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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Whether Allegations In Complaint Made In Good Faith To Lawful Authority Attract Offence Of Defamation?

ANALYSIS:

Having heard the learned counsel appearing for the parties andhaving gone through the materials on record, the only question that falls for our consideration is whether the allegations made in the complaint addressed to the SDM make out the offence under Section 500 IPC or not?

Section 499 of the IPC reads, thus:

“499. Defamation.—Whoever, by words either spoken or

intended to be read, or by signs or by visible representations,

makes or publishes any imputation concerning

any person intending to harm, or knowing or

having reason to believe that such imputation will

harm, the reputation of such person, is said, except

in the cases hereinafter excepted, to defame that

person.”

Eighth Exception to Section 499, to which reliance has been

placed by the learned counsel, reads as under:

“Eighth Exception.—Accusation preferred in good faith

to authorised person.—It is not defamation to prefer

in good faith an accusation against any person to any

of those who have lawful authority over that person

with respect to the subject-matter of accusation.”

The word “good faith” has been defined in Section 52 of the IPC

to mean:

“52. ‘Good faith’.—Nothing is said to be done or believed

in ‘good faith’ which is done or believed

without due care and attention.”

We are of the view that no case is made out to put the

appellant to trial for the alleged offence. There is no defamation

as such.

Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject-matter of accusation. Even otherwise by perusing the allegations made in the complaint, we are satisfied that no case for defamation has been made out.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2291 OF 2011

KISHORE BALKRISHNA NAND  Vs STATE OF MAHARASHTRA & ANR.

Citation:  2023 INSC 675 .

Dated: AUGUST 02, 2023.

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Whether the magistrate can dismiss the criminal complaint without examining witnesses of complainant?

A perusal of the complaint shows that eight witnesses were specifically named in the complaint. The learned Magistrate did not examine any of them. In the order dated 18th September, 2008, the learned Magistrate has not recorded reasons for not recording the statements of other witnesses specifically cited in the complaint. The law is well settled, which is found to have

been reiterated in the decision in the case of Mohinder Singh

(supra). After taking recourse to sub-Section (1) of Section

202 of the Cr.P.C., before dismissing a complaint by taking

recourse to Section 203 of the Cr.P.C., the learned

Magistrate has to consider the statements of the complainant

and his witnesses. In this case, the learned Magistrate has

not examined the other witnesses. The view taken by this

Court in the case of Nagawwa (supra) is no different.

5. Therefore, we find no error when the High Court came

to the conclusion that the complaint deserves to be remanded

from the stage of holding an inquiry under sub-Section (1) of

Section 202 of the Cr.P.C.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 561 OF 2012

DILIP KUMAR  Vs  BRAJRAJ SHRIVASTAVA & ANR.

Author: ABHAY S. OKA, J.

Dated: 26th JULY, 2023.

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Can the Session court take cognizance of the offence as per S 32(2) of the Drugs and Cosmetics Act even though the said case is not committed to it?

 In 'The Act of 1940', no where expressly or by necessary implication provides that either the Special Court can take cognizance without the case being committed to it by the competent Magistrate, nor any such provisions is there in 'The Act of 1940' that the Magistrate or for that matter, Chief Judicial Magistrate has no jurisdiction to take cognizance and to pass a committal order. {Para 10}

11. Section 193 of 'The Code', which deals with cognizance of offence by Court of Sessions and is relevant for the present discussions runs as under:

193. Cognizance of offences by Courts of Session.--Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code."

12. Section 193 (Supra) provides, in no uncertain terms, that a Court of Sessions will not take cognizance of an offence as a Court of original jurisdiction, unless the case has been committed to it, except otherwise expressly provided in that regard.

13. Hon'ble the Apex Court, while considering Section 14 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as it stood prior to amendment of 2015), in the context of taking cognizance by the Special Court constituted under that Act had an occasion to consider the ambit and scope of Section 193 of 'The Code' Relevant observations made in this regard, which are apposite here and cover the controversy at hand, run as under:

"Section 14 of the Act says that "for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Sessions to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a Magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14", [vide S. 2(1)(d)] Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for 'Trial before a Court of Session'."

"Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a Magistrate", as provided in the Code, Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate."

14. Here it is noticeable that Section 5 of the Prevention of Corruption Act, 1988 specifically provides that special Judge under the Act can take cognizance of offence(s) without the accused being committed to him for trial.

15. Likewise, under the SC/ST (PA) Act, 1989 (prior to amendment by Amending Act of 2015), a case triable by Special Court constituted under Section 14 of this Act was required to be committed to the Special Court as held by the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra). After the amendment of 2015, a provision has been added in Section 14 of SC/ST (PA) Act, 1989, conferring power on the Special Court to take cognizance of the case without the same being committed to it for trial. A provision identical to one in Sec. 5 of the Prevention of Corruption Act, 1988 or Sec. 14 of the SC/ST (PA) Act, 1989 is not there in 'The Act of 1940', therefore, Special Court, constituted under this Act, which is a Sessions Court, cannot take cognizance without the accused being committed to it for trial.

16. In view of Section 193 of 'The Code' as interpreted by Hon'ble the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra), the cases (supra) relied upon by the learned counsel for the petitioner have no application in the present case. The special Court constituted under 'The Act of 1940' cannot take direct cognizance, because no enabling provision is there in 'The Act of 1940' in that regard, hence, no fault can be found with the order passed by the learned Chief Judicial Magistrate, committing the case to the special Court. Therefore, the impugned order of for that matter the order passed by the learned Chief Judicial Magistrate does not suffer from any illegality. In view of the aforesaid, this petition having no force deserves to be and is accordingly dismissed.

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

M. Cri. C. No. 11940 of 2016

Decided On: 10.01.2017

 Kalptaru Medicose  Vs.  Food and Drug Administration

Hon'ble Judges/Coram:

Ved Prakash Sharma, J.

Citation: MANU/MP/0133/2017,2017(1)Drugs cases (DC)204

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Whether Magistrate must record evidence of complainant if complaint is filed by public servant in session triable offence?

Code of Criminal Procedure, 1973 - Sections 202 (2), Proviso and 465-Complaint-Enquiry by Magistrate under Section 202 (2)-Scope of proviso to Section 202 (2) when offence complained of exclusively triable by Court of Session-Duty of Magistrate to examine complainant's witnesses-Omission to do so not by itself to vitiate proceedings.

Held :

Per Thomas, J.

(1) The proviso to sub-section (2) of Section 202 of the Code of Criminal Procedure, 1973, is not merely to confer a discretion on the Magistrate, but a compelling duty on him to perform in any such cases. However, the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course, if the complainant requires the help of the Court to summon such witnesses, it is open to the Magistrate to issue such summons, for, there is nothing in the Code which prevents the Magistrate from issuing such summons to the witnesses.

(2) However, if the Magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objection is taken at the earlier stage regarding such omission, the Court can consider how far such omission would have led to miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code.

(3) When the accused have chosen not to raise objection on the premise of omission to examine witnesses of the complainant under the proviso to Section 202 (2) of the Code before process was issued by the Magistrate, it must be taken that they had no grievance that such omission had occasioned failure of justice. Even if they had taken such objection after committal of the case to the Sessions Court, there was no need to turn the switch board backwards as there is no scope for believing that such omission had occasioned failure of justice. This is because no evidence of any witness would be used in the trial court unless such witness was examined in the trial court and the accused is afforded reasonable opportunity to cross-examine him.

Per Shah, J.

