COMPLAINT BEFORE MAGISTRATE

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

THE CODE OF CRIMINAL PROCEDURE, 1973

SUBMITTED BY: ZUHAIR SIDDIQUI

SUBMITTED TO: Dr. ASAD MALIK

LL.B. (HONS.) IN INTELLECTUAL PROPERTY LAW

9TH SEMESTER
ENROLLMENT NO.: 17-5015

STUDENT ID: 20176249

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COMPLAINT BEFORE MAGISTRATE- Conduct of Proceedings

INTRODUCTION:

Complaint to Magistrate is often simply understood within the sense that, it's an accusation

made against another person like the offender to the Magistrate. Consistent with section 2(d) of
the Code of Criminal Procedure (CrPC), 1973 "complaint" means any accusation 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 doesn't include a police report.
However, Section 200 et al. of the Code of Criminal Procedure doesn't essentially require the

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complainant to present a written complaint personally to the magistrate.1 If such complaint is

formed on writing, the complainant or the witnesses are needn't be examined by the Magistrate.
Thus, complaint to magistrate is charge of crimes level against an individual or group etc. to the
magistrate, during which the magistrates could take cognizance of the offences. Cognizance of
an offence by a magistrate implies that the magistrate has applied his mind to the offence
alleged within the complaint with a view to require further proceedings essential for the trial of
the accused person. Basically, complaint to magistrate addressed section 200-203 of the CrPC.

Under the old CrPC (i.e. the 1898 Code), it had been necessary to check the fourth column of
the Second Schedule to work out whether a summons or a warrant should be issued during
a particular case. The classification of offences within the Schedule was, however,
not supported by any general principle, and wasn't an equivalent as between a summons case
and a warrant case, because a warrant may need to be issued during a summons case, and vice-
versa. An easier procedure was, therefore, considered desirable, in order that a summons would
issue during a summons case, and a warrant in warrant case, unless otherwise ordered by the
Magistrate. This alteration has been incorporated as Sections 204-210 of CrPC, 1973.

Complaint before Magistrate:

A. Section 200:
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the
complainant and therefore the witnesses present, if any, and also the substance of such
examination shall be reduced to writing and shall be signed by the complainant and also
the witnesses, and also by the Magistrate:

Provided that, when the complaint is formed in writing, the Magistrate needn't examine the
complainant and also the witnesses-

(a) If a public servant acting or purporting to act within 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 a different Magistrate under
section 192: Provided further that if the Magistrate makes over the case to a different Magistrate
under section 192 after examining the complainant and therefore the witnesses, the latter
Magistrate needn't re-examine them.

Section 200 lays down the initial procedure which a Magistrate shall follow on receiving a
complaint.2 Under this section it's obligatory to look at the complainant and also the witnesses
and a summary dismissal without examining them isn't 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 look
at the complainant and his witnesses on oath. it's only after this stage that summons could also
be issued if necessary.
1
P.N.S. Ayer Vs K.J. Nathan, AIR 1948 Mad 424

2
Badilal Panchal Vs Dattatreya, AIR 1960 SC 1113
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The Magistrate must give the complainant a chance to be heard in person or through his pleader.
An omission to look at the complainant and his witnesses by the Magistrate as desirable by this
section may be a serious irregularity, per se prejudice maybe caused to the accused.3 Having
done so, he may order an inquiry under Section 202 or dismiss the complaint under Section 203
if he finds that there are not any sufficient grounds to proceed with the case. In an
exceedingly significant decision handed down by the High Court of Kerala in Pramod v. C.K.
Velayudhan4, it's been held that court won't get any jurisdiction to proceed against an
individual at the mere sight of the main points on the docket-sheet or the cause- title. No Court
shall affect the only tag, label or the badge veiled on the cause-title nor shall or not
it's frenzied by the prints and dots on the veil of cause-title.

Karnataka High Court in Durvasa v. Chandrakala5, , has held that non-examination of

complainant upon oath may be a mere irregularity and doesn't vitiate the proceedings under this
section. Where the accused person himself voluntarily appears before the Magistrate to answer a
charge, his examination on oath becomes immaterial. The Court of Karnataka in V.S. Joshi v.
N.G. Bhat Chitrigi6 held that order issuing process couldn't be put aside merely on hypothetical
ground where the Magistrate after taking notice of accusations made in complaint, had proceeded
to record sworn statements of the complainant and witnesses.

