COMPLAINT TO MAGISTRATES

Project Proposed By- Ravi Prakash

- B.A. LL.B.(Hons.)

- 1756

Proposed to – Fr. Peter Ladis F.

Faculty of Criminal Law

A research submitted for fulfillment for the course Criminal Law-II,

for attaining the degree B.A. LL.B.(Hons.)

Chanakya National Law University, Nyaya Nagar, Mithapur,

Patna, Bihar 800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A., LL.B (Hons.) Project Report entitled
“Complaints to Magistrate” submitted at Chanakya National Law University is an authentic
record of my work carried out under the supervision of Fr. Peter Ladis F. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: RAVI PRAKASH

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere
thanks to all of them.

I am highly indebted to Fr. Peter Ladis F. for their guidance and constant supervision as
well as for providing necessary information regarding the project & also for their support in
completing the project.

I would like to express my gratitude towards my parents & member of Chanakya National
Law University for their kind co-operation and encouragement which help me in completion
of this project.

I would like to express my special gratitude and thanks to industry persons for giving me
such attention and time.

My thanks and appreciations also go to my colleague in developing the project and people
who have willingly helped me out with their abilities.

THANK YOU,

NAME: RAVI PRAKASH

COURSE: B.A. LL.B

ROLL NO.: 1756

SEMESTER: 4th

SECTION: A
 TABLE OF CONTENTS

1. Introduction
o AIMS AND OBJECTIVES
o HYPOTHESIS
o SOURCE OF DATA
o RESEARCH METHODOLY
o LIMITATIONS
o LITERATURE REVIEW
2. Complaint: Defination & Meaning
3. Complaint Case: Section 200 to 203
4. Case Laws
5. Conclusion and Suggestions

BIBLOGRAPHY
 1. Introduction

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.

Every day 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. An order summoning a
person to appear in a court of law to answer a criminal charge entails serious consequences.

Therefore, Section 200 to 203 of the Code of Criminal Procedure lays down the procedure
regulating complaints made by private persons. If a Magistrate takes cognizance of an
offence on a complaint, he must first of all examine the complainant and witnesses, if any, on
oath, and must then reduce the substance of such examination into writing. This must also be
signed by the complainant, the witnesses, and also by the Magistrate.

OBJECTIVE- - The aim of the researcher is to present a detailed study of the topic. The
main objective is to know about in what circumstances complaints can be made to magistrate
and magistrate’s power of taking cognizance of a case.

HYPOTHESIS: -Sections 200 to 203, Cr PC have been enacted for weeding out false,
frivolous and vexatious complaints aimed at harassing the accused person.

RESEARCH METHODOLOGY:- The researcher in the project advanced would like to

rely upon the doctrinal method of research.

SOURCES OF DATA:- The researcher will make use of both the sources primary as well as
secondary.

LIMITATION:- There is a time limitation for the researcher to finish the research. The
researcher is limited to his own self for the research.
Literature Review

While finalizing the topic and setting the objective the researcher has review the literature.
The researcher has make study on the topic of “Complaints to Magistrate. And also focus on
the its distinction from First Information Report under Criminal Procedure Code.

The researcher has reviewed the books of eminent author related to the topic. In addition to
this researcher has also reviewed the various case-Laws, various judicial decision of the court
in case Laws.

The researcher has visited the websites for reviewing the literature highlighting the problem.
Researcher has become able to understood exact nature of problem for the fulfilment of
research. The researcher has gone through articles, report, document, Acts, enactments, PDF-
files, Law journal, Articles published on newspapers case-laws and existing material
available on internet.

Books Reviewed

1. Kelkar's R.V., 2008, 'Criminal Procedure' Fifth Edition - Eastern Book

Company, Lucknow.
In this book on the Criminal Procedure Code giving sectionwise commentaries.
Author organised topicwise subject to imparting knowledge of the provisions and also
developing insight into the subject. The Research Scholar study is on Criminal Laws
in India. This book is important to cover the major Criminal Law. The researcher who
studied the book.
2. Mishra, S.N., The Code of Criminal Procedure, CLP, Allahabad, 2005:
The author who define the code of criminal and the procedure of criminal law. The
researcher has used this book to study the criminal amendment in criminal procedure.
3. Ratan Lal, R., & Dhirajlal, K.T., Code of Criminal Procedure, Universal, Delhi,
1999: The author of this book define the procedure of Criminal Law and the
provisions with important sections of this code, constitution for Criminal Courts
which is necessary to study for the researcher.
4. Justice M.R. Mallick, CRIMINAL MANUAL, Professional Book Publishers.
 The researcher has used the bare provision of the Act such the Indian Penal Code, the
Indian Evidence Act, the Criminal Procedure Code and other minor Act to study the
major Criminal Laws in India.

2. Complaint: Definition & Meaning

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 magistrate.1 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.

