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HOW TO MAKE A COMPLAINT TO MAGISTRATE

Complaint to Magistrate

Complaint is an allegation that a wrong has been done or a grievance suffered. According to Black’s Law Dictionary, a complaint is the initial pleading that states a civil action and states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, and the demand for relief.  The term ‘complaint’ is most generally used in law with reference to criminal proceedings are to be instituted. A petition addressed to the magistrate containing an allegation that an offence has been committed, and ending with a prayer that culprits be suitably dealt with amounts to ‘complaint’ under Section 2(d) of Code of Criminal Procedure (CrPC). As per this section, complaint is any allegation made orally or in writing to a Magistrate, with a view of his taking action under this code, that some person, whether known or unknown, has committed an offence, but does not include a police report. As mentioned above, ‘complaint’ includes even an oral allegation. However, there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take actions.

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Everyday experience of the court shows that complains are ill-founded very often. Thus, it is necessary that they should be scrutinized in the very beginning itself and those which aren’t found to be convincing should be subject to further scrutiny so that only in true cases court shall summon the accused person. As a matter of fact, an order summoning a person to appear in the court of law to respond to the criminal charges against him entails grave consequences. Thus, Sections 200 to 203 of CrPC have been enforced and enacted for the purpose of weeding out false complaints that are intended to harass the accused. Further, these sections are applicable only in the cases where cognizance has been taken on complaint under Section 190(1)(a) of CrPC, i.e., upon receiving a complaint of facts which constitutes such a complaint, and not under Section 190(1)(b) of CrPC, i.e., upon a police report of such facts.

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After receiving a complaint, a Magistrate has several options in front of him, like-

  • He may take cognizance of the offence so complained. If he does so, under S. 200 of CrPC, he must first examine the complaint and witnesses, if any, on oath, and must reduce the substance of such examination in writing which should be duly signed by the complainant, witnesses and the Magistrate himself. The objective of such an examination is to determine whether the accusations and allegations make out a prima facie case or not and thus enabling to Magistrate to decide on the question of issuing a process against the accused.
  • If a prima facie case is made out by the Magistrate, he must issue a process forthwith. If found otherwise, the complaint is dismissed. However, if his contention isn’t strong enough to warrant an action upon it, he can postpone the issue of process, pending further inquiry under S. 202 of CrPC. The Magistrate shall himself inquire into the case or direct an investigation to be made by a police officer or any other person he deems to be fit, for the purpose of determining whether or not sufficient ground for proceeding in that matter is present. However, such an investigation can’t be made in the case where the Magistrate finds the offence complained of is exclusively triable in sessions court or, the complainant and witnesses have not been examined on oath.
  • A Magistrate can dismiss a complaint on the following grounds-
  1. If, after the statement of the complainant is recorded, he finds that no offence has been committed;
  2. If he doesn’t believe the statement made by the complainant;
  3. If he distrusts the statement made by the complainant, but his contention isn’t strong enough to dismiss the complaint, he directs further inquiry and finds out no sufficient ground to issue a process against accused. (Section 203)

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The Magistrate shall also record his reasons to dismiss a complaint, under S.203 of CrPC. If he fails to record the reasons for the dismissal of the complaint under S.203, it amounts to direct disobedience of the law by the Magistrate.

The courts have held the view that the Magistrate shouldn’t dismiss a complaint without hearing the witnesses of the complainant present in court. However, the Magistrate would be justified in dismissing a complaint without examining the witnesses who are merely cited by the complainant but are not present in the court.

  • On the receipt of a complaint, the Magistrate, instead of taking cognizance of an offence, may order an investigation under S. 156(3) of CrPC. The police shall then investigate and submit a report regarding the same under S. 173(1) of CrPC. After going through the report so submitted, the Magistrate shall take cognizance of the offence under S. 190(1)(b) of CrPC and straightaway issue process. This can be done by him irrespective of the view expressed in the report.

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The legal provisions for the commencement of proceedings are stated under S. 204 of CrPC. According to this section, if the Magistrate takes cognizance of an offence, there should be sufficient ground for the proceedings and case must appears to be-

  1. A Summon-case, orders (summons) shall be issued for the attendance of the accused.
  2. A Warrant-case, warrant is issued for causing the accused to be brought at a certain time before the Magistrate.

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It should be noted that even in a summons case, Warrant can be issued by the Magistrate after recording his special reasons for doing so under S. 87 of the code.

Section 204 not only applies in the case where cognizance is taken on a complaint, but also when cognizance is taken on a police report submitted under S. 172 or after an inquiry under S. 202 of the code is made by the police.

In case when the Magistrate doesn’t dismiss the complaint under S. 203 and believes that there is sufficient ground to issue the process, he has to commence the proceedings under S. 204 of CrPC. Also, the Magistrate need not give justification for issuing the process. He is given an undoubted discretion which he should exercise judiciously.

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This post is written by Bhumika Khandelwal of ILS College, Pune. For any subject specific advice from Arbitration Lawyers in Chandigarh, Panchkula Mohali Zirakpur, please dial 99888-17966 or you may also write to us at satish@legalseva.net

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