(1) Inquiry under Section 202 (2) of the Code is itself discretionary one-giving option to examine or not to examine witnesses on oath. Hence, proviso to the said sub-section is required to be read accordingly though couched in mandatory term by using the word 'shall'. Normally, the procedure prescribed therein should be followed, but non-observance of the said procedure may not vitiate further proceedings in all cases. In a case where a complaint is filed, not by the public servant, and where the offence is exclusively triable by the Court of Sessions, the Magistrate should follow the proviso to sub-section (2) of Section 202 and call upon the complainant to produce all his witnesses and examine them on oath. This would be in consonance with the provision of Section 208 which, inter alia, provides for supply of copy of statements and documents to accused. This would also facilitate the Sessions Court in framing the charge or discharging the accused. In the sessions triable case, under Section 226 the prosecution has to open its case by describing the charge brought against the accused and stating by what evidence it proposes to prove the guilt of the accused. On such submission, the Sessions Court is required to consider the record of the case and the documents submitted therewith and, after hearing the submissions of the accused and prosecution in this behalf, to decide whether there is sufficient ground or not for proceeding against the accused. Upon such consideration, if the Court finds that there is no sufficient ground for proceeding against the accused, he shall be discharged as provided under Section 227. In case, where there is sufficient ground, Court is required to frame the charge as provided under Section 228. Hence, for the purpose of framing the charge also, the recording of such evidence is necessary. It also facilitates the accused to know allegation made against him as well as evidence in support thereof. However, in a case where complaint is filed by a public servant after holding inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance of proviso by the Magistrate in all sessions triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established.

(2) Section 465, Cr. P.C. specifically provides that irregularity in the complaint, summons, warrant, order or other proceedings before or during trial or in any inquiry shall not be a ground for reversing order passed by the competent Court, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Sub-section (2) further provides that in determining whether any irregularity in proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Hence, the statute does not expressly provide for nullification of the order as a consequence of non-compliance of proviso to sub-section (2) of Section 202, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry under Section 202 when Magistrate examines the witnesses on oath, as far as possible proviso is to be complied with but the mandate is not absolute.

(3) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry, he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204 (2) before issuance of the process. The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later. 

IN THE SUPREME COURT OF INDIA

Crl. A. Nos. 18-19 of 2000 

Decided On: 10.01.2000

 Rosy and Ors.  Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

K.T. Thomas and M.B. Shah, JJ.

Authored By : K.T. Thomas, M.B. Shah

Citation: AIR 2000 SC 637,( 2000 ) 2 SCC 230,MANU/SC/0018/2000

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Whether the Magistrate can discharge accused if complainant public servant fails to remain present in the court for prosecuting his complaint?

  From the provisions referred to above it is clear, the law does not contemplate that once a complaint is filed by a public servant, he has discharged his duty and need not remain present in the Court. As pointed out in the decision in State of M. P. v. Kalu 1973 Jab LJ 224 : 1972 Cri LJ 1639, the prosecuting agency owes a duty to the accused who is prosecuted and to the Court which is required to dispense justice according to law. In this task it is entitled to the co-operation of all concerned. Dispensation of justice is, in a sense a team work and every one is expected to play his role properly. {Para 14}

15. A perusal of the proviso to Section 200 of the Code shows that where a public servant acting or purporting to act in the discharge of his official duties filed a written complaint, the Magistrate need not examine him and his witnesses. In the instant case the learned Magistrate exercising his discretion in favour of the complainant, had straightway ordered issue of process against the accused.

16. Justice has to be done to both the contending parties. In the instant case when the complainant did not appear on the several dates fixed for hearing of the case without any intimation and no steps were taken to produce the witnesses or request the Magistrate to grant further time for the purpose or to issue summons, it cannot be said that in exercising the judicial discretion in discharging the petitioner, the learned Magistrate has committed any error resulting in any miscarriage of justice. The Food Inspector ought to have taken necessary steps. No doubt, as pointed out in the decision in State of M. P. v. Ramsingh, 1976 Jab LJ 696 once the Court has ordered issue of summons to the witnesses it is duty bound to procure their attendance without the requirement of a fresh application for the purpose but such was not the situation in the case in hand. The decision in State of M.P. v. Nathulal 1983 M P W R 246 is also distinguishable.

17. It is well settled that the discretionary re visional jurisdiction has been conferred on the Courts so that they may step in and interfere in cases where there is flagrant miscarriage of justice and this power has to be exercised in exceptional cases. There is certainly no case for interference under Section 482 of the Code.

Madhya Pradesh High Court

State Of Madhya Pradesh vs Punamchand And Ors. on 29 July, 1986

Equivalent citations: 1987 CriLJ 1232

Bench: K Shrivastava

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Relevant Date To Compute Limitation Period U/Sec 468 CrPC Is whether Date Of Filing Of Complaint Or Date Of cognizance of offence?