B. Section 201:
This section mention that, if the complaint is made to a Magistrate who isn't competent to
require cognizance of the offence, he shall,
(a) If the complaint is in writing, return it for presentation to the correct Court with an
endorsement to it effect;
(b) If the complaint isn't in writing, direct the complainant to the right Court.

In Rajendra Singh v. State of Bihar the court acquitted the accused on the basis that it had no
jurisdiction to require cognizance of the complaint. it was held that the order of acquittal was
illegal because the court should have returned the complaint for presentation to the
correct court rather than acquitting the accused.

In Rakesh v. State of Rajasthan7, in this case it held that the learned Judicial Magistrate had no
jurisdiction and wasn't competent to do the accused for an offence, the sole course receptive him
was to return the complaint to the Food Inspector under Section 201 of the Cr. P.C. for
presentation to the right court with an endorsement to it effect. Thereafter, it'll be for the Food
Inspector to file the complaint within the court having jurisdiction.

C. Section 202:

3
Gurdial Singh v. Abhey Dass, AIR 1967 Punj 244

4
2005 CriLJ 4572

5
1994 CriLJ 3765

6
2006 CriLJ 1566

7
1987 Cri. LJ 1342(Raj)
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(1) Any Magistrate, on receipt of a complaint of an offence of which he's authorised to

take cognizance or which has been revamped to him under section 192, may, if he thinks fit,
postpone the problem of process against the accused, and either investigate the case himself or
direct an investigation to be made by an officer or by such other person as he thinks fit, for the
aim of deciding whether or not there's sufficient ground 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 also
the witnesses present (if any) are examined on oath under section 200.

(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 source all his witnesses and
examine them on oath.

(3) If an investigation under sub-section (1) is created by an individual not being a police officer,
he shall have for that investigation all the ability’s conferred by this Code on an officer in charge
of a police station the power to arrest without warrant.

The object of this section is threefold:

i. to establish the facts constituting offence;
ii. to stop abuse of process leading to wastage of time of the Court and harassment to the
accused;
iii. to assist the Magistrate to judge if there's 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
create an opinion on whether the method should be issued or not, and to get rid of his mind
hesitation that he may have felt upon the mere perusal of the complaint and therefore
the consideration of the complainant’s evidence on oath. The function of the Magistrate holding
a preliminary inquiry is simply to be satisfied that a clear case is formed out against the accused
on the materials placed before him by the complainant.8

In this section of the code the Magistrate has discretion to postpone the problem of process
against the person complained against if he thinks fit but within that he needs to put on record its
reasons in writing. Therefore, if the records don't show the explanations thanks to which the
Magistrate postponed the problem of process the order is erroneous and susceptible to be put
aside.9

In an investigation or inquiry under Section 202 the accused has no say within the matter at that
stage. The Patna High court opined within the case of Anil Kumar Shah v. Nagendra Singh10 that,
8
Balraj Khanna v. Moti Ram, AIR 1971 SC 1389

9
Amresh Chandra v. NK Chandra, AIR 1969(Tri) 13

10
1991 Cri LJ 421(Pat.)
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while under the old code investigation under Section 202 was with a view to ascertaining truth or
falsehood of the complaint the scope of inquiry under Section 202 of the new code is far wider
and its purpose is for deciding whether or not there's sufficient ground for proceeding.

The scope of the inquiry under section 202 is extremely limited only to the ascertainment of the
reality or falsehood of the allegations made within the complaint (i) on the materials placed by
the complainant before the court; (ii) for the limited purpose of searching for whether
a clear case for the problem of process has been made out and (iii) for deciding the question
purely from the purpose of view of the complainant without in any respect adverting to any
defence that the accused may have. In proceedings under section 202, the accused has absolutely
no locus standi and isn't entitled to be heard on the question whether the method should be issued
against him or not.11 Where the High court suppressed a complaint for bigamy under section 494
of Indian Penal code, the Supreme Court put aside the suppressing order holding that the High
court exceeded the scope of enquiry contemplated under section 202 in going into sufficiency of
evidence for conviction. During enquiry, the Enquiry Officer needs to satisfy himself simply
whether a clear case has been made out, so on put the proposed accused on regular trial.12

The aim of an investigation under Section 202 of the Code isn't to initiate a fresh case on police
report but to help the Magistrate in completing proceedings already instituted upon a complaint
before him. It's should be noted that the words “if he thinks fit” under Section 202 of the code,
give full discretion to the Magistrate to direct investigation or to make a decision to form an
inquiry. The discretion, however, would be exercised judicially.

