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 complaint; 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.
Tag: CrPC 200 – Examination Of Complainant
Smitha Vs State of Kerala and Ors on 27 Jan 2022
Law point held by Kerala High Court is: The principle of locus standi is alien to criminal jurisprudence
From Para 2,
2. Petitioner is the wife of the injured in a road traffic accident. It is alleged that on 16.10.2021, petitioner’s husband Thankachan, a carpenter by avocation, sustained injuries while proceeding to the place of work travelling on the pillion seat of the motor cycle bearing Registration No.KL-32/Q-0114 ridden by the accused, through Elamakkara-Puthukkalavattom Road; in front of Skyline Apartments, due to the rash and negligent riding as to endanger human life, since he had abruptly twisted, the vehicle capsized and her husband fell down and sustained grievous injuries. He was immediately rushed to the MAJ Hospital, Edappally. Ext.P1 indicates that Thankachan was taken there at 9.20 am on 16.10.2021 with the alleged history of road traffic accident. Ext.P2 discharge summary indicates that on the same day, he was taken to the Department of Orthopaedics and Rehabilitation, Lisie hospital where he was admitted with the history of pain and swelling on left ankle following alleged history of road traffic accident. Diagnosis was fracture trimalleolar left ankle for which he underwent surgery on 19.10.2021 and was discharged on 21.10.2021. The grievance of the petitioner is that despite Ext.P1 intimation given by the CMO, MAJ Hospital to the Sub Inspector, Elamakkara Police Station, crime was not registered. It is alleged that on 11.11.2021, petitioner lodged a complaint before the City Police Commissioner, Ernakulam which also was not acted upon and thus, on 19.1.2022, she approached the Judicial First Class Magistrate-II, Aluva. It is specifically averred that after sustaining grievous injuries, her husband is in immobile stage and is under complete rest and thus, she approached the court alleging offences under Sections 279, 337
and 338 IPC. But astonishingly enough, the complaint was returned stating that ‘the petition was filed by the wife of the complainant’. The most disturbing aspect is that a note seen put on the last page of the complaint, as follows:-“19/01/22
Verified within the jurisdiction. Receipt of complaint at Commissioner Office is not seen produced. Hence for orders.
Id/-
Petition filed by wife of the complainant. Hence may be returned, for orders.
Id/-
Returned
sd/-”
It is clear that the signed order was passed by the Magistrate. It is pointed out that the Magistrate has returned the complaint on the premise that it was filed by the wife of the complainant which is illegal.
From Para 4,
4. I have no doubt that the order passed by the Magistrate is illegal and unsustainable. It is the settled proposition of law that criminal law can be set in motion by any person. Here, on the ground that after sustaining grievous hurt, her husband is unable to move out and hence, she has taken initiative to prefer the complaint. The principle of locus standi is alien to criminal jurisprudence.
From Para 5,
Smitha Vs State of Kerala and Ors on 27 Jan 20225. More disturbing is the Court acting upon office notes put up by the ministerial staff. This Court takes strong exception to such a conduct. In judicial matters, the staff members cannot make any note or suggestion. The learned Magistrate has not applied his mind before returning the complaint. The reason stated is illegal. The order is quashed and the Magistrate is directed to entertain the complaint and pass orders, in accordance with law, within a period of seven days from today.
Rakesh and Anr Vs State of UP and Anr on 13 Aug 2014
A division bench of Apex Court held as follows
From Para 2, Issue was fixed.
2. Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant? The above question having been answered in the affirmative by the Allahabad High Court, this appeal has been filed by the accused.
From Para 7, issue was answered.
Rakesh and Anr Vs State of UP and Anr on 13 Aug 20147. If we are to go back to trace the genesis of the views expressed by this Court in Gopal Vijay Verma (supra), notice must be had of the decision of this Court in H.S. Bains vs. State (Union Territory of Chandigarh) 3 wherein it was held that after receipt of the police report under Section 173, the Magistrate has three options –
“(1) he may decide that there is no sufficient ground for proceeding further and drop action;
(2) he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
(3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”
8. The second and third options available to the Magistrate as laid down in H.S. Bains (supra) has been referred to and relied upon in subsequent decisions of this Court to approve the action of the Magistrate in accepting the final report and at the same time in proceeding to treat either the police report or the initial complaint as the basis for further action/enquiry in the matter of the allegations levelled therein.
