigation shall be directed in the cases where the Magistrate finds out that the offense complained of is triable exclusively by the Court of Session or where the complainant and the witnesses who are present have not been examined on oath under section 200.

If the complainant deems to have an issue with having to travel, living in the place very distant from the area of jurisdiction genuinely, he may apply to the magistrate for postponement the issue of the process. The magistrate can investigate it himself or set an inquiry for the police to decide whether this is a legitimate ground for postponement.

There shall be no order for investigation in case of the witnesses (if any) and the complainant are not present.

Is it possible for a Magistrate to issue a summon depending on the factual information and a Direct Police Investigation?

According to Section 202 of Criminal Procedure Code,1973 the Magistrate can take action without the need for a police report based on the facts in the filed case. Process can be served in the form of a summon or an order, as well as the Magistrate has an authority to issue it after investigating the scenario. With 2006 modification to Section 202 of Criminal Procedure Code,1973, it is the duty of the Magistrate to conduct the investigation or inquiry as the defendant may be dwelling within the jurisdiction of the Magistrate.

SECTION 202 OBJECTIVE:

Section 202 of the Criminal Procedure Code,1973 has the following objectives-

To establish the facts of crime.
To ensure that the precious time of the Court is not wasted.
To assist the Magistrate in determining if the grounds and proceedings of the case are adequate.

[8]DISMISSAL OF COMPLAINT SECTION 203 OF CRIMINAL PROCEDURE CODE, 1973:

Section 203 provides that if after due consideration of the statements made by witnesses and the complainant on oath, the Magistrate thinks fit that there is no point for further proceedings, he shall dismiss the complaint and in such a case he shall briefly record the reasons for such actions.

In [9]Hansabai Payagude v. Ananda Payagude case, the accused was discharged after evaluating all of the documents submitted by the complainant, and a new trial was brought under the identical circumstances.

Second Complaint: If the initial complaint of the claimant was rejected by the Magistrate under Section 203, the complainant may submit a second complaint, but only under certain extraordinary circumstances involving the same fact.

This can be understood by an illustration

Mr. Y filed a complaint with a magistrate, but the complaint was rejected under Section 203 of the Criminal Procedure Code.

Now Mr. Y filed a second complaint with the same magistrate in the same court, however the court ruled that the complaint can be heard here, but that if there are some unusual circumstances, such as:

The previous complaint disposal decision was made based on an insufficient record.
The circumstances of the incident were misinterpreted or misunderstood.
The decision was made in an unjustified manner.
In relation to the prior procedure, actual information must be recorded.
As a result, the second complaint of Mr. Y in this matter was similar to the first complaint, and it was dismissed.

Effect of Dismissal: When a complaint is dismissed due to any default, it cannot be reinstated by a dismissing order.

How to contest the complaint: Once the Magistrate has issued the procedure against defendant, he cannot reverse it. Because the Criminal Procedure Code,1973 does not grant the Magistrate the right of review, he or she cannot evaluate the proceedings or rescind the summons or warrant.

You cannot submit a recall application under section 203 of Criminal Procedure Code,1973 if the court has issued the process. The Supreme Court ruled in [10]Adalat Prasad v. Rooplal Jinda that if the Magistrate did not dismiss the charge and issued process, the accused could not ask the courts under section 203 of Criminal Procedure Code,1973 seeking discharge of the charge because of stage of section 203 of Criminal Procedure Code,1973 had already passed.

[11]Chandra Deo Singh vs. Prokash Chandra Bose and Anr. [AIR 1963 SC 1430] The Hon’ble Supreme Court in the concerned case set aside the dismissal of a complaint by the Magistrate on the grounds that, for determining the question of whether the process is to be issued or not, the Magistrate must be satisfied whether or not there are sufficient grounds for the continuance of proceedings, and not whether there are sufficient grounds for conviction in the complaint filed before the court.

CONCLUSION

A proper process, from making a complaint to a Magistrate to the proceedings and trial is all described in a detailed manner from Section 200 to Section 210 of Criminal Procedure Code, 1973. Every detailed requirement like competence of the court where the complaint needs to be filed and proceeded with, the nature of the complaint, the circumstances under which the cases can be transferred so that no court interferes with the jurisdiction of the other court, etc. has been mentioned explicitly in the Code to avoid any kind of ambiguity when it comes to filing complaints to the Magistrate. Additionally, the judgments of the Hon’ble Supreme Court in various cases have provided how the prescribed provisions in the Criminal Procedure Code, 1973 are required to be interpreted and accordingly executed without making any sort of changes.

References