DECLARATION OF CIVIL DEATH , A PRAGMATIC APPROACH

 DECLARATION OF CIVIL DEATH,

A PRAGMATIC APPROACH

 

Rajneesh Mohan Verma

Deputy Director 

JTRI, UP, Lucknow

Abstract:

This article is an attempt to analyze the Law on declaratory decrees relating to civil death. This area of law, and especially the question of maintainability of a civil suit for declaration of civil death, had been a matter of academic debate for a long time. A critical and technical approach by the courts in such suits resulted in no relief to the dependents of a person missing for more than seven years.  In this paper, an attempt is made to develop a positive approach by enlightening the legal parameters towards giving relief to the dependents of a person missing for more than seven years. This paper also includes the essential elements of such suits and the model format of a decree declaring civil death.

KEYWORDS:  Statutory Fiction, Civil Death, Declaration, Right, Status, Presumption

I. INTRODUCTION

Death is the phenomenon of the termination of physiological functions of creatures, including humans. Death as a philosophical concept is "the termination of life on earth, the separation of the soul from the body.  Death as a biological concept is the termination of life. Death is a legal fact, categorized as a natural event that occupies a special position among other legal facts. This is not only linked to the psychological influence of relatives, but, at the same time, it directly affects the legal capacity of a person. The dead person ends his biological life, but he continues to remain part of some juridical consequences because from the juridical point of view, it is considered as a legal fact which entails the beginning, the changes or the termination of legal relations. Death is also a fact that brings the acquisition of rights and obligations for a group of people. Some legal relationships begin with the verification of death as; property rights and obligations which exceed the inheritance to the heirs. Instead, some other relationships terminate as of the dissolution of the marriage. Besides the natural death of the person, which is due to the termination of all its physiological functions, the law provides for civil death, which presumes a possible natural death. Civil death is the status of a  person deprived of all civil rights, it is equivalent in its legal consequences to natural death. In this article an attempt is made to analyze the concept of a statutory fiction in the form of civil death and as to whether a civil suit is maintainable for declaration of civil death? if yes whether such relief could be granted as an ancilary relief only or as main relief too?

When can a person be presumed dead?

An individual is presumed to be alive until he is announced dead. Up to that point, no one has the authority to manage the deceased individual's assets (regardless of whether claimed exclusively or mutually), life insurance, and it may not be possible to replace the individual as a regulator of a trust or organization. The assets are viably 'frozen', and no one has the authority to manage them. Depending upon the conditions it can bring about trouble and difficulty for the individual's family, employees, and creditors. If the individual had made a power of attorney before he went missing, things could continue as though the individual was alive at that point in certain regards. In this regard, it is essential that the factum of the civil death of a person missing for more than seven years must be declared. Sections, 107 and 108 of the Indian Evidence Act provide the procedure for proving the life and death of such a person which are as under:-

107.  The burden of proving the death of a person known to have been alive within thirty years.- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

108. The burden of proving that person is alive who has not been heard of for seven years.- Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

Maintainability of Civil Suit:

There are two different views about the maintainability of a civil suit for the declaration of civil death. One is in the favour of maintainability and another is against it. those who believe in the positive and pragmatic approach are in favour of the relief but others are not. I do not hesitate to mention here that it is basically confusion created by the school of technical interpretation. In other words, the law is clear on the issue, but there are academic discussions that actually affects the judicial minds and approach towards the relief of declaration of civil death. the technical views which are against the maintainability of such suit are based on the following arguments:-

1. That sections 107 and 108 of the Evidence Act do not create any substantial right or cause of action in favour of any person. it is only a rule of evidence. that is why no one can claim civil death as a right.

2. The death of any person is such a fact which cannot be claimed as a matter of right. 

3. The third argument against maintainability is that in a suit for declaration of civil death the plaintiff seeks the declaration of some other person not of his own and under section 34 of specific Act plaintiff could seek a declaration of his legal status only.

4. there is no one in such a case to deny such legal character and in such a situation, a suit under section  34 of the Specific Relief Act is not maintainable.

5. Some Judicial minds are of the opinion that if the plaintiff seeks a declaration of civil death as an ancillary relief along with the main relief only then such suit would be maintainable. a suit for mere declaration of civil death is not maintainable.

These grounds against such declaration may appear to be well reasoned but Actually, they are not, as for as the declaration of civil death is concerned. Let us examine and answer the arguments one by one.

1. The first argument is That sections 107 and 108 of the Evidence Act do not create any substantial right or cause of action in favour of any person. it is only a rule of evidence.

I also agree that these sections are only a Rule of evidence, and they only provide for a presumption as for as the life and death of an individual is in question in any proceeding. section 108 provides for a presumption of death and shifting of the burden to rebut it. But it does not mean that suit for declaration of civil death is not maintainable. Because the relief of declaration of civil death in itself is a distinct and independent relief recognized under the various laws and precedents. declaration of civil death could be based on different grounds, and the missing of a person for several years is only one of those grounds.    

 Now I find it my duty to say, that one should not be confused with the claim of declaratory relief of civil death and procedure to prove the facts which are essential to get the relief of the declaration of civil death.  the relief for declaration of civil death is actually a separate,  distinct and extraordinary relief. The term 'Civil death" is not even used under section 108 of the Evidence Act.  The only role of section 108 is to establish the presumption of death or fiction of death before the court by proving the fact of missing of the person regarding whom such relief is sought, if this presumption is not rebutted the same will be deemed to be proved. It is the same concept like if the remedy for declaration of the legitimacy of a child is sought in a civil suit, then such a suit is decided with the help of section 112 of the Indian Evidence Act. Section 112 of the Evidence Act provides a mode to establish the conclusive proof of legitimacy, it is also a Rule of evidence. In other words, the Declaration of the status of legitimacy may be sought with the help of the Rule of evidence provided under section 112 of the Evidence Act, which talks about the conclusive proof of legitimacy. But the declaration of legitimacy is a separate and distinct relief in itself,.

To understand this concept of distinct relief of civil death and its relation with section 108, one must know the difference between biological death and civil death or fictional death. 

As per the Philosophical aspect, Death is the phenomenon of the termination of physiological functions of creatures, including humans. it is the termination of life on earth, the separation of the soul from the body. But In the legal sense, "death" is defined under section 2 (1) (b) of The Registration Of Births and Deaths Act,1969 (Act No. 18 of 1969) which reads as under- 

2. Definitions and interpretation.—(1) In this Act, unless the context otherwise requires,—

(b) “death” means the permanent disappearance of all evidence of life at any time after live-birth has taken place;

(d) “live-birth” means the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes or show any other evidence of life, and each product of such birth is considered live-born;

The above concept of death in a philosophical as well as in a legal sense is a kind of biological death. One should know that the biological death of a person is totally different from the "civil Death". 

"Civil death" is actually an effect or result of certain events. It is a death which the law presumes for certain specific legal purposes. It is equivalent in its legal consequences to natural death, but it is not biological death. It is basically based on the acts of a person which results in his death in the eyes of law. It is a fictional death in the eyes of Law which may happen due to the missing of a person for more than seven years, or due to entering into a religious order by a Hindu, or in the case of a company ( a legal entity, person in the eyes of law) due to winding up of such company etc... In other words, Civil death is not a natural death of the person. Rather it is a death in the eyes of law.  This Civil death by the effect of the law is basically a declaration of disqualification of a person to possess civil rights under the law. It is a kind of disqualification of someone to enjoy civil rights, due to his own act of escaping from his duties and responsibilities relating to his family,  his profession, business and properties etc. In this sense, the civil death of a person is a kind of right or qualification of his legal heirs to inherit his assets and liabilities. This concept of civil death (or presumptive death) is a very old and well-recognized concept in Hindu Law.  In the case  of Genda Puri v. Chatar Puri [1886] I.A. 100 @ 105, Sital Das v. Sant Ram A.I.R. 1954 SC 606; Mahalingam Thambiren v. La Sri Kasivasi [1974] 2 S.C.R. 74. it has been held that -"One who enters into a religious order severs his connection with the members of his natural family. He is accordingly excluded from inheritance. Entrance to a religious order is tantamount to civil death so as to cause a complete severance of his connection with his relations, as well as with his property. The persons who are excluded on this ground come under three heads, the Vanaprastha or hermit; the Sanyasi or Yati, or ascetic, and the Brahmachari, or perpetual religious student.

Civil Death is the status of a  person deprived of all civil rights, it is equivalent in its legal consequences to natural death. Meaning thereby if a person dies a natural death, his legal heirs are entitled to inherit his assets and properties, they also owe the responsibilities up to the extent of inheritance towards the creditors of the deceased. the same rights and liabilities are inherited by the legal heirs of a person who dies a "civil death" or "fictional death" in the eyes of law. If a person of the Hindu community enters into such religious order which disqualifies him to enjoy civil rights, his heirs can claim his civil death as a matter of right.  Unless the law presumes or declares a "civil death" of such person, his heirs could not be able to inherit such rights or liabilities as to his property. likewise, his or her spouse can not re-marry without dissolution of marital relationship with such person if he is not declared to have died as civil death. 

The same concept is applicable in cases where a person is missing for more than seven years and is not known to be alive or dead. His legal heirs are entitled to get him declared to be dead as civil death. This right to claim for the declaration of civil death is based on the interest theory of rights which are legally protected by providing an equitable relief. The interests of the legal heirs as well as of the creditors of a person, who is missing for more than seven years are badly affected by this event of missing. Here the legal maxim "Ubi jus Ibi re medium"  comes into play. It is an age-old principle that, where there is a right, there is the remedy. 

