Procedure of Issue of Process and Examination of Complainant when a Complaint is Filed Before a Magistrate

By | January 5, 2019
Procedure of Issue of Process and Examination of Complainant when a Complaint is Filed Before a Magistrate

Procedure of Issue of Process and Examination of Complainant when a Complaint is Filed Before a Magistrate | Overview

The article shall enlighten the understanding of the process of examination of the complainant, issue of process to the accused and how the court proceeds with the trial. This article aims to look into the procedure when a case is brought through a private complaint


At the point when the complaint recorded in a written format, i.e. in a documented manner and is registered in the Court, the Magistrate after examination of the complaint, registers it, and subsequent to enlisting it, the averments or any assertion of the complainant under Section 200 CrPC 1973 is recorded around the same time and the case is fixed for recording averments of the witnesses under Section 202 of the Code of Criminal Procedure, 1973 for some other day.

In the wake of recording the proof available under Section 202 CrPC of the observer or witnesses, by and large, the case is fixed for contentions on bringing. Having heard the contentions, the case is fixed for hearing on an appropriate date.

In the event that the Magistrate finds or fulfils that prima facie offence is made out against the blamed individual and every fundamental element for claimed offence are mentioned and duly explained in the written complaint, the Magistrate issues processes under Section 204 of the CrPC 1973 against the accused.

Then again, if the Magistrate is of the opinion, after examination of proof under Sections. 200 and 202 CrPC, 1973 that no prima facie offence is made out and there is no adequate ground for continuing, he may dismiss the complaint under Section 203 CrPC.

Be that as it may, according to provisions of Part XV of the Code of Criminal Procedure, 1973, the method of the criminal complaint is not the same as the above general practice in the Courts. Presently, we take up the arrangements of Chapter XV of the CrPC 1973. At first, it will be proper to talk about the statutory arrangements of the Code.

Examination of the Complainant

A judge taking cognizance of an offence on criminal complaint will examine upon pledge or vow, the complainant and witnesses present (assuming any) and the substance of such assessment will be diminished into written format and will be verified by the complainant and witnesses and furthermore by the Magistrate and they shall authenticate their truth by signatures.

Save that, when the complaint is made in a written document, the Magistrate need not analyse the complainant because the complaint in itself can be considered as the statements of the complainant. In the event that a police officer acting or implying to act in the released of his official obligations of court submits the complaint in issue, or if the Magistrate puts forth the complaint about enquiry or trial to another Magistrate under Section 192 for the purpose of examination of the complainant, the Magistrate need not rethink them.

The technique of being embraced when a complaint is recorded is as follows and is provided under Section 200 of the Code:

  • It is occupant on the Magistrate taking cognizance of the complaint to conduct a hearing specifically to examine the complainant and/or witnesses produced by the complainant (if any) at adequate length to satisfy himself that there is bona fide case and the complaint is not frivolous. A trial is a very lengthy and complex process and therefore, it is vital that all precautions be taken to ensure that a malign or malicious case has not been commenced by the complainant. Therefore, the examination of the complainant is extremely momentous.

In the wake of recording articulations and averments made by the complainant and/or his witnesses individually under Section 200 CrPC, the Magistrate has three choices:

  • He may issue a process in the nature of a summons or a warrant depending on the circumstances of the case, under Section 204 CrPC, 1973; if at the first sight, the offence is made out and if the alleged denounced person is dwelling inside the territory to which the jurisdiction of the Magistrate applies OR
  • He may dismiss the complaint under Section 203. If the complaint fails to fulfil all the procedural elements under Section 190, the Magistrate may dismiss the complaint. Further, 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 OR
  • He may delay or postpone the procedure of issuing the summons or warrant to the accused person if the Magistrate believes that there is need to examine the complainant and/or witnesses further to ensure the involvement of the accused. In such a case, the Magistrate shall fix a date for examination and if upon such examination, he is satisfied that a case is made out, the process can be issued.

Subsequently, 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, dishonour 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[1], 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.

Issue of Process in Complaint

It has been explained above that the Magistrate has three choices to make after the complaint is registered, i.e. (a) to issue process, (b) to dismiss the complaint and (c) to postpone the issue of process. This section deals with the procedure and needs for the issue of process under CrPC in a complaint case before the Magistrate. Once the Magistrate is satisfied that the complaint is genuine on the examination of complainant and witnesses (if any), the Magistrate shall issue process to the accused person(s).

The term process is a legal expression used for any document to be served upon a person with the intention of producing the person before the court. Processes are of two types, viz. summons and warrant.

A summons is a formal statement by the court under its seal and signature ushering the person to whom it is served to be present before the court on the date and time stipulated in the summon to explain any facts or circumstances known to him related to the case in the issue of which he has the personal knowledge.

On the other hand, a warrant is an instruction to the police officer of the police station to which the warrant is served to arrest a person named in the warrant and produce him/her before the court on the specified time and date. The police officer shall make the arrest and detain the person until the date of the hearing.

The issue of processes depends completely on the nature of the case. If the offence alleged bring out a summons case, the Magistrate is obliged to serve a summon to the accused whereas if the offence alleged makes a warrant case, the Magistrate is empowered to issue a warrant of arrest. Besides these, the issue of the process depends upon several circumstances.

If the accused has been known to be absconding with the intention to flee from justice, the Magistrate shall issue a warrant for his arrest and declare the accused as a ‘proclaimed offender’. Moreover, if the Magistrate believes that the person is likely to abscond or attempt to destruct any evidence or influence a witness, he may issue a warrant of arrest.

The main object of issuing process under CrPC is to allow the accused to explain circumstances within his personal knowledge to the court to enable the court to take an impartial and fair judgment. For instance, if an offence is committed for private defence or if the person has been falsely implicated in a case while he was not even present at the scene of crime and has a very authentic alibi, he may explain all these circumstances to the Magistrate when the summon or warrant is served and he is produced before the court. After the issue of process, the trial commences like any criminal case.


  1. Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure (18th ed. 2006).
  2. N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure (6th ed. 2014).

[1] Padam Singh Saini v. Megh Singh, 2018 SCC OnLine HP 784.

  1. Determination Of Jurisdiction For Inquiry And Trial Of Offences(Opens in a new browser tab)
Author: Ashish Agarwal

Advocate | School of Law, Christ University Alumnus

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