D. Section 203:
The Section mention that, “If, after considering the statements on oath (if any of the complainant
and of the witnesses and therefore the results of the inquiry or investigation (if any) under
Section 202, the Magistrate is of opinion that there's no sufficient ground for proceeding, he shall
dismiss the complaint, and in every such case he shall briefly record his reason doing so.”

As per Section 203 of the Code of Criminal Procedure, it requires the Magistrate before taking
cognizance of a case to use his mind on the idea of statements made by the complainant and his
witnesses and also the results 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 also
the results of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion
that there's no sufficient ground for proceeding, he shall dismiss the complaint, and in every such
case he shall briefly record his reasons for therefore doing.

The expression, “sufficient ground” within this Section points exclusively to the facts which the
complainant brings to the knowledge of the Magistrate and to their establishing a clear case
against the accused. In exercising his discretionary power of summary dismissal of the
complaint, the Magistrate shouldn't allow himself to be influenced by considerations
altogether but the facts adduced by the complainant in support of the charge, nor by a
consideration of the motive by which the complainant is accused.

11
Nagawwa, 1976 Cri. LJ 1533

12
Mohinder Singh v. Gulwant Singh, AIR 1992 SC 1894
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The Magistrate cannot refuse to issue the method unless the evidence led before him is self-
contradictory or intrinsically untrustworthy and is insufficient to create out a facie case.13
A Magistrate may dismiss a complaint—
(i) If he finds that no offence has been committed upon the statement of the complaint;
(ii) If he distrusts the statement made by the complainant; and
(iii) If he finds that there's no sufficient ground for proceeding basing on the results of inquiry as
provided by Section 202.

It has been decided by the Patna High Court in Ram Narayan v. Panchand Jain14, that an order of
dismissal under Section 203 is neither an order of discharge nor an order of acquittal and thus a
second complaint after the dismissal of the primary one isn't barred under this section. However,
such a second complaint is also entertained only in exceptional circumstances like the
primary complaint having been dismissed due to incomplete record of facts or misunderstanding
about the character of the complaint.

The Supreme Court in Rajender Prasad v. Bashir15, has held that where no inquiry might be held
under Section 203(2) by the committal Magistrate choose the inclusion of offence or
impleadment of accused, the trial Magistrate could take recourse to provisions of Sections 190 to
199 of CrPC for addition of offence and impleadment of accused.
Commencement of Proceedings before Magistrate:

A. Section 204:

1) If within the opinion of a Magistrate taking cognizance of an offence there's sufficient

ground for proceeding, and therefore the case appears to be-
(a) A summons-case, he shall issue his summons for the attendance of the accused, or
(b) A warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing
the accused to be brought or to look at a particular time before such Magistrate or (if he
has no jurisdiction himself) another Magistrate having jurisdiction.

2) No summons or warrant shall be issued against the accused under Sub-Section (1)
until an inventory of the prosecution witnesses has been filed.

3) In an exceedingly proceeding instituted upon a complaint made in writing, every

summons or warrant issued under Sub-Section (1) shall be amid a duplicate of such
complaint.

4) When by any law for the time being in force any process-fees or other fees are payable,
no process shall be issued until the fees are paid and, if such fees don't seem to be paid
within a rational time, the Magistrate may dismiss the complaint.

5) Nothing during this section shall be deemed to affect the provisions of section 87.

13
Nirmal Hoon v. State of WB, (1973) 3 SCC 753

14
AIR 1949 Pat. 256

15
Bobendranath v. State, AIR 1972 SC 1607
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In Punjab National Bank v. Surendra Prasad Sinha 16, the Supreme Court held that before
issuing the system the Magistrate should be told whether concerned accused should be legally
held answerable for the offence charged. Within the instant case, the Bank adjusted the
number of securities deposited by the guarantor towards the debt after the expiry of limitation
period. The Supreme Court found that there was no clear case against the accused and therefore
the complaint was lodged merely to cause harassment to the accused for vendetta and
thus quashed the complaint
It's been held by the High Court of Jharkhand that one process was issued under Section 204, the
Magistrate has no jurisdiction to recall or review the order issuing the system and dismiss the
complaint.

