Supreme Court: Discharge of accused for offences under PCPNDT Act will not bar complaint filed by the Appropriate Authority U/S 28 of the PCPNDT Act

  Before finally concluding our discussion, we may also deal with two more submissions advanced by learned Senior Counsel for the Appellant. Submission of Mr. Bhalla, learned Senior Counsel, is that though FIR No. 336 dated 17.09.2015 was registered against Dr. Abdul Kadir and the Appellant following the illegal raid, the Appellant was discharged by the learned Magistrate on the basis of an application filed by the police itself. The contention is that after discharge of the Appellant, the criminal complaint is not maintainable since it is based on the same set of facts. We are afraid such a submission cannot be accepted. Section 28(1) of the PCPNDT Act, which we have already taken note of supra, specifically says that no court shall take cognizance of an offence under the PCPNDT Act except on a complaint made by the appropriate authority or by any officer authorized by the appropriate authority etc. Further, as per Rule 18A (3) (iv) of the PCPNDT Rules, the appropriate authority should not involve police for investigating cases under the PCPNDT Act as the cases under this Act are tried as complaint cases under the Code of Criminal Procedure. {Para 54}

Ratio: Discharge in Police Case vs. Statutory Complaint – A discharge order passed by a Magistrate in a criminal case arising from an FIR (Police Investigation) has no bearing on a separate complaint filed by the Appropriate Authority under Section 28 of the PCPNDT Act - The Act mandates cognizance only upon a complaint by the authorized authority, and police investigation is generally discouraged for these specialized offences – appeal dismissed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1058 of 2026 

Decided On: 23.02.2026

Naresh Kumar Garg Vs. State of Haryana and Ors.

Hon'ble Judges/Coram:

Manoj Misra and Ujjal Bhuyan, JJ.

Author: Ujjal Bhuyan, J.

Citation: 2026 INSC 176,MANU/SC/0182/2026.

Read full judgment here: Click here.

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Karnataka HC: Notice To Accused under S.223 BNSS Can't Be Issued Before Recording Sworn Statement Of Complainant & Witness

The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard.

 10. Therefore, the procedural drill would be this way:

 A complaint is presented before the Magistrate under Section

223 of the BNSS; on presentation of the complaint, it would be the

duty of the Magistrate / concerned Court to examine the

complainant on oath, which would be his sworn statement and

examine the witnesses present if any, and the substance of such

examination should be reduced into writing. The question of taking

of cognizance would not arise at this juncture. The magistrate has

to, in terms of the proviso, issue a notice to the accused who is

given an opportunity of being heard. Therefore, notice shall be

issued to the accused at that stage and after hearing the accused,

take cognizance and regulate its procedure thereafter.

 11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL PETITION No.7526 OF 2024

SRI BASANAGOUDA R. PATIL (YATNAL) Vs SRI SHIVANANDA S. PATIL

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

Pronounced on : 27.09.2024

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Supreme Court: If Magistrate is taking cognizance of offence based on protest petition filed with additional material, it is to be tried as private complaint case

 Shri Vinod Prasad, learned Senior Counsel appearing for the Appellant submitted that the CJM as also the High Court fell in error in taking cognizance Under Section 190(1)(b) Code of Criminal Procedure inasmuch as the CJM had relied upon not only the Protest Petition which was supported by affidavit of the complainant but also on the affidavits of witnesses which were filed along with the Protest Petition to support the contents of the complaint. The submission was that once the CJM was relying upon additional material in the form of evidence produced by the complainant along with the Protest Petition then the only option for the CJM was to treat it as a complaint Under Section 200 Code of Criminal Procedure and proceed accordingly. The said case could not have been continued as a State case and should have been treated as a private complaint. It was also submitted that it was open for the CJM to have rejected the police report submitted Under Section 173(2) Code of Criminal Procedure for closure and relying upon the material in the case diary, (in effect, the material collected during investigation) could have taken cognizance but once additional evidence was being relied upon which had been filed along with the Protest Petition then the only option open was to treat it as a private complaint and after following the due procedure in Chapter XV of the Code of Criminal Procedure proceeded to take cognizance Under Section 190(1)(a) Code of Criminal Procedure. {Para 5}

7. We have carefully examined the order dated 24.08.2021 passed by the CJM taking cognizance and summoning the police and we find that the CJM had actually taken into consideration not only the Protest Petition but also the affidavit filed in support of the Protest Petition as well as the four affidavits of witnesses filed along with the Protest Petition. It was based on consideration of such affidavits that the CJM was of the view that the investigation was not a fair investigation and these affidavits made out a prima facie case for taking cognizance and summoning the Accused.

9. In the case of Vishnu Kumar Tiwari v. State of Uttar Pradesh, through Secretary Home, Civil Secretariat, Lucknow and Anr.,   MANU/SC/0916/2019 : 2019:INSC:742 : (2019) 8 SCC 27 Justice K.M. Joseph, speaking for the Bench laid down the legal position relying upon previous judgments of this Court. In the said case the facts were quite similar to that of the present case where affidavits were filed along with the Protest Petition. The net result is that the Magistrate in the present case ought to have treated the Protest Petition as a complaint and proceeded according to Chapter XV of the Code of Criminal Procedure. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2134 of 2024.

