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COMPLAINTS TO MAGISTRATES
Options available to a Magistrate who is competent to take
cognizance of the offence.
1. (A) Rejection of
complaint
AA) CREF Finance Ltd. Vs. Sree
i) If the complaint on the Shanthi Homes (P) Ltd.(2005) 7
face of it does not at all SCC 467=AIR 2005 SC 4284.
make out any offence, then AB) Govind Mehta vs. State of
the Magistrate may reject Bihar, AIR 1971 SC 1708.
the complaint. AC) Nagraj vs. State of Mysore,
ii) The said power should AIR 1964 SC 269.
not be mistaken for power
of dismissal available to the
Magistrate under section
203, Cr. P.C, which can be
exercised only at the post
cognizance stage.
v Ba) M/s. India Carat Pvt. Ltd.
vs. State of Karnataka and
another. AIR 1989 SC 885
(Three Judges).
V Bb) Gangadhar Janardan
Mhatre vs. State of
Maharashtra. (2004) 7 SCC 768
v Bc) Fakhruddin Ahmad vs.
State of Uttaranchal and
another 2008 Cr. L. J. 4377(SC)
(B) The Magistrate is not
bound by the conclusions
arrived at by the police even as
he is not bound by the
conclusions arrived at by the
complainant in a complaint.
The Magistrate can take into
account the statements of
witnesses examined by the
police during the investigation v Ca) M/s. India Carat Pvt. Ltd.
and take cognizance of the Vs. State of Karnataka and
offence complained of and another. AIR 1989 SC 885
4
(C) There is no need to follow
the procedure laid down in Ss.
200 and 202, Cr. P.C. for (v Ea) S.N.Sharma vs. Bipen
taking cognizance of a case Kumar Tiwari and ors. AIR 1970
under Sec. 190(1) (a), Cr. P.C. SC 786.
though it is open to act under (v Eb) State of Bihar Vs. J.A.C.
Sec. 200 or Sec. 202, Cr. P. C. Saldanha and ors. AIR 1980 SC
326.
(D) If the investigation under (v Ec) Divine Retreat Centre vs.
Sec. 156(3), Cr. P.C. is ordered State of Kerala and others (2008)
police need not approach to the 3 SCC 542. (Power to
Magistrate for order of investigate an offence is
arresting the accused. exclusively reserved for the
police)
State of Punjab (2007) 1 SCC 1
(T) But in that case, power of
the Magistrate under Section
156(3) is to direct further (v Ua) Gangadhar Janardan
investigation after submission Mhatre v. State of Maharashtra
of a report by the investigating (2004)7 SCC 768'
officer under Section 173 (2) of (v Ub) Bhagwant Singh v.
the Code. Commissioner of Police AIR 1989
SC 885
(U) when on submission of
police report under Section 173
(2) Magistrate decides not to
take cognizance and to drop
proceeding against all or some
of the accused, informant is (v Va) All India Institute of
entitled to a notice and an Medical Sciences Employees'
opportunity to be heard at the Union(Regd) v. Union of India
time of consideration of the (1996)11 SCC 582.
report.(Ss 173 (2), 169, 190 (1))
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to take cognizance on
complainant he can adopt any
of the following alternatives.
(a) He can peruse the
complaint and if satisfied that
there are sufficient grounds for
proceeding he can straightway
issule process to the accused
but before he dose so he must
comply with requirements of
Section 200 Cr. P.C., and
record the evidence of the
complainant and his
witnesses. (b) The Magistrate
can postpone the isssue of
process and direct an enquiry
by himself. (c) The Magistrate
can postpone the issule of
process and direct an enquiry
by any other person or an
investigation by the police.
(G) In case the Magistrate
after considering the
statement of the complainant
and the witnesses or as a
result of the investigation and
the enquiry ordered is not
satisfied that there are Motilal Songara v. Prem
sufficient grounds for Prakash alias Pappu AIR 2013
proceeding he can dismiss the SC 2078, AIR 1968 SC 117,
complaint. Dharmpal V State of Haryana
(H) Where a Magistrate orders (2004) 13 SCC 9, (1989) 2 SCC
under Section 156 (3) Cr.P.C., 132, Ranjeet Singh v State of
an investigation by the police Punjab (1998 7 SCC 149 (Three
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before taking cognizance under JJ)
Section 190 (1) (a) and
receives the report thereupon
he can act on that report and
discharge the accused or
straightway issuse process
against the accused or apply
his mind to the complaint filed
before him and take action
under Section 190 Cr. P.C.
(J) The Magistrate is not
bound to accept final report
filed by Investigation Agency.
He can take cognizance and
issue process against person
though exonerated by
Investigation Agency
4. (D) Taking cognizance of
the offence.