There are three theories of rights and duties as will theory, interest theory and state protection theory. Will theory accepts every person as sovereign at the micro-level, interest theory regards rights as legally protected interests and obligations and state protection theory assume that all the rights are the concession granted by the state through law. Hence, legal rights can be defined as right in rem and right in personam, personal right and proprietary right, positive right and negative right, principal right and accessories right, perfect right and imperfect right, right in repropria and right in realiena, vested right and contingent right, legal right and equitable right, corporeal right and incorporeal right, antecedent right and remedial right, primary right and secondary right, fundamental right and legal right etc. every law student must have read and understood these kinds of rights and there is no need to explain it in detail. The right to get the relief of the declaration of civil death of the person missing for more than seven years, by his legal heirs, is based on the interest theory of rights.

Hon'ble Allahabad High court has said in the case of Hemant Kishore and ors vs Brij Kishore and Ors. AIR 1998 All 328, that "“the presumption of Civil death or fictional death under Section 108 of the Evidence Act tantamount to physical death in the eye of law for giving the benefits to the heirs/legal representatives and dependents of the deceased.” 

In the case of Sunita Roy Choudhary And Ors. vs Jageshwar Choudhary And Ors. AIR 2006 Pat 127  the court held:

“Section 108 of Evidence Act is in Chapter VII thereof which deals with the burden of proof. It is commonly referred to as a clause dealing with the presumption of civil death..........These provisions do not by themselves declare a person to be alive or dead. That finding is to arrive in a duly constituted suit and upon shifting of the burden of proof in one contingency or the other the Court is to give such a declaration and/or finding.”

To conclude I can say that in cases where a person is missing for more than seven years and is not known to be alive or dead. His legal heirs are entitled to get him declared to be dead as civil death. This right to claim for the declaration of civil death is based on the interest theory of rights which are legally protected by providing an equitable relief of declaration.

2. The Second argument against the maintainability of a civil suit for declaration of civil death is, that the death of any person cannot be claimed as a matter of right. 

But in my view, only those people place this argument who actually find it difficult to understand either the basic concept of civil death and biological or natural death; or they are unaware of the jurisprudence of theories of rights. As I have already discussed in detail that how the relief of the declaration of civil death is a right of the legal heirs and dependents of that person to inherit the assets and liabilities of such missing persons, I would like to mention here the judgement of Hon'ble Supreme court In the case of State of Bombay vs. Pandurang Vinayak AIR 1953 SC 244, Hon'ble Supreme Court, In this case, has held that when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. the same view was adopted in the case of Harish Tandon vs. ADM,(1995) 1 SCC 537. 

By Placing reliance on these Judgments of The supreme court, Hon'ble Allahabad High court has said in the case of District Judge Hardoi vs Saurabh Kumar (SPECIAL APPEAL No. - 767 of 2012 Order Date:- 21.7.2014,) that "Provisions contained in Section 107 and 108 read with Section 56 of the Indian Evidence Act dealt with the public interest and for the welfare of people. Any presumption is drawn, which go against the spirit of Section 107 and 108 of the Indian Evidence Act, shall not be correct. Ordinarily, in case it is found that a person is missing for more than seven years, then the statutory provisions under Sections 107 and 108 should be given effect. The right flowing from statutory provisions may not be taken away on a presumption based on the unfounded ground."

   

It is expedient to mention here that for the registration of the fact of the death of missing persons in natural calamities affected areas of the state of Uttrakhand and Jammu & Kashmir the complete Procedure was provided by the Circulars dated  16-08-2013 & 12-09-2014 issued from the Office of the Registrar General & Census Commissioner, India. But no such procedure was provided for the rest of the country. A Clarification from the OFFICE OF THE REGISTRAR GENERAL, INDIA, V.S. Division, West Block-1, R.K. Puram, New Delhi-110066. ( bearing No. 8/4/2011- VS (CRS) GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS) regarding the determination of place and date of death of a missing person was issued on 29 December 2011 addressing to All The Chief Registrar of Births and Deaths in All States/UTS. It is important to mention here the contents of this clarification letter which are as under:-

"1. Please refer to this office letter no. 1/12/87 - VS (Cord - HPJ dated 07.09.2000 which was issued in respect of determination of place and date of death of at missing person, wherein, It was specified that under Section 108 of Indian Evidence Act 1872, a person who is unheard for more than seven years is presumed to be dead and said section does not speak about the date and place of death, the date and place of death of a missing person has to be determined by the competent Court / authority on the basis of oral and documentary evidence produced before the Court. However, now a days, it has came to the notice of this office through various State Governments that the respective Courts are not mentioning the date and place of death of an missing person in its order which create problem in registration of death of the missing person.

2. In view of the above, this issue has been referred to the Union Ministry of Law & justice for their advice. The Ministry has adviced that -

The earliest date to which the death can be presumed can only be the date when the suit or claim of that right is filed as has been held in the matter of Jeshankar vs Bai Divali, reported in (1920) 22 Bom Lr 771. The issue has been made more clear on the point of date of death in the matter reported in AIR 1945 Madras 440 Bhagat vs. LIC. Madras wherein it was observed that in the absence of probable motive of foul play or accident one has to speculate as to the cause of his disappearance, and it could not be presumed that he was dead, on the date of his disappearance and in the absence of proof that he was alive the only conclusion possible is that he was dead at the time the question arose (date of plaint) owing to the failure of the defendant to prove that he was alive.

.In view of the foregoing when the provisions of Section 13(3) of the Act are specific that registration will be on the basis of court order, an entry be made in the relevant record on the basis of court order only and as has heen held by the courts the date of death may be mentioned on which plaintiff approached to the Court.

3. In view of the above, you are therefore requested to circulate the contents of this letter to all the district and local level registration authorities to enable them to register the death of a missing person. This office may also be apprised about the action taken in this regard along with the copy of instructions issued to the registration functionaries."

My intention to reproduce the above clarification letter is Only to show that the declaration of civil death by presumption under Section 108 Evidence Act, by the competent court, is now a  well recognized and accepted mode for the registration of death of missing persons. Proof of death is important for relieving an individual from legal, social and financial obligations. It will be essential for his family members to enjoy the inheritance of property and closing the statutory obligations. A death certificate is crucial in proving the “circumstances of death” and also in availing the benefits of Life Insurance and other financial schemes. The death certificate is mandatory for availing benefits like dying in harness, family pension and for enforcing rights and obligations related to the properties of the deceased. 

 

To conclude on these points, I would like to submit that the declaration of a civil death by the effect of a statutory Fiction provided under section 108 of the Indian Evidence Act, is now a well-recognized relief that could be claimed by the legal heirs or dependents of such missing person and the court should not reject such suit on the ground that death of a person can not be claimed as a right or on the ground that the provision of section 108 is only a rule of evidence. The court should adopt a pragmatic approach because, in such a suit, the plaintiff asks for a declaration of a statutory fiction that is "civil death" and not for natural death. Civil death is equivalent in its legal consequences to natural death, it is a death only in the eyes of law which is a fictional death, not a natural death.

3. The third argument against maintainability is that in a suit for declaration of civil death the plaintiff seeks the declaration of some other person not of his own and under section 34 of specific Act plaintiff could seek a declaration of only his legal status. 

        To answer this argument it would be necessary to reproduce Section 34 of the Specific Relief Act, which reads as under-

Section 34. Discretion of Court as to Declaration of Status or Right:

"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion, make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.

Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of a title, omits to do so.

Explanation: A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence and for whom if, in existence, he would be a trustee. "

 A bare reading of Section 34 reveals that it talks about the entitlement of legal character, this entitlement to such legal character can not be narrowed and limited to the legal character of the plaintiff only. A plaintiff who seeks the declaration of civil death of his relative is implicitly seeking his own status to be made clear by declaring the status of such civil death of his such relative. section 34 does not strictly limit it to the legal character of the plaintiff only.

In the case of Food Corporation Of India, vs Mahabir Prasad Bhartiya AIR 1988 All 160, Hon’ble Allahabad high court has held in para 15 as under- 

15……………... Under the present section the words 'legal character' is not a common phrase in jurisprudence and it is seldom used in statutes except under Section 42 of the old Act. The words 'legal character' indicate the legal status. A declaration that the defendant is not the son of the plaintiff or his adopted son, or the plaintiff is the legitimate child of the deceased person or that he is the son of A and not the son of B, or that a lady plaintiff either is or is not the wife of the defendant and similar declarations as to whether the plaintiff is a member of an agricultural tribe and as to whether the plaintiff is or is not a member of any specified class, would be covered within the meaning of the declaration of 'legal character. 

 The Hon'ble court in the above case has given an inclusive list of legal characters. A declaration that the defendant is not the son of the plaintiff or his adopted son is actually a declaration of the legal character of the defendant and not of the plaintiff, but the Hon'ble court has recognized it as a legal character which may be sought to be declared under section 34 of specific relief Act.

There are two Full Bench decisions, one of the Calcutta High Court in Noor Jehan Begum v. Eugene Tiscenko, A. I. R. (19) 1942 Cal. 325, and the other of the Lahore High Court in Abdul Karim v. Mt. Sarraya Begam, A.I.R. (38) 1945 Lah 266, in which the Calcutta case was noticed with approval In the former the meaning of the expression 'legal character' received the attention of the Hon’ble Judges, and it was held that the words were wide enough to include the status of a person. In the latter also the same meaning was assigned to those words. It was pertinently remarked that :

"Where the relationship does carry with it certain legal consequences, even though it may not affect or involve any right to property, a suit for a declaration as to the existence of such relationship is competent."

