Synopsis

Topic: Complaint To Magistrate

1. Introduction
2. Meaning of complaint
3. Essential of complaint
4. Relevant provision deals with complaint to magistrate
5. Conclusion
6. Bibliography
 Introduction

Criminal Procedure Code is procedural law. Therefore, it describes that

procedure, which should be adopted for administration of criminal justice. In
fact, it has provided provisions for explanation of procedure in respect of
investigation, inquiry and trial. Even it has also provided provisions to elaborate
procedure in respect of complaint.

Complaint to Magistrate can be plainly understood in the sense that, it is an

allegation made against other person such as the offender to the Magistrate.
According to section 2(d) of the Code of Criminal Procedure (CrPC),
1973"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. However, Section 200 and others of the Code of Criminal
Procedure does not necessarily require the complainant to present a written
complaint personally to the magistrate1.

If such complaint is made on writing, the complainant or the witnesses are need
not be examined by the Magistrate. Thus, complaint to magistrate is charge of
offences level against a person or group, etc to the magistrate, in 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 in the complain with a view to take further proceedings necessary for
the trial of the accused person. Basically, complaint to magistrate dealt with
section 200-203 of the CrPC.

1
P.N.S. Ayer Vs K.J. Nathan, AIR 1948 Mad 424
 Meaning of Complaint

Section 2 (d) of the Code of Criminal Procedure (in short Cr PC) defines the
term ‘complaint’ as 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 complaint; 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. A mere presentation of petition to a Magistrate to enable him to take
administrative action is not a complaint within the terms of the definition.

It must be presented to him with a view to his taking action under the Criminal
Procedure Code. A complaint need not necessarily be made by the person
aggrieved but may be made by any person aware of the offence.
 Essential of valid complaint

The main essentials of a complaint are:

1. The allegation must be made to a Magistrate and not to a judge. A police

officer is not a Magistrate and as such a petition or information sent to him is
not a complaint.

2. The allegation must be made with a view to the Magistrate’s taking action
under the Code. A mere statement to a Magistrate by way of information
without any intention of asking him to take action is not a complaint.

3. The allegation must be that an offence has been committed. It is not

necessary that a particular offence be stated: only the allegation of fact must
constitute an offence. The mention of a wrong section does not vitiate the
character of a complaint. The complaint need not specify any offender or even
the section of the law which makes the act or omission punishable.

4. The allegation must be made orally or in writing. It need not set out all the
facts on which the accused is to be charged, but must contain a statement of true
facts relied on as constituting the offence in ordinary and concise language
admitting of no ambiguity.

5. A complaint need not necessarily be made by the person injured but may be
made by any person aware of the offence. In case of the defiance of general law,
any person, whether he has suffered any particular injury or not has a right to
complain. The court will, therefore, take cognizance of the above complaint.
 Relevant Provisions

Section 200 to 203 of Criminal Procedure Code 1898.

EXAMINATION OF COMPLAINANT (SECTION 200 OF CrPC):

A Magistrate taking cognizance of an offence on complaint shall examine upon

oath the complainant and the witnesses present, if any, and the substance of
such examination shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not
examine the complainant and the witnesses-

a) if a public servant acting or purporting to act in 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 another
Magistrate under Section 192: Provided further that if the Magistrate
makes over the case to another Magistrate under Section 192 after
examining the complainant and the witnesses, the latter Magistrate need
not re-examine them.

Section 200 lays down the preliminary procedure which a Magistrate shall
follow on receiving a complaint2. Under this section it is obligatory to examine
the complainant and the witnesses and a summary dismissal without examining
them is not 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 examine the complainant and
his witnesses on oath. It is only after this stage that summons may be issued if
necessary.