Decided On: 18.04.2024

Mukhtar Zaidi Vs. The State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:

Vikram Nath and S.C. Sharma, JJ.

Author: Vikram Nath, J.

Citation:  MANU/SC/0318/2024.

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Whether the charge framed against accused U/S 340 of CRPC is liable to be quashed if Magistrate follows the procedure of the complaint case?

  We are thus of the firm opinion that a Trial Magistrate, on receipt of a complaint under Section 340 and/or Section 341 of the Code, if there is a preliminary inquiry and adequate materials in support of the considerations impelling action under the above provisions are available, would be required to treat such complaint to constitute a case, as if instituted on police report and proceed in accordance with law. However, in absence of any preliminary inquiry or adequate materials, it would be open for the Trial Magistrate, if he genuinely feels it necessary, in the interest of justice and to avoid unmerited prosecution to embark on a summary inquiry to collect further materials and then decide the future course of action as per law. In both the eventualities, the Trial Magistrate has to be cautious, circumspect, rational, objective and further informed with the overwhelming caveat that the offence alleged is one affecting the administration of justice, requiring a responsible, uncompromising and committed approach to the issue referred to him for inquiry and trial, as the case may be. In no case, however, in the teeth of Section 343(1), the procedure prescribed for cases instituted otherwise than on police report would either be relevant or applicable qua the complaints under Section 340 and/or 341 of the Cr.P.C. {Para 58}

59. Reverting to the case in hand, the complaint was filed by the Trial Court stating that the respondent had committed an offence under Section 193 IPC, he having resorted to falsehood on oath at the trial in order to screen the accused from the crime and to enable him to escape punishment. The offence alleged is one included in Section 195(1)(b) of the Code and is otherwise, having regard to the punishment prescribed, to which, warrant procedure would be applicable. In course of the arguments, it had transpired that the Trial Magistrate had examined the complainant and some other witnesses before framing charge against the respondent under the above provision of law. The High Court by the order impugned however, to reiterate, had sustained the plea of the respondent that as the complaint ought to have been construed to be a case otherwise than on police report to which warrant procedure was applicable, charge could not have been framed as the prosecution had not adduced all its evidence at that stage, as required under Section 244 of the Cr.P.C. Significantly, no challenge has been made to the legality and/or the validity of the order under Section 340 or the complaint on any ground. It has also not been asserted in the course of arguments that the evidence already recorded is not sufficient to frame a charge, as had been done by the Trial Magistrate.

60. In view of the determination as above, the approach of the High Court is wholly indefensible, as in the face of Section 343(1) of the Cr.P.C., the procedure prescribed for cases instituted otherwise than on police report is not attracted qua a complaint under Section 340 and/or Section 341 of the Code. Even assuming that the Trial Magistrate had examined few witnesses in support of the complaint, it was in the form of a summary inquiry, to be satisfied as to whether the materials on record would justify the framing of charge against the respondent or not and nothing further. Any other view would fly in the face of the ordainment of Section 343(1) of the Cr.P.C. and thus cannot receive judicial imprimatur. The impugned judgment of the High Court in quashing the charge framed by the Trial Magistrate and remanding the case to him to follow the procedure outlined for cases, instituted otherwise than on police report, under Chapter XIX-B is on the face of it unsustainable in law and on facts. It is thus set aside. 

SUPREME COURT

ARUN MISHRA AND AMITAVA ROY, JJ.

State of Goa Vs. Jose Maria Albert Vales @ Robert Vales

Criminal Appeal Nos. 1427-1428 of 2017

18th August, 2017.

Citation: 2017 ALL SCR (Cri) 1590

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Chhattisgarh HC: Special Court Under SC-ST (Prevention Of Atrocities) Act Has Power To Direct Registration Of FIR U/s 156(3) CrPC

The Full Bench of the M.P. High Court in the matter

of Anand Swaroop Tiwari v. Ram Ratan Jatav and

others1996 MPLJ 141 relied upon the decision

 of the Supreme Court

in A.R. Antulay (supra) and other decisions and in

the result, clearly held as under: “(

a) Special Courts under the Act are not to

function as Sessions Court, but as Courts ‘

of original jurisdiction’.

(b) Proceedings of Special Court are governed

by Section 190, Chapters XV, XVI (other than

Section 209) as also Chapters XIX and XX as

the case may be and such other provisions of

the Code as are not inconsistent with the

scheme and provisions of the Act, reading

“Special Courts” wherever the expression

“Magistrate” occurs.

(c) Section 193 of the Code of Criminal

Procedure does not apply to proceedings under

the Act and committal orders are not

required.

(d) Special Court can take cognizance on

private complaints after following the

procedure provided in the Code in relation to

private complaints.

(e) Where cognizance has already been taken

on the basis of committal orders in Police

challan cases, it is not necessary for the

Courts to retrace their steps or to take

cognizance afresh.

(f) Where cognizance has already been taken

on the basis of committal orders in private

complaint cases, the Special Courts may deal

with the cases as if they are dealing with

private complaints under Section 200 of the

Code.”  {Para 30}

31.The decision rendered by the Full Bench of the M.P.