3. Complaint Case: Section 200 to 203

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:

1
P.N.S. Ayer Vs K.J. Nathan, AIR 1948 Mad 424
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 complaint.2 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 any jurisdiction to
proceed against a person at the mere sight of the details on the docket-sheet or the causetitle.
No Court shall act upon the sole tag, label or the 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.

2
Badilal Panchal Vs Dattatreya, AIR 1960 SC 1113
3
Gurdial Singh Vs Abhey Dass, AIR 1967 Punj 244
4
2005 CriLJ 4572
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 Chitrigi6 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 Manipur7 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.
Egappa8. 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.P.9, 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 facts and circumstances to find out whether on facts of the case a criminal offence
was made out or not. In criminal trial one of the cardinal principle for the Court is to look for
plausible explanation for the delay in lodging the complaint or report. Delay in filing
complaint affords opportunity to the complainant to make fabrication.

5
1994 CriLJ 3765
6
2006 CriLJ 1566
7
Paokhohea Vs Tongkhoben, AIR 1969 Mani 56
8
AIR 1962 Mad 443
9
2003 Cri. LJ 687
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 Goa10, 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 COGNIZANCE OF

THE CASE (SECTION 201 OF CrPC):

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 Bihar11, 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 Rajasthan12, 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
10
1994 Cri. LJ 444 (Mah)
11
1989 Cri. LJ 2277 (Pat)
12
1987 Cri. LJ 1342(Raj)
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):

(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. 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 complainant’s 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 complainant.13 At this stage the Magistrate
has to see 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.14

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 Singh15 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.

The scope of the inquiry under section 202 is extremely limited-only to the ascertainment of
the truth or falsehood of the allegations made in the complaint (i) on the materials placed by
the complainant before the court; (ii) for the limited purpose of finding out whether a prima
facie case for the issue of process has been made out and (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 proceedings under section 202, the accused has got absolutely no locus
standi and is not entitled to be heard on the question whether the process should be issued

13
Balraj Khanna Vs Moti Ram, AIR 1971 SC 1389
14
Amresh Chandra Vs NK Chandra AIR 1969(Tri) 13
15
1991 Cri LJ 421(Pat.)
against him or not.16 Where the High Court quashed a complaint for bigamy under section
494 of Indian Penal Code, the Supreme Court set aside the quashing 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 has to satisfy
himself simply whether a prima facie case has been made out, so as to put the proposed
accused on regular trial.17

The aim of an investigation under Section 202 of the Code is not to initiate a fresh case on
police report but to assist the Magistrate in completing proceedings already instituted upon a
complaint before him. A judicial Magistrate after taking cognizance of an offence on the
basis of police report and after the appearance of the accused cannot order fresh investigation
by the police.

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.18 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

16
Nagawwa, 1976 Cri. LJ 1533
17
Mohinder Singh Vs Gulwant Singh, AIR 1992 SC 1894
18
Moideenkutty Haji Vs Kunhikoya, (1987) 1 KLT 424
was also opined that non-compliance was likely not only to mislead the accused but also to
end in failure of justice.

An inquiry under Section 202 is not in the nature of a trial for there can be in law only one
trial in respect of any offence and a trial can commence only after process is issued to the
accused. The said proceedings are not strictly proceedings between the complainant and the
accused. A person against whom a complaint is filed does not become an accused until it is
decided to issue process against him.

The power to order police investigation under Section 156(3) is different from the power to
direct investigation conferred by Section 202(1). Investigation under Section 156(3) is
exercisable at the pre-cognizance stage and the investigation under Section 202(1) at the post-
cognizance stage when the Magistrate is in seizure of the case.

Section 202 of the Code comes in at a stage when some evidence has been collected by the
Magistrate in proceedings under Chapter XV of the Code, but the same is deemed insufficient
to take a decision as to the next step in the prescribed procedure. In such a situation the
Magistrate is empowered under Section 202 of the Code to direct within the limits
circumstance by that Section, an investigation „for the purpose of deciding whether or not
there is sufficient ground for proceeding‟.

It may 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 decide to make an inquiry. The
discretion, however, would be exercised judicially. Once the Magistrate has exercised his
discretion, it is not for the High Court, or even the Supreme Court, to substitute its own
discretion for that of the Magistrate or to examine the case on merits with a view to find out
whether or not the allegations in the complaint, if proved, would ultimately end in conviction
of the accused. 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.19

The decision whether there is sufficient ground must be reached by the exercise of discretion
based upon judicial consideration. A Magistrate should not dismiss a complaint without
hearing 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

19
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 204
and dismiss the complaint under Section 203.

A magistrate cannot dismiss a complaint unless he finds that the evidence led before him is
self-contradictory, or intrinsically untrustworthy. The process cannot be refused if that
evidence makes out a prima facie case.

