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Report No. 37

Proposed Solution

It is desirable to clarify the position as far as possible. (Some parts of the controversy are due to a misreading of the sections, and cannot be cured by amendment). The solution would be-

(i) to include in section 4 in the definition of "complaint" reports made by the police on an unauthorised investigation of non-cognizable cases, thus solving the points relating to the definition of "complaint" and section 200, and relating to section 190 in respect of non-cognizable offences;

(ii) to keep sections 251A and 207A as they are, as the observations in Pravin Chandra's case must be read along with the facts; and

(iii) to amend section 190(1)(b) (if necessary) to cover specifically reports under other sections of the Code or under other laws.1

1. To be considered under section 190(1)(b).

Some important points of difference between (i) complaint cases (ii) cases instituted on police report under section 173, and (iii) cases instituted on other reports or police officers reports falling under section 190(1)(b), but outside section 173.

Complaint

Police Report

Other reports of police officers

A 1

A 2

A 3

Section 155(2)

No distinction between complaints of cognizable offences and other complaints.

Police may investigate into non-cognizable cases only on obtaining the order of the Magistrate. Hence a "police report" in respect of such offence can follow only on an investigation so authorised.

..

B 1

B 2

B 3

Section 196(1)(a)

No prosecution for contempt of lawful authority of public servant except on the complaint of the public servant.

..

..

C 1

C 2

C 3

Section 196A

No court to take cognizance of certain classes of criminal conspiracy except upon complaint made by the authority of the State Government etc.

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..

D 1

D 2

D 3

Section 196

Prosecution for offences against the State etc. to lie only upon complaint made by order of the State Government.

E 1

E 2

E 3

Sections 200, 202 and 204

Sections 204(1)

Section 204(1)

A Magistrate may examine the complainant and hold a preliminary enquiry before issuing process on a case in which cognizance has been . taken by him on a complaint. But under section 200, Proviso (aa), examination of the complainant is not necessary in case of complaint by a public servant etc.

No examination is necessary. Process can be issued immediately.

No examination is necessary. Process can be issued immediately.

F 1

F 2

F 3

The complaint may be dismissed as a result of the inquiry, under section 202, if there is no sufficient ground for proceeding.

No provision for dismissal.

No provision for dismissal.

G 1

G 2

G 3

Sections 204(3) and 204(1B)

Section 173(4)

The Magistrate may dismiss the complaint if process fee is not paid. Further, a copy of the complainant's examination need not be supplied. But, under section 204(1B), a copy of the written complaint accompanies the summons or warrant.

Copies of the police report, and of the First Information Report and of the statements etc. made in investigation, are to be supplied before the commencement of the inquiry of the inquiry or trial.

No provision for supplying copy to the accused.

H 1

H 2

H 3

Sections 208-220

Section 207A

Section 208-220

The Procedure for enquiry into cases triable by the Court of Session or High Court which are instituted otherwise than on a police report, dealt with.

Procedure for commitment proceedings instituted on police report, dealt with.

Procedure for commitment proceedings into cases instituted otherwise than on police report falling under section 173, dealt with.

I 1

I 2

I 3

Section 247

Accused to be acquitted for non-appearance of complainant, if summons issued on complaint.

No such provision.

No such provision.

J 1

J 2

J 3

Sections 248

Section 249

Section 249

The Magistrate may permit a complaint to be withdrawn by the complainant, and thereupon acquit the accused.

In any (summons) case instituted otherwise than upon complaint, the Magistrate may stop proceedings without pronouncing any judgment of acquittal or conviction, for reasons to be recorded by him.

In any case instituted otherwise than upon complaint (which would include the report of the police officer than one under section 173), the Magistrate may stop the proceedings without pronouncing judgment of acquittal or conviction, for reasons to be recorded by him.

K 1

K 2

K 3

Section 250(1)

Section 250(1)

Compensation to the accused for false, frivolous or vexatious accusation, where case is instituted upon complaint or upon 'information' given to police or Magistrate.

would not apply.

Apparently, section 250(1) would not apply 1 The words "as defined in this Code" were omitted in 1923, only as redundant.

L 1

L 2

L 3

Sections 252 to 258

Section 251A

Section 252-258

Procedure for trial of warrant cases instituted otherwise than on police report.

Procedure for trial of warrant cases instituted on police report.

Procedure for trial of warrant cases instituted otherwise than on "police report".

M 1

M 2

M 3

Section 259

Discharge of the accused on the ground of absence of the complainant.

No provision.

No provision.

N 1

N 2

N 3

Section 417(3)

See section 417(1)

See section 417(1)

Appeal against acquittal in a case instituted upon complaint to lie only if the High Court grants special leave to appeal.

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O. 1

O. 2

O. 3

Section 436

Power of High Court or the Sessions Judge to order further enquiry into any "complaint" which has been dismissed under section 203 or section 204(3).

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P 1

P 2

P 3

Section 546A

The Court may, in addition to the penalty imposed upon the accused, order him to pay to the complainant any fees paid by him on the petition of complaint etc. when the same relates to a non-cognizable offence.

1. CF. Syed Ibraham (in re:), AIR 1959 Mad 32, para. 13.



Code of Criminal Procedure, 1898 (Sections 1-176) Back




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