In the case of Smt. Mangala W/O. Kushappa Kurbet vs The Government Of Karnataka decided on  30 September 2020 (WRIT PETITION NOs.110262-110263/2017 THE HIGH COURT OF KARNATAKA DHARWAD BENCH) it was observed by the court that-

"In terms of Section 34 of the Specific Relief Act, a suit can be filed for declaration that a person is stated to suffer civil death, in the event of the said person not having been heard for a period of seven years, by proving the requirement under Section 108 of the Indian Evidence Act this essentially would imply that it is only after seven years that a person can be presumed to be dead or declared to be dead. This declaration can only be done by the Civil Court of appropriate jurisdiction."

4.  Now I would like to answer the fourth argument that there is no one in such a case to deny such legal character and in such a situation a suit under section  34 of the Specific Relief Act is not maintainable.

The answer of this argument is very simple, that the authority, who asks the plaintiff to produce a declaratory decree of a civil court declaring civil death of the person missing, for enforcing the rights on account of the Presumed death, can always be deemed to be the person denying or interested to deny such civil death. 

    It is important to mention here that once a person is missing and a report in this regard has been lodged, the state is duty-bound to search and investigate such a missing person. The State is fully responsible to search the corpus of that missing person if he is alive and his body in case of his death. it is the state who is responsible to provide a death certificate to the dependents of the deceased. If in a case any authority of the state responsible for the registration of the death, asks for a decree of a civil court competent to declare the civil death of a missing person, such authority could be said to have been actually denying to presume that legal fiction of civil death. In this sense, the welfare state is a necessary party to a suit for declaration of civil death.

In the case of Sou. Swati vs Shri. Abhay (Second Appeal No.18/2016) decided on 26 February 2016 the Hon'ble High Court of Bombay has said that “ Nevertheless, in my opinion, the appellants should have made the State of Maharashtra, through Collector, Nagpur as party-defendant to the Suit, since in such an eventuality, it is the State, which cares for the interest of its people and, therefore, the Court may take the assistance of the State, for finding out the truth. This Court, therefore, allowed the appellants to add Collector as a defendant in this Second Appeal, which is in continuation of the Suit and, therefore, an effective decree can always be passed.”

To conclude, I may say that in every eventuality there is always the State denying or interested to deny the fact of death and it will be a necessary party in a suit for the declaration of civil death.

5. The fifth point I would like to discuss here,  that  Some learned officers are of the opinion that if the plaintiff seeks a declaration of civil death as an ancillary relief along with the main relief only then such suit would be maintainable. a suit for mere declaration of civil death is not maintainable.

I would like to submit here that this opinion may be based either on the misconception of substantial rights and rule of evidence, or it may be based on the proviso to section 34 of the Specific Relief Act.

In my opinion, It always depends on the facts and circumstances of each case, the nature of such other relief and the jurisdiction of the court to grant such relief. To understand it in its complete sense we can have the reference of law on the application of proviso to section 34 of the Specific Relief Act.   

In the case of (Mahant Indra Narain Das vs Mahant Ganga Ram Das And Anr. AIR 1955 All 683). The Hon'ble court held that- By reading the last clause of the main section 34 where it is stated that the plaintiff need not ask for any further relief and the proviso together, it appears that the proviso refers to those reliefs which are not such that the plaintiff may or may not ask for it, but one which the plaintiff must seek in order to get actual and substantial relief suitable for him -- a relief which the plaintiff will have to seek by means of some subsequent suit or application in order that he may make the declaratory relief fruitful to himself.

In the case of, Vinay Krishna v. Keshav Chandra, 1993 Supp. (3) SCC 129, it was held that, if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable. 

In the case of, Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC 148, the Supreme Court of India held that "a suit seeking merely declaratory of the title of ownership, albeit a property without seeking possession, when the plaintiff is not in possession of the property is not maintainable. "

What I mean to say here is that as a general Rule the plaintiff need not seek any further relief. It always depends on the fact and circumstances of each case whether the plaintiff must seek any further relief or not. To avoid multiplicity of suits the plaintiff must seek all the reliefs which he is able to seek and a civil court is competent enough to grant. A relief which the plaintiff will have to seek by means of any subsequent suit or application in the same court, to make the declaratory relief fruitful to himself, he must seek such relief in the same suit for declaration of civil death. But if in a case where such civil court is not competent to grant such other relief due to lack of jurisdiction, a suit for a declaration of "civil death" can not and should not be rejected on the ground that a suit for declaration of civil death simpliciter is not maintainable.   

 

It is expedient to mention here the findings of the Hon'ble Allahabad High Court in the case of Smt. Alka Sharma vs Union Of India And Others (decided on 17 January 2020, the SECOND APPEAL No. - 192 of 2007)  

it was observed by the court in para 7

“......Further, technicality has been inserted by learned Civil Judge that in the plaint not only a declaration for civil death should have been sought, but she should have sought further declaration claiming rights as have been mentioned in para-6 of the plaint and since such declaration has not been sought, therefore, the plaintiff is not entitled to any relief.”

the court observed in para 18

“It has been arbitrarily held by the learned Civil Judge (Senior Division) that the plaintiff was obliged to seek any other declaration in regard to claims of service benefits in addition to the declaration of civil death.”

In the above case, the declaration of civil death was sought by the plaintiff so that she can produce the same before the appropriate authority for compassionate appointment in place of her husband and also for the payment of provident fund, employees welfare scheme and other service benefits along with pension be extended in favour of the plaintiff.

Here I found my duty to mention that By its 9th Amendment Rule, 2011( No. 6/XII-1973-Personnel-2-2011 T.C. - IV dated Lucknow, December 22, 2011), The U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, has been amended and a sub-clause (iv) inserted to clause C of Rule 2 in The above Rules. By this insertion, the family members of missing government employees have also been included for the benefit of these Rules but the condition is that such missing person must have been declared dead by some competent Court.  

    Now say for example if in a case Mr. "A" a Government employee is missing for more than seven years and does not leave any other property for his son "B", except his residential house and there is no dispute regarding his son's title to his residential house as no one is denying or interested to deny B's title on such house. "B" finds himself eligible for compassionate appointment in place of his father named A," and he moves an application before the appropriate authority for such appointment. "B" institutes a suit for declaration of civil death of his father "A". will it be appropriate to reject his suit on the ground that a suit for mere declaration of civil death is not maintainable? if so it would be an injustice done by the court itself, and the very purpose to establish Civil Courts in the State would be frustrated.  

The next situation may be that in the above example, there is agricultural land left by Mr. "A" and his son "B" Moves an application before the revenue authority for mutation or declaration of title on such land on the basis of a presumption under section 108 of Evidence Act, and the Revenue court denies to presume and asks to produce a decree of civil court regarding the status of his father. Can a civil court deny to entertain such a suit by saying that a suit for mere declaration of civil death is not maintainable? if so it would again be an injustice done to the plaintiff.

Here I would like to mention the case of Renu Chauhan vs the State Of U.P. And 3 Others decided on 3 January 2020 (WRIT - C No. - 43102 of 2019) where the grievance of the petitioner was that in the revenue records, the name of one Surendra Pratap Singh was entered. His whereabouts had not been heard of for many many years and, therefore, the petitioner had moved this petition saying that the presumption of civil death of Surendra Pratap Singh is necessary to be raised and accepted. On the basis of such presumption, the revenue entries are liable to be modified. Hon'ble Allahabad High Court has held that "In my considered opinion, in case the petitioner feels that Surendra Pratap Singh is liable to be declared to have died a civil death, she may seek a declaration in this regard from the Court of competent jurisdiction. Only thereafter would the revenue entry be liable to be corrected/modified."

 Now I would like to conclude that where the concerned civil court is not competent to give any further relief other than a mere declaration of civil death, due to its lack of jurisdiction on the subject matter, the plaintiff need not seek such further relief and he or she can institute a suit for a mere declaration of civil death.

Declaration of Civil Death  and The Plenary Jurisdiction  of Civil Court

The remedy of declaration of civil death under the provisions contained in Section 107 and 108 of the Indian Evidence Act is related to the public interest and for the welfare of people.  The view that section 34 of the Specific Relief Act, 1963 is exhaustive of all kinds of declaratory reliefs and that a declaratory suit can be maintained within the scope and ambit of this provision alone has long been rejected.

Supreme Court in Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy 1967 AIR 436, 1966 SCR 270 observed, "In our opinion Section 42 of the Specific Relief Act  is not exhaustive of the cases in which a declaratory decree may be made and the courts have the power to grant such a decree independently of the requirements of the section." Supreme Court further observed that declaratory reliefs falling outside the Specific Relief Act may fall under the general provisions of the Civil Procedure Code, like section 9 of Order VII Rule 7. This was reiterated in Supreme General Films Exchange Ltd. v. H.H. Maharaja Sir Brijnath Singhji Deo 1975 AIR 1810, 1976 SCR (1) 237, wherein it was observed, "The result is that Section 42 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 42."

In Ganga Bai v. Vijai Kumar, AIR 1974 SC 1126 para 15 it has been held as follows:

 ―There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one‘s peril, bring a suit of one‘s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit.

