1

POSTPONEMENT OF ISSUE OF PROCESS: A

MAGISTRATE’S DISCRETION

Submitted To:

Mr. Atul Satwa Jaybhaye, Faculty of Law (Cr.P.C.)

Submission Date:

08-12-2020

Submitted by:

Radhika Sharma

Roll No.-113, Section-C, Semester- VII, B.A. LL.B. (Hons.)

Hidayatullah National Law

University, Post Uparwara, Abhanpur,
2

New Raipur – 492002 (Chhattisgarh)

CONTENTS

Table of Cases……….…………………………………………………………………………….ii
Introduction…………………………………………………............……………………………iii
Chapter 1 – Complaint Proceedings under Judicial Magistrate……………………….........……..1
Chapter 2 – Issue of Process………………………………………………….......................…….2
1. Provision relating to Issue of Process…………………………………………….........….2
2. Issue of process in Summons case…………………………...……………………………3
3. Issue of process in Warrant Cases…………………….......………………………………4
Chapter 3 – Postponement of Issue of Process…………………………...........………………….5
1. Magistrate’s discretion in Postponement of Issue of Process…………………………......6
2. Magistrate’s Issue of
Process……………………………………………………………………………………7
8
Conclusion - ………………………………………………......................………………………10
Suggestions………………………………………………………………………………………11
 ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them in words is
beyond the domain of my lexicon.

This project wouldn’t have been possible without the help of my teacher Mr. Atul Satwa
Jaybhaye, Faculty of Law at HNLU, who had always been there at my side whenever I needed
some help regarding any information. He has been my mentor in the truest sense of the term. The
administration has also been kind enough to let me use their facilities for research work. I thank
them for this.
 ii

Table of Cases

S.NO. Case Names Citation

1. Chandra Deo Singh v. Prakah Chandra Bose AIR 1963 SC 1430

2. Devrapalli Lakshminarayan Reddy v. V. AIR 1976 SC 1672

Narayana Reddy
3. Bhushan Kumar v. State of N.C.T. of Delhi (2012) 2 SCC(Cri) 872
4. Anand Kumar Porwal v. State of UP ad another (2011) 1 ALJ (NOC) 117
5. Smt. Nagawwa v. Veeranna Shivalingappa (1976) 3 SCC 736

Kanjalgi & ors.

6. Nupur Talwar v. CBI & anr. AIR 2012 SC 1921
7. Vijay Dhanuka v. Najima Mantaj (2014) 14 SCC 638
8. Abhjjet Pawar V. Hemant Madhukar (2017) 3 SCC 528

Nimbalkar
9. Chiman Lal v. Datar Singh & ors. 1998 CriLJ 267
10. Kishan Lal v. Dharmendra Bafna AIR 2009 SC 2932

Introduction
 iii

Everyday court experiences suggest that many of the complaints are ill-founded and it is
essential that these complaints should from the very beginning be circumspectly looked after.
Moreover, the complaints which do not have a piece of proper evidence to make it consider
worthy should be subjected to further examination so that only in actual cases court should
summon the accused person.

It is important not to forget that an order summoning a person to appear in a court of law for the
criminal charge implies serious consequences and has the scope to make an accused person
deprive of his or her liberty which is considered to be so precious and sacred in our Republic.
Such an order should not be passed without the sanction by law. With this end in view Section
200 to 203 have been enacted and their main scope is to be able to distinguish genuine cases
from the false ones so as to root them out in the beginning without calling upon the party against
whom the complaint is made.

The Weeding-out operation practised by the Magistrate under Sections 200 to 203 is solely
and exclusively applicable to the cases where the cognizance is taken on a complaint. For
apparent reasons, such a special method or practice is not needed in cases where the cognizance
has been taken on a police report.

CHAPTER XV deals with COMPLAINTS TO MAGISTRATES. It means if a complaint is

made to magistrate for initiation of action for commission of any offence the Magistrate taking
cognizance of offence u/s.190(a) of the Code of Criminal Procedure, follow the procedure
under section 200, which speaks about the examination of complainant. Section 202 of
the Code deals with postponement of issue of process. Section 204 deals with the issue of
process. If in the opinion of magistrate taking cognizance of an offence there is
sufficient ground for proceeding, he may issue summons or warrant as the case it may be
depending upon the nature of case i.e. summons case or warrant case. This clearly indicates that
for issue of process u/s.204 the Magistrate has to see whether their exist sufficient ground for
proceeding. This “sufficient ground” needs to be seen on the basis of the material collected
under section 200 of the Code of Criminal Procedure. If after examination of complaint
the Magistrate is of the opinion that in order to issue process no sufficient material is available,
he may postpone the issue of process under section 204 of Cr.P.C. and if he thinks fit he may
inquires case himself or direct an investigation to be made by police officer for the purpose of
 iv

deciding whether or not there is sufficient ground for proceeding. This investigation is under
section 202 of Cr.P.C.

