Complaints to Magistrate under CrPC

Complaints to Magistrate under CrPC

Introduction

When a person is offended by the act of other, then the first option which flashes into mind is to register an FIR with Police. But sometimes it could happen that the officer in-charge of Police Station refuses to register an FIR if he is of opinion that a cognizable offence is not made out from complaint of person. Then in that case he can sent his complaint via post to Superintend of concerned police station but what if, if the latter also refuses to register his complaint?

Then in that case he can sought another remedy i.e. he can directly approach to Magistrate with his complaint with a prayer to take action on his complaint. The provision relating to “Complaints to Magistrate” are dealt under Section 200-203 of Chapter XV of CRPC.

Under Section 2(d) of CrPC the term “Complaint” is defined which means “oral or written allegations against some known or unknown person who has committed an offence are made to Magistrate with a view that he will take action”.

The term “offence” under Section 2(n) means any act or omission which is punishable by any law for the time being in force for eg. Indian Penal Code, 1886

Cognizance of Offence by Magistrate- Section 190 CrPC

Magistrate I class i.e. Chief Judicial Magistrate or any Magistrate II class who is empowered by CJM can take cognizance of any offence in the following ways-

i. Upon receiving complaint (private) of facts which constitute offence.
ii. On Police Report u/S 173(2) i.e. Charge-sheet
iii. Upon receiving information from any other person except Police or on his own knowledge that an offence has been committed.

However, if a Magistrate without having jurisdiction take cognizance of offence under (i) or (ii), in good faith, the contention that it is perverse, is devoid of merit and the trial will be valid at every stage- Section 416 (k)

But if cognizance of offence is taken on his own without having jurisdiction the trial is void.

When a Magistrate receive Complaint of aggrieved/offended person he has two options, i.e., either without taking cognizance, he can direct Police to register a FIR u/s 154 CrPC and investigate u/S 156(3) and produce a final report before him u/S 173 CrPC or he can take cognizance of offence u/S 200 CrPC on his own by examining complainant on oath and witness (if any) and initiate proceeding under Chapter XV of CrPC. This view was held in case Mohd Yosuf v/s Afaq Jahan; (2006)1 SCC 627, Mona Pawar V/s The High Court of judicature of Allahabad; (2011) 3 SCC 496.

The first option is the stage of Pre-cognizance where the Magistrate has not applied his judicial mind and has not examined complainant on oath whereas the second option is the stage of post-Cognizance. Once, the Magistrate has taken cognizance and direct Police to investigate u/S 202 he cannot go back to stage of pre-cognizance. This distinction was embarked in the case of Devarapalli Lakshminarayana Reddy v/s Narayana Reddy; AIR 1976 SC 1672.

In the pre-cognizance stage, after Magistrate, directs Police to lodge FIR, investigate the matter and submit its report u/S 173 CrPC two possibilities can arise, either the report can be Charge-sheet or it can be Final Report i.e., where no offence is made out. The Magistrate has three options and he can avail either of them i.e.

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a) Where Chargesheet is submitted- take cognizance u/S 190(1)(b) CrPC.
b) If Final Report is submitted-drop proceedings.
c) Where final report submitted and complainant protest it, then Magistrate can reject police report and take cognizance u/S 190(1)(a).
However, it is worth-while to mention here that Magistrate is not bound to comply with police report submitted.

Chapter XV – Section 200-203 CrPC

When complaint is made to Magistrate in any of the above-stated following ways the Magistrate is empowered under Section 200 to take cognizance of offence.

Section 200 – Examination Of Complainant

When Magistrate take cognizance on complaint, he shall examine complainant and witnesses (if any) on oath, and such examination shall be reduced into writing which shall be signed by Complainant, witnesses (if any) and Magistrate.

Provided that magistrate shall not examine the complainant when-
i. The complaint is made by a Public Servant acting or purporting to discharge his duty
ii. Complaint is made in transfer u/S 192 CrPC. The transferee court need to examine Complaint once, it is already examined by transferor court.