The Magistrate must give the complainant an opportunity to be heard in person

or through his pleader. An omission to examine the complainant and his
witnesses by the Magistrate as required by this section is a serious irregularity,
as such 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 no sufficient grounds to proceed with the case. In a
significant decision handed down by the High Court of Kerala in
Pramod v.C.K. Velayudhan4, it has been held that Criminal Court will not get
jurisdiction,to proceed against a person at the mere sight of the details on the do
cket-sheet or the cause-title. No Court shall act upon the sole tag, label or the
2
Badilal Panchal Vs Dattatreya, AIR 1960 SC 1113
3
Gurdial Singh Vs Abhey Dass, AIR 1967 Punj 244
badge veiled on the cause-title nor shall it be carried away by the prints and dots
on the veil of cause-title. In other words, the Court is bound to unveil the
complaint, feel the texture of its contents and test the criminality because
criminality lies not on how a person is Christianed at the cause-title, but how
he has acted, as per the contents of the complaint.

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

examination of complainant upon oath is a mere irregularity and does not 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 High Court of Karnataka in V.S. Joshi v.
N.G. Bhat Chitrigi held that order issuing process could not be set 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. This clearly showed that he had taken cognizance of
the offence.

There is difference of opinion about maintain of joint complaint under this

Section 200 of the code. Madras, Calcutta and Kerala High Courts hold that
joint complaint is not permissible but Allahabad and Manipur High Courts hold
a contrary view. The High Court of Kerala took the view that the word
complainant‟ having been used in Section 200 in singular form clearly suggests
that a joint complaint by two or more complainants is not maintainable under
this section, but the Magistrate has the jurisdiction to treat the complaint as if
filed by one of the complainants at their option, and proceed with the case.
Since no such option was exercised by the complainant in the instant case,
cognizance taken by Magistrate was vitiated. Similar opinion has been
expressed by the High Court of Madras in Narayan Swami v. Egappa. But the
Allahabad High Court has taken a contrary view and held that applying the
provisions of Section 13 of the General Clauses Act, the word „complainant‟
would also include its plural form i.e. „complainants‟.

In Shakuntala Devi v. State of U.P6., it has been held that in spite of availability
of Civil remedy, criminal case is not barred by Section 200, CrPC as the two
remedies are not mutually exclusive but they are clearly co-existensive. The
Court in this case observed that when a civil remedy is available, filing of a
criminal complaint is not automatically barred because of the availability of that
remedy and each case has to be decided on the basis of its peculiar

4
2005 CriLJ 4572
5
1994 CriLJ 3765
6
2003 Cri. LJ 687
facts and circumstancesto find out whether on facts of the case a criminal offenc
e was made out or not. In criminal trial one of the cardinal principle for court to
look,for plausible explanation for the delay in lodging the complaint or report.
Delay in filingcomplaint affords opportunity to the complainant to make
fabrication.

Therefore, if there has been delay in either filing F.I.R. before the Police or
complaint before the Court, the Courts always view allegations with suspicion
and insist for satisfactory explanation for delay in filing F.I.R./complaint. Mere
statement by the complainant that police did not take action is not a satisfactory
explanation for justifying delay in filing of the complaint before the Magistrate.

In Gurudas Balkrishna Vs Chief Judicial Magistrate Goa7, the applicant filed a

complaint on 31st July, 1992 but the Magistrate has not even recorded his
statement for verification of the complaint for several months. It was held that
verification under Section 200 must be done as soon as practicable. The words
“at once” were deleted from section 200 were deleted from Section 200 because
the legislature thought it fit that instead of giving a mandate by words „at once‟
which would not be capable of any relaxation, it is better to rely on the
discretion of the Magistrate. But that does not permit the Magistrate to delay the
verification for months together. The court ordered the Magistrate to record the
evidence of complainant and witnesses, if any, within a week from the date of
its order.

PROCEDURE BY MAGISTRATE NOT COMPETENT TO TAKE

COGNIZANCEOF THE CASE (SECTION 201 OF CrPC):

7
1994 Cri. LJ 444 (Mah)
The section mention that, If the complaint is made to a Magistrate who is not
competent to take cognizance of the offence, he shall, -

(a) if the complaint is in writing, return it for presentation to the proper Court
with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper
Court

In Rajendra Singh Vs State of Bihar8 , the court acquitted the accused on the
ground that it had no jurisdiction to take cognizance of the complaint. It was
held that the order of acquittal was illegal because the court ought to have
returned the complaint for presentation to the proper court instead of acquitting
the accused.