  The above portion has been quoted with approval in Abdul Gafur v. State of Uttrakhand AIR 2009 SC 413 (para 14). The same thing has been held in Shiv Shakti Co-operative Housing Society v. S. Developers AIR 2003 SC 2434 (para 17).

 To Conclude I would like to submit that there is no statutory bar to institute a civil suit for a mere declaration of civil death. a declaratory decree may be made and the courts have the power to grant such a decree independently of the requirements of section 34 of the specific relief act. the relief for declaration of civil death is actually a separate,  distinct and extraordinary relief in an extraordinary situation of the plaintiff. A civil suit for declaration of civil death is maintainable before the court of competent jurisdiction. The courts should always adopt a pragmatic approach in these cases. 

    It is often argued that what will happen in case after such declaration that person comes back being alive? But this question was well answered In the case of District Judge Hardoi vs Saurabh Kumar SPECIAL APPEAL No. - 767 of 2012 Order Date:- 21.7.2014,  Hon’ble Allahabad High Court has held that ordinarily, in case it is found that a person is missing for more than seven years, then the statutory provisions under Sections 107 and 108 should be given effect. The right flowing from statutory provisions may not be taken away on a presumption based on the unfounded ground. What will happen in due course of time in case the statutory provision is implemented affects adversely should be looked into by the Legislature and not by the Courts.

What are the Essential Considerations to be looked into by the Court While deciding a case for declaration of Civil Death?

 Now let us focus on the essentials of such suit, which are as follows:-                                          

1: Cause of Action 

There is no definition of "cause of action" in the Civil Procedure Code, but it is the fundamental pivot around which many of the provisions of the Civil Procedure Code revolve. It is the basis for the maintainability of the suit. "cause of action" means the bundle of essential facts which is necessary for the plaintiff to prove before he can succeed in the suit. Or to put it differently, it refers "to the media upon which the court arrived at a conclusion in his favour." To define it is comparatively easier but to apply it to the facts of each case is more difficult. It includes facts and circumstances that forced the person to prefer a civil suit and to approach the court. 

A cause of action means every fact, which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts that are taken with the law applicable to them that gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a fight to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. (A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem 1989 SCR (2) 1.

In Rajasthan High Court Advocates Association V. Union of India & Ors, 2001 (2) SCC 294, the Hon'ble Supreme Court observed that "The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court."

Only the fact of "missing a person" alone will not constitute a cause of action. In every suit for declaration of statutory fiction of civil death, the plaintiff will have to mention all those facts and circumstances that forced him to prefer a civil suit and to approach the court. for example, if there is any right of the plaintiff, the enforcement of which depends only on such declaration of civil death, the plaintiff must state of such rights or liability in his plaint. In other words, In a suit for declaration of civil death, the plaintiff must state the purpose for which such declaratory decree is required, he must state the legal right whose enforcement is dependent on such declaratory relief. If such a legal right can be enforced by the decree of a civil court then the plaintiff should ask relief for such decree also along with the declaration of civil death.

2.: The Expiry Of Seven Years

The presumption as to death cannot be raised before the expiry of seven years. It cannot be raised even if the period of seven years falls short by one or two days. In LIC of India v. Anuradha, AIR 2004 SC 2070, the Supreme Court held that the presumption as to death by reference to Section 108 would arise only on the expiry of seven years and would not by applying any logic or reasoning be permitted to be raised on the expiry of 6 years and 364 days or at any time short of it. 

Allahabad High Court in the case of  Vivek Kumar Verma vs Uttar Pradesh Rajya Vidyut … decided on 4 December 2019 (WRIT - A No. - 19124 of 2019) held that:-

"The presumption of death under Section 108 would be available if a person has not been seen for a period of 07 years by those who would have naturally heard of him if he had been alive. For presumption of death to arise under Section 108 of the Act of 1872 two facts must be entertained. Firstly, it has to be ascertained as to what is the last date when such a person is seen last. Secondly, it must be established that a period of 07 years has expired since such a person is seen last by those who would have naturally heard of him."

Therefore, the expiry of the full period of seven years is essential to raise the presumption under Section 108 of the Evidence Act. the plaintiff must state in his plaint the circumstances and time or date/Month, year of missing of the deceased for enabling the court to calculate the expiry of seven years for the purpose of presumption under section 108 of the Evidence act. In another word the expiry of seven years is the fact which must be proved to get such relief.

3.: Persons Who Would Naturally Have Heard Of Him If He Had Been Alive.

the plaintiff must state about the persons best known to him who would naturally have heard of the deceased if he had been alive. In the ordinary course, all the members of the family are presumed to be such persons. the residents near the place of residence of the deceased before he went missing, his friends or colleagues at his workplace could be the persons who would naturally have heard of him if he had been alive. the plaintiff should produce such persons as witnesses to prove such fact before the court. A copy of the "Kutumb Register" is also an important document to ascertain the family members of the deceased.

It would also be of good help if a publication is issued by the court inviting objection from the general public if any in this regard.

 

The Examples Of The Operative Decree Of Civil Death In various Judgements:-

following decree passed by the Hon'ble courts could be taken as an example of the language and format of the operative part of the decree for declaration of civil death:-

1. "it is declared that the husband of the plaintiff namely, Sri Govind Prasad Sharma son of Late Devendra Prasad Sharma who was employed in the Office of D.R.M., Jhansi Division, Jhansi is dead and his death is civil death as he is missing from 09.02.1993 is not heard of till the date of filing of the application in 2002. It is directed that the competent authority issue a death certificate on the basis of the declaration issued in favour of the appellant."

                                                                   

2. Suit of the plaintiff is decreed in the following terms: (a) A decree of declaration that Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur (husband of the  - plaintiff Ms Veerbala Mathur) died a civil death is hereby passed. The concerned department/EDMC shall issue a Death Certificate qua death of Sh. Kameshwar Dayal @ Kameshwar Dayal Mathur (husband of - plaintiff Ms Veerbala Mathur). His date of death shall be taken to be the date of this judgment, that is, 16.04.2021. (b) A mandatory injunction is hereby issued to DDA to complete and process the freehold conversion of C­40, East End Apartments, Mayur Vihar, Delhi - 96 as per the applicable rules and regulations, and (c) Parties shall bear their own costs. A decree sheet be drawn up.

***********

Rajneesh Mohan Verma

Dy Director JTRI Lucknow

Disclaimer: This article is based on the research and personal Understanding of the Author. It is only for academic purposes and readers are not expected to follow or rely on the opinion of the author. they can form their own opinion. It is also made clear that this web page belongs to the author only and it has nothing to do with any organisation or Institution or working place of the author.

Rajneesh Mohan Verma

       

The jurisprudence of Cognizance, Inquiry and Summoning in Complaint Case:

     It is easy to read and understand the procedure of the criminal justice delivery system, but it is often seen that due to lack of experience or ignorance of the facts or a casual approach in the judicious application of mind results in injustice to the parties or persons in the society. Summoning an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.

Hence, It is the duty of the court to ascertain the truth or falsehood of allegations made in the complaint and whether on the material placed by the complainant a prima-facie case is made out for summoning the accused or not. In this article, I have tried to make it easy to understand the concept and the Jurisprudence of cognizance, inquiry, and summoning of the accused in a complaint case. I hope This Article will make the readers understand the settled law and Jurisprudence on the Topic of this article. 

Key  Words:- cognizance, Inquiry,  investigation, Prima facie case, sufficient grounds.

General Practice:

 As a general practice in the Courts of State of Uttar Pradesh When the complaint in writing is filed in the Court, the magistrate after perusal of the complaint registers it, and after registering it, the statement of complainant u/s. 200 Cr.P.C. 1973 is recorded on the same day and the case is fixed for recording evidence of the witnesses of the complainant under section 202 of the Code of Criminal Procedure, 1973 any other day. After recording evidence u/s 202 Cr. P.C of the witness or witnesses, as the case may be, the case is fixed for arguments on summoning. Having heard the arguments on summoning, the case is fixed in order on summoning. If the Magistrate finds or satisfies that prima facie offence is made out against the accused the Magistrate issues process u/s 204 of the Cr.P.C. 1973 against the accused. On the other hand, if the Magistrate satisfied after perusal of evidence u/SS. 200 and 202 Cr. P.C, 1973 that no prima facie offence is made out and there is no sufficient ground for proceeding, he dismisses the complaint u/s 203 Cr.P.C. 1973. There is no illegality in this general practice, But as per provisions of Chapter XV of the Code of Criminal Procedure,1973, the procedure and jurisprudence up to summoning in a complaint case are quite different. Everyone should know the basic concept of cognizance, the object of inquiry and settled principles on Summoning the accused in a complaint case. Let us understand the basic concept of Cognizance, inquiry and summoning.

Meaning of Complaint In a Criminal Case:

The Complaint is defined in Section 2(d) of Cr.P.C., 1973. As per this section, The Complaint means any allegation made verbally or in writing to a Magistrate, to take action under this Criminal Procedure Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report or statement.

The essentials of a valid complaint are that; a complaint requires an allegation of the commission of an offence by the offender. The complaint can be oral or in writing. The complaint must be made to a Magistrate. The complaint should be made with the intention to take action by the Magistrate.

Cognizance:

What is meant by taking Cognizance? In fact, 'cognizance' or the words 'taking cognizance' has not been defined in the procedural law. It is derived definite connotation from a number of judicial pronouncements.

ITS PLAIN  AND DICTIONARY   MEANING  IS 

'taking note of',

'taking account of',

'to know about, 

  'to gain knowledge about,

  'awareness about certain things etc.