High Court in Anand Swaroop Tiwari (supra) has

further been followed by the M.P. High Court in the

matter of J.N. Fuloria v. Benibai and others 2000(1) MPLJ 459.

32.Thus, from the aforesaid proposition of law rendered

by the Supreme Court in A.R. Antulay (supra) and the

M.P. High Court in Anand Swaroop Tiwari (supra), it

is quite vivid that the Special Court constituted

under Section 14 of the Act of 1989 is the criminal

court of original jurisdiction and is not governed by

Section 193 of the Code, and the Special Court can

take cognizance in any of the circumstances referred

to in Section 190 of the Code and is governed by

Chapters XV & XVI of the Code and such other

provisions of the Code which are not inconsistent

with the status and functions as Courts of original

jurisdiction. Therefore, the Special Courts

constituted under the Act of 1989 will also have

power and jurisdiction to invoke Section 156(3) of

the Code to direct investigation in exercise of power

conferred, to the Station House Officer subject to

fulfillment of making two prior applications under

Section 154(1) and thereafter under Section 154(3) of

the Code by the complainant. As such, I do not find

any merit in the submission of learned Senior Counsel

for the petitioners that the Special Judge under SC &

ST Act has no power and jurisdiction to invoke

Section 156(3) of the Code and to direct registration

of FIR and investigation. Such a submission being

meritless and substanceless deserves to be and is

accordingly rejected.

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Misc Petition No.173 of 2018

Order delivered on:27-10-2020

 Jaisingh Agrawal, Vs  State of Chhattisgarh, 

Coram: Hon'ble Shri Justice Sanjay K. Agrawal

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Whether the magistrate must conduct enquiry U/S 202(1) of CRPC when a tenant has filed a criminal complaint against landlord residing beyond the jurisdiction of the court?

 By Amendment Act 25 of 2005, Sub-Section (1) of Section 202 Cr.P.C. came to be amended w.e.f. 23.06.2006 and the following words were inserted:-

"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction"

14. The object of the amendment was to place a check on false complaints filed against persons who are living at far-off places. It was made obligatory upon the Magistrate to 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 to find out whether or not there was sufficient ground to proceed against the accused. The use of the word "shall" mean that an enquiry or investigation envisaged under Sub-Section (1) of Section 202 Cr.P.C. is mandatory.

17. In Birla Corporation Ltd. (Supra), the Supreme Court while relying on the decisions in Vijay Dhanuka (Supra); Abhijit Pawar (Supra) and National Bank of Oman v. Barakara Abdul Aziz and Anr. reported as MANU/SC/1123/2012 : (2013) 2 SCC 488 reiterated that holding of enquiry under Section 202 Cr.P.C. is mandatory.

18. In Pepsi Foods Ltd. v. Special Judicial Magistrate & Ors. reported as MANU/SC/1090/1998 : (1998) 5 SCC 749, it was held that summoning of an accused in a criminal case is a serious matter and the criminal law cannot be set into motion as a matter of course. It was further held that:

"28. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

19. As enunciated in the decisions referred above, the sole object of bringing the amendment in Sub-Section (1) of Section 202 Cr.P.C. was to save the accused living at far-off places from unnecessary harassment in false and fictitious complaints. In these circumstances, the issue that has arisen in the present case needs to be addressed keeping in view the object and purpose of the amendment.

21. The complainant, is occupying as a tenant the entire ground floor of the very premises, which are mentioned as the Delhi address of the petitioner in the memo of the complaint, the other being an address in Kolkatta. In spite of that, there is not even a whisper let alone an averment to the effect that the petitioner has been residing at the given address in Delhi. In these circumstances, in absence of any averment in the complaint or the material on record to the aforesaid effect coupled with the fact that an alternate address of the petitioner is given which is outside the jurisdiction of the court, then an enquiry ought to have been conducted. When the law casts a duty on the court to conduct an enquiry once an accused is stated to be a resident of a place which is outside the territorial jurisdiction of the court, in the opinion of this Court, in the facts and circumstances of this case, it was obligatory on the part of learned ACMM to conduct an enquiry envisaged under Section 202 Cr.P.C. Accordingly, the impugned order dated 01.10.2016 is set aside and the matter is remanded back to the concerned court for fresh consideration in accordance with law. The matter shall be initially listed before the concerned court on 01.07.2020 for directions.

IN THE HIGH COURT OF DELHI

Crl. M.C. 2427/2018 and Crl. M.A. 8663/2018

Decided On: 25.06.2020

 Madhvi Singh  Vs.  G.K. Hada and Ors.

Hon'ble Judges/Coram:

Manoj Kumar Ohri, J.

Citation: MANU/DE/1304/2020

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Whether the Session court should record pre-charge evidence in the complaint case committed to it?

As discussed above, once the case stands committed to the Court of Sessions under Section 209 Cr.P.C., there is no provision to hold any pre-charge evidence. The Sessions Court has to proceed to hear arguments on charge and only when after such consideration and hearing, if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Sessions, he may frame the charge and by order, transfer the case for trial to the CJM/any other Magistrate. 

