Saturday, February 1, 2014

Complaint Case : Sections 200 to 204 of Cr PC

What is criminal 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.

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, Sections 200 to 203, Cr PC have been enacted for weeding out false, frivolous and vexatious complaints aimed at harassing the accused person. However, these sections are exclusively applicable in cases where the cognizance is taken on a complaint under Section 190 (1)(a), Cr PC. Such special procedure is not needed in cases where cognizance has been taken on a police report under Section 190 (1) (b) of Cr PC.

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 Section 200, Cr PC.  Thereafter if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203, Cr PC. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204, Cr PC. However, if he thinks fit, he may postpone the issue of process and either inquire 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(Section 202, Cr PC). 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 instant, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3), Cr PC. The police will then investigate and submit a report under Section 173(1), Cr PC. On receiving the police report the Magistrate may take cognizance of the offence under Section 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 Section 173 will contain the facts discovered or unearth by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusion 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 Section 200, Cr PC and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he has earlier ordered an investigation under Section 156(3), Cr PC and received a report under Section 173, Cr PC 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 of the Cr PC.

Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things:

(i) He may decide that there is no sufficient ground for proceeding further and drop action;

(ii) 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; 

(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 inquiry under Section 202, Cr PC if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.

Case Law

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 a ground to presume on the entire reading of the substance of the complaint that the offence is likely to have been committed.


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.


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.


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

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.


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.


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.


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 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.




Disclaimer : - All the contents are for general use and information. Consult your Lawyer before acting.