In the language of the Hon'ble Apex Court employed in its decision (  R.R.Chari v. State of U.P.  AIR 1951 SC 207), "taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate as such applies his mind to the suspected commission of the offence".

At the stage of taking cognizance of a case, what is to be seen is whether there is sufficient ground for taking judicial notice of an offence with a view to initiating further proceedings. 

In S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. And Ors. : (2008) 2 SCC 492, it has been held as follows:

“The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by someone.”

"Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to the commencement of criminal proceedings. The taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender.

Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."

At what stage the magistrate is said to have taken cognizance in a complaint case?

Most of the time there is confusion about the stage of cognizance in a complaint case. It is very much important to understand that at what stage the magistrate is said to have taken cognizance of the offence in a complaint case? Sections 195 to 199 of the Code of Criminal Procedure,1973 and certain special acts impose pre-conditions and riders on taking cognizance of offences mentioned therein. Therefore, to avoid the violation of these provisions it is important to know the basic concept and jurisprudence of cognizance in a complaint case.

let us see what section 200 Cr.P.C. says about it.

S. 200. Examination of the complainant. A Magistrate taking cognizance of an offence on the 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: 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 complaint; 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.

The phrase " A magistrate tacking cognizance of an offence on the complaint shall examine upon oath the complainant and witnesses present," used in section 200 Cr.p.c., indicates that the proceeding under this section starts only when the magistrate has taken cognizance of the offence.

In The case of Narayandas Bhagwandas Madhavdas v. The State of West Bengal AIR 1959 SC 1118 it was held that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. It was also observed that what Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations.

In the case of State of West Bengal v. Mohd. Khalid & Ors. (1995) 1 SCC 684 the Court after taking note of the fact that the expression cognizance had not been defined in the Code held:-

"......... In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence and taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."

The Hon‘ble Supreme Court has held in the case of Madhu Bala vs. Suresh Kumar and others, 1997 Cr. L.J. page 3757 (S.C.) that if a written complaint regarding commission of a cognizable offence is filed before a Magistrate, the Magistrate has the power to direct the police to register the case. On the other hand, he may take cognizance upon the same under section 190(1) (a) of the Code of Criminal Procedure, 1973 and proceed with the same in accordance with the provisions of chapter xv of the Code.

The Hon‘ble Supreme Court has held in the case of CREF Finance Ltd vs Shree Shanthi Homes Pvt. Ltd. & Anr, 2005 Cr.L.J.4525 SC as under-

“In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of statement of the complainant on 01.06.2000. Even if we assume, though that is not the case, that the words "cognizance taken" were not to be found in the order recorded by him on that date, in our view that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage and proceeds further in the matter, it must be held to have taken cognizance of the offence. 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 a 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. It may also be that having considered the complaint, the Court may consider it appropriate to send the complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertain-able by that Court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry.”

In the case of State of Karnataka and Another Vs. Pastor P. Raju (2006) 6 SCC 728 The Court has held that “The heading of Chapter XIV of Code of Criminal Procedure is "Conditions Requisite For Initiation Of Proceedings".The very first Section in the said Chapter, viz., Section 190 lays down how cognizance of offences will be taken by a Magistrate. However, the word "cognizance" has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word "cognizance" is - 'judicial hearing of a matter. The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earliest decision of this Court on the point is R.R. Chari v. State of U.P. AIR 1951 SC 207, wherein it was held:-

"Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence." It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent 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.”

The Hon‘ble Supreme Court has held in the case of Madhao v. the State of Maharashtra, 2013 (82) ACC 378 (SC) that - "When a magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself”

In the case of Irshad Khan and Others vs. the State of U.P. and another, 2014 (84) A.C.C. 95 (All.) Hon'ble Allahabad High Court has held as under-

“In a complaint case on receipt of a complaint and on its perusal, if the Magistrate is satisfied that the complaint discloses a commission of offence he may proceed further.It must be held to have taken cognizance of an offence under Section 190 (1) (a) of the Code. The Magistrate is not bound to take cognizance if he is of the opinion that the complaint did not disclose the commission of any offence and in such a situation the Magistrate shall dismiss the complaint at the threshold. However, once he takes cognizance he must examine upon oath the complainant and his witnesses under Section 200 of the Code.”

To Conclude we can say that in various pronouncements of the Hon'ble Supreme Court and the High Court, It is now well-settled that when a complaint petition is filed before a magistrate, the question of whether he can be said to have taken cognizance of the offence alleged in the complaint under S. 190(1) (a) depends upon the purpose for which he applies his mind to the complaint. If the magistrate applies his mind to the complaint for the purpose of the proceeding with the complaint and decides to examine on oath the complainant, he must be held to have taken cognizance of the offences mentioned in the complaint, but on the other hand, if he applies his mind to the complaint not for any such purpose but only for the purpose of ordering an investigation or for issuing a search warrant, he cannot be said to have taken cognizance of the offence. Summoning in a complaint case is a post cognizance and post inquiry stage.

The Procedure To be Adopted When a Complaint is Filed:-   

U/s. 200 of the Code, it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present if any, at sufficient length to satisfy himself. The object is to test whether allegations make out a prima facie case to assure the Magistrate to issue process u/s. 204 Cr. P.C, 1973. If the witnesses are present on the date of filing the complaint, their statement should also be recorded u/s. 200 Cr. P.C, 1973.

After recording statements and evidence of complainant and witnesses respectively u/s 200 Cr. P.C, 1973, the Magistrate has three options:-

1. He may issue process u/s 204 Cr. P.C, 1973 if prima facie offence is made out if the proposed accused is residing within the area to which the local jurisdiction of the Magistrate extends.

2. He may dismiss the complaint u/s. 203 of Cr.P.C., 1973, if no prima facie offence is made out and there is no sufficient ground for proceedings, or

3. He may postpone the issue of process pending a further inquiry by himself, or investigation by police or any other person as he deems fit u/s 202 Cr. P.C, 1973.

Hence, It is clear that section 200 of the Cr.P.C., 1973 requires not only the complainant, but also his witnesses present if any, should be examined. This section casts an imperative duty on the Magistrate to examine the witnesses as well.

Whether the statement of complainant u/s. 200 Cr.P.C., 1973 should be recorded on the same day?

It is expected that it should be recorded on the same day. The important Circular Letters of the Hon‘ble Allahabad High Court in this regard are as under-

C.L. No.6/Admin. (B)Dated 1, May 1971 provides as under- In every case the statement of the complainant u/s.200 Crpc 1973 be recorded on the same day, on which the complaint is made. Where for some good reason the statement cannot be recorded on the same day, it should be recorded on the following day. It should be ensured that the complainants do not have to come to the Court for this purpose and minimum inconvenience be caused to them.

C.L. No. 85/Ve-58 Admn. (G), dated 26th December 1981

Recording of statements under section 200 Cr.P.C.- All the statements under section 200 Cr.P.C. should be recorded by the magistrates themselves and should not be left to the clerks of the office or the Court. The practice of getting the statements under section 200 Cr.P.C. recorded by the clerks and merely putting signatures on them by the magistrates should cease forthwith.

C.L. No.53/2007 Admin (G) : Dated: 13.12.2007

The Hon‘ble Court has been pleased to observe that section 200 Cr.P.C. mandates that the substance of the information/statement only is required to be recorded by the magistrate which should be done by him in his handwriting as that would facilitate in pinpointing the controversy and check frivolous complaints. Therefore, in continuation of earlier Circular letter no. 6 Admin. (B) dated 1st May 1971, I have been directed to say that all the magistrates working under your administrative control may please be directed to record statements under section 200 Cr.P.C. in their own handwriting.

Hence, as per these above mentioned circular letters of the Hon‘ble Court, the statement of the complainant should be recorded on the same day by the Magistrate in his own handwriting except the situation mentioned in aforesaid C.Ls.

Tips to record statement U/S 200:-

1.Read the complaint carefully and make questions in your mind.
2.Administer the oath.
3.Take a step towards brainwashing. for example:-
(a) tell the complainant the Importance of telling truth.
(b) Gravity of oath.
(c) Adverse effects of malicious prosecution.
4. Never start directly with the event alleged in the complaint.
5. Try to find out the Relation with the proposed accused.
6. Try to find out and hit the rivalry if any between the complainant and proposed accused.
7. Focus on How weapons were used if alleged in the complaint.
8. Medical & injury.
9. Never ask directly the date of the event and time, ask it in a different way.
10.Change the sequence of your questions in each and every matter.

Is there any category of persons exempted from examination under Section 200 Cr. P.C and if so, who are they?

The answer is Yes. The following are those persons:-

(i) A public servant acting or purporting to act in the discharge of his official duties by virtue of Clause (a) to the 1st proviso to Section 200 Cr.P.C. All offences covered by Section 195 (1) (a) Cr.P.C. and committed by persons before “public servants” can be taken cognizance of only on the complaint of the public servant concerned. There are other non-police officers acting under various statutes who can file only complaints before the criminal Court. Such officers are also taken in by the expression “public servant”. (vide Clause (a) of the proviso to Section 200) 

(ii) A Magistrate who makes over the case for inquiry or trial to another Magistrate under Section 192 Cr. P.C also is exempted from examining the complainant and the witnesses. (vide Clause (b) of the proviso to Section 200) 

(iii) A Court which has preferred a complaint, is exempted from examination of the complainant and the witnesses. Persons committing offences covered by Section 195 (1) (b) Cr.P.C. can be prosecuted only by the Court concerned by means of a private complaint. (vide Clause (a) of the proviso to Section 200)

Now the question may arise as to Whether the accused can be summoned on the sole basis of statements and evidence u/s. 200 Cr.P.C., 1973? Whether enquiry u/s,202 is mandatory?

