How to file a criminal complaint case

The society is vulnerable to crime. Law protects society and deters criminal approaches. There is an established procedure of law to file a criminal case under the Criminal Procedure Code, 1973 . Reporting of the crime is the first and the foremost step that sets the criminal law in motion.

What is a Criminal Complaint?

A complaint according to Section 2(d) of the CrPC is an allegation made to the Magistrate in writing or verbal form which mentions the offense committed by a person (whether known or unknown) and does not include a police report. In layman's language, it is simply the written allegations of the complainant and contains a summary of facts of the matter/case that he/she seeks to present before the judges, and the relief that he/she seeks for the same. The person filing the complaint is called the “ complainant” .

What is a Vakalatnama?

A Vakalatnama is a document that is submitted by the complainant thereby authorizing an advocate/lawyer to argue the matter on his/her behalf. Even though an individual can file his/her own Vakalatnama, the terms used are extremely technical for a layman who does not belong to a legal background would not be able to prepare and fight a case on their own as well as an advocate who has legal knowledge can. A vakalatnama, thus, gives the advocate the authority to fight for justice and handle the court procedures on the complainant's behalf.It lists out the terms and conditions of authorization and the rights of the advocate during the matter.

Complaint relating to a non-cognizable case

When someone reports a cognizable case to a police officer, the officer must record the information in the station's book and can then direct the person to the Magistrate under section 155 (2) of the CrPC. If someone files a complaint about non-cognizable facts under Section 190 (1) (a) CrPC with a Magistrate, the Magistrate can instruct the police to investigate the case under Section 156(3) CrPC. A police officer investigates the case and submits a report to the Magistrate. The Magistrate proceeds if the complaint is substantial or otherwise, it will be dropped. If the Magistrate acknowledges it, the case will continue as a cognizable offense.

Complaint relating to a cognizable offence

Magistrate, on receiving a complaint of a cognizable offense, can direct the appropriate Police Station to lodge an FIR and conduct an investigation under Section 156(3) of the Criminal Procedure Code, 1973 (CrPC). Section 156(3) CrPC allows for police investigations before the cognizance stage, which means before examining the complaint or taking any action under section 200 of the CrPC. If the Magistrate has already started a case under Section 190(1)(a) and taken the complainant's statement under Section 200 CrPC, they cannot go back and tell the police to register the complaint for investigation under Section 156(3) CrPC.

What is the Procedure for a Criminal Complaint Case?

There is a lengthy procedure for a criminal trial in India. The criminal proceedings, including the filing of a criminal complaint, are essentially governed by the criminal procedural law of the country i.e. by the Criminal Procedure Code, 1973. It is recommended to take the help of a criminal lawyer in order to understand the full process of filing a criminal complaint. Given below is a typical procedure before, during, and after the filing of a criminal complaint.

1. Filing of a complaint by the informant/complainant at the police station.

2. If the complaint relates to a non-cognizable offense i.e. where the police cannot arrest a person without a warrant, the police will not register the FIR (first information report) and will ask the informant to approach the court having jurisdiction over the area where the offense took place.

3. However, if the complaint relates to the commission of a cognizable offense i.e. where the police can arrest a person without a warrant, the police will register FIR under Section 154 of the Criminal Procedure Code (Cr.P.C.).

4. Registration of FIR is followed by a detailed investigation conducted by the police. This may include recording of statements of witnesses search and seizure of documents and other property (if any, involved) a collection of other evidence, if any (such as scientific evidence, medical evidence) examination and/or arrest of accused persons, and other processes of investigation.

5. After the investigation has been completed, police will file either the charge sheet or a closure report before the competent court, depending upon the availability of evidence. This is done under Section 173 of Cr.P.C.

6. In case of a closure, the report has been filed, the informant/complainant may be given a chance by the court to oppose the closure of the case.

7. In case of a charge, a sheet has been filed, and cognizance of the offenses committed is taken by the court (under Section 190 of Cr.P.C .).

8. If the offense is triable exclusively by the Sessions Court, then the case will be committed to the Sessions Court. Otherwise, the Magistrate court will continue to handle the case.

9. The next stage is the framing of charges if there is prima facie evidence against the accused person(s). However, if no prima facie case is made out, the accused will be discharged.

10. If charges are framed, the next stage will be the recording of evidence from prosecution witnesses. This also includes their cross-examination by or on behalf of the accused persons.

11. The next stage is the recording of statements of accused persons under Section 313 of Cr.P.C.

12. Thereafter, recording of evidence of defense witnesses, if any, is done by or on behalf of the accused.

13. In the next stage, final arguments take place (maybe oral as well as written).

14. Judgment delivered by the court. It may result in conviction or acquittal of accused persons, depending upon whether or not the charges are proved by the evidence adduced by the prosecution.