 3.1. (i) Whether for the purposes of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence?

3.2. (ii) Which of the two cases i.e. Krishna Pillai [Krishna Pillai v. T.A. Rajendran, 1990 Supp SCC 121] or Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559] (which is followed in Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394]), lays down the correct law?

The Constitution Bench answered the aforesaid questions as follows: -

51. In view of the above, we hold that for the purpose of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. 

Therefore, the enunciations and declaration of law by the Constitution Bench do not admit of any doubt that for the purpose of computing the period of limitation under Section 468 CrPC, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance of the offence. The High Court has made a fundamental error in assuming that the date of taking cognizance i.e., 04.12.2012 is decisive of the matter, while ignoring the fact that the written complaint was indeed filed by the appellant on 10.07.2012, well within the period of limitation of 3 years with reference to the date of commission of offence i.e., 04.10.2009.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 301 OF 2022 

 AMRITLAL VERSUS SHANTILAL SONI & ORS.

Dated: FEBRUARY 28, 2022

Coram: DINESH MAHESHWARI; VIKRAM NATH, JJ. 

Author: Dinesh Maheshwari, J.

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Whether the court should give divorce to husband if wife makes Unsubstantiated Criminal Complaint Against Husband, His Family?

 The Supreme Court in the case of K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226 has held that making unfounded allegations against the spouse or his relatives in the pleadings, filing of complaints etc. which may have adverse impact on the job of the spouse in the facts of a case, amounts to causing mental cruelty to the other spouse. The same view was expressed by the Supreme Court in the case of K. Srinivas v. K. Suneetha (2014) 16 SCC 34. {Para 34}

47. It is a settled position that leveling of unsubstantiated allegations in the pleadings or otherwise amount to mental cruelty under Section 13(1)(ia) of the Act (See AS v. SNS 226 (2016) DLT 565 Manisha Sandeep Gade v. Sandeep Vinayak Gade AIR 2005 Bom. 180). VimlaBalani (supra) Mahendra Kumar Sharma (supra) and Jayanta Nandi (supra).

48. Thus the writing of the complaint to the CAW cell (Ex. RW-1/5) tantamounted to causing grave mental agony and cruelty to the respondent as it contained serious and baseless allegations against the respondent and his family members of demanding dowry from the appellant and her parents and also of the respondent maintaining illicit relations with other women. The said allegations were nothing short of character assassination of the respondent. The making of such serious allegations must have caused grave mental agony to the respondent and his claim that the matrimonial bond has been destroyed on that account cannot be negated. The respondent has a reasonable ground to believe that living with the appellant may again lead to serious injury to his name and reputation and to that of his family. The finding of the learned ADJ on this aspect is therefore affirmed.

40. In this view of the matter, we are of the view that the appellant has been able to make out a case of being subjected to cruelty and desertion at the hands of the respondent. We are unable to agree with the findings of the Family Court. That the appellant is entitled to succeed on both the grounds i.e. Sections 13(1)(ia) and 13(1)(ib). The facts and circumstances that lead us to the following conclusion are:-

i. The respondent-wife filed an unsubstantiated criminal complaint against the Appellant and his family members which caused them immense mental cruelty and agony.

ii. The Respondent-wife made several contradictory and unsubstantiated allegations in her written statements, complaint before the CAW Cell, and her evidence by way of affidavit. The Respondent failed to prove and establish the averments she made, which itself amounts to mental cruelty. In respect of her testimony, she stood discredited in the light of the said contradictions.

iii. As far as the relations between the parties are concerned, they are sufficiently beyond repair. Both the Appellant and the Respondent allege acts of cruelty against each other.

IN THE HIGH COURT OF DELHI AT NEW DELHI 

MAT.APP.(F.C.) 247/2019; 

Appellant  Vs Respondent 

Coram:VIPIN SANGHI; JASMEET SINGH, JJ. 

Author: JASMEET SINGH, J

Dated:10.03.2022

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Whether court must hear accused before setting aside dismissal of criminal complaint U/S 203 of CRPC?

