Provision for 'Complaints to Magistrate' has been prescribed under Chapter XV of the Code which consists of only sections 200 to 203. This Chapter lays down the procedure to deal with complaints lodged by private persons. The object of the procedure prescribed by this Chapter, which is entitled "Complaints to Magistrates", is the separation of unfounded from substantial cases at the outset, and to prevent innocent persons from being bought into the police courts and subjected to the annoyance of frivolous charges; Sheik Meeran Saib v. Ratnavelu Reddy, AIR 1915 Mad 128.
According to section 2(d) of the Code, "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complainant, and the police officer by whom such report is made shall be deemed to be the complainant.
To constitute a complaint, there must be an allegation made with a view to the recipient taking action under the code, charging some person with a particular offence.
Following are the essential ingredients of a complaint:
(i) The allegation must be made to a Magistrate only and not to either judge or any police officer.
(ii) The allegation must be made with a view to the Magistrate's taking action under the Code.
(iii) The allegation must not be a mere statement to a Magistrate by way of information without any intention of asking him to take action.
(iv) The allegation must be that of an offence which was committed and it need not specify any offender.
This is important to note that a complaint need not necessarily be made by the person injured but may be made by any person aware of the offence.
Section 200 of the Cr PC, 1973 provides for the examination of the complainant when the same has been lodged and the Magistrate has taken cognizance.
This section provides that a Magistrate taking cognizance of an offence on complaint, shall examine the complainant and the witnesses, if any, upon oath and that the substance of the examination shall be reduced to writing and signed by the complainant and the witnesses and also by the Magistrate. This is, however, not necessary that the complaint is in writing and nothing even impliedly mean that the complaint must be presented to the Magistrate personally. This section comes into play only when the Magistrate has taken cognizance of an offence.
The main purpose of this examination, under section 200 of the Code is to protect general public so that they are not unnecessarily harassed by false and frivolous accusations. To avoid this mischief, before Magistrate issues a process and summons a person, accused of an offence, should satisfy himself of the truth or falsehood of the complaint and then see if the matter in the complaint requires inquiry by the Court of law. Section 200, however, talks about examination of the complainant and the witness who are present at the time when the complaint has been lodged by the complainant; Dattatraya v. Wadilal Panchal, MANU/MH/0233/1957 : AIR 1958 Bom 335.
Expression 'taking cognizance' means the Magistrate must have applied his mind to the offence for the purpose of proceeding in a particular way provided under section 190 of the Code.1
It is important to note that the expression 'taking cognizance' has not been defined in the Code nor does the Code prescribe any special form of taking cognizance. The word 'cognizance' is, however, used in the Code to indicate the point when the Magistrate takes judicial notice of an offence. It is a word of indefinite import, and is perhaps not always used in exactly the same sense; Darshan Singh Ram Singh v. State of Maharashtra, MANU/SC/0089/1971 : (1971) 2 SCC 654: AIR 1971 SC 2372. It is, therefore, a judicial act permitted by the Code taken with a view eventually to prosecution and preliminary to the commencement of the inquiry or trial.
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1. Section 190 of the Code reads as under:
190. Cognizance of offences by Magistrates.—
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
The word 'may' imports exercise of judicial discretion and the Magistrate, on receiving a complaint or a police report, will have to decide judicially whether or not to take cognizance of the offence. The provisions of this section cannot, therefore, be read as meaning that once a complaint is filed, the Magistrate is bound to take cognizance. The word 'may' cannot be taken in a way that it means 'must'; Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986.
The expression 'complainant' has not been defined in the code. But that can only mean the person who presents the complaint and is examined as complainant under section 200 Cr PC. No other person can be deemed to be a complainant, as much as the person who may be interested in the prosecution of the accused or in property which is the subject-matter of the alleged offence; Nanilal Samanta v. Robin Ghose, (1964) 1 Cr LJ 186.
There is no period of limitation prescribed for filing a complaint. The Court before which the complaint is filed cannot throw it out on the sole ground that there has been delay in filing it. The question of delay in filing a complaint may be circumstantial which is to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint nor the prosecution be quashed by a Superior Court on that ground; Asstt. Collector of Customs v. L.R. Melwani, MANU/SC/0279/1968 : AIR 1970 SC 962.
The procedure that a Magistrate has to adopt when he is not competent to take cognizance of the case has been prescribed under section 201 of Criminal Procedure Code.
The want of competency contemplated by this section may be due to:
(i) the Magistrate not being empowered under section 190 Cr PC; or
(ii) want of local jurisdiction; or
(iii) want of previous sanction under section 132 or sections 196-199 or complaint under section 195 read with section 340 or under some special or local law; or
(iv) to the Magistrate not being qualified to try under Schedule I of the Code or to commit for trial.