Here, examination is made with purpose to ascertain whether the complaint constitutes prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which can be either false or vexatious or intended to harass such person, similar view was held by Hon’ble Allahabad HC in case of Pinkal Singh @ Raghvendra Singh And 2 Others v/s State of U.P. and ors.

Section 201 CrPC- Procedure by Magistrate not competent to take cognizance of the case

This Section determines what procedure can be opted by Magistrate if he is incompetent or has no jurisdiction to take cognizance on complaint.

  • Where complainant produce written complaint, Magistrate shall return the complaint for presentation in proper court with endorsement to that effect, whereas,
  • When oral complaint is made, Magistrate shall direct the complainant to approach to proper court.
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Section 202- Postponement of Issue of Process.

As the heading of the section suggest, this section enable the Magistrate to postpone the initiation of proceedings against accused and enquire into case.

According to Section 202,

  • If a Magistrate, thinks fit and deems necessary, he can postpone the issue of process on receiving complaint u/S 190(1)(a), or if complaint is made to him u/S 192 or where person against whom complaint is made i.e., accused resides outside his jurisdiction.
    By postponing the process, he can either inquire into the case himself or direct police to investigate so to ascertain whether there exist proper and sufficient grounds to issue process against accused u/S 204 CrPC or dismiss complaint u/S 203 CrPC.

    • Provided, no investigation be directed by Magistrate if-
      i. Offence complained of is exclusively triable by Court of Sessions.
      ii. Unless examination of complainant u/S 200 has not taken place, when complaint is not u/S 190(1)(c)
  • Magistrate inquires the case by taking evidences on oath. Provided, where it appears to him that case is exclusively triable by Court of Sessions, he directs to complainant to produce all his witnesses and evidences and examine them on oath.
  • Where power to investigate is give to a person other than police, he shall have all powers of officer- in- charge of a police station to investigate except, power to arrest.

In case of Nirmaljit Singh Hoon v. State of West Bengal and Another; AIR 1972 SC 2639, Chandra Deo Singh v. Prokash Chandra Bose; AIR 1963 SC 1430 and Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others; AIR 1976 SC 1947, it was held-

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“Under Sec 202 CRPC Magistrate is empowered to inquire into the matter himself or direct police to enquire into the matter to ascertain the truth or falsehood of allegations made in complaint before arriving at the decision to dismiss complaint or to issue the process u/s 204 CRPC on the basis of-

(i) on the material placed by the complainant before the court;
(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out;
(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.”

In case of Irshad Khan v/s State of U.P.; Criminal Misc. Writ Petition No.11091 of 2014 the court held that “Section 202 (1), however, enables a Magistrate to postpone the issue of process and to inquire into the case himself, or direct an investigation to be made by a police officer or other person for the purpose of deciding whether or not there is sufficient ground for proceeding. But scope of inquiry under Section 202 of the Code is for limited purpose of deciding whether or not there is a sufficient ground for proceeding against the accused”

It is clear that Magistrate can’t resort to both options to inquire into case himself and then order police to investigate matter or vice-versa, simultaneously.

The complainant cannot challenge the report submitted by police u/S 202 via protest petition- Irshad Khan v/s State of U.P; Criminal Misc. Writ Petition No.11091 of 2014

Thus, on the report submitted by the police officer that no incident as alleged in the compliant had taken place or that the accused had not committed the offence, the Magistrate may take his own decision as to whether there is sufficient ground for him to proceed further or not- Irshad Khan v/s State of U.P; Criminal Misc. Writ Petition No.11091 of 2014.

Section 203- Dismissal of Complaint

After considering the examination of complainant on oath taken u/S 200 and result of inquiry or investigation done u/S 202, if the Magistrate is of the opinion that no offence is made out he shall dismiss the complaint and record reasons for same in brief.

Author: kashish gupta,
Invertis University, 5th year

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