This article shall deal with the reasons, procedure and remedies after the dismissal of a complaint by the Magistrate. A complaint is a formal grievance set forth before a Judicial Magistrate informing him that certain offence has taken place and requesting him to inquire into the same. Several times, the complaint is dismissed for lack of merit and other reasons.
Introduction
Section 2(d) defines a complaint as a form of the allegation made against a certain person either acquainted with the complainant or a stranger, requesting the Magistrate to inquire into the same and cause it to be investigated by appropriate authorities. Thus, the essential of a valid complaint is that it must allege the occurrence of an offence which is punishable under the IPC or any other penal law.
Secondly, the complainant must mention the name of a person who allegedly committed the offence or if the person was not known to him, the complainant can provide any identification of the person which could be helpful in recognising the person. Lastly, the intention of the complainant must not be just to give information to the Magistrate but the intent must be to request the Magistrate to take certain action into the commission of such offence.
In a case in West Bengal (since the complaint was dismissed, it is not reported) in 2019, a wife named Mrs Saroj Gupta filed a complaint under Section 506 of the IPC for the offence of criminal intimidation asserting that her husband threatens her to commit suicide. This was a fit case of criminal intimidation but, however, the complainant said that she wanted the Magistrate to just mention the fact of such threat and not take action.
The complaint was dismissed and the Magistrate observed that the power and procedure to record complaint cannot be used as a proof for personal gains or safety. It is the process of criminal investigation and the first step to trial. Thus, if any of the above elements are not mentioned in the complaint or omitted from the complaint, it can be dismissed.
Procedure after Filing Complaint
Section 203 of the Code of Criminal Procedure, 1973 deals with the dismissal of the complaint and the provision commences with the expression that “after the complainant and witnesses have been examined and report of the investigation has been submitted…”[1].
This means that this provision cannot be explained without dealing first with the process of filing the complaint and the procedure followed after the complaint is filed.
Section 190 of the CrPC empowers a Magistrate to take cognizance of an offence brought to his/her notice by filing a written or oral complaint by a person. Moreover, if a police officer has investigated a case believing it to be of a cognizable offence which turned out to be non-cognizable, the report of investigation filed by the police officer can be treated as a complaint and the Magistrate is empowered to take cognizance of such complaint as well under Section 190.
These are the two ways in which a complaint reaches a Magistrate. After the complaint is received, the Magistrate registers the complaint and make a note to this effect and the complainant is asked to be present on a specific date and time.
The next procedure is to examine the complainant to ascertain the truth of his averments and to ensure that a valid case can be made out against the accused person. Section 200 of CrPC empowers and mandates for the Magistrate to examine the complainant and any witnesses who have been produced by the complainant on oath to state only the truth.
The Magistrate shall record everything that the complainant avers as his case and the same shall be recorded in written format to be signed by both the parties. Further, the witnesses shall be recorded in the same manner and their assertions shall also be verified by their signatures.
According to the provisions of section 190 (1) (a) of the Code the comprehension, possibly taken after accepting a complaint of such circumstances which comprises an offence. At the end of the day, we can say that when a composed complaint unveiling an offence is recorded under the watchful eye or guidance of a Magistrate or a Court and when the Magistrate makes registration of such complaint as aforesaid for recording the assertions or any averments of the complainant and the observers, witnesses or other persons present, if any, under section 200 of the Code, the Magistrate is esteemed to have taken the cognizance of the offence.
With regard to cognizance by Magistrate, the Supreme Court observed in CREF Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd.[2] that when the Magistrate registered the complaint and fixed date of hearing, it is deemed that cognizance is taken and it is not required for the Magistrate to specify that cognizance has been taken by separate order.
Reasons for Dismissal of Complaint
The first requirement for dismissal of the complaint is that the Magistrate must apply his mind while taking any decision and making an order of dismissal. This does not mean literally he should apply his mind.
It means that the Magistrate must look into all the reasons for dismissal with no prejudice and grant all possible opportunity to the complainant to save the complaint from being dismissed. There are several reasons for the dismissal of a criminal complaint, inter alia, most essential of which are as follows:
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Failure to Fulfil Requirements of Section 200:
Section 200, as already mentioned, requires that (a) there must be certain allegation of commission of an offence, (b) there must be name of the accused person or any other information known by the complainant about the alleged offender and (c) intention that the Magistrate shall cause to investigate the case in the complaint that shall be submitted by the complainant.