Refusal to act for want of a proper sanction is no bar to a subsequent complaint with a proper sanction; Queen-Express v. Kuniyil Raru, ILR 24 Mad 337.
If on perusal of the complaint, the Magistrate finds he has no jurisdiction, he is not bound to examine the complainant, and indeed he cannot do so, but should return it, after making the endorsement required by section 201, when the complaint is in writing; Thomas v. Abraham Varghese, 1961 KLT 753. A Magistrate need not, however, return the complaint, if he is not entitled to take cognizance of a charge not named in the complaint, but which could possibly be made out from the allegation in it; Sripat Rai v. Emperor, MANU/UP/0221/1930 : AIR 1931 All 10.
Where the complaint discloses different offences committed in different jurisdictions, the Magistrate should direct the complainant to file separate complaints, in respect of offences committed outside his jurisdiction before a competent Magistrate and confine his inquiry to the offences for which he can take cognizance; Ullahanan Varkey v. Mathai Poulose, AIR 1954 TC 172.
Section 202 of the Code provides for the postponement of process after examination of the complainant as under:
Section 202: (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient grounds for proceeding.
Provided that no such direction for investigation shall be made:
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the court of session; or
(b) where the complaint has not been made by a Court unless the complainant and witnesses present (if any) have been examined on oath under section 200.
(2) In an enquiry 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 arrest-warrant.
This section contains yet another check to prevent false and vexatious complaints being filed. Section 202 makes it clear that a Magistrate is not bound to issue process immediately when a complaint is filed before him. If he has doubt about the truth of the complaint, it gives him power to postpone the issue a process if he thinks fit, and either to inquire into the case himself or direct an investigation by a police officer or such other person as the Magistrate thinks fit "for the purpose of ascertaining whether or not there is sufficient ground for proceeding"; Dattatraya v. Wadilal Panchal, MANU/MH/0233/1957 : AIR 1958 Bom 335 (338).
The enquiry or investigation under this section is designed to afford the Magistrate an opportunity to either confirm or remove such hesitation as he feels before issuing process against the accused. The nature of enquiry varies with the circumstances and facts of each case and it is certainly not contemplated that it should always be exhaustive.
Of course, this section has no application in a case where cognizance is taken on police report; Harbir Singh v. State, AIR 1952 Pepsu 29. The provision contained herein is certainly enabling and not obligatory.
A Magistrate is not empowered to do the following things under this section:
(i) He cannot make enquiry without complaint;
(ii) He cannot direct investigation when the accused is discharged under section 245 of the Code; Indupuri Gangarazu (in re:), 2 Weir 239.
(iii) He cannot order enquiry when transfer is made under sections 407 or 409 of the Code;
(iv) He has no power to refer for inquiry, in maintenance cases filed under section 125 of the Code; and
(v) He has no power to refer for enquiry in applications filed under section 125 of the Code; and application under section 98 of the Code; Tulsidas Jaglyadas v. Chetandas Domadas, MANU/NA/0133/1933 : AIR 1933 Nag 374.
There is distinction between an investigation by a police officer under section 156(3) and that by the direction of the Magistrate under section 202. In the former case, the police may examine the accused and also the oral and documentary evidence produced at his instance, the accused has no right to appear in the later case; Jamaluddin Sk. v. State of Bihar, 1980 Cr LJ 1054. In the former case, the Magistrate does not take cognizance of the offence, while he takes cognizance in the latter case.
Issue of process is a judicial process. Before process is issued, the Magistrate has to comply with the provisions of section 200. If the Magistrate issues a process against the accused without examining the complainant and his witnesses under section 200, the proceedings would be liable to be quashed; Maniappa v. State, (1980) 1 Crimes 94. Conclusion of Magistrate under section 202, Cr PC regarding non-maintainability of the complaint against some of the accused without examining the witnesses as envisaged under section 200, Cr PC is not proper; A.V. Sreedhar Reddy v. State of Andhra Pradesh, (1985) 3 APLJ 304.
(i) Even a Clerk:-The investigation contemplated by this section may be made by any officer subordinate to the Magistrate, even though he be a clerk; but if the investigation is entrusted to a subordinate Magistrate, he can in conducting the investigation, exercise all magisterial powers, including the power to administer an oath; Kanchan Gorhi v. Ram Kishun Mundal, ILR 36 Cal 72.
(ii) Subordinate Magistrate:-A subordinate Magistrate would also be a 'such other person' within the meaning of sub-section (1) of section 202. But if an investigation is entrusted to him, he will be entitled only to exercise the powers of an officer-in-charge of a police station (except that of arrest) under sub-section (3) of section 202.
(iii) Police officer who is himself an accused, cannot inquire:-If the accused be a police officer himself and as such subordinate to a Magistrate, the Magistrate cannot call for a report from him for the purpose of ascertaining the truth of the complaint; Baidya Nath Singh v. Muspratt, ILR 14 Cal 141.
