SECTION 200
OBJECT of examination under 200 - is to find whether the complaint is justified or frivolous .
Illustration
Once the magistrate kept the complaint with himself and directed the complianant to produce his witnesses for recording statements under 200 and 202 , once he subscribes to this procedure he will be deemed to take cognizance on complaint and cannot later use the 156 (3) for police investigation .
The extent of satisfaction of the magistrate?
SC said that words "sufficient grounds" as used 204 point to the satisfactio that prima facie case has been made for taking cognizance and not that a sufficient ground for conviction is made out . (S.W. Palanitkar v. State of Bihar , (2002) 1 SCC 241)
S.W. Palanitkar v. State of Bihar , (2002) 1 SCC 241)
In case of a complaint under Section 200 Cr.P.C. a Magistrate can take cognizance of the offence made out and then has to examine the complain-ant and his witnesses; if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground', used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.
This Court in Nirmaljit Singh Hoon v. The State of West Bengal & Anr., [1973] 3 SCC 753, in para 22, referring to scheme of Sections 200-203 of Cr. P.C. has explained that "The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial.
Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para (28), it was held as under:-
BIRLA CORPORATION LTD V. ADVENTZ INVESTMENTS AND HOLDINGS LTD
Criminal Appeal No. 000875-000875 / 2019. 09-05-2019
“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”
Judgment of the High Court are for illustrative purpose only not for the purpose of writing in the exam.
(SINGLE JUDGE BENCH ORDER OF BOMBAY HIGH COURT
Doshi Brothers vs The State of Maharashtra on 23.07.2019.
In an appellate proceeding, the High Court faced a hurdle in disposal as the counsel for accused argued that statement recorded under Section 200 CrPC was not available before the appellate court.
High Court posed the question as "does the non-availability of the R&P from the trial Court stymie the appellate proceedings? Indeed, the unavailability of a material document may prove fatal to the appeal proceedings for either party may stand prejudiced. I will confine the discussion to the document the respondent-accused wanted to have access to: the complainant’s statement under Section 200 of Cr PC".
High Court then observed "While taking cognizance of an offence, the Magistrate examines the complaint on oath and the witnesses present if any. Then, the Magistrate reduces to writing only “the substance of such examination”. This substance aids the Magistrate to form a prima facie opinion about the case. In other words, it is to discover the truth or otherwise of the allegations made. It is for deciding the question purely from the complainant’s viewpoint, with no reference to the possible defence. Thus, the procedure under Section 200 Cr PC is non-adverserial. And what is recorded is not the complainant’s verbatim statement, only the substance or gist. Therefore, it is not a piece of substantial evidence to be used to contradict or discredit the complainant".
SCOPE OF INQUIRY IN 202
Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors., [1976] 3 SCC 736 Supreme Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) 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. It is also indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case being "where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused".
A magistrate taking recourse to an inquiry under proviso to Section 202 (2) in a case triable exclusively by the court of session is bound to call upon the complainant to produce all the witnesses and examine them.
This provision is mandatory and process cannot be issued without such an examination . However , its rigour is not mandatory when complainant is a public servant.
The complainant generally should be given opportunity to prove the truthof his complaint , but accused show not be allowed to participate in the proceedings or cross examine the witnesses at this stage or even adduce evidence at defence . Cr.PC does not envisage participation of accused at inquiry stage , Bombay HC in Hiralal Gulabchand (1963) Bom LR 765 actually held it to be an incurable irregularity to allow the accused to cross examine the complainant. The case is only for illustrative purpose , not for placing relaince.
Supreme Court of India
Rosy And Anr vs State Of Kerala And Ors on 10 January, 2000
Judgment of M B Shah
We agree with the conclusion of the Madras High Court to the effect that Section 202 is an enabling provision and it is a direction of the Magistrate depending upon the facts of each case, whether to issue process straightway or to hold the enquiry. However, in case where enquiry is held, failure to comply with the statutory direction to examine all the witnesses Would not vitiate further proceeding in all cases for the reasons that (a) in a complaint filed by a Public servant acting or purporting to act in dis-charge of his official duties, the question of holding inquiry may not arise, (b) whether to hold inquiry or not is discretionary jurisdiction of the Magistrate, (c) even if he decided to hold inquiry it is his further discretion to examine the witnesses on oath. If he decides to examine witnesses on oath in a case triable exclusively by the court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath, (d) it would also depend upon facts of each case depending upon the prejudice caused to the accused by non-compliance of the proviso (Sec. 465), and (e) that the objection with regard to non-compliance of proviso should be taken at the earlier stage when the charge is framed by the Sessions Court.
