Procedure to file a complaint to the magistrate
In this article, we are going to see the procedure to make the complaint before a magistrate. The procedure has explained in chapter XVI of CrPC under the head commencement of proceeding before the magistrate. Here we will discuss section 200 to section 204 of the criminal procedure code. The procedure to file complaint includes 1) Complaints to Magistrate 2) When Magistrate not competent to take the cognizance 3) Postpone of issue of process 4) Dismissal of complaint 4) Issue of Process. (How to File Complaint to Magistrate)
1) Complaints to Magistrate (section 200 of CrPC)
- When a complaint is present to the magistrate. The magistrate shall examine the complainant and witnesses present and take the cognizance of the offence. Magistrate shall register the substance of examination in writing and that shall sign
- by the complaint and the witnesses present and also a magistrate.
- When the complaint present in writing and magistrate need not examine the complainant and witness. Provided that, if a public servant is acting or purporting to act while discharging his official duty or court has made a complaint. Or if the magistrate makes over a case to another magistrate for inquiry or trial under section 192. However, if after examining the complainant and the witnesses, the magistrate makes over the case to another magistrate under section 192. The latter Magistrate need not re-examine the complainant and the witnesses.
Examination of the complainant
The examination of the complainant is a procedure that adds to the credibility of the complaint at the initial stage. The complaint is the base of the entire proceedings. The enquiry envisaged under section 200 to 203 is for ascertaining the truth or falsehood of the complainant. That is for ascertaining whether there is evidence in support of the complaint to justify the issue of process. And not for ascertaining whether there is sufficient ground for conviction.
The magistrate must examine the complainant even though the facts are fully set out in the written complaint. The object of the examination is to find out whether the complaint is justified or whether it is frivolous or vexatious. The Magistrate must not refer the complaint to the police officer. He has bound to receive the complaint and after examining the complainant, to proceed according to law. A magistrate has bound to examine the complainant. And then he can either issue summons to the accused, or order an inquiry under section 202 or dismiss the complaint under section 203. Magistrate must give an opportunity of being heard to the complainant or his pleader.
The verification of the complaint by examination of the complainant and the witnesses shall be done as soon as practicable and should not be unnecessarily delayed. Section of 200 of Cr.P.C. does not contemplate the acceptance of affidavit in the form of sworn statements. Filing the affidavit by the complainant in support of his complaint would be contrary to the procedure and it is inadmissible. That the examination of the witnesses is purely discretionary and not compulsory.
It is the general principle that any citizen can file a complaint under this section before a competent magistrate. A complaint can be filed by any person whether he is an aggrieved person or not. Once the magistrate proceeds based on the original complaint. Then he must first proceed to examine on oath the complainant and his witnesses under this section. And thereafter either hold an enquiry himself or direct the enquiry to be held by the police officer under section 202 of CrPC
2) When Magistrate not competent to take the cognizance (section 201 of CrPC)
When the complaint present to the magistrate. And when magistrate does not competent to take the cognizance of the offence in that case if the complaint is in writing. He may return it for the presentation to the proper court with enforcement to that effect. And if the complaint is not in the writing, he may direct the complainant to the proper court.
3)Postpone of issue of the process (section 202 of CrPC) (How to File Complaint to Magistrate)
When any magistrate received the complaint of which is authorized to take the cognizance of any complaint which has been made over to him under section 192 of Cr.P.C. and if he may thinks fit that the accused is residing beyond the area in which he exercises his jurisdiction. Magistrate may postpone the issue of process against the accused. And he may either enquire the case himself or direct an investigation to be made by a police officer or such other person, to decide whether or not there is sufficient ground for proceedings.
Magistrate shall not make any direction for investigation if it discloses that the offence is triable exclusively by the court of sessions. And if the complaint has not made by a court.
During the inquiry, the magistrate may think fit to take evidence of witnesses on oath, If it discloses to the magistrate that the offence is triable exclusively by the court of sessions, the magistrate shall call upon the complainant and witnesses and examine them on oath.
If the investigation is made by a person who is not a police officer, he shall have all the power of an officer in charge of a police station except the power of arrest without warrant.