The word "sufficient ground" used under section 202 of the Code have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction; S.N. Palanikar v. State of Bihar, MANU/SC/0672/2001 : AIR 2001 SC 2960.
Provision for dismissal of complaint filed before a Magistrate has been provided under section 203 of the Code. This section may be resorted to:
(i) when after examination of the complainant and the witnesses present under section 200, the Magistrate has reason not to believe the truth of the complaint; or
(ii) after such examination, the Magistrate entertains a reasonable doubt of such complaint, which doubt is confirmed by a proper report called for under section 202.
When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under section 190 read with section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused; Minu Kumari v. State of Bihar, II (2006) CCR 137 (SC).
A Magistrate, when there is a complaint before him, must deal with it according to section 200 and the following sections. If he wishes to postpone the issue of process under section 202, he must comply with the provisions of that section, and if as a result of a preliminary inquiry, he wishes to dismiss the complaint, he must do so according to the provisions of this section. It is only on a consideration to the statement on oath of the complainant and the result of investigation or enquiry under section 202 that the Magistrate is authorised to dismiss a complaint under this section. When there has been no investigation or inquiry under section 202, it is incompetent for the Magistrate to act under this section as the pre-requisite for taking action under section 203 as an investigation or enquiry under section 202; Thippareddigari v. Seshi Reddy, MANU/TN/0385/1954 : AIR 1954 Mad 889.
A complainant is entitled to have his complaint properly considered before it is dismissed under section 203. While no one wishes to place a person accused of an offence to suffer undue harassment, so far as a court of law is concerned, its function is essentially to see that cases are disposed of according to law. It is not right for a Magistrate to make enquiries under section 203 in such a fashion that from the record it cannot be said whom he examined and what was the source of his information; Ramdeo v. Ramjanam MANU/BH/0044/1951 : AIR 1951 Pat 449.
This section applies only to cases falling under Chapter XV of the Code where there has been no issue of process. When an accused person has been summoned to appear before a Magistrate, there has been a commencement of proceedings and a complaint cannot be dismissed under this section; State of Kerala v. Ramakrishna, 1963 KLT 478. Dismissal of complaint without complying provisions prescribed in Chapter XV of the Code is bad; Manorama Mohapatra v. Harihar Sathua, (1990) 1 Crimes 496.
If the Magistrate after considering the statement of the complainant and his witnesses and other materials before him, finds that there is no case against the accused for proceeding further in the matter, he is competent to dismiss the complaint; Minu Kumari v. State of Bihar, II (2006) CCR 137 (SC). Following are the grounds which a Magistrate shall a take into consideration while dismissing the complaint:
(i) When the complaint does not involve any criminal liability of the accused;
(ii) When the Magistrate does not see any prima facie evidence against the accused;
(iii) Where the complainant does not appear before the court in person;
(iv) Where the complaint discloses a cognizable offence against an unknown offender, the Magistrate must record in his judgment under section 203 that there are no sufficient grounds for proceeding.
(v) Where a complaint is based on some official communication, oral or in writing, falling within the sections 123 to 125 of the Indian Evidence Act, and there is no likelihood of proving the communication by primary or direct evidence;
(vi) It is in the true interests of justice that complaints should not be entertained when allegations considered to be utterly false and liable to lead to perjury are made which may ruin the prosecution case even as regards that part of it which may reasonably be true; Narayan v. Shankarsingh, MANU/NA/0075/1944 : AIR 1944 Nag 318.
It is important to note that motive of the complainant is not a relevant consideration at this stage of the dismissal; Karumuthu S. Chokalingam v. T. Kannappan, 1976 LW (Cr) 60.
The Supreme Court time to time in its pronouncements held that, dismissal of any complaint under section 203, Cr PC does not necessarily bar any fresh complaint, the well established principle of law is that the fresh complaint can be entertained only when it is established that certain material produced in the proceedings of the second complaint could not be produced earlier for sufficient reasons and the new material so produced helps in establishing a prima facie case; State of Rajasthan v. Aruna Devi, MANU/SC/0115/1995 : (1995) 1 SCC 1; Pramathanath v. Saroj Ranjan, 1962 (Supp) 2 SCR 297.
In Poonam Chand Jain v. Fazru, AIR 2005 SC 38 and Mahesh Chand v. B. Janardhan Reddy, MANU/SC/1111/2002 : (2003) 1 SCC 734, the Supreme Court held that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reason, the Magistrate under section 204 Cr PC may take cognizance of an offence and issue process if there is sufficient ground for proceeding. But the second complain on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record, or on a misunderstanding of the nature of complaint, or it was manifestly absurd or unjust or where new facts which could not. With reasonable diligence, have been brought on record in the previous proceedings have been adduced. The second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case.
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