22. In the present case, a complaint was filed under Section 376 IPC along with other sections, which is exclusively triable by Court of Sessions, the learned M.M. rightly committed the case to the Sessions Court. The procedure adopted thereafter in recording pre-charge evidence was illegal and contrary to provisions of law. Further, the impugned order in remanding the case to the court of CMM with a direction to proceed in accordance with law, being illegal, is equally untenable. In view of the above discussions, the impugned order is set aside and the petition is allowed and disposed of along with the pending application.

IN THE HIGH COURT OF DELHI

Crl. M.C. 4606/2018 and Crl. M.A. 31840/2018

Decided On: 04.06.2020

Rajni Goswami  Vs.  The State (govt. of N.C.T. of Delhi) and Ors.

Hon'ble Judges/Coram:

Manoj Kumar Ohri, J.

Citation: MANU/DE/1151/2020

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Why must a magistrate record evidence of the complainant and his witnesses in session triable complaint case?

 The prosecution in the Court of Session is to be opened under Section 226 by the Public Prosecutor describing the charge and stating by what evidence he proposes to prove the guilt of the accused. In a complaint case if process is issued on the opinion that there is sufficient ground for proceeding there is no other option for the Magistrate but to commit the accused to the Court of Session, If process is issued after compliance with Section 200 alone without conducting an enquiry under Section 203, the issue of process and committal may very often be on the basis of the allegations in the complaint and the sworn statement of the complainant alone. The list of witnesses filed by the complainant may not reveal the version which the witnesses are going to say in court. It may also happen that the complainant examined under Section 200 does not have direct knowledge regarding some or many of the aspects of the offence. Under Section 227 the Sessions Judge has to consider the record of the case and documents submitted therewith and he can discharge the accused if he considers that there is no sufficient ground for proceeding. In the contingencies mentioned above, perhaps, the Sessions Judge has no other alternative than to discharge the accused due to total paucity of materials." It is thus necessary that there must be sufficient materials for the Public Prosecutor to open the case and state by what evidence he proposes to prove the guilt of the accused. Otherwise the complainant will be exposed to the risk of the accused being easily discharged under Section 227 even in a genuine case for want of sufficient materials in the absence of an enquiry under Section 202.

23. The accused also will be at a disadvantage. In a police charge case there is the assurance of investigation by an official agency which may filter the materials. Under Section 207, in such a case the Magistrate, before committal, has to furnish the records mentioned therein to the accused. The object is to facilitate the accused to prepare his defence on the materials by which the prosecution seeks to prove the case against him. In a complaint case, in the absence of investigation, documents mentioned in Section 207 cannot be made available to the accused because there would be no such documents. Section 208 which provides for supply of documents in a complaint case will have to be viewed in this background. The documents to be supplied under Section 208(1) are statements of witnesses recorded under Section 200 or Section 202 of all the persons examined by the Magistrate. In Sulaiman's case 1978 Ker LT 424 the Division Bench considered Sections 200, 202 and 208(1) and held:

"The provision in Section 208(1) regarding the furnishing of copies of statements is one made not cumulatively but alternatively. It says copies to be furnished should be of statements under Section 200 or Section 202. Use of the word 'or' there, is important. It is used there disjunctively and not conjunctively. When so read it produces an intelligible result. It then means that the accused should be furnished with, copies of the statements of persons recorded under Section 200 or Section 202 as the case may be. Section 208(1) does not contemplate an accused being furnished with copies of statements recorded under S, 202 when the commitment is made based on the statements taken under Section 200 alone."

24. Considering the object and purpose of the amended provision in Section 202, we do not think that interpretation placed by the Division Bench in Sulaiman's case (1978 KLT 424) is correct. The word "or" cannot be given that restricted meaning, as we have already pointed out. The object of the provisions in Section 202 when taken along with Sections 208 and 209 is to place the accused in a complaint case in the same advantageous position as the accused in a police charge case.

25. In a complaint case the enquiry under Section 202 by the Magistrate into the truth of the complaint is made mandatory and in a way it is intended to take the place of investigation by the police. This safeguard must be to take the place of the preliminary enquiry proceedings provided in the old Code. On the strength of the aforesaid reasonings, we find considerable force in the contention of the counsel for the petitioners that Sub-section (2) together with the proviso must be read as a proviso to Section 202(i). When it is so read, the objects underlying the scheme of Chapter XV can be better served.

26. As a result of the foregoing discussion we are forced to conclude that the legislature contemplated two types of enquiries under Section 202 and in the mandatory enquiry under Section 202 in a complaint case the Magistrate himself will have to conduct the enquiry and he will have to call upon the complainant to produce all his witnesses and examine them on oath.

27. Our conclusion is, which we say with respect, that the decisions in Kochu Mohammed v. State of Kerala MANU/KE/0138/1977, P. Section Sulaiman v. Eachara Warrier 1978 Ker LT 424 and Sidhan v. State of Kerala MANU/KE/0135/1985 have not laid down the law in this respect correctly.

IN THE HIGH COURT OF KERALA

FULL BENCH

Crl. M.C. Nos. 974 of 1984 and 17 of 1985

Decided On: 20.03.1987

 Moideenkutty Haji  Vs Kunhikoya and Ors.