In Chandra Deo Singh vs Prakash Chandra Bose alias Chabi Bose, 1 the Supreme Court has
held that the object of section 202 of Criminal Procedure Code is to enable the Magistrate to
scrutinize carefully the allegations made in the complaint with a view' to prevent the person
named therein as accused from being called upon to face an obviously frivolous complaint. But
there is also another object behind that provision and it is to find out what material is there to
support the allegations made in the complaint. It is the bounden duty of the Magistrate while
making an enquiry to elicit all facts not merely with a view to protect the interests of an absent
accused person, but also with a view to bring to book a person or persons against whom grave
allegations are made. An enquiry under section 202, Criminal Procedure Code can in no sense be
characterized as a trial.

Section 202 comes in at a stage when some evidence has been collected by the Magistrate in
proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the
next step in the prescribed procedure. In such a situation, the Magistrate is empowered under
Section 202 to direct, within the limits circumscribed by that section an
investigation "for the purpose of deciding whether or not there is sufficient ground for
proceeding".2 Therefore, as observed by court in case, Devarapalli Lakshminarayana Reddy v.
V. Narayana Reddy,3 Thus the object of an investigation under Section 202 is not to initiate a
fresh case on police report but to assist the Magistrate in completing proceedings already
instituted upon a complaint before him."

RESEARCH METHODOLOGY

1
AIR 1963 SC 1430
2
AIR 2009 S C 2932 (Kishan Lal v. Dharmendra Bafna)
3
AIR 1976 SC 1672.
 v

1. Problem of the Study

The main problem that this project report is centred around is analysing the various novel
principles and concepts that are enshrined in the postponement of issue of process which is based
on discretion exercised by the magistrate. This project undertakes a detailed study of the same in
light of the contemporary scenario. The study has been mostly supplemented with observations
of various courts of law situated in India.

2. Rationale of the Study

The principle justification behind this study is that in today’s day and age, where Criminal Law
has a growing and inevitable impact on the lives of all citizens (especially in the Indian context),
it becomes necessary to understand exactly how the procedure of postponement of issue of
process is exercised by the magistrate. Also, the light has been drawn on to the mandatory rule
requiring the magistrate to order the investigation or conduct the inquiry. This is the driving
force behind the adoption of this study.

3. Objectives of the Study (Hypotheses)

This project is focussed around the following three-fold objectives:

 To understand the basic facts and aspects that are related to the concept of Complaint
proceedings under Judicial Magistrate and the importance of that proceedings.
 To analyse, in depth, the provision relating to issue of process and how it is issued in
summons case and warrant case. This has been corroborated through the ratio of several
decided cases of High Courts and Supreme Court.
 To critically examine the provision of Postponement of issue of process and how
magistrate exercises his discretion in that aspect. Also, the project discusses about the
dismissal of complaint in brief.
 vi

4. Review of Literature

The author of this project has utilised several textual sources for its completion and it would be
incomplete without critically analysing the same in light of its utility and usefulness.

 Ratanlal and Dhirajlal, The Code of Criminal Procedure, Lexis Nexis (21st Edition), 2018

An evergreen classic, this book is amongst the most comprehensive commentaries on the Law of
Criminal Procedure in India. This section wise commentary on the Code enjoys the reputation of
being one of the most authoritative publications on the subject. It adopts an integrated approach
and the provisions of the Indian Penal Code, 1860 and the Indian Evidence Act, 1872 are
referred to wherever necessary for better understanding of the complex legal issues. Technical
rules of procedure have been illustrated and explained in a lucid, comprehensive and systematic
manner.

This edition has been extensively and meticulously revised considering the changes brought
about by recent legislative amendments as well as judgments of higher courts. Latest and notable
cases of the Supreme Court as well as various High Courts have been incorporated. This edition
will be an invaluable reference for judges, lawyers and criminal law students alike.