At initial stage, if objection is raised and it is found by the Sessions Court that by non-holding of inquiry, prejudice is caused to the accused, he may direct the Magistrate to follow the procedure prescribed under the proviso. It is no doubt true that by the use of the words "shall", it appears that language used in the proviso is of mandatory nature. At the same time, it is a procedural law and it is to be read in context of Section 200 which enables the Magistrate to issue process without holding any inquiry and that inquiry under Section 202 is itself discretionary one giving option to examine or not to examine witnesses.
Hence, proviso to the said sub-section is required to be read accordingly though couched in mandatory term by using the word 'shall'. Normally, the procedure prescribed therein should be followed, but non-observance of the said procedure may not vitiate further proceedings in all cases. In a 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 sub-section (2) of Section 202 and call upon the complainant to produce all his witnesses and examine them on oath. This would be in consonance with the provision of Section 208 which inter alia provides for supply of copy of statements and documents to accused. This would also facilitate the Sessions Court in framing the charge or discharging the accused.
Judgment by KT Thomas (took a slightly different approach)
The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. if he fails to raise such objection at the earliest stage. he is precluded from raising such objection later.
While dealing with Section 465(2) of the Code in Kalpnath Rai v. State, [1997] 8 SCC 732 this Court has stated thus : "Sub-section (2) of Section 465 of the Code is not a carte blanche for Tendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that the court shall have regard to the fact ' that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial."
(Justice Thomas referred to 41st law commission report as well )
I reiterate that if the magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objec-tion is taken at the earlier stage regarding such omission the court can consider how far such omission would have led to miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code.
Dismissal of the complaint
Reasons for dismissal of complaint
1. Complaint itself - if it makes no offence
2. examination of complainant and witnesses produced
3. the investigation if any , made under 202
It should be born in mind , dismissal of the complaint does not amount to an acquittal .
203 is to be read with 398.
(Always keep an effort to mention the general rule first)
Supreme Court of India
Poonam Chand Jain & Anr vs Fazru on 15 October, 2004
In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (AIR 1962 SC 876), Kapur, J. speaking for himself and Hidayatullah, J. as he then was, observed: (at p.899, para 48) "Therefore, if he has not misdirected himself as to the scope of the enquiry made under S. 202, Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under S. 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, i.e., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.
what will happen if complaint dies during the proceedings? Can legal heirs continue it ?
Chand Devi Daga vs Manju K Humatani,CRIMINAL APPEAL NO. 1860 OF 2017 (ARISING OUT OF SLP(CRL.) NO.4580 OF 2017)
The question as to whether the heirs of
the complainant can be allowed to file an
application under Section 302 of the Code to
continue the prosecution is no longer res
integra as the same has been concluded by a
decision of this Court in the case of Ashwin
Nanubhai Vyas v. State of Maharashtra in
which case the Court was dealing with a case
under Section 495 of the Code of Criminal
Procedure, 1898, which is corresponding to
Section 302 of the Code. In that case, it was
laid down that upon the death of the
complainant, under the provisions of Section
495 of the said Code, mother of the
complainant could be allowed to continue the
prosecution. It was further laid down that
she could make the application either herself
or through a pleader. Undisputedly, in the
present case, the heirs themselves have not
filed the applications to continue the
prosecution, rather the same have been filed
by their powerofattorney holders....”
(the judgment of Jimmy Jahangir Madan Vs. Bolly
Caiyappa Hindley (dead) By Lrs., (2004) 12 SCC 509 was also referred)
Whether police can arrest accused When Magistrate has ordered enquiry under S 202 of CRPC? OR while submitted a report under 202 , is police bound to arrest the accused?
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.600 OF 2007
RAMDEV FOOD PRODUCTS PRIVATE LIMITED
V
STATE OF GUJARAT
Citation:AIR 2015 SC 1742
Section 202 applies at
post cognizance stage and the direction for investigation
was for the purpose of deciding whether there was sufficient
ground to proceed.
In H.N. Rishbud and Inder Singh vs. The State of
Delhi24, this Court explained the scope of investigation by
the police and held that investigation included power to
arrest. There is no dispute with this legal position.
In the light of above discussion, we are unable to find
any error in the view taken by the Magistrate and the High
Court that direction under Section 156(3) was not warranted
in the present case and the police may not be justified in
exercising power of arrest in the course of submitting report
under Section 202.
Whether amendments in complaint can be allowed? Test - whether amendment proposed is of a formal nature or curable nature or of a material nature?