If the complaint fails to fulfil all these elements, the Magistrate may dismiss the complaint. Now, if the complaint is one filed before the Magistrate in the form of a police report in case of a non-cognizable offence, the Magistrate shall simply look whether the investigation has disclosed any culprit or accused person and if there is sufficient evidence to proceed against the person the complaint shall be accepted.
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Absence of Complainant from Examination
As aforementioned, after the complaint is registered by the Magistrate, a date is fixed for the examination of the complainant and the witnesses, if any, before the Magistrate. However, if the complainant fails to appear before the Magistrate for examination, the Magistrate is empowered it dismiss the complaint.
In criminal law, a lot of things and considerations need to be considered before an order is made. A complaint is usually filed in a non-cognizable case in which the police does not have the power to investigate without the Magistrate’s order. A non-cognizable case is usually in the nature of a private conflict between two persons and is not literally against the State.
For instance, the bouncing of a cheque is a non-cognizable offence under the Negotiable Instruments Act, 1881 which is between the debtor and the creditor. Therefore, if the complainant does not appear for the examination, it is presumed that the complaint was either frivolous or no grievance exists with the complainant.
However, the mere absence of the complainant does not give the court the right to dismiss the complaint. The Magistrate must give the complainant an opportunity to explain the reason for his absence. In Padam Singh Saini v. Megh Singh[3], the Magistrate dismissed the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 because the complainant was absent from the examination.
The High Court observed that the absence was due to an inadvertent circumstance which should have been considered by the Magistrate. Thus, if the complainant can prove or show that his absence was due to unavoidable circumstances, the Magistrate should ideally condone such absence.
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No Case Made Out
After the complaint has been registered and the complainant and/or witnesses have been examined, the Magistrate shall pass an order whether a suitable case exists for investigation or not. If the Magistrate feels or is of the opinion that no prima facie case is made out against the alleged offender, he may dismiss the complaint.
For instance, if the basic requirements, i.e. the sine qua non of the offence is not fulfilled according to the statements of the complainant, then the offence is not committed; such as in a case of dishonour of cheque under Section 138 of Negotiable Instruments Act, 1881, if the demand notice was not sent by the complainant or there unreasonable delay in sending the notice, the complaint shall be dismissed since no legal case is made out.
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Insufficient Evidence or Adverse Police Report
If the Magistrate considers that the sine qua non of the alleged offence has been duly proved or sufficiently proved to enable the Magistrate to order an investigation in the case, he shall do so. Under Section 156(3), the Magistrate can order a police officer of the police station in whose jurisdiction the offence was alleged to have been committed to initiate an investigation and collect evidence to prove the incrimination or innocence of the named accused.
The police are empowered to investigate the matter under Section 156 as it would if the case was of cognizable nature. After the end of the investigation, the investigating officer submits a report to the Magistrate informing him of the offence committed, the manner in which it was committed, evidence and/or witnesses who can testify anything related to the commission of the offence.
If the police file a report according to which the offence has not been committed by the accused person or that there is insufficient evidence to prove the guilt of the accused beyond a reasonable doubt than the complaint has to be dismissed and the accused is arrested shall be acquitted and discharged immediately.
Procedure to be Followed for Dismissal
There is no specific procedure prescribed by the Code to be followed if a complaint is to be dismissed. The code only requires that reasons for such dismissal must be recorded. However, equity requires that certain procedure needs to be followed before dismissal.
If the Magistrate is of the opinion that the complaint is frivolous or deserves to be dismissed for any of the above-stated reasons, the Magistrate firstly should allow the complainant to save his case if any additional documents or evidence can be brought before the court. If an adequate opportunity is given to the complainant but no case is still made out against the alleged offender, the Magistrate shall dismiss the complaint.
The reasoned decision has been held to be a principle of natural justice which connotes that a judge or any court must give reasons for the orders passed by it. In Mehmood Ul Rehman v. Khazir Mohammad Tunda[4], the apex court observed that the Magistrate shall pass a speaking order dismissing the complaint and shall briefly mention the reasons for dismissal in the order itself.
If the reasons are not stated, the complainant is entitled to appeal the order for violation of natural justice principle. However, if a complaint is duly dismissed, the case ends and the accused person(s) are deemed to be acquitted of all charges.
References:
- D.D. Basu, Criminal Procedure (6th ed. 2014).
- Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18th ed. 2006).
- R.V. Kelkar, Lectures on Criminal Law (8th ed. 2016).
[1] Section 203, CrPC, 1973.
[2] CREF Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd., AIR 2005 SC 4525.
[3] Padam Singh Saini v. Megh Singh, 2018 SCC OnLine HP 784.
[4] Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420.