The Supreme Court in Poonam Chand Jain v. Fazru17 observed that order issuing
process couldn't be reviewed or reconsidered by Magistrate because the high court within
the instant case had not considered the legality of the order directing issuance of process by the
Special Court keeping visible the law laid down by the Apex Court, the case was remitted to
the high court to record positive findings on the relevant issue.
B. Section 205:

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense
with the personal attendance of the accused and permit him to seem by his pleader.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of
the proceedings, direct the personal attendance of the accused, and, if necessary, enforce
such attendance within the manner hereinbefore provided.

It was held that the must use their discretion in dispensing with the attendance, after due
consideration of the attending circumstances including social station, customs and practice of the
accused and therefore the necessity of her personal presence having relevance to the character of
the offence and also the stage of the trail.18

The court may dispense with the attendance of accused person in trivial cases, cases of
technical nature where no moral turpitude is involved, where the accused are ladies, old and
sickly person, factory workers, labourers or busy businessmen.19 An application by complainant
for cancellation of such exemption shouldn't be granted if it's made out of revenge or to
pressurise the accused in order that he may lose his job in a foreign country.20 Where granting of
such exemption isn't likely to harm the complainant or the state, it's not generally refused.21 On

16
1992 AIR 1815

17
2004 (13) SCC 269

18
Rajlakshmi Devi v. The State, ILR (1953) 1 Cal 73

19
H.R. Industries, Kottayamn, 1973 CrLJ 262 S.C.

20
Mangaroo v. State of UP, 1992 CrLJ 1397 All

21
Nafees Haider v. State of UP, 1991 CrLJ 1690 All
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exempting the accused from personal appearance, the complainant has no right to be heard22 but
the Magistrate must give reasons for granting exemption.23

C. Section 206:

1) If, within the opinion of a Magistrate taking cognizance of a petty offence, the case could

also be summarily disposed of under section 260 or section 261, the Magistrate shall,
except where he's, for reasons to be recorded in writing of a contrary opinion, issue
summons to the accused requiring him either to look face to face or by pleader before the
Magistrate on a specified date, or if he desires to plead guilty to the charge without
appearing before the Magistrate, to transmit before the desired date, by post or by
messenger to the Magistrate, the said plea in writing and also the amount of fine laid out
in the summons or if he desires to look by pleader and to plead guilty to the charge
through such pleader, to authorise, in writing, the pleader to plead guilty to the charge on
his behalf and to pay the fine through such pleader:

Provided that the number of the fine laid out in such summons shall not exceed one
thousand rupees.
2) For the persistence of this section, “petty offence” means any offence punishable only
with fine not exceeding one thousand rupees, but doesn't include any offence so
punishable under the Motor Vehicles Act, 193 1, or under the any other law which
provides for convicting the accused person in his absence on a plea of guilty.

3) The State Government may, by notification, specially empower any Magistrate to

exercise the powers conferred by Sub-Section (1) in regard to any offence which is
compoundable under section 320 or any offence punishable with imprisonment for a term
not exceeding three months, or with fine or with both where the Magistrate is of opinion
that, having relevancy the facts and circumstances of the case, the imposition of fine only
would meet the ends of justice.

The entire idea behind this section is to foster quick disposal of cases which are
numerous in number but are petty in nature. In Kamla Shankar v. State of M.P.,24 the
petitioner accused was charged of a petty offence of over loading within the bus. It had
been held that insistence for private appearance at the hearing was wholly unwarranted

D. Section 207:

In any case where the proceeding has been instituted on a police report, the Magistrate
shall directly furnish to the accused, free from cost, a replica of every of the following:
a. the police report;
b. the primary information report recorded under section 154;
c. the statements recorded under Sub-Section (3) of section 161 of all persons whom the
prosecution proposes to look at as its witnesses, excluding therefrom any part in relation
to which letter of invitation for such exclusion has been made by the law officer under Sub-
22
Raghunath Das v. Hari Mohan Pani, 1988 CrLJ 1573 Ori

23
S.R. Jhunjhnwalla v. B.N. Poddar, 1988 CrLJ 51 Cal

24
1988 CrLJ 659 MP
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Section (6) of section 173;

d. the confessions and statements, if any, recorded under section 164;
e. Any other document or relevant extract thereof forwarded to the Magistrate with the police
report under Sub-Section (5) of section 173:

Provided that the Magistrate may, after perusing any such pan of a statement as is named in
clause (iii) and considering the explanations given by the lawman for the request, direct that a
duplicate of that a part of the statement or of such portion thereof because the Magistrate thinks
proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred in clause (v) is
voluminous, he shall, rather than furnishing the accused with a copy thereof, direct that he will
only be allowed to examine it either personally or through pleader in Court.