As per, the language of 200 Cr.P.C. 1973, it is clear that the statement of complaint u/s 200 Cr.P.C. and the evidence of witnesses present, if any, should be recorded on the date of institution of the complaint. The process can be issued directly against the accused person on the sole basis of statements and evidence recorded under section 200 Cr. P.C.1973, if prima facie offence is made out as per statements/evidence available under section 200 of the Code except for the cases where the proposed accused person resides out of the local limits of the jurisdiction of the Magistrate as per new amendment in section 202 of the Code in the year 2005. If the proposed accused person resides out of the local limits of the Court, it is mandatory for the Magistrate or the Court, as the case may be, to make an inquiry as required under section 202 of the Code. Hence, it will not be out of place to mention section 202 of the Code (as amended in the year 2005). Amended section 202 of the Code states as under-

S. 202- Postponement of issue of processes-

(1)Any magistrate on the receipt of the complaint of an offence of which he is authorized to take cognizance of which has been made over to him under section 192, may if he thinks fit and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction 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 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 u/s. 200.

2.In an enquiry 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 the Code on an officer in charge of a police station except the power to arrest without warrant.

Hon‘ble Karnataka High Court has expressed its view in the case of V.N.Talwar vs. Lakasha Maiya, 1989Cr.L.J. (NOC) 96 that process can be issued against the accused on the statement of the complainant without the evidence under section 202 of the Code. 

In the case of "Birla Corporation limited Vs. Adventz Investments and Holdings 2019 (16) SCC 610" the Hon'ble Supreme Court has held:-

“Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of the process as contemplated under Section 204 Cr.P.C. The purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused. ...Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused. By Cr.P.C. (Amendment) Act, 2005, in Section 202 Cr.P.C. of the Principal Act with effect from 23.06.2006, in sub-section (1), the words “…and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction…” were inserted by Section 19 of the Criminal Procedure Code (Amendment) Act, 2005. In the opinion of the legislature, such an amendment was necessary as false complaints are filed against persons residing at far off places in order to harass them. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire."

In the case of Omprakash And 3 Others vs. the State of U.P. decided on 10 Feb 2021 [APPLICATION U/S 482 No. - 35542 of 2017] Hon’ble Allahabad High Court has held-

“As issuance of process to the accused calling upon him to appear in the criminal cases is a serious matter, the law imposes a serious responsibility on the Magistrate to decide, if, there is sufficient ground for proceeding against accused persons in general, and the law further imposes a mandate to hold an enquiry under Section 202 Cr. P.C, if the accused is residing at a place beyond the area of exercise of jurisdiction of the concerned Magistrate. Issuance of the process is not to be mechanical nor can it be made an instrument of harassment to the accused."

Hence, as per the above-discussed provisions and case laws cited above, a process can be issued against the accused persons on the sole basis of statements and evidence recorded under section 200 of the Code or the magistrate may postpone the issue of process and inquire U/s. 202 to find out the truth. But, as per the new amendment under section 202 of the Code, (Amendment ActNo.25 0f 2005), in case the accused is residing at a place beyond the area in which he or it exercises his or its jurisdiction it is mandatory for the Magistrate or the Court, as the case may be, to hold the inquiry by himself or itself for the purpose of deciding whether or not, there is sufficient ground for proceeding.

What is the Mode or Manner of enquiry U/S. 202 Cr. P. C.?

As provided under section 202 Cr.P. C., the magistrate may enquire himself or direct an investigation, but there is a restriction that if it appears to the magistrate that the case is exclusively triable by the court of session, he shall not order for investigation and he will have to enquire himself. A bare perusal of section 202 shows that there is no specific mode of enquiry for this purpose. Section- 202 (2) of the Code of Criminal Procedure, 1973 provides that In an inquiry under subsection (1) the magistrate may if he thinks fit, take evidence of witnesses on oath.

In the case of "Vijay Dhanuka etc Vs. Nazima Mamtaj etc reported in 2014 (14) SCC 638" Hon'ble Supreme Court has held that: "The word "inquiry" has been defined under Section 2(g) of the Code, the same reads as follows: "2. (g) ''inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court;" It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas, under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 202 of the Code."

In the case of "Birla Corporation limited Vs. Adventz Investments and Holdings 2019 (16) SCC 610" the Hon'ble Supreme Court has held: "The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether the process should be issued or not under Section 204 Cr.P.C. or whether the complaint should be dismissed by resorting to Section 203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses if any. At the stage of enquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused.”

In "National Bank of Oman Vs. Barakara Abdul Aziz reported in 2013 (2) SCC 488" the Hon’ble Supreme Court held:-The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether the process has to be issued or not. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of 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 the 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 Chandra Deo Singh ­vs­ Prakash Chandra Bose alias Chabi Bose reported in AIR 1963 SC 1430, the Supreme Court has held that "the object of section 202 of Criminal Procedure Code is to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view' to prevent the person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind that provision and it is to find out what material is there to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protecting the interests of an absent accused person, but also with a view to bringing to book a person or persons against whom grave allegations are made. An enquiry under section 202, Criminal Procedure Code can in no sense be characterized as a trial."

Hence it is clear that No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined and in an appropriate case, the investigation is ordered The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether the process has to be issued or not. If only witnesses are examined with a view to find out the truth that may be sufficient for the requirements of this section. In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881. a Five Judge Bench Of Hon’ble Supreme Court Order dated 16th April 2021 Hon’ble Court has held:- On a holistic reading of Section 145 NI Act along with Section 202 Cr.P.C., we hold that Section 202 of the Code is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202.

Whether the Court can summon any document at the stage of inquiry under section 202 Cr.P.C. 1973?

As per statutory provisions of section 202 Cr. P.C, there is no specific mode of enquiry. As held by Hon'ble Apex court in so many pronouncements that this stage is only an enquiry. Section 91 of the Code gives jurisdiction to summon any document in any enquiry. section 91 Cr.P.C. provides as under--

S.91- Summon to produce the document or other things-

(1). Whether any court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for purpose of any investigation, inquiry, trial or other proceedings under this code by or before such court or officer, such court may issue a summon, or such officer a written order, to the person whose possession or power such document or thing is believed to be requiring him to attend or to produce it at the time and place stated in the summons or order.

The procedure provided, u/s 202 Cr.P.C. 1973 is an inquiry. Hence, the Court can summon any document at the stage of inquiry u/s 202 Cr.P.C. 1973 as per power conferred by S.91 of the Code of Criminal Procedure, 1973.

Whether the Court has the power to summon any witness or person as a witness at the stage of inquiry u/s 202 Cr. P.C.,1973?

Section- 202 (2) of the Code of Criminal Procedure, 1973 provides as follows-

S.202 (2) - In an inquiry under subsection (1), the magistrate may, if he thinks fit, take evidence of witnesses on oath.

As per the above provisions Read with section 311, there is the power to summon, any witness for examination u/s 202 Cr. P.C 1973. section 311 of Cr. P.C, 1973 provides as under-

S. 311- Power to summon material witness, or examine the person present-Any Court may, at any stage of inquiry, trial or other proceedings under this code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine and recall and re-examine any such person if his evidence appears to it essential for the just decision of the case.

The stage of section 202 Cr.P.C.1973 is an inquiry. The Hon‘ble Kerela High Court has held in the case of Thirkan vs. Sukumaran, 1981 Cr.L.J. 1162 (Kerala) that the Magistrate may summon the witness u/s 202 Cr. P.C 1973. As per case law Rosy and Another vs. the State of Kerela, ACC 2000 (40)page444 (S.C) the Magistrate can issue summons at the stage of S. 202 Cr. P.C 1973.

What options are available to a Magistrate at the stage of section 202 of the Code?

As per the provision under Section 202, it is crystal clear that the Magistrate has the following options:-

1-The Magistrate may inquire the matter himself and if he inquires the matter himself, he may record the statements of the witnesses on oath, or

2- He may direct an investigation to be made by a police officer, or

3- He may direct an investigation to be made by such person other than a police officer.

But, the Magistrate has to opt for one of the options (out of three options). He cannot follow all the options. But, when a complaint is filed against the accused where the accused is residing at a place beyond the area in which he exercises his jurisdiction, inquiry under section 202 of the Code is mandatory.

In the case of Irshad Khan and Others vs. State of U.P. and another, 2014 (84) A.C.C. 95 (All.) Hon'ble Allahabad High Court has held that: "It is worth mentioning here that as per the scheme of Section of 202 of the Code where the Magistrate has postponed the issue of process against the accused, he either enquired into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. Manifestly, as per the scheme of Section 202 of the Code although the Magistrate has discretion either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit but certainly it is not open to the Magistrate to enquire into the case himself and thereafter direct an investigation to be made by a police officer. The word ''or' is very significant which simply mean that the Magistrate while postponing the process under Section 202 of the Code may adopt only one mode either to enquire himself or direct an investigation to be made by the police officer or by such other person which certainly means that the Magistrate cannot adopt all the three modes simultaneously. (See also: Gauri Shanker Sawhany vs. the State of U.P., 2012 (77) A.C.C.141All.)

