Initiation of Criminal Proceedings

By | October 28, 2016

Magistrate may proceed against an accused on the basis of a complaint of facts; or an information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed (section 190 CrPC). The criminal investigation process and prosecution mechanism in India, can be started in any of the following manner:

  1. On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the CrPC]
  2. In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of CrPC, for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3) of the CrPC, order Police to register an F.I.R and investigate the offence.
  3. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the CrPC.

It would be appropriate to describe, in brief, as to what a “complaint” is and what a “police report” is.

What is a complaint?

Complaint is an allegation made to a magistrate with an intent that an action be taken against the offender. Complaint may be made orally or in writing. It does not include a police report. [section (2(d) CrPC]

Explanation to section 2(d) says that 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.

The explanation to section 2(d) should be read with section 155 of the Code. According to the section 155 a police officer cannot investigate into a non- cognizable offence without the order of the Magistrate. The information of the non-cognizable offence is entered into the Diary Book. When any police officer produces copy of the entry of diary regarding commission of non-cognizable offence and obtains permission of the Magistrate to investigate into the offence and submits report to the Magistrate that report disclosing after investigation the commission of a non-cognizable offence is referred to by the section 2(d) of CrPC to be deemed as complaint.

Ingredients of a complaint:-

According to the definition of section 2(d) of CrPC, the following are essential ingredients of a complaint:-

  • It needs merely to be an oral or written allegation. So it need not be in any particular prescribed form. A telegram or a letter addressing to the Magistrate and containing that some person has committed an offence is sufficient to constitute a complaint.
  • The complaint should contain a fact that some person, known or unknown, has committed an offence.
  • It should be made to a Magistrate. Hence a report by the police or CBI to the Hon’ble High Court is not a complaint.
  • The allegation must be made with a view to the Magistrate’s taking action according to the CrPC. This taking action is not an administrative action.
  • It is not compulsory that name of the accused should be mentioned.

In the case of Sunil v. State of W.B. [(1965) I CriLJ 630], Hon’ble High Court of Calcutta held that a protest petition challenging a report of enquiry or a final report of the police is a complaint. It must, however, contain all necessary facts which constitute an offence.

In the case of Mohd. Yousuf v. Smt. Afaq Jahan [Appeal (crl.)  2 of 2006], Hon’ble Supreme Court of India held that there is no particular format for a complaint. Nomenclature is also inconsequential. It has also been held in that case that a petition addressed to the Magistrate containing an allegation that an offence has been committed and ending with a prayer that the culprit be suitably dealt with is a complaint. It is not necessary to cite or quote particular section of the IPC or any statute defining or providing the offence.

What is a police report?

When police submits a report, after investigating into a matter, that the investigation has disclosed commission of a cognizable offence, such report is called a police report. [Section 2(r) CrPC.

However, when police submits a report, to the effect that investigation has disclosed commission of a non-cognizable offence such report is treated as a complaint and the police officer making the same is treated as a complainant section 2(d) of CrPC.

Whenever police submits a report, after investigating into a matter, that investigation has disclosed commission of no offence at all, such report is generally called a final report.

 

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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