Report No. 41
Complaints to Magistrates
16.1. General scheme of chapter.-
Chapter XVI of the Code deals with complaints to Magistrates and contains only four sections. One of these, section 201, merely provides that if a complaint is made to a Magistrate who is not competent to deal with it, he must, if it is in writing, return it with an endorsement that it should be presented to the proper court, and if it is an oral complaint, direct the complainant to the proper court. The other three sections describe how a competent Magistrate should deal with complaints. The scheme is simple enough.
The Magistrate must first examine the complainant and, if there are any witnesses present, they too must be examined and a record of such examination made. If the Magistrate finds that there is substance in the complaint and he ought to proceed further, he can, of course, summon the accused. The formal power in that respect is contained in section 204. In case, however, he is not satisfied after hearing the complainant and the few witnesses, the Magistrate can postpone the issue of process against the accused, and for satisfying himself, eithe.-
(a) inquire into the case himself, or
(b) send it for inquiry to a subordinate Magistrate, or
(c) send it for investigation to a police officer, or
(d) send it for investigation to some other person.
This inquiry or investigation is, according to section 202, for the purpose of "ascertaining the truth or falsehood of the complaint". The section further requires the Magistrate to record his reasons for ordering such an inquiry or investigation. The next section provides that if after such investigation or inquiry the Magistrate finds that there is no justification for proceeding further and summoning the accused, he may dismiss the complaint after recording his reasons.
16.2. Provisions sound.-
We are satisfied that the general policy underlying these provisions is sound. Ever.-day experience of the courts shows that many complaints are il.-founded, and it is necessary therefore that they should at the very start be carefully considered and those which are not on their face convincing, should be subjected to further scrutiny so that only in substantial cases should the court summon the accused person. We are not therefore proposing any change of substance.
16.3. Section 20.-omission of "at once".-
There are, however, some details which admit of improvement. Section 200 requires that the Magistrate must examine the complainant "at once" in order to emphasise that such examination is, in every case, the first step to be taken. It can, however, lead to a futile controversy about the effect of some time interval between the receiving of a complaint and the complainant's examination, which we would like to avoid. We have therefore deleted the expression "at once", as we have no doubt that the mandate of the law is otherwise sufficiently clear.
16.4. Provis.-clause (b.-omitted.-
The proviso to section 200 says, among other things, that a Presidency Magistrate may or may not administer oath to the complainant, and further, in the case of a written complaint he need not make such a full record of the examination as other Magistrates are required to do. We find no proper justification, these days, to make a distinction between a Presidency Magistrate and other competent magistrate and have removed the distinction.
16.5. Examination of complainant on commission under section 200. One question for our consideration was whether a complainant must always appear in court to support his complaint, unless the complainant be a court or a public servant already excepted by section 200, or whether he can be permitted to be examined on commission and perhaps, send his written complaint to the court through post. We are clear that the making of a complaint is a formal act with legal consequences and it must be done formally in person or through properly appointed counsel and the complainant must be ready to support it with his sworn statement in court. The provision for a commission is contained in section 503 of the Code and it contemplates only the witnesses' examination on commission. Although therefore some courts have at times allowed a commission to be issued for the examination of a complainant, we are not in favour of encouraging such a practice.
16.6. Revision of section 200.-
In the light of the above discussion, section 200 may be revised to read as follows.-
"200. Examination of the complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesse.-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not r.-examine them."
16.7. Redraft of section 201.-
We recommend a formal redraft of section 201, without making any change of substance, as follows.-
"201. Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shal.-
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect, and
(b) if the complaint is not in writing, direct the complainant to the proper Court."
16.8. Section 202(1.-recording of reasons not necessary.-
Section 202(1) requires a Magistrate to record his reasons in case he postpones the summoning of the accused and orders an inquiry or investigation into the complaint. It has been forcefully represented to us by the Chief Justice of a High Court that Magistrates find it difficult at that stage to record their reasons. We are inclined to agree. One reason why a Magistrate may be reluctant to issue process against the accused can be that he feels doubtful about the value of the complainant's statement, and the few witnesses if any, produced by him. It would be clearly embarrassing for him to say so in writing at that stage. Nor do we see any real purpose that can be served by any expression of judicial opinion at that stage. We therefore propose to do away with the requirement.
16.9. Object of inquiry or investigation.-
Section 202 says in terms that the further inquiry or investigation is intended for the purpose of "ascertaining the truth or falsehood of the complaint". We consider this inappropriate, as the truth or falsehood of the complaint cannot be determined at that stage; nor is it possible for a Magistrate to say that the complaint before him is true when he decides to summon the accused. The real purpose is to ascertain whether grounds exist for "proceeding further", which expression is in fact used in section 203. We think therefore that the language of section 202 should correspond to the language of section 203, and we have accordingly made suitable verbal alterations.
16.10. Inquiry by subordinate Magistrate not desirable.-
When a Magistrate decides to postpone the issue of process under section 202, he can make an inquiry into the case himself or have an inquiry made by a subordinate Magistrate. Finally, however, the case has to be decided by himself. A inquiry is a proceeding in court involving the hearing of evidence, and if that evidence is to be finally weighed by a particular Magistrate, it is, we think, proper that it should be heard by the same Magistrate. The delegation of a part of the tas.-possibly a tedious par.-to another judicial functionary can well lead to avoidable delay. Nor is the division of responsibility, implied in the present scheme, wholly desirable. We are, therefore, suggesting the deletion of this power from the provision.