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Report No. 41

16.11. Complaints of offences triable exclusively by the Court of Session.-

We are recommending in a subsequent chapter1 the abolition of commitment inquiries. This necessitates certain amendments in the procedure to be followed in an inquiry into complaints where the offence complained of is one triable exclusively by the Court of Session. We recommend that the Magistrate who takes cognizance of such offence on complaint must himself make an inquiry into the complaint, and call upon the complainant to produce all his witnesses and examine them on oath. Further, in such cases the Magistrate should not direct an investigation by a police officer or other person. For this purpose, we propose two amendments of section 202 in the form of another proviso to su.-section (1) and a proviso to su.-section (2).

1. Chapter 18.

16.12. The section may be amended to read as follows.-

"202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be mad.-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In any inquiry under su.-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under su.-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."

16.13. Section 20.-"May dismiss the complaint".-

Section 203 provides that if the Magistrate dealing with a complaint finds no sufficient cause for proceeding with the case even after considering the evidence of the complainant and his witnesses and the result of the inquiry or investigation made under section 202, he "may" dismiss the complaint. It is difficult to imagine what other course is possible in such circumstances, and the direction of law for the dismissal of such a complaint might as well be plainer. We propose, therefore, to put in "shall" in place of "may". Reasons have, of course, to be recorded for the dismissal of the complaint, as the order is subject to scrutiny by the District Magistrate and the Sessions Judge, and is revisable by the High Court. These are necessary safeguards against the arbitrary dismissal of a complaint.

16.14. Fresh complaint after dismissal of previous complaint admissible only in exceptional circumstances.-

Further, in law, a second complaint after the dismissal of a similar complaint is competent. Quite obviously, however, if a Magistrate has dismissed a complaint after careful consideration of the material before him, he is unlikely to find "sufficient cause for proceeding" with it on the second occasion; and even if the Magistrate who deals with the second complaint is different, the likelihood of his proceeding with it is not increased. Only in exceptional circumstances will a second complaint be proceeded with. The law is in accordance with these exceptions. In a recent decision1, the Supreme Court has held.-

"An order of dismissal under section 203, Criminal Procedure Code is no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances like when the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish, or where new facts which could not with reasonable diligence have been brought on the record in the previous proceeding, have been adduced."

1. Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, 1962 Suppl 2 SCR 297: AIR 1962 SC 876.

16.15. Legislation not recommended.-

It was suggested to us that the enumeration of the special circumstances by the Supreme Court should be accepted as exhaustive and the law should provide that, barring those circumstances, no second complaint on the same facts would be competent. We are not convinced that the circumstances mentioned by the Supreme Court exhaust the category of special circumstances in which a court would, and in our opinion, should, entertain a new complaint, but leaving that alone, it is clear that the enumeration is largely in abstract terms, which can be of little assistance in practice.

In the very case before the Supreme Court1, although the facts were not disputed, there arose in the Supreme Court itself, a sharp difference of opinion regarding the existence of special circumstances. Two Judges held that in the circumstances of the case the entertainment of the complaint was an abuse of the process of the court and could not be permitted; while one Judge found that the second complaint was a step in the furtherance of justice. It seems to us, therefore, that legislation in this respect is not called for, there being no doubt about the law itself.

1. Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, 1962 Suppl 2 SCR 297: AIR 1962 SC 876.

16.16. Revised section 203.-

Section 203 speaks of the Magistrate dealing with the case as "the Magistrate before whom a complaint is made or to whom it has been transferred". This we consider unnecessarily lengthy and indirect, as the context leaves no doubt that the power of dismissal is given to the very same Magistrate who has dealt with it, under sections 200 and 202. We propose that section 203 may be revised as follows.-

"203. Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. In every such case he shall briefly record his reasons for so doing."

Code of Criminal Procedure, 1898 Back

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