 Durga Das Basu, Criminal Procedure Code, Lexis Nexis (4th Edition), 2010.

The present edition is an analytical commentary on the basic principles of criminal procedure.
This book highlights topical issues such as plea bargaining, fair trial, proportionate punishment,
bail and release on probation in great detail. The commentary has been presented in a clear and
systematic method. This commentary on the Criminal Procedure Code of 1973, maintains the
style and originality of the work done by Acharya Dr. Durga Das Basu in the third edition with
latest amendments and decisions added.
 vii

The fourth edition has been thoroughly revised and at places even re-written in the light of
statutory amendments and plethora of cases that have emerged during the last 14 years. The
impact of changes brought about by various amendments have been examined wherever required
and discussed at length in this revised work. State Amendments have been incorporated under
appropriate sections in the body of the book.

5. Nature and Type of Study

This study employs various methods of research. It is essential a doctrinal and observational
study, wherein data and information pertaining to the matter at hand has been collected from
archived databases and published sources. It involves a two-fold approach (1) production of
information about the law and (2) systematisation of the legal norms.

6. Source and Type of Data

As mentioned above, the data and information relating to the project topic has been taken from
secondary sources which describe, discuss, interpret, comment upon, analyse, evaluate,
summarize, and process the various primary sources available at hand. The secondary sources
utilised in the present study are in the form of archived databases and published literary sources
such as textbooks and reference books.

7. Limitation of the Study

This study was conducted not without difficulties. It would be appropriate here to mention some
of the obstacles and challenged faced by the author in rendering this piece of research work.

Firstly, there was the monumental challenge of critically analysing a plethora of case laws
available on the subject and understanding what was being conveyed by each of them with
respect to the topic at hand. Secondly, there was the challenge of keeping the study focussed and
 viii

centred on the Indian context with respect to fair trial and not straying from the task at hand.
Lastly, the author experienced some difficulty in compiling all the said data in a systematic and
logical manner without missing out on any relevant considerations.
 1

Chapter 1: Complaint Proceedings under Judicial Magistrate

Section 200 of CrPC says that a Magistrate, who is authorised to take account of the offence
took place on a complaint, shall consider upon the oath presented by both complainant and
witnesses if there is any and later the material obtained from this examination shall be
reduced to writing along with the sign of the complainant and the witnesses and also of the
Magistrate. According to the definition provided in Section 2(d) of CrPC, a complaint can
be in any of the forms both oral or written. Nor does Section 200 or any other section
require the complainant to present a written complaint to the Magistrate personally.
Therefore, the complaints sent to the Magistrate through posts are valid and he can take
action on such complaints also.  

Whether the complaint is in the form of writing or oral, Section 200 of Crpc makes it legally
mandatory to be examined by the Magistrate on oath. The mere objective of such an
examination of the complaint presented to the Magistrate is to establish whether there is any
direct or actual case against the person who is being accused of the offence in the following
complaint. Further, it aims to restrict the issue of process on a complaint which is either false
or inappropriate or may be intended only to harass a person by accusing him of an offence. 

The provisions provided under Section 200 are not a mere formality but instead made by the
legislature to protect and guard the accused person against the unwarranted complaints. These
provisions are not discretionary but mandatory to be performed by the Magistrate. In some
cases, the non-examination or improper examination of the complaint by the Magistrate has
been considered merely non-uniform and not “ineffective of the proceedings” in the absence
of failure of justice towards the accused. It is also considered that the non-examination of the
complaint by the Magistrate may cause harm to the complainant, not the person who has been
accused by him. There is no need for re-examination regarding the case ‘complaint by a
public servant or court’ and ‘Magistrate forwards the case to a different Magistrate
under Section 192’. 
 2

Chapter 2: Issue of Process

The issue of process is defined under Section 204 of CrPC, 1973. It empowers the magistrate
to issue summons or warrant (as the case appears) for the attendance of the accused after the
witnesses of the prosecution have been filed. There is no requirement for the Magistrate to
record detailed reasons for issuing process against the accused persons. If he feels that there
is adequate ground to proceed against the accused, he shall issue the process. It is very
essential that the Magistrate must have applied his mind to the materials filed therewith and
the accusations made in the police report.

2.1 Provisions relating to the issue of process

Section 204 of the code provides the provisions involved in the issuing of process.