15. In case of conviction of accused persons, the sentence is awarded to the accused persons after hearing them on the question of sentence.

When Case is Instituted by Private Complaint

• After a complaint is filed in court, the court promptly questions the complainant and their witnesses to determine if an offense is established against the accused.

• After examining the complainant, the Magistrate can order an inquiry and submit a report on the matter.

• Upon reviewing the complaint and report, the court may decide whether to proceed. If it finds insufficient evidence to convict the accused, the court will dismiss the complaint and provide a recorded explanation.

• If the court finds the prosecution's case strong with ample evidence, the Magistrate can issue a warrant or a summon as needed.

Examination of the complainant

In a criminal case, the complainant's examination is covered by Section 200 of the Code of Criminal Procedure. The magistrate, once aware of the offense, questions the complainant and any witnesses present, ensuring it's done under oath. The magistrate must also record any crucial findings during the examination. Finally, a written record, signed by the complainant and witnesses, should document the examination's substance. The Magistrate doesn't need to conduct this examination if:

1. If the complaint is valid when made by a public servant in their official capacity or by a court.

2. If a magistrate refers the case to another magistrate under Section 192.

If one Magistrate refers a case to another for investigation or trial, the second Magistrate doesn't need to review it again. Any Magistrate authorized by Section 190 can order an investigation as per Section 156(3) of the CrPC.

What to do after examining the complainant

After recording the complainant and witnesses' statements and evidence, the Magistrate has three options:

1. He may issue a legal process under Section 204 of the CrPC if there is a clear offense and the accused lives within the magistrate's jurisdiction.

2. He may dismiss the complaint under Section 203 CrPC if no prima facie offense is evident and there are insufficient grounds for proceeding, or

3. He may delay issuing the process while investigating it further himself or with the police or others as per Section 202 CrPC.

Magistrate can conduct an inquiry

The Magistrate can personally investigate or instruct a police officer or another person to check if there is enough reason to continue with the case, as per Section 202(1) of the CrPC. Usually, the Magistrate can take cognizance without conducting an inquiry or directing an investigation under section 202 CrPC. During the inquiry, the Magistrate can question witnesses under oath (Section 202(2) CrPC). If it is a Sessions Case, the complainant must provide the witnesses.
 

Magistrate's authority to reject a private complaint that indicates no offence

The Magistrate can review a private complaint as per Section 190(1)(a) of the CrPC. The complaint must include accurate facts for the offense. If the details are wrong, the Magistrate can dismiss it without further inquiry. In Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015), the Supreme Court ruled that the Magistrate can use information from sources other than the police report under Section 190(1)(c) of the CrPC, giving them an advantage in handling complaints. But, under Section 190(1)(a), the Magistrate can only file a complaint. According to Section 204, the Magistrate must ensure they have considered the facts and statements, and have a valid reason to proceed legally by interrogating the accused person accused of the offense in question. If the complaint meets the grounds for proceeding and the facts in it are an offense, the accused person faces court. When the Magistrate dismisses the complaint, they need to give a brief spoken order under Section 203 of the CrPC, explaining the reasons. Thus, the above-mentioned decision of the Supreme Court states a Magistrate can dismiss a private complaint if it doesn't clearly show a violation without further legal investigation.

Dismissal of a complaint case

If the Magistrate finds the complaint lacks sufficient evidence after looking at the statements and investigations, they will dismiss it. Whenever a dismissal occurs (Section 203 CrPC), he must explain why. Without these reasons, the appeal court can't assess the Magistrate's decision-making process.

How to challenge the complaint

Once the Magistrate issues a process against the accused, they can't reverse it. The Code of Criminal Procedure does not allow the Magistrate to review or cancel the summon or warrant. If the court issues a process, you can't file a recall application under section 203 CrPC. As per Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338, if the Magistrate doesn't dismiss the complaint and issues a process, the accused can't use section 203 CrPC to dismiss the complaint because that stage is already completed. You can't challenge the complaint under CrPC section 203 because the court doesn't hear the accused, and the accused has no role at this stage (Bholu Ram v. State of Punjab, (2008) 9 SCC 140). If there's no review option, you can use Section 482 CrPC to challenge the complaint. This involves invoking the High Court's inherent power for justice, as shown in Iris Computers Ltd. v. Askari Infotech (P) Ltd., (2015) 14 SCC 399.

In which complaint cases process fee is payable?