Hon‘ble Supreme Court in case of Bhagat Ram v. Surinder Kumar and others, 2005 (2) SCC 95, held in paragraph 4:-

“It is clear from the perusal of the order made by the learned Magistrate that he has not done anything other than to comply with the provisions of section 202(1) of the Code of Criminal Procedure, that after examining the complainant and his witnesses(u/s 200), he found that it was necessary to further probe into the matter and, therefore, directed investigation to be done by the police and after the investigation was done by the police and on the report being filed by them, he heard the matter afresh and directed issue of summon. We find that the procedure adopted by the learned Magistrate is perfectly in order. The Hon‘ble Apex Court has further held in this paragraph that the Magistrate has power under section 202(1) of the Code of Criminal Procedure to direct investigation and in the meanwhile, he may postpone the issue of process against the accused by adopting one of the courses mentioned in section 202(1)”.

To conclude we can say that the magistrate should adopt one course at a time for enquiry under section 202 Cr. P. C.,. This is the reason we advise to examine witnesses of the complainant at the very beginning u/s. 200 cr. p. c. along with the complainant, and keep the option open for investigation u/s. 202 if required in the fact and circumstances of the case.

What is the Nature of Investigation under section 202 Cr.P.C.?Whether the police can register FIR for investigation as ordered U/S.202 Cr.P.C.?Whether complainant can file a protest petition against the report submitted by the police officer after conducting an investigation U/S.202?

The Magistrate while dealing with a Complaint filed U/s. 200 Cr. P.C under Chapter XV empowered U/s. 202 Cr. P.C to direct an investigation to be made by a Police Officer or by such other persons as he thinks fit, for the purpose of deciding whether or not, there is sufficient ground for proceeding U/s. 200 Cr.P.C. The power U/s.156(3) Cr.P.C. covered in Chapter XII, to direct an investigation by the police authorities is at the pre-cognizance stage and the power to direct a similar investigation U/s. 202 Cr. P.C is at the post cognizance stage. Usually, on receipt of the Order from Magistrate U/s. 156(3) Cr. P.C, the police will register an FIR and then proceed with the Investigation. Rather, when he received an order from a Magistrate U/s. 202 Cr. P.C, there need not be an FIR, prior to investigation. The Investigation U/s. 156 (3) Cr. P.C and Sec. 202 Cr. P.C are different in nature. The order of Investigation U/s. 156(3) Cr. P.C culminated with a final Report U/s. 173 Cr.P.C. The Order U/s. 202 Cr. P.C culminates with a Report U/s. 202 Cr.P.C. The Magistrate on receipt of a complaint is bound to apply his judicial mind and take a decision as to whether he should take cognizance of the offence under Section 190 of the Code or order for an investigation under Section 156(3) of the Code or in cases not falling under the proviso to Section 202, order an investigation by the police which could be in the nature of an enquiry as contemplated by Section 202 of the Code. (See - Ajai Malviya vs State Of U.P. and others - 2001 CriLJ 313 )

In Rameshbhai Pandurao Hedau Vs. State Of Gujarat [ (2010) 4 SCC 185 ], the Apex court discussed the scope of Sec. 156(3) and 202 Cr. P.C and held as under:

"The inquiry contemplated under Section 202(1) or investigation by a police officer or by any other person is only to help the Magistrate to decide whether or not there is sufficient ground for him to proceed further on account of the fact that cognizance had already been taken by him of the offence disclosed in the complaint but issuance of the process had been postponed. The power to direct an investigation to the police authorities is available to the Magistrate both under Section 156(3) Cr.P.C. and under Section 202 Cr.P.C. The only difference is the stage at which the said powers may be invoked. As indicated hereinbefore, the power under Section 156(3) Cr.P.C. to direct an investigation by the police authorities is at the pre-cognizance stage while the power to direct a similar investigation under Section 202 is at the post-cognizance stage. The learned Magistrate has chosen to adopt the latter course and has treated the protest petition filed by the Appellant as a complaint under Section 200 of the Code and has thereafter proceeded under Section 202 Cr.P.C. and kept the matter with himself for an inquiry in the facts of the case. There is nothing irregular in the manner in which the learned Magistrate has proceeded and if at the stage of Sub-section (2) of Section 202 the learned Magistrate deems it fit, he may either dismiss the complaint under Section 203 or proceed in terms of Section 193 and commit the case to the Court of Sessions. "

Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to make a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation under Section 202 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." AIR 1976 S C 1672 (Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy): AIR 2009 S C 2932 (Kishan Lal v. Dharmendra Bafna):

In its recent judgment in the case of Nitin Jaiswal vs State Of U.P. And Another on 5 August 2019 (APPLICATION U/S 482 No. - 25560 of 2019), Hon'ble Allahabad High Court has held that:

"It is also clarified at this stage that calling of investigation report under Chapter XV CrPC from the police during enquiry is different with the investigation done under Chapter XII CrPC. Under Chapter XV CrPC investigation report is submitted only to aid the Magistrate concerned and lodging of F.I.R. at this stage is barred."

It has been held by Allahabad High court in the case of Irshad Khan and others, vs. State of Uttar Pradesh and another, 2014 (84) ACC 95. that "The investigation under Section 202 of the Code is ordered after taking cognizance of the offence but the investigation under Section 156 of the Code by the police is at a pre-cognizance stage. The scope of investigation by the police officer as referred in Section 202 of the Code is of a limited purpose and is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further on the complaint made to him under Chapter XV of the Code. Thus, on the report submitted by the police officer that no incident as alleged in the complaint had taken place or that the accused had not committed the offence, the Magistrate may take his own decision as to whether there is sufficient ground for him to proceed further or not. Certainly, on submission of a report by the police officer would not give rise to any right to the complainant to file a protest petition against the report submitted by the police officer after conducting an investigation under Section 202 of the Code. Thus, the report of the police officer so directed under Section 202 of the Code cannot be challenged by filing a protest petition as has been done in this case."

    To conclude we can say that It is well settled that the Nature of investigation mentioned under section 202 is different from the investigation under section 156 Cr.p.C. The investigation under section 202 is a post cognizance investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding". Thus the object of an investigation under Section 202 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. Hence No FIR is to be registered on the basis of an order for investigation under section 202 Cr.P.C. . Certainly, on submission of report by the police officer would not give rise to any right to the complainant to file a protest petition against the report submitted by the police officer after conducting an investigation under Section 202 of the Code. Thus, the report of the police officer so directed under Section 202 of the Code cannot be challenged by filing a protest petition.

Whether the complainant can be called upon to produce all his witnesses and examine them on oath in the complaint exclusively triable by the Court of Session?

Proviso to section 202 (2) of Cr. P.C,1973 provides as under -

“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 complaint to produce all his witnesses and examine them on oath.”

Hon‘ble Supreme Court has held in case of –Rosy and another vs. State of Kerela and others, ACC 2000 (40) 444 (SC) that compliance of proviso to subsection(2) of section 202 Cr. P.C 1973, in all session triable cases, is not necessary (must). It would not vitiate further trial unless prejudice is caused to the accused. Inquiry u/s 202of Cr. P.C.,1973 is itself discretionary. The mandate of the proviso is not absolute.

The Hon‘ble Apex Court has held in the case of Shivjee Singh vs. Nagendra Tiwary and others, A.I.R. 2010 SC 2261(2010Cr.L.J. 3227 SC) that the provisions of the Code of Criminal Procedure,1973, are procedural, violation of any provision, if it does not cause prejudice to the accused, it has to be treated as directory despite the use of the word “shall”. In a complaint case triable by the Court of Session, examination of all the witnesses cited by the complainant is not mandatory under proviso to section 202 (2) of the Code of Criminal Procedure, 1973.

To conclude we can say that It is a general rule 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 complaint to produce all his witnesses and examine them on oath. But in a case where the magistrate has not complied with it, It would not vitiate further trial unless prejudice is caused to the accused. the test is "prejudice to the accused". this is the reason it is always advised to examine all the witnesses u/s. 202 in such cases.

What is a prima facie case or sufficient ground for issuance of process u/s.204(1) Cr.P.C.?   Whether the Court has to assign reasons in summoning order passed under section 204 of the Code or dismissal order passed under section 203 of the Code?

To Summon or not to summon the proposed accused, depends upon the result of the enquiry done by the court. It is important to mention here the provisions of 203 & 204 regarding summoning.

Section 203 of the Code provides as under-

If after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) u/s 202, the magistrate is of the 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.

Sub- Section(1) of Section 204 Provides as under-

204. Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

A bare perusal of the above provisions it is clear that summoning the opposite party as an accused is based on the satisfaction of the Court about the sufficiency of grounds to proceed further. In other words availability of a prima facie case is a must to summon the opposite party as an accused. Prima facie case means all essential ingredients of the offence are present as per statements/evidence recorded u/ss. 200 or 202 Cr.P.C.1973 or as per investigation report (if any) made by an investigation agency u/s 202 Cr.P.C. 1973. And in the facts and circumstances of the case event of crime seems to have happened in the matter.

For example–A complaint of the offence punishable u/s 379 of the Indian Penal Code, 1860 is filed u/s 190(1)(a) read with section 200 of the Code before a competent Magistrate or Court empowered to take cognizance.

As per the definition of theft, there are five essential ingredients of this offence which are as under-

1. The intention should be dishonest,

2. The property should be movable

3. That property should be taken out of the possession of any person

4. The property should be taken without that person‘s consent, and

5. In order to take that property there should be a movement from one place to another.

If all five essential ingredients mentioned above as per statement/evidence etc recorded u/ss. 200 or 202 of the Code, are present, and there is nothing to show that the allegations are false and frivolous, it shall be deemed that prima facie case for the offence punishable u/s. 379 of the Indian Penal Code, 1860 is made out. Sufficient ground for proceeding means a prima facie case is made out.