The restoration of the complaint by the Additional Sessions Judge was undoubtedly to the prejudice of the Appellant. The right of the Appellant to be heard at this stage need not detain us any further in view of Manharibhai (supra) observing as follows:

53..... We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint Under Section 203 of the Code at the stage Under Section 200 or after following the process contemplated Under Section 202 of the Code, the Accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate Under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as Accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2183 of 2011

Decided On: 18.06.2020

Subhash Sahebrao Deshmukh Vs. Satish Atmaram Talekar and Ors.

Hon'ble Judges/Coram:

Navin Sinha and Indira Banerjee, JJ.

Citation( 2020) 6 SCC 625,MANU/SC/0485/2020

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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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Whether magistrate should file a criminal complaint if there is a complaint of ill-treatment to accused from the police?

The main contention advanced by the learned counsel for the applicant is that, the complaint lodged by the respondent No. 2 is not maintainable. It is contended that the respondent No. 2 has lodged the complaint in his official capacity as a Judicial Magistrate, First Class, which was not permissible. It is submitted that only the said Krishna Chakke could have made a complaint about the alleged ill-treatment and the alleged offences. It is submitted that the respondent No. 2 exceeded his jurisdiction conferred upon him by the Code of Criminal Procedure. It is also submitted that neither the respondent No. 2 nor the medical officer, who examined the said Krishna Chakke, followed the provisions contained in para. 3 of the Criminal Manual.

6. I have carefully considered the matter.

7. That, the Magistrate to whom a complaint is made by an arrested person about police having beaten him and having committed the offences against his body can take cognizance of the alleged offences on the basis of such complaint made by such accused, is not in dispute. Thus, according to the learned counsel for the applicant, had the respondent No. 2 treated the submissions made before him by the said Krishna Chakke as an oral complaint made by him, the Magistrate could have proceeded with the said complaint in accordance with law. The emphasis is only on one aspect. viz.:-'the respondent No. 2 himself could not have lodged a complaint.'

8. There can be no doubt, that the course adopted by the respondent No. 2 is highly irregular and unusual. Being a Magistrate, he was empowered to take cognizance of the alleged offences on the basis of the complaint made by the said Krishna Chakke to him. In the event of his being satisfied about sufficiency of grounds for proceeding, and about there being no legal bar to take cognizance of the alleged offences, he could have issued process against the applicant and the other accused, on the basis of the complaint of Krishna Chakke. The extraordinary course-of himself lodging a complaint - adopted by the respondent No. 2 seems to be a result of the faulty manner in which the communication sent by the learned Sessions Judge to the respondent No. 2 is worded: i.e.:- 'launch the prosecution'. Apparently, the respondent No. 2 construed the same as a direction requiring him to file a complaint and thus 'launch the prosecution'.

9. In this context, a little deviation from the issues involved in the Petition would be justified. It is because it is noticed that the relevant provision in the Criminal Manual viz.: of requiring the matters of ill-treatment of the arrested persons at the hands of the police to be reported by the Magistrate to the Sessions Judge is often misunderstood. In Criminal Application Nos. 1896/2013, 1897/2013 and 1899/2013, decided on 26th August, 2013, I had an occasion to observe that reporting of the matter to the Sessions Judge has not been provided as a substitute for the procedure to be adopted by the Magistrate, on receiving a complaint alleging commission of offences. It seems that the respondent No. 2 was of the view that what is to be done in the matter was to be decided by the Sessions Judge, and that, he could not have proceeded further in the matter till the Sessions Judge would decide what was to be done and inform him accordingly. Perhaps, more clarity is required in the relevant provision.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 1494 of 2013

Decided On: 23.12.2013

 Ashok Yadavrao Chavhan  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.M. Thipsay, J.

Citation; 2014 ALLMR (cri) 654,2014(4)BomCR(Cri)689,

MANU/MH/2444/2013.

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Whether the court can give divorce to the husband on the ground that the wife has filed a criminal complaint after filing of divorce petition even if the husband has not claimed divorce on that ground?