According to Code Section 204(4), if legally mandated fees are not paid promptly, no legal action can be initiated. If the fees remain unpaid for an extended period, the Magistrate can dismiss the complaint. To determine when these fees are applicable, you can refer to Rule 17 of the General Rules (Criminal), 1977. This rule specifies the fees for various processes issued by criminal courts for non-cognizable offenses. These fees are as follows:

1. Warrant of arrest: Rs. 10

2. Summons: Rs. 5

3. Proclamation for an absconding person under Section 82 of the Code: Rs. 10

4. Warrant of attachment: Rs. 20 (for the warrant) and Rs. 10 per day for each officer in charge of the attached property

5. When applying for compensation recovery under Section 357 or Section 250 of the Code: Rs. 10

However, there are exceptions: No fees apply to processes issued by public officers or railway servants when acting in their official capacity or by officers or servants of a local authority. The Presiding Officer of the Court can also waive or reduce the fee if the applicant can't afford it. However, Process fees are only required for processes like summons or warrants in non-cognizable offenses. Police officers can make arrests without warrants in cognizable offenses or those specified in Section 41 of the Code or other offenses made cognizable by separate laws.

Whether the complaint can be treated as a application u/s 156(3) Cr.P.C, 1973?

Filing a complaint for a cognizable offense in India follows specific legal steps, primarily governed by Sections 156(3) and 202 of the Code of Criminal Procedure, 1973. Here's a simplified explanation:

1. Section 156(3) of the Code: When a complaint about a cognizable offense is made to a Magistrate or Court, they can, before officially recognizing the complaint under Section 200, treat it as an application under Section 156(3). This means directing the relevant Police Station to file an FIR and start an investigation. However, this option is only available before the Magistrate takes formal notice of the complaint under Section 200.

2. Section 202 of the Code: This section deals with the Magistrate's authority to order a police investigation. Unlike Section 156(3), which operates before formal recognition, Section 202 comes into play after the Magistrate acknowledges the offense. Here, the Magistrate can order an investigation if the evidence collected during proceedings is insufficient to decide on the case's next steps. The goal is to help the Magistrate in ongoing proceedings, not to initiate a new case.

Case Laws:

In the case of Devarapalli Lakshminarayana Reddy v. Narayana Reddy, 1976, the Supreme Court clarified that Section 156(3) and Section 202 serve different purposes at different stages. Section 156(3) directs the police to start an investigation before cognizance, while Section 202 assists the Magistrate post-cognizance. In the case of Madhu Bala vs. Suresh Kumar and Others, 1997, the Supreme Court reinforced the Magistrate's powers regarding complaints of cognizable offenses. The Magistrate can either proceed under Section 190(1)(a) and Chapter XV upon receiving a complaint or direct the police to register a case under Section 156(3). Choosing the latter option involves a police investigation and a formal police report under Section 173(2). Importantly, a complaint filed before a Magistrate is not considered a police report Section 156(1) mandates the police to formally register a case. The legal process for cognizable offense complaints involves Sections 156(3) and 202 of the Code of Criminal Procedure, 1973. The choice between these sections depends on when the Magistrate or Court receives the complaint and whether they've taken cognizance. This understanding is crucial for legal practitioners and individuals dealing with criminal complaints.

When the Magistrate or Court, as the case may be, is deemed to have taken cognizance in the cases instituted on complaint?

& quot Cognizance& quot in legal terms is not specifically defined by law but rather determined by past court rulings. It is the authority of a judge to handle a legal case, indicating their choice to address it. Essentially, it is the judge's discretion to start legal proceedings. When a complaint starts a case, a Magistrate or Court examines it and any witnesses, ensuring valid reasons before proceeding. In essence, cognizance is when they decide to begin legal proceedings based on the complaint and evidence.

Can an inquiry be conducted under Section 156(3) even if a complaint is filed under Section 200 CrPC

Despite being labeled a 'private complaint' under Section 200, the Magistrate can still direct the Police to investigate. In Madhao v. State of Maharashtra (2013), it was observed that:

1. Magistrates are not obligated to immediately take notice of private complaints under Section 200. They have the discretion to decide whether to initiate proceedings or order an investigation. The decision to take cognizance depends on the merits and findings of such an inquiry or investigation.

2. Magistrates can explore other options before initiating proceedings in such cases.

3. Section 156(3) investigations should serve the interests of justice and save the court from delving into matters the police should have investigated initially.

Why do you need the help of a Lawyer?

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is regarding criminal law and its vast procedure. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates, whether the issue requires going to court, and, how the court procedure works. Seeing a lawyer and getting some legal advice can enable you to comprehend your choices and can give you the legal view for you to determine your legal recourse. An experienced attorney can give you expert advice on how to handle your criminal issue owing to his/her years of experience in handling such cases. A criminal lawyer is an expert on the laws and can help you avoid significant mistakes that may cause harm to your reputation, cause you to be imprisoned for longer, or will require future legal proceedings to correct. You can also ask a lawyer online a free legal question using LawRato's Ask a Free Question service.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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