So for as the reasons in the order of the magistrate for dismissal of a complaint or for the summoning of the accused is concerned, the law is well settled. for dismissal of the complaint, section 203 Cr. P. C. mandates that the reasons must be recorded, but for the summoning of the accused reasoned order is not necessary but the order must reflect that the court has applied its judicious mind.

The Hon‘ble Allahabad High Court has expressed its view in judicial pronouncement Uday Pal Singh vs. State of U.P. and another, ACC 2000(40) page 711 that under section 204 of the Code of Criminal Procedure, 1973 to issue process, recording of reasons is not necessary, but the recording of reasons is necessary for dismissing the complaint under section 203 of the Code.

The Hon‘ble High Court has held in the case of Anand Kumar Porwal vs. the State of UP and another, 2011(1) ALJ (NOC) 117 Allahabad that under section 204 of the Code of Criminal Procedure,1973 for the summoning of accused reasoned order is not necessary.

In Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others (1998) 5 SCC 749, the 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:-

“28. Summoning 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 the charge home to the accused.

The Hon‘ble Supreme Court has held in the case of Nupur Talwar vs. C.B.I. and another, A.I.R., 2012 S.C.1921  that “if revision is filed against the order of issuing process against the accused, the Revisional Court can not go into the question, whether reasons given by Magistrate were good or bad, sufficient or insufficient. It can only see whether there was material before Magistrate to take a view that there was sufficient ground for issuing process. Order issuing process under section 204 of the code need not be reasoned. Absence of reasons, therefore, does not vitiate order.”

In Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr AIR 2012 S C 1747," the Apex Court has held that 

"10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for the issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for the summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."

In Sunil Bharti Mittal vs. Central bureau of investigation, AIR 2015 SC 923 Hon'ble Supreme Court has held that:

“Section 204 of the Code deals with the issue of process if, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to the commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of the inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue a process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is a prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.”

In the case of Prabhu Dutt Tiwari Vs. The State of Uttar Pradesh & Ors. [[Criminal Appeal No. 2113 of 2017 @ Special Leave Petition (CRL.) Nos. 10733 of 2015 Decided on December 07, 2017]

Citation: 2017 Latest Caselaw 872 SC; Hon'ble Supreme court has held that: "At the stage of summoning the accused on the basis of a private complaint all that is required is satisfaction by the Magistrate that there is sufficient ground to proceed against the accused in the light of the records made available and the evidence adduced by the complainant. Having gone through the order passed by the Magistrate, it is fairly clear that there has been the required satisfaction. The discussion by the High Court would give an indication that the Magistrate had to appreciate the evidence and then enter a finding as to whether the accused are guilty or not. At the stage of summoning, as already stated above, the satisfaction required for the Magistrate is only to see whether there is sufficient ground to proceed against the accused. Such a satisfaction for summoning an accused having been made out, the High Court went wrong in interfering with the summoning order. It was too early for the High Court to enter a finding otherwise. The impugned order is, hence, set aside.

To conclude we can say that the Prima facie case means all essential ingredients of the offence are present as per statements/evidence recorded u/ss. 200 or 202 Cr.P.C.1973 or as per investigation report (if any) made by an investigation agency u/s 202 Cr.P.C. 1973. and in the facts and circumstances of the case event of crime seems to have happened in the matter. The law is well settled that for dismissal of the complaint, section 203 Cr. P. C. mandates that the reasons must be recorded, but for the summoning of the accused reasoned order is not necessary but the order must reflect that the court has applied its judicious mind. the words "sufficient grounds for proceeding" appearing in Section 204 Cr.P.C. are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. Though the order need not contain detailed reasons, A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.

Whether the second complaint is maintainable if the first complaint has been dismissed in the absence of the complainant or otherwise under section 203 of the Code?

As per provisions of section 203 of the Code, the complaint cannot be dismissed in the absence of the complainant. In other words, we can say that there is no provision to dismiss the complaint in the absence of the complainant at this stage. If the complaint has been dismissed due to a mistake by the court or a Magistrate, the second complaint is maintainable on the same facts. However, when a Magistrate conducts an inquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances.  A second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance, if the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. If the earlier disposal of the complaint was on merits and in a manner known to the law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable.

The Hon‘ble Apex Court has held in the case of Pramoth Nath Talukdar vs. Saroj Ranjan Sonkar, AIR, 1962 SC 876 that an order of dismissal under section 203 of the Code of Criminal Procedure, 1973 in absence of the complainant is no bar to the entertainment of the second complaint on the same facts, but if it is dismissed on merit it will be entertained only in exceptional circumstances. The Court held that:

“Under Section 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202, of the 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 Section 203, of the 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, e.g., 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. Allah Ditto v. Karam Baksh AIR 1930 Lah 879 ; Ram Narain Chaubey v. Panachand Jain AIR 1949 Pat 256 ; Hansabai Sayaji Payagude v. Ananda Ganuji Payagude AIR 1949 Bom 384; Doraisami v. Subramania AIR 1918 Mad 484; . In regard to the adducing of new facts for the bringing of a fresh complaint, the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court or the Patna High Court in the cases above quoted and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobinda Das ILR 28 Cal 211 affirmed by a Full Bench in Dwarka Nath Mandal v. Benimadhas Banerji ILR 28 Cal 652 (FB). It held therefore that a fresh complaint can be entertained where there is a manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.”

In Jatinder Singh and Others vs. Ranjit Kaur, (2001) 2 SCC 570 the issue was whether the first complaint having been dismissed for default, could the second complaint be maintained. The matter was considered as under:- 

“9. There is no provision in the Code or in any other statute which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that “the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section”. However, when a Magistrate conducts aninquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance. … 

… … 12. If the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. There appeared a difference of opinion earlier as to whether a second complaint could have been filed when the dismissal was under Section 203. The controversy was settled by this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar”

It has been held in the case of Jai Ram and others v. State of UP & another; 2013 (82) ACC277 that there is no dispute regarding the maintainability of the second complaint as laid down in various pronouncements. Hon‘ble Supreme Court in the case of Pramoth Nath Talukdar and another vs. Saroj Ranjan Sonkar; AIR 1962 SC 876 has laid down that:

“There is nothing in law which prohibits the entertainment of a second complaint on the same allegations when a previous complaint had been dismissed under section 203 of the Code of Criminal Procedure, 1973. As however, a rule of necessary caution and of proper exercise of the discretion given to a Magistrate under section 204(1) of the Code of Criminal Procedure,1973,exceptional circumstances must exist for the entertainment of the second complaint on the same allegations; in other words there must be good reasons, why the Magistrate thinks that there is no “sufficient ground for the proceeding” with the second complaint, when a previous complaint on the same allegations was dismissed under section 203 of the Code of Criminal Procedure,1973.

The question now is what should be those exceptional circumstances? In Queen-Empress vs. Dalgobind Das(1)Maclean C.J. said “I only desire to add that No Presidency Magistrate ought, in my opinion, to rehear a case previously dealt with a Magistrate of coordinate jurisdiction upon the same evidence only unless he is plainly satisfied that there has been some manifest error or manifest miscarriage of justice‖. In the same decision, the Apex Court has also laid down the test to determine the exceptional circumstances which are-(1)-manifest error(2)-manifest miscarriage of justice, and (3)- new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings.

 The Hon‘ble Apex Court has expressed its view in the case of Poonam Chand  Jain and another vs.Farzru,2010(68)A.C.C.1004 S.C. that if the second complaint is filed on the almost identical facts as raised in the first complaint. The first complaint was dismissed on merits. The core of both the complaints was same.No case made out that despite due diligence, facts alleged in the second complaint were not within the application of the first complaint. No exceptional circumstances explained in the terms of Pramath Nath‘s case. The second complaint can not be entertained. This Court in Pramatha Nath made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In para 50 of the judgment, the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which is in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court, such a course is not permitted on a correct view of the law. 

In its recent judgement in the case of Samta Naidu & Anr. Vs. State Of Madhya Pradesh And Anr.: 2020 SCC OnLine SC 252- hon’ble Supreme Court has held in para 14.  that The application of the principles laid down in Taluqdar AIR, 1962 SC 876 and in Jatinder Singh(2001) 2 SCC 570 shows that “a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance”. It was further laid down that “if the dismissal of the complaint was not on merit but on default of the complainant to be present there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different”. To similar effect are the conclusions in Ranvir Singh (2009) 9 SCC 642 and Poonam Chand Jain (2010) 2 SCC 631. Para 16 of the Poonam Chand Jain also considered the effect of para 50 of the majority judgment in Talukdar AIR, 1962 SC 876. These cases, therefore, show that if the earlier disposal of the complaint was on merits and in a manner known to law, the second complaint on “almost identical facts” which were raised in the first complaint would not be maintainable. What has been laid down is that “if the core of both the complaints is same”, the second complaint ought not to be entertained. 

To conclude we can say that the law is well settled on the point. A second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance, if the dismissal of the complaint was not on merit but on default of the complainant to be present, there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits the position could be different. If the earlier disposal of the complaint was on merits and in a manner known to the law, the second complaint on “almost identical facts(if the core of both the complaints is same) ” which were raised in the first complaint would not be maintainable.  

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Rajneesh Mohan Verma