It cannot be in doubt that in an appropriate case the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed to criminal litigation and ultimately if it is found that such allegation is unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstance if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty it could well be appreciated for the purpose of dissolving the marriage on that ground. However, in the present facts as already indicated, the situation is not so. Though a criminal complaint had been lodged by the wife and husband has been acquitted in the said proceedings the basis on which the husband had approached the Trial Court is not of alleging mental cruelty in that regard but with regard to her intemperate behaviour regarding which both the courts below on appreciation of the evidence had arrived at the conclusion that the same was not proved. In that background, if the judgment of the High Court is taken into consideration, we are of the opinion that the High Court was not justified in its conclusion.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1912-1913 of 2020 

Decided On: 03.03.2020

Mangayakarasi  Vs.  M. Yuvaraj

Hon'ble Judges/Coram:

R. Banumathi, S. Abdul Nazeer and A.S. Bopanna, JJ.

Citation: (2020) 3 SCC 786,MANU/SC/0262/2020

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When protest petition has to be in format of criminal complaint?

In the case of Abhinandan Jha MANU/SC/0054/1967 (supra) also what was observed was 'it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint.' This observation would not mean that every protest petition must necessarily be treated as & complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made Under Section 200 Code of Criminal Procedure If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case.

43. We may also notice that in Veerappa and Ors. v. Bhimareddappa MANU/KA/0336/2001 : 2002 CriLJ 2150 (Karnataka), the High Court of Karnataka observed as follows:

From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate Under Section 200 of the Code of Criminal Procedure, but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance Under Section 190(1)(a) of the Code of Criminal Procedure on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) of the Code of Criminal Procedure, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance Under Section 190(1)(a) of the Code of Criminal Procedure Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding Under Section 200 of the Code of Criminal Procedure.

44. Complaint is defined in Section 2(d) of the Code as follows:

(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required Under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second Respondent against the final report.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1015 of 2019 

Decided On: 09.07.2019

 Vishnu Kumar Tiwari Vs.  State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and K.M. Joseph, JJ.

Citation: (2019) 8 SCC 27: AIR 2019 SC 3482

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Whether complaint for dishonour of cheque is maintainable without signature of complainant?

 In the light of the above discussion, taking note of various provisions of the Act and the Code which we have adverted above, we hold that the complaint under Section 138 of the Act without signature is maintainable when such complaint is verified by the complainant and the process is issued by the Magistrate after due verification. The prosecution of such complaint is maintainable.

Supreme Court of India

Indra Kumar Patodia & Anr. vs Reliance Inds. Ltd & Ors. on 22 November, 2012

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Whether Magistrate can sent criminal complaint to police U/S 156 of CRPC after putting it for verification?

In view of above stated procedure available under the Code and on considering case of respondent No. 1 of learned Magistrate, to have taken cognizance on 17th August, 2010 on the date of filing of complaint does not stand for any reason as there is nothing to establish that the Magistrate by passing such an endorsement on date of presentation of complaint has examined the complainant or his witnesses under Section 200 of the Code which is first step in the procedure required to be complied with under Chapter XV of the Code. Thus, question of taking next step under Section 202 of the Code did not arise at all and in fact, it is thus found that the learned Magistrate instead of taking cognizance of the offence has, in the exercise of its discretion sent the complaint for investigation by police under Section 156(3) of the Code. In the circumstances, there are sufficient reasons to hold that endorsement made on complaint, to place it for verification, on the date of its presentation, cannot be an order, taking cognizance of case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition Nos. 497 and 496 of 2013

Decided On: 26.09.2017

Mohammad Illiyas Mahammad Shafi Vs.  Shaheen Parveen Ziaulmallan Khan and Ors.

Hon'ble Judges/Coram:

P.N. Deshmukh, J.

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When second criminal complaint on same facts is maintainable?