(1) if the Magistrate opinions after taking cognizance of an offense that there are
sufficient grounds for proceedings, and the case looks like:
(a) a summons-case, then for the attendance of the accused he shall issue his
summons, or
(b) a warrant-case, then in order to make the accused be brought or appear in the
Court at a particular time, he may issue a warrant or a summons as he deems
fit, before that Magistrate or (if he does not have competent jurisdiction) some
other Magistrate having jurisdiction.
(2) under 204(1), no summons or warrant shall be issued against the accused until a list
of the prosecution witnesses has been filed.
(3) When a complaint made in writing institutes a proceeding, a copy of such complaint
shall be accompanied with every warrant or summons issued under 204(1).
(4) When any process-fees or other fees are payable by any law for the time being in
force, the process cannot be issued until the fees are paid and, if no such fees is paid
within an appropriate time, the Magistrate may reject the complaint.
(5) Nothing in this section shall be considered to affect the provisions of section 87.
 3

In the case of Bhushan Kumar vs. State (N.C.T. of Delhi), 4 when High Court rejected the
prayer of the appellants which sought the quashing of the summons order passed by the
Magistrate, the appellants reached the apex court through Special leave petition. 

The Supreme Court held that there is no need for the Magistrate to record detailed reasons at
the time of issuing a process against the accused persons. The Magistrate needs to observe
whether there is adequate ground to initiate proceedings against the accused and while taking
cognizance of an offence, and if he does feel so, he shall issue the process. Same was
reiterated by the Hon‘ble Allahabad High Court in the case of Anand Kumar Porwal vs.
State of UP and another.5

In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors,6 the Apex Court held that in
order to decide if a process should be issued or not, the Magistrate can take into cognizance
unlikelihood appearing in the complaint or in the evidence which is led by the complainant to
defend his allegations. The Magistrate has been granted absolute discretion in the matter and
this discretion has to be exercised judicially. It was also held that after the Magistrate has
exercised this discretion, it is not for the Hon’ble High Court, or even the Hon’ble Supreme
Court, to replace its own judiciousness for that of the Magistrate or even to probe the case on
merits in order to dig out whether the accusations made in the complaint, if established,
would ultimately lead in the conviction of the accused.

In the case of Nupur Talwar vs. C.B.I. and another,7 when the magistrate summoned the
parents of Arushi Talwar, they reacted by filing a review petition in Allahabad High court but
when the High Court dismissed the petition, special leave petition was filed before the
Hon’ble Supreme Court. When S.L.P was dismissed, they filed an instant review petition
which was entertained in which parents desired to review its order given by itself in S.L.P.
The Hon‘ble Supreme Court has held that the Revisional Court cannot go into the question of
whether the reasons given by Magistrate were good or bad, sufficient, or insufficient when
the revision is filed against the order of issuing process against the accused. It can only look
into the matter whether there was material before the Magistrate to have a look that there was
sufficient ground for issuing the process. U/s 204 of the code, issuing process need not be
reasoned and therefore the absence of reasons does not vitiate order.

4
(2012)2 SCC(Cri.)872
5
2011(1) ALJ (NOC) 117
6
(1976) 3 SCC 736
7
A.I.R., 2012 S.C.1921
 4

2.2 Issue of the process in a summons case 

Summon is a document, when served, instructs a person to appear before the court and to
answer the complaint made against him. According to section 2(w) of the code, when a case
is related to an offense and not if it is not a warrant case, it can be said as a summons case.
Summon cases can be understood from the definition of the warrant case which is defined
under section 2(x) which states that offenses which are punishable with death, imprisonment
for life, and imprisonment for the terms exceeding two years are called warrant cases. 

Therefore, summon cases are those cases in which punishment shall not exceed imprisonment
for two years. They are not of a serious nature, so they need to be decided swiftly in
comparison to serious cases, but not at the cost of justice.

Section 204(1)(a) of Cr.P.C, 1973 empowers the Magistrate to issue summons to the
accused. Therefore, the court may issue a warrant in any case in which it is empowered by
the Code of Criminal Procedure to issue a summons for the appearance of the accused, after
recording the reasons in writing.

2.3 Issue of the process in warrants case

If the Magistrate deems fit, he may issue a summons, or a warrant, so that the accused be
brought, or appear, at a particular time before him or (if he does not have competent
jurisdiction) some other Magistrate having competent jurisdiction, in the matter. The list of
prosecution witnesses must be filed to issue a summons or warrant against the accused. If any
processing fee or other fee is payable under any law for the time being in force, the process
cannot be issued until that fee is paid. If such a fee is not paid within a considerable time, the
complaint can be dismissed by the Magistrate.

