Magistrate Power To Take Cognizance Of An Offence

Whether Magistrate Can Take Cognizance of Offence U/S 200 of Cr.P.C. Instead of Directing Investigation U/S 156(3) of Cr.P.C?

Yes, Magistrate can take cognizance of offence U/S 200 of CRPC, as it gives power to the magistrate to take cognizance of an offence and according to section 200 of Code of Criminal Procedure, it states that “A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- A public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint. Magistrate makes over the case for inquiry or trial to another Magistrate under section 192 provided that the magistrate makes the complaint to another magistrate under Section 192.”

On the other hand the scope of section 156(3) under CRPC is different from Section 200 of CRPC, as according to this, any Magistrate may order for the investigation, within his authority and jurisdiction, empowered under section 1901.

When the complaint is raised before the magistrate then the judge has three choices at his disposal: either to take action on the complaint and continue with the proceedings under Section 200 and start investigation or direct the police officials to conduct an enquiry under section 156(3) or to drop the lawsuit proceedings by failing to take cognizance.

When the magistrate decides to take the cognizance then in such a situation the magistrate must carry out an investigation under section 200 in which he has to follow up the procedure stated under the code of the criminal procedure. If after the findings magistrate founds sufficient ground then the court will issue the process under section 204 of the Cr.P.C.

When the case is registered under section 156(3) and consequently might have 2 reasons for this, which are:

1. The Police Station and the Police Chief refused to file your FIR.

2. Your FIR has been filed by the Police Station and Police Superintendent but the proper investigation is not being conducted.

Based on the following circumstances, an affected party may knock the gates of courts through provision 156(3) and, subsequently, the Magistrates are authorized under section 190 and shall pass an order for proper investigation or to file the FIR and investigate the matter properly.

But on the other hand if the case is registered under section 200 then, a magistrate must follow a full procedure as set out in the code starting from Section 200 and ending to Section 203 i.e. the dismissal of complaint.

However, it must be noted here that a large number of private complaints against parties have occurred in recent times and the use of Section 200 has resulted in a lot of false allegations against private parties, many of which have been found to be frivolous. This includes checking the facts of the allegation by interviewing the Complainant on Oath and then referring it to the magistrate itself for an inquiry or referring it to the police officers for an investigation.

Even though, the Magistrate has full authority to direct the Police under section 156(3) for investigation even if the complaint was filed as a Private Complaint under section 200.

In the case of Marjit Kumar Singh v. Sudhamoy Bhattacharyya2, It was claimed that, under Section 190(1)(a), Criminal Procedure Code, the Magistrate was not allowed to take account of a complaint which was not a legitimate complaint. In considering the fact that the written report contained a complete lack of evidence constituting the crime. It is further deemed that the complainant’s examination on oath could not heal the defect, since the complainant’s examination is in accordance with Section 200, Cr.P.C. which presupposes a valid complaint under Section 190(1) Cr.P,C.

In the case of Polavarapu Jagadiswararao v. Kondapaturi Venkateswarlu3, It was specified that the Magistrate shall record, if any, the written statements of the applicant and the witnesses present and (i) must take notice of the offense referred to in Section 190(1)(a) and the issue process, or (ii) postpone proceedings under Section 202 and (a) investigate the case by itself, or (b) direct police investigation. Consequently, the authority under Section 202, Cr. P.C., lies either with the Magistrate to investigate the case personally or to direct proper investigation. The Magistrate is also open to issue or delay the issue of process. While practicing its authority, the Magistrate investigates the case, the complainant’s written statement, and, if any, those recorded by the witnesses, and then comes to a decision as to whether to acknowledge the offense under Section 190(1)(a) or to delay process issue under Section 202, by Cr.P.C. Or refer the case to the police under Section 156(3) Cr. P.C.

Conclusion

To conclude, it is right to said that under Section 200 of the Code of criminal procedure, a magistrate can take cognizance of an offence by himself after getting a complaint in written and must be signed by the complainant. Magistrate must follow the procedure mentioned in the code. However, this is the discretion of the magistrate to direct the police official to take action under 156 or he can himself take cognizance under section 200 of Cr. P.C.

1 ibid

2 1953 CriLJ 1463

3 1991 CriLJ 1419

This article is authored by Ayush Sharma, Third-Year, BBA. LL.B, Student of JIMS School of Law

Also Read – What should you do if A False FIR Is Filed Against You?

Law Corner

Leave a Comment