Hon'ble Judges/Coram:

S. Padmanabhan, K.T. Thomas and K.G. Balakrishnan, JJ.

 Citations: AIR 1987 Ker 184,MANU/KE/0045/1987

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Whether the court can treat charge-sheet filed against accused in the non-cognizable offence as Complaint case?

In the present matter, investigation was undertaken for non-cognizance offence and charge-sheet filed under non-cognizance offences only, therefore, charge-sheet should be treated as a complaint. Therefore, the order impugned i.e. order of taking cognizance is set aside and the learned trial court shall proceed the case as a complaint case under Chapter XV of the Code of Criminal Procedure. The trial court may also directed to take it into consideration the Proviso (a) to Section 200 Cr.P.C.

IN THE HIGH COURT OF ALLAHABAD

Application U/S 482 No. 45609 of 2018

Decided On: 31.01.2019

 Santosh Kumar  Vs.  State of U.P. and Ors.

Hon'ble Judges/Coram:

Saurabh Shyam Shamshery, J.

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Supreme Court: In Criminal complaint case court should not issue non bailable warrant in first instance

Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e., how and when warrants should be issued by the Court? It has come to our notice that in many cases that bailable and non-bailable warrants are issued casually and mechanically. 

47. In State of U.P. v. Poosu and Anr. MANU/SC/0191/1976 : 1976CriLJ1373 at para 13 page 5, the Court observed:

Whether in the circumstances of the case, the attendance of the accused respondent can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judiciously, it is not possible to computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and the State.

48. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.

49. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

When non-bailable warrants should be issued

Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:

• it is reasonable to believe that the person will not voluntarily appear in court; or

• the police authorities are unable to find the person to serve him with a summon; or

• it is considered that the person could harm someone if not placed into custody immediately.

50. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.

51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

52. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

53. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1392 of 2007

Decided On: 09.10.2007

 Inder Mohan Goswami  Vs.  State of Uttaranchal and Ors.

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Whether accused in cheque dishonour case can be acquitted if complainant sells secured asset after filing complaint case ?

The other reason given by the trial Court while acquitting the appellant was that the appellant was guilty of suppression of material facts in the present case. According to the trial Court, the appellant could not have claimed that the cheque was issued for discharge of legal debt or liability, when the appellant sold the vehicle for which loan had been disbursed and it failed to take into account the said amount realized from sale of vehicle and further that it suppressed the said fact from the Court.

13. A perusal of the record shows that the cheque in question was issued on 24-1-2007 by the respondent towards the return of specific amount of ` 7,79,380/- towards the repayment of the entire outstanding loan amount. This fact was specifically pleaded in the complaint and it was reiterated in the oral evidence of the witness who appeared on behalf of the appellant. The complaint in the present case was filed on 3-4-2007 as the disputed cheque stood dishonoured and the appellant was unable to realize the outstanding amount from the respondent. Thereafter, a period of about 17 months elapsed after issuance of said cheque by the respondent and about 15 months from the filing of the complaint. At this stage, the appellant sold the vehicle on 3-4-2007 and realized an amount of ` 3,45,000/-. The aforesaid dates clearly show that there was no question of suppression of facts by the appellant when the complaint was filed because the vehicle was sold after about 15 months from the filing of the complaint. Therefore, the date on which the cheque was issued by the respondent for the outstanding loan amount, there was a clear specified legal debt for which the respondent was liable. In this situation, the trial Court was not justified in drawing adverse inference against the appellant for having suppressed material facts. The events that occurred after filing of the complaint, could not have been part of the complaint and in any case, the legal debt or liability in the present case was required to be proved at the point in time when the aforesaid cheque dated 24-1-2007 was issued by the respondent. This aspect was not appreciated in the correct perspective by the trial Court while holding against the appellant.

It was for the respondent to have rebutted the presumption on the touchstone of preponderance of probabilities. The respondent could not have emphasized on sale of the vehicle and the alleged procedural illegalities committed by the respondent while selling the vehicle at an allegedly lower price. The appellant had sufficiently pleaded and proved its case that the cheque in question was issued for specified amount by the respondent for repayment of the entire outstanding loan amount, against which the respondent had failed to adduce any evidence or to discredit the evidence led by the appellant in that regard. The subsequent event of selling of vehicle would not come to the aid of a defaulting party like the respondent to claim that when the disputed cheque was issued, there was no legal debt or liability against him. The reliance sought to be placed on the judgment of the Kerala High Court in the case of Sudha Beevi vs. State of Kerala, reported at MANU/KE/0104/2004 : 2004 Cri.L.J. 3418 on behalf of the respondent, is wholly misplaced because in the said case the vehicle was seized prior to presenting of cheques. In the present case, the cheque in question stood dishonoured and the vehicle in question was seized much later. If the contention raised on behalf of the respondent is accepted, it would lead to absurd consequences. A party like the appellant would not be able to pursue its remedy of complaint for dishonour of cheque, despite all ingredients of the offence under Section 138 of the N.I. Act being satisfied, the moment it touched the vehicle, for the purchase of which a party like the respondent had taken loan, then defaulted and then having issued cheque for the outstanding loan amount, which in turn stood dishonoured. Consequently, it would also result in a defaulter like the respondent issuing a cheque towards discharge of entire outstanding liability, knowing fully well that it would stand dishonoured and then defiantly contending that because the person who had advanced loan amount sought to seize the vehicle to dispose it of, the whole basis for instituting complaint for offence under Section 138 of the N.I. Act, was taken away, despite dishonour of the cheque much earlier in point of time. Such a situation cannot be countenanced. The respondent may be entitled to institute appropriate proceedings to challenge the seizure and sale of vehicle, but he cannot be permitted to claim acquittal in the present proceedings.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Cri Appeal No. 292 of 2017

Decided On: 16.08.2018

Dharampeth Mahila Urban Credit Co-Operative Society Ltd.