In Rakesh Vs State of Rajasthan9 , in this case it held that the learned Judicial
Magistrate had no jurisdiction and was not competent to try the accused for an
offence under Section 7/16(1) of the Act by virtue of Section 16A of the Act,
the only course open to him was to return the complaint to the Food Inspector
under Section 201 of the Cr. P.C. for presentation to the proper court with
an endorsement to that effect. Thereafter, it will be for the Food Inspector to file
the complaint in the court having jurisdiction.

POSTPONEMENT OF ISSUE OF PROCESS (SECTION 202 OF CrPC):

8
1989 Cri. LJ 2277 (Pat)
9
1987 Cri. LJ 1342(Raj)
(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 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 the witnesses present (if any) have been 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 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 warrant.

The object of this section is three fold:

i. To ascertain the facts constituting offence;

ii. To prevent abuse of process resulting in wastage of time of the Court and
harassment to the accused;

iii. To help the Magistrate to judge if there is 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 form an opinion as to whether the process should be issued or not,
and to remove from his mind hesitation that he may have felt upon the mere
perusal of the complaint and the consideration of the complainants evidence on
oath. The function of the Magistrate holding a preliminary inquiry is only to be
satisfied that a prima facie case is made out against the accused on the materials
placed before him by the complainant10. At this stage the Magistrate has to see

10
Balraj Khanna Vs Moti Ram, AIR 1971 SC 1389
whether there is evidence in support of the allegations made in the complaint
and not whether the evidence is sufficient to warrant a conviction.

In this section of the code the Magistrate has discretion to postpone the issue of
process against the person complained against if he thinks fit but in that even he
as to record its reasons in writing. Its reason should include the indication of
application of his mind to the facts of the case in respect of which he considers
inquiry necessary. Just a mere direction to a police office to enquire into the
matter and to report is no compliance with the provisions of this section.
Therefore, if the records do not show the reasons because of which the
Magistrate postponed the issue of process the order is erroneous and liable to be
set aside.11

In an investigation or inquiry under Section 202 the accused has no say in the
matter at that stage. The Patna High Court opined in the case of Anil Kumar
Sah Vs Nagendra Singh12 that ,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 much wider and its
purpose is for deciding whether or not there is sufficient ground for proceeding.

Section 202(1) does not require a magistrate to hold on inquiry whenever it

appears to him that the offence complained of is triable exclusively by a court of
session and that way section 202(2) does not control and govern Section 202(1).
In case where a complaint is filed not by the public servant and where the
offence is exclusively triable by the Court of Session the Magistrate should
follow the proviso to Section 202(2) and call upon the complainant to produce
all his witnesses and examine them. In conducting the examination the
magistrate has no power to prescribe or limit the number of witnesses for the
purposes for which they have got to be examined. It is for the complainant to
choose and append a list of witnesses to the complaint. Therefore the right of
the complainant with regard to the witnesses mentioned in the list cannot be
interfered with by the court nor his right to give up some of them can be
interfered with by the court. It is open to the complainant to give up some of the
witnesses and those witnesses that were so given up can no more answer the
description of “his witnesses” within the meaning of that expression as
occurring in the proviso to Section 202(2).

The proviso to Section 202(2) is intended to enable the accused to have an

overall picture of the case against him and to afford him a full and fair
opportunity of defending himself. This has been held to be mandatory. Some
High Courts held that non-compliance with the proviso to Section 202(2) cannot
be treated as “irregularity” that could be cured under Section 465. It was also

11
Amresh Chandra Vs NK Chandra AIR 1969(Tri) 13
12
1991 Cri LJ 421(Pat.)
opined that non-compliance was likely not only to mislead the accused but also
to end in failure of justice.