It is noteworthy that since the protection is given under Article 361 of the Constitution, no
process can be issued by any court against the President of India or the Governor of a State in
the tenure of their office for the arrest or imprisonment. For issuing of process, the only
condition necessary is that the deposition made by the complainant must have some
considerable and sufficient ground in order to proceed in the matter. Therefore, until and
unless, there is sufficient material to justify the issue of a process, or there is considerable
ground for proceeding with the complaint, the Magistrate should not issue the process.
However, if complaints are preferred by two counter-complainants before a Magistrate, the
 5

process can be issued validly in one case by him, and the issue of a process can be postponed
in the other one until the first case is disposed of.

Chapter 3: Postponement of Issue of Process

According to Section 202, the order of investigation is called “Post Cognizance

Investigation” Therefore, any report submitted under this order shall be done as per Section
202 CrPC. This investigation under Section 202 CrPC is for the limited purpose as asked for
by the Judicial Magistrate. However, the Judicial Magistrate will not order investigation
under Section 202 if:

 The matter is exclusively triable by the Court of Session.

 When the complaint has been made by the public servant and the matter is not
exclusively triable by the Court of Session. 

According to this section, the collection of evidence can be done by the police officer or by
any such person who is considered to be fit and is authorised by the Judicial Magistrate on
that behalf. 

The main objective of the investigation directed under this section is to aid the Magistrate in
making up a decision to move towards the issue of process and this process should not be
thorough and exhaustive in nature. There need not be any investigation to be directed if the
offence is specially carried out for trial by the Court of Session which is ultimately going to
indirectly help in achieving an inquiry made by the Magistrate himself.

Moreover, in the case where the complaint has not been made by the court then there need
not be any investigation directed unless the complainant and the witnesses have been
examined on the basis of an oath. Section 465 of CrPC will not be able to cure the proceeding
in the case of directing an investigation before such examination but will spoil the proceeding
instead. The magistrate has the discretion to take or not to take any account of the witness on
the oath if the Magistrate wants to decide the case himself. 
 6

Section 202(2) of CrPC talks about the idea that in cases of offences which are entirely triable
by the Court of Session the inquiry should be Broad-based in nature whereas unlike in the
cases left on the discretionary action of the Magistrate. This broad-based inquiry is led by the
Magistrate only in the situation where he is unable to make his mind whether to dismiss the
complaint or proceed further to issue a process upon the complaint. In the case of trial by the
Court of Session, it is explicitly required by the Magistrate to call upon the complainant along
with all his witnesses and examine them on oath and here the word ‘All’ means all of them
not ‘some’. This provision helps the accused person to prepare him for defence with respect
to the accusations put on him by the complainant and examination of all the witnesses is not a
mere formality. Under Section 202 there is no provision provided to compel the complainant
to be present in the court during the Examination of the witnesses on oath and especially
when the complainant has been already examined on oath. Dismissal of the complaint by the
Magistrate in such a situation will be considered illegal.

3.1 Magistrate’s discretion in postponement of issue of process

Since the provisions contain the words ‘if he thinks fit’, therefore section 202 of code grants
full discretion to the Magistrate to direct an investigation or to decide to make an inquiry. The
discretion, however, has to be exercised judicially. In the case of Smt. Nagawwa vs
Veeranna Shivallngappa Konjalgi,8 the Hon’ble Supreme Court observed that once the
Magistrate has exerted his discretion, it is not open even for the High Court, or the Apex
Court, to replace its own discretion on that of the Magistrate or to study the case on merits
with an aim to find out whether the allegations in the complaint, if proved, would end in the
conviction of the accused.

But an order or the Magistrate can be quashed or set aside if the discretion exercised by the
Magistrate in issuing process is capricious and arbitrary having been based either on no
evidence or on materials which are wholly irrelevant or inadmissible.

3.2 Mandatory Issue of Process

Where a Magistrate receives a complaint of an offence of which he is authorised to take

cognizance and the accused person is residing at a place beyond the territorial jurisdiction of
8
1976 AIR 1947
 7

the Magistrate, it is mandatory under Section 202(1) of the Criminal Procedure for the
Magistrate to first conduct an inquiry himself or direct an investigation to be made by a
police officer or other person, before the issue of process against the accused, for the purpose
of deciding whether or not there is sufficient ground for proceeding.

