Five options available to a Magistrate
The five options available to a competent Judicial Magistrate on receipt of a written complaint, as elaborated in Biju Purushothaman v State of Kerala & Others, and reaffirmed in Manimekhala S v State of Kerala, are as follows:
1) Rejection of complaint:
If the complaint on the face of it does not at all make out any offence, then the Magistrate may reject the complaint.
This power of rejection at the pre-cognizance stage is inherent in any Magistrate and the said power should not be mistaken for the power of dismissal available to the Magistrate under Section 203 of the Code of Criminal procedure (CrPC) since the latter power of dismissal is one which can be exercised only at the post cognizance stage.
2) Ordering a police investigation
Where the Magistrate does not reject the complaint outright, he may, without taking cognizance of the offence, order an investigation by the police under Section 156(3) CrPC and forward the complaint to the officer in charge of the police station, if the complaint alleges the commission of a cognizable offence. Such a course can be adopted by the Magistrate only at the pre-cognizance stage.
Even a complaint alleging the commission of offences exclusively triable by a Court of Session can also be so forwarded under Section 156(3) CrPC.
The Station House Officer (SHO) who receives such a complaint, forwarded under Section 156(3) CrPC, will have to treat the complaint as a First Information Report (FIR) and is bound to register a crime and proceed to investigate as provided under Section 157 CrPC. The SHO is obliged to register a crime.
If the SHO has no territorial jurisdiction, the SHO will have to register the crime and then transfer the same to the Police Station having jurisdiction.
This power of the Magistrate to order an investigation, under Section 156(3) CrPC, cannot be exercised by him after taking cognizance.
3) Taking cognizance of the offence
Where the Magistrate does not order investigation by the police under Section 156(3) CrPC at the pre-cognizance stage and does not reject the complaint at the outset, then the Magistrate may decide to proceed under Chapter XV CrPC and thereby take cognizance of the offence, if the allegations in the complaint prima facie make out an offence.
If the Magistrate, after applying his mind to the allegations made in the complaint, takes judicial notice of the accusations, and decides to proceed under Chapter XV CrPC, he can then be said to have taken cognizance of the offence.
But if the Magistrate, instead of proceeding under Chapter XV CrPC takes any other action such as issuing search warrant or ordering investigation under Section 156(3) CrPC, then he cannot be said to have taken cognizance of the offence.
Where the Magistrate chooses to take cognizance of the offence, he may adopt any of the following alternatives:
a) He shall examine on oath the complainant and the witnesses, if any, present under Section 200 CrPC. This process is popularly called “the recording of sworn statements“.
But the Magistrate need not examine the complainant and the witnesses under Section 200 CrPC, if the complaint has been made by a public servant acting or purporting to act in the discharge of his official duties; or if the complaint has been made by a court or if the complaint is made over for enquiry or trial by another Magistrate under Section 192 CrPC after the examination under Section 200 CrPC.
Issuing process at the Section 200 CrPC Stage: If after examining the complainant and the witnesses or if after perusing the averments in the complaint (in the case of a complaint filed by a public servant or a court), the Magistrate is of the opinion that there is sufficient ground for proceeding, then he shall, if it is a summons case, issue summons to the accused or if it is a warrant case, issue summons or warrant to the accused (Section 204(1) CrPC).
Rejection of Complaint: At this stage also, it is doubtful whether the Magistrate can dismiss the complaint because a dismissal of the complaint under Section 203 CrPC can only be after considering the result of enquiry or investigation under Section 202 CrPC. Hence, after the stage of examination under Section 200 CrPC but before the stage of enquiry or investigation under Section 202 CrPC, the appropriate mode of terminating the proceedings may be by way of rejection of the complaint.
b) If after the stage of Section 200 CrPC the Magistrate thinks fit to postpone the issue of process against the accused then he has two options before him. He may, either conduct an enquiry himself, or direct an investigation by a police officer or any other person as he thinks fit (Section202(1) CrPC).
Where the accused is residing at a place beyond the territorial limits of the Magistrate, an enquiry by the Magistrate or a direction for investigation under Section 202 CrPC is mandatory.
Where the offence alleged in the complaint is one triable exclusively by a court of Session, the Magistrate cannot direct an investigation under Section 202(1) CrPC. The Magistrate will have to conduct an enquiry himself during which he shall call upon the complainant to produce all his witnesses and examine them on oath.
Similarly, in all complaints other than those made by a court a direction for investigation can be made only after the complainant and the witnesses, if any, present have been examined under Section 200 CrPC. In the case of a complaint preferred by a court, the Magistrate can order investigation under Section 202(1) CrPC even without resorting to Section 200 CrPC. Under Section 202(1) CrPC it is open to the Magistrate to conduct an enquiry himself and thereafter order an investigation or vice versa.
The investigation under Section 202 CrPC is different from the investigation under Chapter XII of CrPC. The embargo under Section 162 CrPC against the use of the statements of persons recorded by the Police, applies only to an investigation under Chapter XII of CrPC as indicated by Section 162 CrPC itself. The interdict under Section162 CrPC, therefore, does not apply to an investigation under Section 202 which provision is located outside Chapter XII CrPC. Hence statements recorded during an investigation under Section 202 CrPC can be used to contradict the statement given under Section145 of the Indian Evidence Act (IEA), to impeach his credit under Section 155(3), to corroborate his testimony under Section 157 and to refresh his memory under Section 159 of the IEA.
4) Issuing process after Section 202 enquiry/investigation
If after himself conducting an enquiry or directing investigation under Section 202(1) CrPC the Magistrate is of the opinion that there is sufficient ground for proceeding, he shall then issue summons or warrant against the accused under Section 204(1) CrPC depending on the nature of the case.
5) Dismissal of complaint after S.202 enquiry/ investigation.
If after considering the statements on oath of the complainant and the witnesses if any and the result of the enquiry or investigation if any, under Section 202 CrPC the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall then dismiss the complaint after briefly recording his reasons for doing so, under Section 203 CrPC.
Reference
- Biju Purushothaman v State of Kerala & Others [2008(3) KHC 24]
- Manimekhala S v State of Kerala [2024(2) KHC 37]