Vs.  Rambahadur and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(2) MHLJ 621

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Whether private complaint U/S 193 of IPC(false evidence in judicial proceeding) is maintainable?

 This Court in M.S. Ahlawat (supra) has clearly held that
private complaints are absolutely barred in relation to an offence
said to have been committed under Section 193 IPC and that the
procedure prescribed under Section 195 of the Cr.P.C. are
mandatory. It was held that:
"5. Chapter XI IPC deals with “false evidence
and offences against public justice” and
Section 193 occurring therein provides for
punishment for giving or fabricating false
evidence in a judicial proceeding. Section

195 of the Criminal Procedure Code (CrPC)
provides that where an act amounts to an
offence of contempt of the lawful authority
of public servants or to an offence against
public justice such as giving false evidence
under Section 193 IPC etc. or to an offence
relating to documents actually used in a
court, private prosecutions are barred
absolutely and only the court in relation to
which the offence was committed may
initiate proceedings. Provisions of Section
195 CrPC are mandatory and no court has
jurisdiction to take cognizance of any of the
offences mentioned therein unless there is a
complaint in writing as required under that
section. It is settled law that every incorrect
or false statement does not make it
incumbent upon the court to order
prosecution, but (sic) to exercise judicial
discretion to order prosecution only in the
larger interest of the administration of
justice.
The case in hand squarely falls within the category of cases
falling under Section 195(1)(b)(i) of the Cr.P.C. as the offence is
punishable under Section 193 of the IPC. Therefore, the
Magistrate has erred in taking cognizance of the offence on the
basis of a private complaint. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 211 OF 2019

SH. NARENDRA KUMAR SRIVASTAVA Vs THE STATE OF BIHAR 

S.ABDUL NAZEER, J.
Dated:February 04, 2019.

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Whether magistrate should analyse evidence produced prior to passing of order of issue process?

 Before proceeding further, we would like to add that at the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge sheet filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it that it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the Respondent and take further steps in the matter. If it is a charge-sheet filed under Section 173 Code of Criminal Procedure, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and shift the evidence to come to the conclusion whether or not an offence has been made out.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1193 of 2012 (Arising out of SLP (C) No. 27535 of 2010)

Decided On: 31.01.2012

 Subramanian Swamy  Vs. Manmohan Singh and Ors.

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Whether legal heirs of complainant can prosecute complaint after his death?

Two   Judge   Bench   in  Jimmy   Jahangir   Madan   Vs.   Bolly
Caiyappa Hindley (dead) By Lrs., (2004) 12 SCC 509  referring
to this Court’s judgment in  Ashwin Nanubhai Vyas (supra)  had
held that heirs of complainant can continue the prosecution.
Following was held in  paragraph 5:
“5.  The question as to whether the heirs of
the   complainant   can   be   allowed   to   file   an
application under Section 302 of the Code to
continue   the   prosecution   is   no   longer   res
integra as the same has been concluded by a
decision of this Court in the case of Ashwin
Nanubhai   Vyas   v.   State   of   Maharashtra   in
which case the Court was dealing with a case
under   Section   495   of   the   Code   of   Criminal
Procedure,   1898,   which   is   corresponding   to
Section 302 of the Code. In that case, it was
laid   down   that   upon   the   death   of   the
complainant, under the provisions of Section
495   of   the   said   Code,   mother   of   the
complainant could be allowed to continue the
prosecution.   It   was   further   laid   down   that
she could make the application either herself
or   through   a   pleader.   Undisputedly,   in   the
present   case,   the   heirs   themselves   have   not
filed   the   applications   to   continue   the
prosecution, rather the same have been filed
by their power­of­attorney holders....”
15. In view of what has been discussed above, we are of the
view that High Court did not commit any error in allowing the
legal heirs of the complainant to prosecute the Criminal Misc.
Petition before the High Court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APELLATE JURICTION
CRIMINAL APPEAL NO. 1860 OF 2017

CHAND DEVI DAGA  V MANJU K. HUMATANI & ORS.

Dated:November 03, 2017.

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Whether court is bound to acquit accused if complainant remains absent in complaint case?

 It can be said that the acquittal of the accused was on a
technical ground. The purpose of conferring the power on the
Magistrate under section 256 of the Code, is to deter dilatory
tactics on the part of the complainant, once he sets in motion

the criminal proceedings by instituting a complaint. The
purpose being that the accused is obliged to attend the Court
proceedings on the dates fixed by the court and is thus put to
harassment if the complainant does not turn up in the court on
the dates when his presence is necessary. This, however, in
my view, does not mean that if the complainant is absent, the
court is duty bound to acquit the accused. If the situation
demands or mandates, the Magistrate has the power to
adjourn the hearing.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 10625 of 2016

KISHORBHAI S/O. SOGNUMAL MATAI
V
STATE OF GUJARAT 
CORAM:  MR.JUSTICE J.B.PARDIWALA
 Date : 04/04/2017

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Whether Prosecution For Offence U/S 182 IPC can be started Without Formal Complaint By Public Servant?