It has been decided by the Patna High Court in Ram Narayan Vs Panchand Jain20, 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 Bashir21, 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 Sections
190 to 199 Cr.PC for addition of offence and impleadment of accused.

4. Case Laws

Francis Savio vs. Kerala 1998 Cr LJ 4735

In drafting a criminal complaint, there is no specific provision either in the Criminal

Procedure Code or in the rules framed there under as to how a criminal complaint has to be
drafted. What we should see in the criminal complaint is whether the entire substance of the
complaint prima facie, makes out an offence said to have been committed, or whether there is
20
AIR 1949 Pat. 256
a ground to presume on the entire reading of the substance of the complaint that the offence is
likely to have been committed.21

M/s. Nova Electricals, Jalgaon vs. State of Maharashtra and Anr. 2007 Cr LJ 535

The Bombay High Court has observed that the verification of the complainant as required
under Section 200 of the Cr PC is not a mere formality and the Magistrate has to ascertain
thereby whether the complaint is genuine or frivolous. It is further held that for omission by
the Court to record verification, the complainant cannot be penalized for it and on that ground
the complaint cannot be quashed. Omission by Court to record verification and/or examining
the complainant on oath, at the most can be said to be an irregularity and the same can be
cured subsequently.22

Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Pale (2012) 10 SCC 517

The Apex Court has observed: - where complaint has been dismissed by the Magistrate under
Section 203 of the Cr PC, upon challenge to the legality of the said order being laid by the
complainant in a revision petition before the High Court or the Session Judge, the person who
are arraigned as accused in the complaint have a right to be heard in such revision petition. If
the Revisional Court overturns the order of the Magistrate dismissing the complaint and the
complaint is restored to the file of the Magistrate and it is sent back for fresh consideration,
the person who are alleged in the complaint to have committed crime, have, however, no
right to participate in the proceedings nor they are entitled to any hearing of any sort what so
ever by the Magistrate until the consideration of the matter by the Magistrate for issuance of
process.23

Santokh Singh vs. Geetanjali Wollen Pvt. Ltd. 1993 Cr LJ 3744 (P&H)

21
Francis Savio vs. Kerala 1998 Cr LJ 4735
22
M/s. Nova Electricals, Jalgaon vs. State of Maharashtra and Anr. 2007 Cr LJ 535
23
Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Pale (2012) 10 SCC 517
An order of dismissal under Section 203 of Cr PC is no bar to the entertainment of a second
complaint on the same facts but it will be entertained only in exceptional circumstances.24

Mahesh Chand vs. Janardhan Reddy, AIR 2003 SC 702

The Supreme Court has observed that the second complaint 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, unjust or where new facts which could not, with reasonable diligence,
have been brought on record in the previous proceedings, have been adduced.25

Abdul Hamid Khan vs. State 1989 Cr LJ 468

The Gujarat High Court has held that merely because the Magistrate has not examined all the
witnesses named in complaint as prosecution witness at the time of holding enquiry under
Section 202 of Cr PC in a case exclusively triable by Session Court, the order of issuing
process against accused cannot be said to be void or illegal.26

If process is issued on a complaint under Section 204 of Cr PC even if wrongly and no

offence is made out the Court which passed the order, cannot entertain any application for
recalling its own order. Neither provisions of Section 203 nor 245(2) of Cr PC provides.
Appropriate remedy would be revision or quashing under Section 482 Cr PC. 

Whether the Special Judge/Magistrate is justified in referring a private complaint made

under Section 200, Cr PC for investigation in exercise of powers conferred under Section
156(3) Cr PC without the production of a valid sanction order under Section 19 of the
Prevention of Corruption Act, 1988.

The Supreme Court of India in Anil Kumar vs. M K Aiyappa on 1 Oct 2013 has observed

24
Santokh Singh vs. Geetanjali Wollen Pvt. Ltd. 1993 Cr LJ 3744 (P&H)
25
Mahesh Chand vs. Janardhan Reddy, AIR 2003 SC 702
26
Abdul Hamid Khan vs. State 1989 Cr LJ 468
that:- A Special Judge referring the case for investigation under Section 156(3) Cr PC is at
pre-cognizance stage and if the law requires sanction, and the Court proceeds against a public
servant without sanction, the public servant has a right to raise the issue of jurisdiction as the
entire action may be rendered void ab-initio.

5. Conclusion and Suggestions

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

 Dr. Paranjape, N.V., Code of Criminal Procedure, CLA, Allahabad, 2005

 Kelkar, R.V., Criminal Procedure Code, EBC, Lucknow, 2007(Revised by K.N.C.
Pillai)
 Mishra, S.N., The Code of Criminal Procedure, CLP, Allahabad, 2005
 Ratan Lal, R., & Dhirajlal, K.T., Code of Criminal Procedure, Universal, Delhi, 1999
 Justice M.R. Mallick, CRIMINAL MANUAL, Professional Book Publishers.