This section provides that non-supply of the materials mentioned in section 207 by the
Magistrate which are relied upon by the prosecution may be a ground that may be successfully
used for setting aside a conviction.25 It was held in Bhole v. State of MP,26 that the term “without
delay” in Section 207 doesn't mean either immediately or forthwith because these terms are quite
distinct and distinguishable.

E. Section 208:

Where, in an exceedingly case instituted otherwise than on a police report, it appears to the

Magistrate issuing process under section 204 that the offence is triable exclusively by the Court
of Session, the Magistrate shall immediately furnish to the accused, freed from cost, a copy of
every of the following:
a. the statements recorded under section 200 or section 202, or all persons examined by the
Magistrate;
b. the statements and confessions, if any, recorded under section 161 or section 164;
c. any documents produced before the Magistrate on which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, rather
than furnishing the accused with a duplicate thereof, direct that he will only be allowed to
examine it either personally or through pleader in Court.

F. Section 209:

When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall-
a. commit, after complying with the provisions of section 207 or section 208, because
the case could also be, the case to the Court of Session, and subject to the provisions of this
Code regarding bail, remand the accused to custody until such commitment has been made;
b. subject to the provisions of this Code regarding bail, remand the accused to custody
during, and until the conclusion of, the trial;

25
Gayadhar v. State, 1985 CrLJ 108 Ori

26
1993 CrLJ 2821 MP
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c. send thereto Court the record of the case and also the documents and articles, if any,
which are to be produced in evidence;
d. notify the general public Prosecutor of the commitment of the case to the Court of
Session.

It was held in State of Assam v. Hit Ram Deka,27 that if an offence is triable exclusively by the
Court of Session, the Magistrate has no power to discharge the accused but he
shall should commit the case in accordance with the provisions of Section 209. If the materials
and facts available on record or the diary remains unrebutted, the accused must be committed to
the Sessions Court.28

G. Section 210:

(1) When in a case instituted otherwise than on a police report (hereinafter stated as a complaint
case), it's made to seen by the Magistrate, during the course of the inquiry or trial held by him,
that an investigation by the police is ongoing in relevance the offence which is that the subject-
matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such
inquiry or trial and necessitate a report on the matter from the officer conducting the
investigation.

(2) If a report is created by the investigating policeman under section 173 and on such report
cognizance of any offence is taken by the Magistrate against somebody who is an accused within
the complaint case, the Magistrate shall comment on or try together the complaint case and also
the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report doesn't relate to any accused within the complaint case or if the

Magistrate doesn't take cognizance of any offence on the police report, he shall proceed with the
inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

This Section is meant to secure those private complaints don't interfere with the course of

justice because it sometimes happens that when a sessions case is under investigation by the
police, a number of the persons concerned file a complaint and check out to urge an order of
acquittal by collusion, etc. whereupon the investigation of the case becomes infructuous resulting
in miscarriage of justice in some cases.
It was held in Jagannath Das v. State,29 that the new Section 210 is meant to protect against
obtaining snap judgement and collusion. Where a private complaint was stated the police for
investigation on receiving a report from the police, the court examined the complainant and
asked him to provide his witness, it was held that no procedural infirmity was committed.30 . it
had been held in Bhabendra Dwivedi v. Pravalrar Misra,31 that trail of a complainant couldn't be
said to be in contravention of Section 210 merely because a report was made at a police outpost.

27
1990 CrLJ 6 Gau

28
Saleha Khatoon v. State of Bihar, 1989 CrLJ 202 Pat

29
1992 CrLJ 2204 Ori

30
Jagdish Ram v. State of Rajasthan, 1989 CrLJ 745 Raj

31
1989 CrLJ 1841 Ori
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CONCLUDING REMARKS:

Complaint to Magistrate is a procedural guideline under which a complainant will be made on

to the Magistrate but filing a primary Information Report (FIR) to the police against a
wrongdoer. Complaint to Magistrate treated 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 find useful for removing false, frivolous and vexatious complaints aimed
toward harassing the accused person. As, each day of experience of the courts shows that a lot
of complaints are ill founded, and it's necessary therefore that they must at the very start be
carefully considered and people which aren't on their face convincing should be subjected to
further scrutiny in order that only in substantial cases should the court summon the accused
person, this layout has be inserted within the code of Criminal Procedure, 1973 with the scope to
tell apart unfounded from genuine cases so on root them out at the very outset without calling
upon the party complained against.

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