 As rightly pointed out by the learned counsel for
the parties on the strength of law laid down by this
Court in the case of Daulat Ram vs. State of Punjab,
(AIR 1962 SC 1206) that in order to prosecute an
accused for an offence punishable under Section 182
IPC, it is mandatory to follow the procedure prescribed
under Section 195 of the Code else such action is
rendered void ab initio.
11) It is apposite to reproduce the law laid down by
this Court in the case of Daulat Ram (supra) which
reads as under:
“There is an absolute bar against the Court
taking seisin of the case under S.182 I.P.C.
except in the manner provided by S.195
Crl.P.C.
Section 182 does not require that
action must always be taken if the person
who moves the public servant knows or

believes that action would be taken. The
offence under S.182 is complete when a
person moves the public servant for action.
Where a person reports to a Tehsildar to take
action on averment of certain facts, believing
that the Tehsildar would take some action
upon it, and the facts alleged in the report
are found to be false, it is incumbent, if the
prosecution is to be launched, that the
complaint in writing should be made by the
Tehsildar, as the public servant concerned
under S.182, and not leave it to the police to
put a charge-sheet. The complaint must be
in writing by the public servant concerned.
The trial under S.182 without the Tehsildar’s
complaint in writing is, therefore, without
 jurisdiction ab initio.” (Emphasis supplied)
12) It is not in dispute that in this case, the
prosecution while initiating the action against the
appellant did not take recourse to the procedure
prescribed under Section 195 of the Code. It is for this
reason, in our considered opinion, the action taken by
the prosecution against the appellant insofar as it
relates to the offence under Section 182 IPC is
concerned, is rendered void ab initio being against the
law laid down in the case of Daulat Ram (supra)
quoted above.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.64 of 2017
(Arising out of S.L.P.(Crl.)No. 8184 of 2015)
Saloni Arora 
V
State of NCT of Delhi 
Dated:January 10, 2017

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Bombay HC: Procedure to be followed by civil court in complaint U/S 340 of CRPC relating to perjury in civil suit

The section thus says that the court should be of opinion
that an enquiry should be held. Even for forming an opinion, there
should be some evidence and not mere surmises. If there is a prima

facie evidence, the court must enter into an enquiry and record a
finding as to whether an offence referred to in Section 195 of Code of
Criminal Procedure is committed. It was, therefore, not proper on
part of Judges of the lower courts to have rejected the application.
The learned Civil Judge should have, in fact, upon consideration of
the application, decided whether it was necessary to hold the enquiry
and if found necessary should have held an enquiry. Merely because
civil suit was pending, that did not prevent and could not prevent the
Civil Judge from entering into an enquiry. I would, therefore, set
aside both the orders and direct the civil judge to register Exh.52 as
Miscellaneous Judicial Case and then proceed to decide the
application according to the provisions contained in Section 340 of
Code of Criminal Procedure. Pendency of this application shall not be
and cannot be a constraint on the Civil Judge in deciding the Civil suit
on merits. The civil judge may proceed to decide the suit and may
also proceed to decide the application under Section 340 of Code of
Criminal Procedure separately. The application under Section 482 of
Code of Criminal procedure is thus disposed of in the above terms.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION No.1115/07.

Kenneth Desa s/o Late John Desa, V  Gopal s/o Leeladhar Narang,

CORAM: C.L.PANGARKAR,J.
DATE : 11th July, 2007.
Citation: 2007 ALLMR (CRI)2281

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Whether accused can seek his discharge if complaint was filed after expiry of period of limitation?

Even otherwise, before quashing the criminal proceedings on

the ground of limitation, the High Court could have decided whether

sufficient cause was made out by the appellant under the proviso to

Section 142(b) of the Act, and if satisfied, it could have condoned the

delay. Alternatively, the High Court could have remanded the matter

to the Trial Court to determine the issue. In support of his

submissions, he placed reliance on a judgment of this Court in

Rakesh Kumar Jain Vs. State (Through CBI) (2000) 7 SCC 656, in

which while considering the provisions of Section 473, Cr.P.C. and

deciding the question whether on the ground of limitation, the

accused is entitled to seek his discharge, this Court held:

“The mere fact that the complaint was filed 25 days after

the expiry of the period of limitation did not entitle the

accused to seek his discharge under Section 245, Cr.P.C

because the complainant has, under law, a right to seek

for extension of time under Section 473 Cr.P.C. The

complainant could satisfy the Magistrate on the facts and

circumstances of the case that the delay was explainable

which was occasioned on account of their bona fide belief

to obtain the sanction for the purpose of filing the

complaint”.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1684 OF 2014

PAWAN KUMAR RALLI  Vs  MANINDER SINGH NARULA

N.V. RAMANA, J.