S.R. Sukumar Vs. S. Sunaad Raghuram
[Criminal Appeal No. 844 of 2015 arising out of S.L.P. (CRL.) No.4813/2012]
Mere presentation of the complaint and receipt of the same in the court does not mean that the Magistrate has taken cognizance of the offence. In Narsingh Das Tapadia vs. Goverdhan Das Partani & Another., AIR 2000 SC 2946, it was held that the mere presentation of a complaint cannot be held to mean that the Magistrate has taken the cognizance. In Subramanian Swamy vs. Manmohan Singh & Another, (2012) 3 SCC 64, this Court explained the meaning of the word 'cognizance' holding that "...In legal parlance cognizance is taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially".
Section 200 Cr.P.C. contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. Then normally three courses are available to the Magistrate.
The Magistrate can either issue summons to the accused or order an inquiry under Section 202 Cr.P.C. or dismiss the complaint under Section 203 Cr.P.C. Upon consideration of the statement of complainant and the material adduced at that stage if the Magistrate is satisfied that there are sufficient grounds to proceed, he can proceed to issue process under Section 204 Cr.P.C. Section 202 Cr.P.C. contemplates 'postponement of issue of process'.
It provides that the Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance may, if he thinks fit, postpones the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or have an inquiry made by any Magistrate subordinate to him, or an investigation made by a police officer, or by some other person for the purpose of deciding whether or not there is sufficient ground for proceeding.
If the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 Cr.P.C.
One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint...
Contention regarding allowing of amendment application, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board vs. Modi Distillery And Ors., (1987) 3 SCC 684, wherein the name of the company was wrongly mentioned in the complaint that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows:-
"U.P. Pollution Control Board's case is that easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint."
Distinction between rejection of Criminal complaint and dismissal of Criminal complaint
The legal position can thus be summed up as hereinbelow:-
On receipt of a written complaint, the 5 options available to a Judicial Magistrate who is competent to take cognizance of the case can be summarised as follows:-
1) Rejection of complaint If the complaint on the face of it does not at all make out any offence, then the Magistrate may reject the complaint. This power of rejection at the pre-cognizance stage is inherent in any Magistrate and the said power should not be mistaken for the power of dismissal available to the Magistrate under Sec. 203 Cr.P.C. since the latter power of dismissal is one which can be exercised only at the post-cognizance stage. (See Raju Puzhankara v. State of Kerala - 2008 (2) KLT 467 - Also see CREF Finance Ltd. v. Sree Shanthi Homes (P) Ltd. (2005) 7 SCC 467, Govind Mehta v State of Bihar - AIR 1971 SC 1708, Nagraj v. State of Mysore - AIR 1964 SC 269).
2) Where the Magistrate does not reject the complaint at the threshold, the Magistrate may, without taking cognizance of the offence, order an investigation by the police under Sec. 156 (3) Cr.P.C. and forward the complaint to the officer in- charge of the police station concerned provided that the complaint alleges the commission of a cognizable offence. Such a course can be adopted by the Magistrate only at the pre-cognizance stage. (See Dilawar Singh v. State of Delhi - AIR 2007 SC 3234 & Suresh Chand Jain v. State of M.P. - AIR 2001 SC 571) Even a complaint alleging the commission of offences exclusively triable by a Court of Session can also be so forwarded under Sec. 156 (3) Cr.P.C. (See Tula Ram v. Kishore Singh - 1977 (4) SCC 459 = AIR 1977 SC 2401). The Station House Officer ("S.H.O." for short) who receives such a complaint forwarded under Sec. 156 (3) Cr.P.C. will have to treat the complaint as a First Information Report within the meaning of Sec. 154 Cr.P.C. and is bound to register a crime and proceed to conduct an investigation as provided under Sec. 157 Cr.P.C. (See Mohammed Yousuff v. Smt. Afaq Jahan - AIR 2006 SC 705 = 2006 (1) KLT 939 (SC). The S.H.O. is obliged to register a crime whether or not such S.H.O. has the territorial jurisdiction to investigate the offence within the meaning of Sec. 156 (1) Cr.P.C. In a case where the S.H.O. has no territorial jurisdiction, the S.H.O. will have to register the crime and then transfer the same to the Police Station having jurisdiction. (See Madhubala v. Suresh Kumar - 1997 (8) SCC 476). This power of the Magistrate under Sec. 156 (3) Cr.P.C. cannot be exercised by him after taking cognizance. (See Tula Ram v. Kishore Singh - AIR 1977 SC 2401 - Also see George v. Jacob Mathews - 1996 (1) KLT 73).
3) Taking cognizance of the offence Where the Magistrate does not order investigation by the police under Sec. 156 (3) Cr.P.C. at the pre-cognizance stage and does not reject the complaint at the threshold,
then the magistrate may decide to proceed under Chapter XV Cr.P.C. and thereby take cognizance of the offence provided the allegations in the complaint prima facie make out an offence.
Commentaires