Explanation (How to File Complaint to Magistrate)
The magistrate may before issuing the process, take any preliminary steps for finding out whether the complaint is worth proceeding with. He may call accused to show cause why a process should not issue against him.
Magistrates can postpone the issue of process against the accused till the receipt of the report from the police.
Normally, people filed false complaints against persons residing at far off places simply to harass them. Therefore it is necessary to see that innocent person are not harassed by unscrupulous persons. It is now obligatory upon the magistrate that before summoning the accused residing beyond the jurisdiction he shall enquire into the case himself.
The scope of the enquiry has extremely limited and confined to the ascertainment of the truth or falsehood of the allegations made in the complaint. And the accused has no locus stand and has not entitled to hear on the question whether the process shall issue against him or not. During the examination of the witnesses under section 202 of Cr.P.C., the accused may remain present only to see what has going on.
Neither the accused can be heard nor the documents produced by him can be considered by the magistrate at the state of proceeding pending under 202 of Cr.P.C. The accused has no right to participate in ar pre-summoning stage. The presence of the accused has not necessary in an inquiry under this section which includes the examination of witnesses. (How to File Complaint to Magistrate)
4)Dismissal of complaint (section 203 of CrPC)
When after verifying the statements on oath of the complainant and of the witnesses. And the result of enquiry or investigation under section 202. The magistrate finds that there are no sufficient grounds for proceedings. He shall dismiss the complaint and record his reasons for doing.
Generally, the discharge of an accused person by a magistrate does not operate a bar to institute a fresh criminal proceeding against him for the same offense. And it is competent for a magistrate to entertain another complaint on the same facts and to enquire again into the case against the accused. However, a fresh complaint shall entertain only in exceptional circumstances. Section 203 enables a magistrate to dismiss the complaint if there has no sufficient ground for proceeding.
5)Issue of Process (section 204 of CrPC) (How to File Complaint to Magistrate)
- When the magistrate finds that there is sufficient grounds for proceedings. He takes cognizance of an offence. In summons cases he shall issue a summons for the attendance of the accused. And in warrant cases he may issue a warrant. Or if he thinks fit, he issue summons to appear at a certain time before him or other magistrate having jurisdiction.
- If the list of prosecution witness has not filed, no summons or warrant issued against the accused.
- In proceedings instituted upon written complaint, every summons or warrant issued along with a copy of such complaint.
- When the processing fee has not paid within a reasonable time, the magistrate may dismiss the complaint.
Prima facie case
This chapter of the Issue of process relates to the commencement of proceeding before a magistrate. At the time of issuance the process the court has required to find out is whether there is prima facie case. It need not and should not determine the adequacy of evidence or the probability of the accused being guilty. At the time of issuing the process, the magistrate can take into consideration inherent improbabilities appearing on the face of the complaint.
Recording a reason for issuing a warrant instead of a summons is mandatory is in a summons case and it is not so in a warrant case.
Where the investigation report ordered under section 202 does not show any additional material, the issuance of the process by the magistrate is not proper. Where the evidence against all the accused persons has the same. And magistrate issue summons to only a few of them. Hence, refusal to issue summon other accused persons has not proper.
At the time of taking cognizance of the complaint presented before a magistrate, the magistrate has to deal with the said complaint because of the allegations made in the complaint itself and he has to find out whether prima facie offence has been spelled out. (How to File Complaint to Magistrate)
Issue and Summons and Warrant (How to File Complaint to Magistrate)
Summoning order must reflect that the magistrate has applied his mind to the facts of the case. Before the issuing process against the accused, the court has to make itself clear for what offence the court was requiring the presence of the accused. The issue of process has to based on the application of evidence. And however at this stage no interference shall call for. Only in exceptional cases where the order is patently illegal and where the order of magistrate has not supported by material on record, then in those circumstances alone the order of the magistrate could be set aside.
In warrant cases, a court has empowered to issue a warrant at the first instance for securing the presence of the accused. It has desirable that the court may issue summons at the first instance for the appearance of the accused. And may issue a warrant either bailable or non-bailable. In this case it has to satisfy that despite efforts by the police the accused could not trace out. As he has absconded and has not obeyed the summons.
Also Read Cheque Bounce Case Law and Procedure