Can defendant who not summoned make application for court costs

903 votes

In your situation, since the matter is still at the stage of a private complaint and you have not yet been summoned, your procedural rights are limited at this point. Legally, a person becomes an “accused” with a right to participate only after summons is issued. Until then, the proceedings are between the complainant and the court, and ordinarily the proposed accused does not have a right to file applications seeking dismissal or costs. However, the facts you have described are important. The police report submitted pursuant to the application under Section 156(3) indicates that no offence is made out. This is a strong factor in your favour. The Magistrate is not bound by the police report, but it carries persuasive value. If the complainant is not taking steps, is absent on multiple dates, and is not pursuing the complaint, the court has the power to dismiss the complaint for non-prosecution. This can happen under the court’s inherent powers at the pre-summoning stage or later under Section 256 CrPC (now corresponding provisions under BNSS), depending on the stage. As far as your specific question is concerned, you cannot directly file an application at this stage seeking dismissal or imposition of costs because you are not yet a party to the proceedings in the eyes of law. The court may not entertain such an application from a non-summoned person. That said, there are practical options available: You may keep a close watch on the proceedings through counsel and obtain copies of orders. If summons is issued at any stage, you can immediately challenge the order by filing a revision petition or a quashing petition before the High Court, relying on the police report and the conduct of the complainant. If the complaint is ultimately dismissed or found to be false, you can then initiate proceedings for malicious prosecution or seek action under relevant provisions for false and vexatious complaints, including costs. Additionally, in some situations, if the complaint is clearly abusive and you have sufficient material (such as the police closure report), you may approach the High Court under its inherent jurisdiction seeking quashing even before summons, though this is used selectively. In summary, at this stage, you cannot directly seek dismissal or costs before the Magistrate since you are not yet summoned. The matter will either be dismissed by the court due to the complainant’s conduct, or if it proceeds, you will have strong grounds to challenge it at the appropriate stage. Your position is legally favourable given the police report and the complainant’s conduct, but the correct timing and forum for intervention are crucial.

Advocate Yuganshu Sharma LawRato

847 votes

it is not necessary that the judge would dismiss a complaint even if the police states and its atr that no offences made out. if the application and section 156 3 is still pending and FIR can still be registered. keep a track on the proceedings till the question under 156 3 is determined

Advocate Kunal Seth LawRato

746 votes

Since the police have already said that no offence is made out, and the complainant is also not appearing in court, the case has no real substance. At this stage, you should not file any reply or application because you are not yet summoned. It is better to wait, as the court is likely to dismiss the complaint for non-prosecution on its own.

Advocate Nikhil Karwal LawRato

984 votes

Yes, defendant can make an application for dismissal and request cost. But there is different procedure for civil and criminal matters. It is discretion of court, you can take help of an advocate for dismissal.

Advocate Samriddhi Tripathi LawRato

636 votes

Ideally, the accused shoud not initiate any process for seeking dismissal of Complaint because the law does not provide such provision pre summons stage. However, the accused in such scenario can seek discharge in the case by adducing appropriate evidence. In so far as dismissal of complaint is concerned by Accused prior to issuance of summons, in my opinion, it is not allowed.

Advocate Alankrit Bhatnagar  LawRato