Examination of the
complainant and the
witnesses is not necessary
when
On examining the
complainant and the (a) Mohd. Yousuf vs.
witnesses or if after Afaq Jahan and
perusing the averments in another AIR 2006 SC
the complaint (in the case of 705.
a complaint filed by a public (b) Dilawar Singh vs.
servant or a Court) the State of Delhi. AIR
Magistrate is of the opinion 2007 SC 3234.
that there is sufficient
ground for proceeding, then
he shall issue summons in a (a) CREF Finance Ltd. Vs. Sree
summons case and, if it is a Santhi Homes Pvt. Ltd. AIR
warrant case issue 2005 SC 4284
summons or warrant to the
accused. (Sec. 204(1), Cr.
P.C).
Rejection of complaint at
this stage.
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After the stage of examination
under Sec. 200 Cr. P.C. but
before the stage of inquiry or
investigation under Sec. 202,
Cr. P.C., the appropriate mode
of terminating the proceedings
may be by of rejection of the
complaint and not dismissal
under Sec.203 Cr. P.C.
Inquiry/investigation U/s
202 Cr. P.C.
offence has been committed. In
the context of Sections 200,
202, and 203, the expression
'taking cognizance' has been
used in the sense of taking
notice of the complaint or the
first information report or the
information that offence has
been committed on application
of judicial mind. It does not
necessary mean issuance of
process.
Inquiry under Section 202 of Vadilal Panchal v. Dattatraya
the Code was for the purpose Dulaji Ghadigaonker and
of ascertaining the truth or another AIR 1960 SC 1113.
falsehood of the complaint, I.
e., for ascertaining whether
there was evidence in support
of the complaint so as to
justify the issuance of process
and commencement of
proceedings against the person
concerned.
The object of provisions of Chandra Deo Singh AIR 1963 SC
Section 202 was to enable the 1430 (Four JJ)
Magistrate to form an opinion
as to whether process should
be issued or not and to remove
from his mind any hesitation
that he may have felt upon the
mere perusal of the complaint
and the consideration of the
complainant's evidence on
oath. An accused person does
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not come into the picture at all
till process is issued.
The scope of inquiry by the Smt. Nagawwa AIR 1976 SC
Magistrate under Section 202 1947
of the Code is extremely
limited only to ascertainment
of the 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 issue of 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 such
proceedings the accused has
got absolutely no locus standi
and is not entitled to be heard.
Taking cognizance did not R.R. Chari v. The State of Uttar
involve any formal action or Pradesh AIR 1951 SC 207,
indeed action of any kind but Darshan Singh Ram Kishan v.
it takes place no sooner a State of Maharashtra AIR 1971
Magistrate applies his mind to SC 2372, (on being satisfied
the suspected commission of about the allegations in the
an offence. complaint ,if proved, would
constitute an offence, decides to
initiate judicial proceedings
against the alleged offender as
held in Kishun Singh (1993)
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2.SCC16).
As to when cognizance is taken Narayandas Bhagwandas
of an offence will depend upon Madhavdas v. The State of West
the facts and circumstances of Bengal AIR 1959 SC 1118
each case and it is impossible
to attempt to define what is
meant by taking cognizance.
Issuing of a search warrant for
the purpose of an investigation
or of a warrant of arrest for
that purpose cannot by
themselves be regarded as acts
by which cognizance was taken
of an offence. Obviously, it is
only when a Magistrate
applies his mind for the
purpose of proceeding under
Section 200 and subsequent
Sections of Ch. XVI of the
Code that it can be positively
stated that he had applied his
mind and therefore had taken
cognizance. (Sections 190(1)(a),
200, 202 of the Code)
Cognizance is taken at the Pastor P. Raju AIR 2006 SC
initial stage when the 2825 (Two JJ)
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
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information is that a
Magistrate acts on a complaint
because the complainant has
asked him to act, but a
Magistrate acts on information
on his own initiative.
An information is a complaint
only when it is made to a
Magistrate. Information under
Section 154 given to a police
officer of police orally and/or in
writing can be the basis for the
police officerincharge of
police station to proceed with
the matter.
18. Jurisdiction of Court: Krishna Kumar Variar v. Share
Summoning order – challenge Shoppe 2010 CRI. L.J. 3848 (SC)
on ground of want of
jurisdiction of Court to try
case it must be raised before
trial Court by filling question
of jurisdiction before
proceeding further.
19. Examination of Shivjee Singh v. Nagendra
witnesses named in the Tiwary and others (2010)7 SCC
complaint: 578 (Two JJ)
Complainant is not bound to
examine all witnesses named
in the complaint or whose
names are disclosed in
response to order passed by
the Magistrate. Only those
witnesses are required be
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