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