DISMISSAL OF COMPLAINT (SECTION 203 OF CrPC):

The Section mention that, “If, after considering the statements on oath(if any0
of the complainant and of the witnesses and the result of the inquiry or
investigation (if any) under Section 202, the Magistrate is of opinion that there
is no sufficient ground for proceeding, he shall dismiss the complaint, and in
every such case he shall briefly record his reason for so doing.”
As per Section 203 of the Code of Criminal Procedure, it requires the
Magistrate before taking cognizance of a case to apply his mind on the basis of
statements made by the complainant and his witnesses and the result 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 the result of the inquiry or investigation (if any) under Section
202,the Magistrate is of opinion that there is no sufficient ground for
proceeding, he shall dismiss the complaint, and in every such case he shall
briefly record his reasons for so doing.
The expression , sufficient ground‟ in this Section points exclusively to the
facts which the complainant brings to the knowledge of the Magistrate and to
their establishing a prima facie case against the accused. In exercising his
discretionary power of summary dismissal of the complaint, the Magistrate
should not allow himself to be influenced by considerations altogether apart
from the facts adduced by the complainant in support of the charge, nor by a
consideration of the motive by which the complainant is accused.
The Magistrate cannot refuse to issue the process unless the evidence led before
him is self contradictory or intrinsically untrustworthy and is insufficient to
make out a prima facie case.13
The decision whether there is sufficient ground must be reached by the exercise
discretion based upon judicial consideration. A Magistrate should not dismiss a
complaint withouthearing the witnesses of the complainant present in Court.
The reasons for dismissing a complaint should be based on the inference of
facts arising from or discovered by the complaint, the examination of the
complaint, and the investigation, if any, made under Section 202.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

13
Nirmal Hoon Vs State of WB, (1973) 3 SCC 753
(iii) If he finds that there is no sufficient ground for proceeding basing on the
results of inquiry as provided by Section 202.
It should be possible for the accused at this stage to satisfy the Magistrate that
there was no case at all against him and that he can even recall the order issuing
process under Section 204and dismiss the complaint under Section 203.A
magistrate cannot dismiss a complaint unless he finds that the evidence led
before him isself-contradictory, or intrinsically untrustworthy.
The process cannot be refused if that evidence makes out a prima facie case .It
hasbeen decided by the Patna High Court in Ram Narayan Vs Panchand Jain,14
that an order of dismissal under Section 203 is neither an order of discharge nor
an order of acquittal and therefore a second complaint after the dismissal of the
first one is not barred under this section. However, such a second complaint
may be entertained only in exceptional circumstances such as the first complaint
having been dismissed because of incomplete record of facts or
misunderstanding about the nature of the complaint or the new facts adduced in
the second complaint not be placed before the Magistrate in the first complaint
despite due diligence .
The Supreme Court in Rajender Prasad Vs Bashir15 , has held that where no
inquiry could be held under Section 203(2) by the committal Magistrate in
deciding the inclusion of offence or impleadment of accused, the trial
Magistrate could take recourse to provisions of Sections190 to 199 Cr.PC for
addition of offence and impleadment of accused.

14
AIR 1949 Pat. 256
15
Bobendranath Vs State, AIR 1972 SC 1607
 CONCLUSION

Complaint to Magistrate is a procedural guidelines under which a complainant

can be made directly to the Magistrate apart from filing a First Information
Report (FIR) to the police against an offender. Complaint to Magistrate dealt
with 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 found useful for weeding out false, frivolous and vexatious complaints
aimed at harassing the accused person. As, everyday of experience of the courts
shows that many complaints are ill founded, and it is necessary therefore that
they should at the very start be carefully considered and those which are not
on their face convincing should be subjected to further scrutiny so that only in
substantial cases should the court summon the accused person, this layout has
be inserted in the code of Criminal Procedure, 1973 with the scope to
distinguish unfounded from genuine cases so as to root them out at the very
outset without calling upon the party complained against.
 BIBLIOGRAPHY

1. Dr. Paranjape, N.V., C o d e o f C r i m i n a l P r o c e d u r e , CLA,

Allahabad, 20052.

2. Kelkar, R.V., C r i m i n a l P r o c e d u r e C o d e , EBC, Lucknow,

2007(Revised by K.N.C.Pillai)3.

3. Mishra, S.N., T h e C o d e o f C r i m i n a l P r o c e d u r e , CLP,

Allahabad, 20054.

4. Ratan Lal, R., & Dhirajlal, K.T., C o d e o f C r i m i n a l P r o c e d u r e ,

Universal, Delhi, 1999