Dated:AUGUST 11, 2014

Citation:(2014)15 SCC245

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Who can file complaint on behalf of corporation for offence of defamation?

 The decision reported in MANU/TN/0637/1983 : 1984 L.W. (Crl.) 104 (referred to supra), as rightly contended by the learned Counsel for the petitioners, squarely applies to the facts of this case. In that case, alleging that the materials contained in the posters were per se defamatory and harmed the reputation of the complainant, Thiru Chandran, Additional Executive officer of the complainant Company, field the complaints stating that he has been duly authorised to file the complaint. A contention was put forth by the accused that the complaint filed by the company through its Authorised Representative is not maintainable. While considering the same, a Learned Judge of this Court has observed as under:

The company, though a juridical entity, does not have a physical or bodily existence in flesh and blood an, such, only the Directors or the Managerial staff or representatives of the company can institute action on behalf of the company. In this case, the clear averment in the complaint is that Thiru Chandran, Additional Executive Officer, who has filed the complaint has been duly authorised by the Management of the company to take appropriate legal action in regard to the subject matter of the complaints and connected legal matters. In the light of these factors, there is absolutely no scope for the petitioner to contend that the complaints have not been preferred by an aggrieved person and consequently, the complaints have been taken on file in violation of the provisions of Section 199(1) Crl.P.C.

The facts of the above said case are similar to the facts of the case on hand. Therefore, the ratio laid down in the said decision squarely applies to the case on hand, if that be so, the contention of the learned  counsel for the petitioners that the company cannot maintain a complaint has to be rejected. Since the above said decision has been rendered by a Learned Judge of this Court, I am bound to follow the same, whereas the decisions reported in A.I.R. 1935 Rangoon 108 (referred to supra) and AIR 1925 Calcutta 1121 (referred to supra) are having only a persuasive value and it cannot be considered that it is binding on me.

Therefore for the reasons stated above, in the considered view of this Court, the complaint filed by the respondent is maintainable.

IN THE HIGH COURT OF MADRAS

Criminal Original Petition No. 33138 of 2007 and Miscellaneous Petition Nos. 1 and 2 of 2007

Decided On: 19.11.2007

 Dr. R. Krishnamurthy, Editor and Partner, Dinamalar Tamil Daily Newspaper 
Vs.
Sun TV Network Limited 

Hon'ble Judges/Coram:
K. Mohan Ram, J.

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Procedure to be followed by magistrate in complaint under PCPNDT Act

Before   I   conclude   this   judgment,   I   must   also
hold  that  the  learned  Magistrate  who  issued process to
the applicant did not take proper care before passing the
order of issuance of process.   In order to examine the
case I first perused the photostat copy of the complaint.
On the face of it the complaint is not properly drafted,
neither   it   is   properly   typed.     Even   prayer   clause   is
conspicuously absent.  The complainant did not mention as
to   under   what   provision   of   the   Act,   the   offence   is
committed by the applicant.  The complaint only mentions
section   23   and   25   of   the   Act   for   asserting   that   the
applicant   should   be   convicted   under   these   provisions.
But, if at all, the applicant had not filled up form “F”

properly in the three cases, it would amount of offence
punishable under section 4(3) proviso, read with, section
5   &   6,   read   with,   section   23   &   25   of   the   Act.     The
complainant   clearly   mentioned   in   the   complaint   that   in
three   forms   of   the   patients,   who   are   named   above,   he
found the forms incomplete.   If such is the complaint,
learned   Magistrate   before   issuance   of   process   ought   to
have perused the three forms and ought to have formed his
opinion as to whether  a case is made out for issuance of
process.  Instead of he doing that chore, I did it today
and   I   found   for   the   reasons   mentioned   above   that   the
forms were not incompletely filled up.
Learned   Magistrate   committed   another   blunder
when he did not realize that this was a warrant case, in
which, evidence before framing of charge was required to
be recorded.   The applicant/accused and the complainant
are   present   before   the   Court   who   told   me   that   the
Magistrate has so far not recorded any evidence in this
case  and  yet  as mentioned  above on  13.12.2011,  learned
Magistrate framed charge against the applicant.  This is
certainly   unpardonable   and   absolutely   illegal.
Unfortunately, a copy of charge is also annexed with the
application   and   after   I   went   through   the   same   I   found
that the drafting of the charge is incorrect, unnecessary
and   unconnected   to   the   complaint.     Even   the   spelling

mistakes  and  grammar  mistakes  are  not  corrected by  the
Magistrate   before   putting   signature   on   it.     I   am   very
sorry to note that despite laudable object of the Act and
Rules made thereunder, the Authorities under this Act are
not   taking   proper   care   before   filing   cases   against
medical   professionals.     The   provisions   of   the   Act   are
quite strict to the accused and in order to balance such
strictness   in   the   provisions   of   the   Act,
prosecutors/complainants are expected to take utmost care
while   taking   action   against   the   accused.     They   must
follow   the   procedure   prescribed   under   the   Act
meticulously as following such procedure meticulously is
mandatory.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 757 OF 2012
Dr. Ravindra s/o. Shivappa Karmudi 
Versus
The State of Maharashtra . 
CORAM :  A.V. NIRGUDE,J.
DATED : 03.05.2012

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