It may be pointed out that the words “and shall, in a case where the accused is residing at a
place beyond the area in which he exercises his jurisdiction” were inserted in the above
section by way of amendment by the Code of Criminal Procedure (Amendment) Act, 2005,
with effect from 23 June 2006. The note for the above amendment in the Amending Bill read
as follows:
“False complaints are filed against persons residing at far off places simply to harass them.
In order to see that innocent persons are not harassed by unscrupulous persons, this clause
seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that
before summoning the accused residing beyond his jurisdiction he shall enquire into the case
himself or direct investigation to be made by a police officer or by such other person as he
thinks fit, for finding out whether or not there was sufficient ground for proceeding against
the accused.”

In the case of Vijay Dhanuka v. Najima Mamtaj,9 the Supreme Court, while interpreting the
above legal provision, held that:
“Section 202 of the Code, inter alia, contemplates postponement of the issue of the process
“in a case where the accused is residing at a place beyond the area in which he exercises his
jurisdiction” and thereafter to either inquire into the case by himself or direct an
investigation to be made by a police officer or by such other person as he thinks fit. In the
face of it, what needs our determination is as to whether in a case where the accused is
residing at a place beyond the area in which the Magistrate exercises his jurisdiction,
inquiry is mandatory or not.

The Supreme Court referred to the above note for amendment in Section 202(1) Cr.P.C.,
observing that the aforesaid amendment, in the opinion of the legislature, was essential as
false complaints are filed against persons residing at far off places in order to harass them,
and then the Supreme Court held as under: “The use of the expression “shall” prima facie
makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The
9
(2014) 14 SCC 638
 8

word “shall” is ordinarily mandatory but sometimes, taking into account the context or the
intention, it can be held to be directory. The use of the word “shall” in all circumstances is
not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the
legislature, we find that it is aimed to prevent innocent persons from harassment by
unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression
“shall” and the background and the purpose for which the amendment has been brought, we
have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory
before summons are issued against the accused living beyond the territorial jurisdiction of the
Magistrate.”

In the recent case of Abhijit Pawar v. Hemant Madhukar Nimbalkar,10 the Supreme Court
similarly held that such an inquiry or investigation was mandatory when the accused person
resides outside the jurisdiction of the Magistrate, by observing as under:
“Admitted position in law is that in those cases where the accused is residing at a place
beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part
of the Magistrate to conduct an enquiry or investigation before issuing the process. Section
202 CrPC was amended in the year 2005 by the Code of Criminal Procedure (Amendment)
Act, 2005, with effect from 22-6-2006 by adding the words “and shall, in a case where the
accused is residing at a place beyond the area in which he exercises his jurisdiction”. There is
a vital purpose or objective behind this amendment, namely, to ward off false complaints
against such persons residing at a far-off places in order to save them from unnecessary
harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct
enquiry or direct investigation before issuing the process, so that false complaints are filtered
and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill
proposing the said amendment.”

Chapter 4: Dismissal of Complaint

Section 203 of CrPC authorises a Magistrate to take cognizance on a complaint by the

complainant to build an opinion regarding the sufficiency of grounds to continue with the
proceeding of the case. This opinion must be based on the statements made by the
complainant and his witnesses and further depends on the result of the investigation or of an
10
(2017) 3 SCC 528
 9

inquiry as per Section 202. The Magistrate is required to apply his mind on the material facts
available regarding the case and then form an opinion whether those grounds are sufficient or
not to continue further with the proceeding of the case. 

The case is entirely triable by the Court of Session at the stage of Section 203 and Section
204 of CrPC. All that the Magistrate is required to do is to study or examine the complaint
properly and to check that the evidence recorded during the introductory inquiry under the
Section 200 and Section 202 are direct evidence in support of the charges put on the accused
person. At the later stage that is as per Section 203, the Magistrate is not required to measure
the available evidence precisely and leave it for the trial court to perform. The quality to be
maintained in examining the evidence should not be the same as maintained during the stage
of framing charges. The standards of proof and opinion should not be applied exactly during
the stage of framing charges like applied finally before establishing the accused person guilty
of the offence. So if, the stage of Section 202 or 204 provides with the direct evidence to
support the allegation put on the accused in the complaint related to the case exclusively
triable by the Court of Session,that will be sufficient ground for issuing the process to the
accused and further committing him for the trial to the Court of Session.  

