Can judge issue notice or summons before witness oath

517 votes

there is no procedure under section 156(3) of the CRPC to take the complainant and witnesses under oath. it is only under section 200 of the CRPC where in the magistrate issues summons to the accused persons upon considering the evidence placed before it such as the statement of the witnesses and the complainant. should you have any queries please feel free to contact me.

Advocate Kunal Seth LawRato

793 votes

Yes, the Magistrate has discretion to proceed further even if the police, after investigation under Section 156(3), submits a report stating that no case is made out. Under the Code of Criminal Procedure, 1973, when a complaint is referred for police investigation under Section 156(3) and the police files a closure report or states that no offence is made out, the Magistrate is not bound by the police report. The Magistrate can independently examine the complaint and decide the next course of action. In such a situation, the Magistrate generally has the following options: Accept the police report and close the matter. Disagree with the police report and take cognizance of the offence. Treat the original complaint as a private complaint and proceed under Section 200 CrPC by recording the statement of the complainant and witnesses on oath. Normally, before issuing summons to the accused, the Magistrate will first record the complainant’s statement and the statements of witnesses under Section 200 CrPC, and may also conduct an inquiry under Section 202 CrPC if required. Only after being satisfied that there is sufficient ground to proceed will the Magistrate issue summons to the accused. Therefore, as a general rule, the court does not issue summons to the accused before examining the complainant and witnesses on oath in such cases. The examination under Sections 200 and 202 CrPC is meant to determine whether a prima facie case exists. In summary, even if the police report says that no case is made out, the Magistrate can still proceed with the complaint, but usually the complainant and witnesses will first be examined on oath before summons are issued to the accused.

Advocate Yuganshu Sharma LawRato

641 votes

After a 156(3) Cr.P.C. report, if police do not take action, the Magistrate can proceed as a complaint case. Generally, the court records statements of the complainant and witnesses under Sections 200/202 Cr.P.C. before issuing summons. Direct summons without this stage is not the usual procedure. For better guidance as per your case facts, kindly DM me.

Advocate Raziya LawRato

593 votes

Under Section 200 CrPC: Judge pehle complainant ka statement (pre-summoning evidence) leta hai Phir agar zarurat ho to inquiry kar sakta hai under Section 202 CrPC

Advocate Deepak Ranjan LawRato

929 votes

No, practically judge cannot issue notice or summons to defendant. The judge can direct the police to register the FIR and direct investigation if the offense is cognizable, if not the court can after taking cognizance summon or notice the defendants.

Advocate Vipul LawRato