Citations : [2014 RCR CRIMINAL SC 4 52], [2014 MPWN SC 3 73], [2014 AIR SC 3509], [2014 SCALE 9 347], [2014 AIOL 490], [2014 CRIMES SC 4 183], [2014 CRLJ SC 4195], [2014 JLJR SC 4 16], [2014 BOMCR CRI SC 4 643], [2014 SUPREME 7 286], [2014 SLT 7 183], [2014 SCC 13 133], [2014 SCC CRI 5 611], [2014 SCC ONLINE SC 619], [2014 AIC 142 75], [2014 ACR SC 3 3091], [2014 UC 3 1651], [2014 ALLCC 87 299], [2014 SCJ 9 159], [2014 ALT CRL AP 3 531], [2014 ALLMR CRI SC 3782], [2014 AJR 4 387], [2015 LW CRL 1 229], [2014 CCR SC 3 577], [2014 PLJR 4 176], [2014 MLJ CRL SC 4 113], [2014 ALL LJ 6 82]
Other Sources :
https://indiankanoon.org/doc/118305084/
https://www.casemine.com/judgement/in/5609af4be4b0149711416134
Lingam Seetharammayya and Ors Vs State of AP and Ors on 16 Mar 2021
Single-judge bench of AP HC held that, one cannot directly approach the High Court u/Article 226 of Constitution of India, if the Police do not register an FIR if information about a cognizable offence is reported relying on the case law from AP HC here.
Lingam Seetharammayya and Ors Vs State of AP and Ors on 16 Mar 2021The remedies are under Section 154(3), 156(3) and Section 190 r/w.Sec.200 of Cr.P.C.
Sri Gunavenkataramane Gowda Vs Sri N S Vijayakumar on 28 March 2019
Karnataka High Court held that, an application for recalling of NBW has to be disposed of on same day of filing same.
Sri Gunavenkataramane Gowda Vs Sri N S Vijayakumar on 28 March 2019Citations: [2019 SCC ONLINE KAR 473]
Other Source links: https://indiankanoon.org/doc/95097297/ or https://www.casemine.com/judgement/in/5c9e48a29eff430a019b99ba
https://bangaloremirror.indiatimes.com/bangalore/others/recall-applications-should-be-heard-and-disposed-of-same-day/articleshow/68678246.cms
Shatrughna Prasad Sinha Vs Rajbhau Surajmal Rathi and Ors on 10 September 1996
This is case of Defamation that the Supreme Court has partly quashed as the comments which were alleged to be defamatory were found by SC as not defamatory.
It would thus be seen that when a private complaint is made to the Magistrate, before the Magistrate takes cognizance of the offence on the complaint so as to take the other steps, the complaint shall contain all the necessary facts constituting the offence for which the complaint was laid, so that the Magistrate can proceed further in taking further steps after cognizance of the offence is taken by issuing the process etc.
And then,
Shatrughna Prasad Sinha Vs Rajbhau Surajmal Rathi & Ors on 10 September, 1996But we do not find any allegation made in the complaint. Accordingly, we hold that the complaint filed in the Court of the Judicial Magistrate, First Class in Court No.4 at Pune does not contain any of the allegations so as to constitute the offence of defamation defined in Section 499 and punishable under Section 500. Consequently, the Magistrate was not justified in issuing the process against the appellant. The complaint is accordingly quashed.
Citations:
Other Source links:
The Index for Defamation Judgments is here.
H. S. Bains Vs The State (Union Territory Of Chandigarh) on 10 October, 1980
In this landmark judgment from Supreme Court, it was held that.
Where the Magistrate, on receiving a complaint orders investigation under section 156(3) and receives a report under section 173 to the effect that no offence was disclosed against the accused, the Magistrate might either
(i) decide that there is no sufficient ground for proceeding further and drop action or
(ii) he may take cognizance of the offence under section 190(1)(b) and issue process without being bound in any manner by the conclusion of the police or
(iii) he may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200. If he adopts the third alternative, he may hold or direct an enquiry under section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be.
Law laid down,
Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police, and their powers to investigate. Sec. 156 (1) vests in an officer incharge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate. Sec. 156(3) authorises a Magistrate, empowered under Sec. 190, to order an investigation as mentioned in Sec. 156(1). The provisions from Sec. 157 onwards are concerned with the power and procedure for investigation. Sec. 169 prescribes that if upon an investigation it appears to the officer incharge of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond (with or without sureties) to appear if and when required, before a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial. Sec. 170 prescribes that if upon investigation it appears to the officer incharge of the Police Station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial. If the offence is bailable the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. Sec. 173(1) casts a duty upon the police officer to complete the investigation without unnecessary delay. Sec. 173(2) prescribes that as soon as the investigation is completed the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that subsection.
Tail point
H. S. Bains Vs The State (Union Territory Of Chandigarh) on 10 October, 1980It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec. 203. If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.
On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking
cognizance of the offence, order an investigation under Sec. 156(3). The police will then investigate and submit a report under Sec. 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Sec. 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Sec. 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec. 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec. 156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process, as the case may be.
Vasanti Dubey Vs State Of M.P. on 17 January, 2012
Supreme Court in this judgment has held that magistrate, when he disagrees with the final report submitted by Police, should follow the process from CrPC 200.
Vasanti Dubey Vs State Of M.P. on 17 January, 2012