Complaints to Magistrates:
1. A litigant/Complainant/ Victim has the following options to initiate the criminal
proceedings against the accused:
a. FIR [Investigation- filing of 173(2) report- cognisance under 190(1)(b)]
b. Complaint under 156(3) when police refuses to register the FIR- this is only for
the purposes of investigation which the Magistrate can order the Police to
conduct. [Investigation- filing of 173(2) report- cognisance under 190(1)(b)]
c. Complaint under Section 200
2. Once Complaint case is filed, then?
a. Magistrate hears the Complainant and examines her on Oath.
b. The Complainant is required to submit a list of witnesses. They may be examined
under Section 200, if present in Court.
c. Now three options are available before the Magistrate:
- Take cognisance of the matter under Section 190(1)(a)
- Dismiss the complaint
- Or not take cognisance but order an inquiry or investigation (Section 202)
3. Let us understand Section 202 which is postponement of issue of process.
Once the magistrate takes cognisance of the matter, she is required to issue process to
the accused person. So, she can delay issuing the process and not take cognisance but
instead order an investigation or inquiry.
When is the magistrate required to postpone mandatorily?
When the accused person resides outside the jurisdiction of such magistrate.
Can there be any other situation, when the Magistrate postpones the issuance of
process?
Yes, the magistrate may postpone the issuance when she feels that some more
evidence need to be on record for her to make up her mind as to whether or not to take
cognisance of the matter.
4. If a complaint is filed pertaining to offences which are exclusively sessions
triable?
In that case, the magistrate after examining the complainant and the witnesses (if any)
on oath under section 200, has to necessarily conduct an inquiry.
In that inquiry, the Magistrate is required to mandatorily call upon the complainant to
produce all his witnesses who are examined on oath.
Note: A direction for investigation is not made under 202 if the matter is exclusively
sessions triable case.
5. What next?
Dismissal of complaint under Section 203 or taking cognisance, as the case may be
under Section 190.
If after the above investigation or inquiry, if the Magistrate feels that there is no
sufficient ground to proceed then the Magistrate shall dismiss the complaint.
Else, the magistrate shall take cognisance of the matter and issue process to the
accused person.
6. What is a process? See Section 204
- A summons or a warrant of arrest.
- When is a summons issued?
In summons case.
- When is a warrant issued?
In warrants case.
- Is a warrant mandatorily issued in warrants case?
No. The magistrate may issue a summons before issuing a warrant, if she
deems fit.
7. For more technical insights of summons and warrants, refer to Section 61-89.
What is form of summons? How is it served? When person is not found in his
residence, then? Service of summons outside local limits etc.
Similarly, for warrants- warrants are directed to who, how are they executed, how are
they executed outside jurisdiction etc.
8. What happens when the process is issued?
Depends. If it is a magistrate triable case, then the magistrate will form charges and
will start the trial.
If it is a sessions triable case, then 209 commitment takes place, whereby the matter
goes to the session court who then takes the case forward.
9. Illustration to understand the above scheme:
HL Bains v. Commr of Police.
An alleged offence took place. The victim chose to file a complaint.
Complaint
Section 156 (3) Section 200
Dismiss or Issue
process, or
Postpone and
order inquiry or
investigation
(Section 202)
|
Section 173 (2)(police report)
|
Section 190 (1) (b) cognisance
|
This will happen even when the
Magistrate does not agree with PR.
|
Mag. Not bound by the PR. Can
still take cognisance
|
Or
|
Mag after receiving the PR which says
No offence made out may follow
Section 200 and examine the party
Dismiss take cog under 190(1)(a) and
issue process