This Court in the case of Udai Shankar Awasthy v. The State of U.P. [MANU/SC/0018/2013 : (2013) 2 SCC 435, para 30] has observed that "the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the Court, or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be maintainable wherein the earlier complaint has been disposed on full consideration of the case of the complainant on merit". In the matter on hand, the Complainant/Appellant came to know certain facts relating to the replacement of parts of the machine after the disposal of the first complaint, that too after getting a service report from "Key Pharma Limited, Delhi", and, therefore, there is no bar for the Appellant to lodge second complaint.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 857 of 2018 (Arising from SLP (Crl.) No. 387/2018)

Decided On: 11.07.2018

 Om Prakash Singh Vs. The State of Bihar and Ors.

Hon'ble Judges/Coram:

N.V. Ramana and Mohan M. Shantanagoudar, JJ.

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Whether criminal complaint for dishonour of cheque without signature is maintainable?

 From the rival contentions, the only question for consideration before this Court is that whether the complaint without signature of the complainant under Section 138 of the Act is maintainable when such complaint is verified by the complainant and the process is issued by the Magistrate after verification.

The General Clauses Act, 1897 too draws a distinction between writing and signature and defines them separately. Section 3(56) defines signature and Section 3(65) defines writing which reads thus:

“In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,-

56. "Sign" with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include, "mark", with its grammatical variation and cognate expressions,

65. Expressions referring to "writing" shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form,” Writing as defined by General Clauses Act requires that the same is representation or reproduction of “words” in a visible form and does not require signature. “Signature” within the meaning of “writing” would be adding words to the section which the legislature did not contemplate.

15) In the case on hand, the complaint was presented in person on June 3, 1998 and on the direction by the Magistrate, the complaint was verified on July 30, 1998 and duly signed by the authorized officer of the Company-the complainant. As rightly pointed out by the Division Bench, no prejudice has been caused to the accused for non-signing the complaint. The statement made on oath and signed by the complainant safeguards the interest of the accused. In view of the same, we hold that the requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant. In other words, if the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. In our opinion, the correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing as at the time of taking cognizance, the Magistrate will examine the complainant on oath and the verification statement will be signed by the complainant.

Reportable

Supreme Court of India

Indra Kumar Patodia & Anr vs Reliance Inds. Ltd & Ors on 22 November, 2012

Bench: P. Sathasivam, Ranjan Gogoi

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Whether civil court can direct investigation U/S 156 of CRPC against plaintiff?

It is also significant to mention that, the impugned order directing the investigation under section 156(3) of Cr.P.C. came to be passed by the learned Civil Judge against the original plaintiff on bare protest application tendered by defendant (respondent No. 2-herein) on his appearance in the civil proceeding. The very purpose of filing the application by the defendants was to deny or traverse the pleadings of the plaintiffs made in the suit and not to set the criminal law in motion. In general, in each and every civil proceeding there are allegations against each other by the parties to the proceeding. But, it does not mean that in every proceeding the concerned civil court has to exercise the powers of Magistrate as contemplated under the Cr.P.C. for initiating criminal proceeding against the original plaintiffs. In case, after filing civil proceeding for any relief of civil nature against the defendants, the plaintiffs are forced to face criminal proceedings, on the allegations nurtured on behalf of the defendants, it would, create a very unhealthy atmosphere and would open the flood-gates of such type of unscrupulous and unprincipled litigation/complaints to harass the plaintiffs in such civil proceedings, and nobody would dare to come forward to seek reliefs from the civil courts of law. It may also result in cynical disregard of law which would have impact on the society and people may lose faith from the judicial system.

21. The impugned order under Section 156(3) of Cr.P.C. passed on bare protest application of respondent No. 2 filed in the civil proceedings is not amenable within the purview of legal provisions. The action on the part of the concerned civil court, appears deprecative and unsustainable one. The plaintiff should not be victimized or exploited at any point of time and cost, on his approaching to the civil court for seeking justice. In case, defendant would have any grievance of penal nature he may take recourse of remedy available under Criminal Procedure Code and file separate complaint for penal action against the miscreants. We find force in the submission canvassed on behalf of applicants that the impugned order is erroneous, imperfect, perverse and liable to be quashed and set aside.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 3740 of 2014

Decided On: 24.03.2017

 Harischandra and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.S. Shinde and K.K. Sonawane, JJ.

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