Complaints to Magistrates

The second proviso, when examination is unnecessary. Where the complaint is in writing, the Magistrate need not examine the complainant and witnesses:

(a) if a public servant acting or purporting to act in the discharge of his official duties, or a Court, has made the complaint; or (b) if the Magistrate makes over the case to another Magistrate under section 212.

The third proviso. If he makes the case over after examining them, the later Magistrate need not re-examine them.

Section 223(2): a complaint against a public servant

A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in the course of the discharge of his official functions or duties unless:

(a) the public servant is given an opportunity to make assertions as to the situation that led to the incident alleged; and (b) a report containing the facts and circumstances of the incident from the officer superior to him is received.

Both conditions must be satisfied. This is the complaint side of what section 175(4) does for an order of investigation, and the two should be learned together.

Section 224: the wrong Magistrate

If the complaint is made to a Magistrate not competent to take cognizance:

(a) where it is in writing, he shall return it for presentation to the proper Court with an endorsement to that effect; (b) where it is not in writing, he shall direct the complainant to the proper Court.

Note that he does not dismiss it and does not transfer it. He returns it or points the way.

Section 225: postponing process

Sub-section (1). A Magistrate who has received a complaint of an offence he may take cognizance of, or which has been made over to him under section 212, may, if he thinks fit, and shall, where the accused is residing beyond the area of his jurisdiction, postpone the issue of process and either:

• inquire into the case himself; or
• direct an investigation by a police officer or by such other person as he thinks fit,

for the purpose of deciding whether or not there is sufficient ground for proceeding.

The "may" and the "shall" matter. Postponement is discretionary in general, and compulsory where the accused lives outside the Magistrate's area. That is a protection against a complainant filing far from the accused's home to harass him.

The proviso, two bars on directing investigation. No such direction shall be made:

(a) where it appears that the offence is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present have been examined on oath under section 223.

Sub-section (2). In an inquiry under sub-section (1) the Magistrate may take evidence of witnesses on oath. The proviso: where it appears that the offence is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

Sub-section (3). Where the investigation is by a person who is not a police officer, he has all the powers of an officer in charge of a police station for that investigation except the power to arrest without warrant.

Section 226: dismissal

If, after considering the statements on oath, if any, of the complainant and the witnesses, and the result of the inquiry or investigation, if any, under section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons.

Two points. The dismissal is mandatory where he forms that opinion. And the reasons must be recorded, however briefly, which is what makes the order reviewable.

A worked example

Vinod files a written complaint before a Judicial Magistrate at Kalyan alleging cheating by Sunil, who lives in Nagpur.

What must the Magistrate do first? Examine Vinod, and any witnesses he has brought, on oath, reduce the substance to writing, and have it signed by them and by himself, section 223(1).

And before he takes cognizance? He must give Sunil an opportunity of being heard, first proviso to section 223(1). That is new law.

Must he issue process at once? No. Because Sunil resides beyond his jurisdiction, section 225(1) makes postponement compulsory, and the Magistrate must either inquire himself or direct an investigation to decide whether there is sufficient ground for proceeding.

Can he direct a police investigation? Yes, provided the offence is not triable exclusively by the Court of Session and he has already examined the complainant and witnesses on oath, proviso to section 225(1). If he directs a person who is not a police officer to investigate, that person has the powers of a station house officer except arrest without warrant, section 225(3).

The inquiry shows nothing. The Magistrate shall dismiss the complaint and briefly record his reasons, section 226.

Change the facts. The complaint is by a Court. Then, the complaint being in writing and made by a Court, the Magistrate need not examine the complainant, second proviso to section 223(1)(a); and the bar in proviso (b) to section 225(1) does not apply either, because that bar operates only where the complaint was not made by a Court.

Change them again. The complaint is against a Tahsildar for something done in the discharge of his official functions. The Magistrate shall not take cognizance unless the Tahsildar has been given an opportunity to make assertions about the situation, and a report from his superior officer has been received, section 223(2).

Change them once more. The complaint discloses an offence triable exclusively by the Court of Session. The Magistrate may not direct an investigation, proviso (a) to section 225(1), and if he inquires himself he shall call upon Vinod to produce all his witnesses and examine them on oath, proviso to section 225(2).

The complaint was filed before a Magistrate with no jurisdiction. Being in writing, it is returned for presentation to the proper Court with an endorsement, section 224(a).

Distinctions

What this does NOT mean

Examination on oath is not a trial. The question is only whether there is sufficient ground for proceeding.

Section 224 does not empower a transfer. The Magistrate returns a written complaint with an endorsement, or directs an oral complainant to the proper Court.

Dismissal under section 226 is not an acquittal. No trial has taken place, and the order is one the complainant may take further.

And the accused's new right to be heard is not a right to lead evidence. The proviso gives an opportunity of being heard before cognizance is taken.

Quick revision

• Section 223(1): examine the complainant and witnesses present on oath; substance reduced to writing and signed by them and the Magistrate.
• First proviso, new: no cognizance without giving the accused an opportunity of being heard.
• Second proviso: no examination needed where the written complaint is by a public servant acting in his official duties or by a Court, or where the case is made over under section 212; third proviso, no re-examination by the later Magistrate.
• Section 223(2), new: no cognizance on a complaint against a public servant for acts in his official functions unless he is given an opportunity to make assertions and a superior officer's report is received.
• Section 224: a written complaint to an incompetent Magistrate is returned with an endorsement; an oral complainant is directed to the proper Court.
• Section 225(1): postponement of process is discretionary, and compulsory where the accused resides beyond the jurisdiction; inquiry by the Magistrate or investigation by a police officer or other person, to decide sufficient ground for proceeding; no investigation where the offence is exclusively Sessions triable, or where the complainant and witnesses have not been examined on oath and the complaint is not by a Court.
• Section 225(2): evidence on oath; where the offence is exclusively Sessions triable, all the complainant's witnesses must be produced and examined on oath.
• Section 225(3): a non police investigator has a station house officer's powers except arrest without warrant.
• Section 226: shall dismiss where there is no sufficient ground, and shall briefly record reasons.

Test yourself

1. What must a Magistrate do on receiving a complaint? Examine the complainant and the witnesses present upon oath, reduce the substance to writing, and have it signed by them and by himself, section 223(1).

2. What is the new requirement before cognizance is taken on a complaint? That the accused be given an opportunity of being heard, first proviso to section 223(1).

3. When must a Magistrate postpone the issue of process? Where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, section 225(1).

4. When may a Magistrate not direct an investigation on a complaint? Where it appears that the offence is triable exclusively by the Court of Session; and where the complaint has not been made by a Court, unless the complainant and the witnesses present have been examined on oath under section 223.

5. What must a Magistrate do before taking cognizance on a complaint against a public servant? Give the public servant an opportunity to make assertions as to the situation that led to the incident, and receive a report of the facts and circumstances from his superior officer, section 223(2).

6. What is the consequence of finding no sufficient ground for proceeding? The Magistrate shall dismiss the complaint and shall briefly record his reasons, section 226.

7. A complaint is filed before a Magistrate who cannot take cognizance. What happens? If in writing, it is returned for presentation to the proper Court with an endorsement to that effect; if not in writing, the complainant is directed to the proper Court, section 224.