As per the Section 203, the magistrate in exercising his discretion should not allow himself to
get manipulated by consideration of the motive by which the complainant may have acted in
the matter and not by any other consideration outside the facts which are presented by the
complainant in support of his complaint against the accused. Mere lapse of time between the
attempt of offence and date of the complaint made by the complainant is no ground for
throwing out the complaint, though that may be relevant considering at the trial for evaluating
evidence when presented.

The order of dismissal of the complaint by the Magistrate is subject to the examination by
higher courts and can be reviewed later. Therefore, the recording of the reasons behind the
dismissal of the complaint would be useful for such an examination of the complaint. At this
stage, it should be possible for the accused to satisfy the Magistrate that there was no case
existing at all against him and that he can recall the order issuing process as per the Section
204 and further dismiss the complaint under Section 203. In the Chiman Lal v Datar Singh
 10

and Ors.,11) case, it was held that the dismissal of a complaint is inappropriate where the
Magistrate is unable to examine the material facts and witnesses as stated under 202 of CrPC.

Chapter 5: Conclusion and Suggestion

When the complaint is filed in writing before the Court, the magistrate after studying the
complaint registers it. After registering it, the statement of the complainant under Section 200
Criminal Procedure Code (1973) is recorded on the same day and the case is fixed for
recording evidence of the witnesses under Section 202 of the Code of Criminal Procedure for
any other day. After recording evidence under Section 202 CrPC of the witness or witnesses
and the case is fixed for arguments on summoning. Having heard the arguments on hearing,
the case is fixed for next summoning. If the Magistrate finds or satisfies that evidence related
to the offence are available in the complaint as per evidence under Section 200 and 202 of the
Code of Criminal Procedure. The Magistrate issues the process under Section 204 of the
CrPC. against the accused. On the other hand, if the Magistrate is satisfied after studying
evidence under Section 200 and 202 CrPC. that no prima facie offence is made out and there
is no sufficient ground for proceeding then he dismisses the complaint under Section 203
CrPC.

 Hence, it is suggested that the Examination of the Complaint on oath is not a mere
formality that needs to be performed by the Magistrate and discharge of a
complaint with such an examination is illegal and against the provisions of CrPC.
 A statement of oath lies in a different category that means it cannot be set equal
with the statement which may be made without taking any oath. However, it is not
required by the Magistrate taking action on the complaint to constantly examine
the witnesses mentioned in the petition of the complaint. So after examining the
complainant on the basis of an oath which results in finding a direct case against
the accused then the proceeding will follow and if the witnesses, in this case, were
not examined by the Magistrate, the proceedings would not be ineffective under
Section 200.
 Section 203 gives the power to dismiss the complaint under this section in every
case and for which he shall briefly record his reasons for the same because it will
help in determining whether the Magistrate while dismissing the complaint made
11
1998 CriLJ 267
 11

by the complainant applied his mind to the facts available or whether exercised his
discretion properly or not.     
 The crucial duty of considering the relevant evidence materials and requirement of
the recording of the reasons is an important protection against random dismissal of
a complaint.
 Where a complaint has been charged on the accused persons regarding
commission of several offences and the magistrate finds sufficient evidence for
issuing of the proceeding against all of them or some of them in respect of the
offences committed, his order will lead to the dismissal of the complaint against
such persons in respect of other offences. Here also the provisions stated under
Section 203 will come into play and the magistrate needs to provide the reasons
behind why he considers that there are no adequate grounds to continue with the
proceeding against the accused persons for which no action is commenced against
them. 
 12

BIBLIOGRAPHY

Since the author has tried to keep the scope of this project limited to the concept of Criminal
Procedure, for better and focussed research, the author has utilised limited books and
resources, which were most appropriate for the case at hand. These resources are:

 Ratanlal and Dhirajlal, The Code of Criminal Procedure, Lexis Nexis (21st Edition),
2018
 Durga Das Basu, Criminal Procedure Code, Lexis Nexis (4th Edition), 2010.
 Joshua Dressler, Encyclopedia of Crime & Justice, Macmillan Reference USA (2 nd
Edition), 2003.
 P.J Alexander, Policing India in the New Millenium, Allied Publishers, 2002.

The author has also made use of some generic websites which aided the process of research
and data collection. These websites are:

 http://www.manupatrafast.com/
 http://heinonline.org/
 https://books.google.co.in/
 https://link.springer.com/
 https://www.jstor.org/