By Y.SRINIVASA RAO, Principal Asst. Sessions Judge, Tirupati
Introduction: The expressions “complaint”, “inquiry”, “investigation”, “police report”, “summons-case” and “warrant-case” are defined inSections 2(d), 2(g), 2(h), 2(r), 2(w) and 2(x) of the Code respectively and are extracted hereinbelow for immediate reference:
(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.
(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;
(h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;
(r) “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;
(w) “summons-case” means a case relating to an offence, and not being a warrant-case;
(x) “warrant-case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;
As would be evident from the definitions recited, a “complaint” is an allegation made orally or in writing to a Magistrate with a view to take action under the Code against some person, known or unknown, who had committed an offence and does not include a police report. In contradistinction, “police report” means a report forwarded by a police officer to a Magistrate under Section 173(2), whereas “warrant case” is one relatable to an offence punishable with death, imprisonment for life or punishment for a term exceeding two years, a “summons-case” is one qua an offence which is not a “warrant-case”. A clear cut distinction, therefore, has been ordained by the Codebetween a “complaint” and a “police report” as well as a “warrant-case” and a “summons-case”. See. The State Of Goa vs Jose Maria Albert , (2018) 11 SCC 659.
Section 2(x) of Cr.P.C defines warrant – case. Warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Chapter XIX of Cr.P.C deals with provisions for trial of warrant cases instituted on police report. Some essential elements of a warrant case are as infra:
- Charges must be mentioned in a warrant case.
- Personal appearance of accused is mandatory
- A warrant case cannot be converted into a summons case
- The accused can examine and cross-examine the witnesses more than once.
- The magistrate should ensure that the provisions of Section 207 Cr.P.C.
- Section 207 of Cr. P.C. 1973, include the supply of copies such as police report, FIR, statements recorded or any other relevant document to the accused.
The stages of trial in warrant cases are given from Sections 238 to 250 of the Code of Criminal Procedure, 1973.
- Trial of warrant cases by the Magistrate Courts are provided in Chapter XIX CrPC where as the trial of summons cases are governed by Chapter XX CrPC.
- Discharge of accused, in warrant cases, is covered under Section 239 CrPC and S. 245(2) of the Code of Criminal Procedure,1973 , as applicable to such warrant cases.
- Recalling of summons issued against accused is considered in Adalat Prasad v. Rooplal Jindal 338 : 2004 SCC (Cri) 1927 and K.M. Mathew v. State of Kerala,1992 SCC (Cri) 88. See also. In Subramanium Sethuraman v. State of Maharashtra, the attention of the Apex Court was drawn to the fact that its decision in Adalat Prasad case was on warrant procedure.
Chapter XIV of the Code dwells on the conditions requisite for the initiation of proceedings under the Code. Section 190 provides that any Magistrate of the first Class and any Magistrate of second class specifically empowered in this behalf under sub-section (2) thereof, may take cognizance of any offence –
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
After an information is laid with the police in respect of an offence, as provided for in Chapter XII of the Code and on completion of the investigation in connection therewith, the officer in-charge of the concerned police station is required to submit a report to the jurisdictional Magistrate empowered to take cognizance of the offence on such report, under Section 173 thereof. This police report as referred to in sub-section (2), needs to be in a form prescribed by the State Government and ought to mention inter alia, the names of the parties, the nature of the information, the names of the persons, who appear to be acquainted with the circumstances of the case, whether an offence appears to have been committed and if so by whom, and whether the accused has been arrested and released. Sub-section (8) of Section 173, however, does not preclude further investigation, even after submission of such report so as to enable the investigating agency to forward to the Magistrate a further report or reports regarding such evidence as may be obtained. This police report, as has been referred to in Section 190, is one of the inputs available to the Magistrate to take cognizance of any offence, as disclosed thereby.
In terms of Section 200, if however a complaint is filed in a court of law, as is contemplated in clause (a) of Section 190, a Magistrate taking cognizance of an offence on the basis thereof, has to examine upon oath, the complainant and the witnesses present, if any and the substance of such examination has to be reduced in writing, to be signed by the complainant and the witnesses and also by the Magistrate. The mandate of examining the complainant and the witnesses is relaxed:
a) if a public servant acting or purporting to act in the discharge of his public duties or a Court has made the complaint; or
b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192.
In terms of Section 202, any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not, there is sufficient ground for proceeding. The direction for such investigation, however, is not permissible – a) where, it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
Chapter XIX is devoted to trial of warrant cases by Magistrate and enfolds two categories i.e. A -cases instituted on a police report and B- cases instituted otherwise than on a police report. In the former category i.e. cases instituted on a police report, the successive stages comprehended after the accused appears or is brought before a Magistrate at the commencement of the trial, have been detailed. These are accommodated in Sections 238 to 243.
In terms of Section 238, when, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207 i.e. the accused has been furnished without delay, free of cost, a copy of each of the records/documents mentioned therein, which include the police report, referred to hereinabove and the papers accompanying the same. If upon considering the police report and the documents sent along with it under Section 173 and making such examination if any of the accused, as the Magistrate may think necessary, and if after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. On the other hand, if upon such consideration and examination if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing, a charge against the accused, which would be read and explained to the latter and he would be asked whether he pleads guilty to the offence charged or claims to be tried. Noticeably, these two eventualities encompassed in Sections 239 and 240 of the Code though contemplate examination of the accused, if the Magistrate thinks it necessary, no witness of the prosecution can be examined at that stage and the Magistrate would decide as to whether the charge is to be framed or not on the basis of the materials available i.e. the police report and the accompanying papers as well as the statement of the accused, if recorded, of course after affording an opportunity of hearing to both the sides.
Whereas Section 241 empowers the Magistrate, if the accused pleads guilty, to record such plea and in his discretion, convict him thereon, in terms of Section 242, the Magistrate would fix a date for examination of the witnesses if the accused refuses to plead guilty or does not plead so, or claims to be tried. After the closure of the evidence of the prosecution, in course whereof, the accused would have a right to cross-examine its witnesses, he would be called upon to enter upon his defence and produce his evidence and after recording his statement, if it is also prayed by him, the Magistrate would issue such process for the attendance of any witness for the purpose of examination and cross-examination, or for production of any document or other thing, unless it is considered that such an application should be refused on the ground that it is vexatious or had been made for the purpose of delay or for defeating the ends of justice. At the end of the trial, on the completion of the process, as above, if the Magistrate finds the accused not guilty, he shall record an order of acquittal. However, if the Magistrate finds the accused guilty, but does not proceed in accordance with the Sections 325 or 360 of the Code, he would, after hearing the accused on the question of sentence, pass sentence upon him according to law.
With regard to cases instituted otherwise than on police report, the procedure is outlined in Sections 244 to 247 of the Code. In terms of Section 244, when in any warrant case, instituted otherwise than on police report, the accused appears or is brought before the Magistrate, the latter shall proceed to hear the prosecution and take all such evidence as may be produced, in support of the prosecution. It is subsequent thereto, as per Section 245, that if upon taking all the evidence so produced, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out, which if unrebutted, would warrant his conviction, the Magistrate would discharge him. Section 245(2) empowers the Magistrate to discharge the accused at any previous stage of the case, if, for reasons to be recorded by such magistrate, he considers the charge to be groundless. In case, however, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under the Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing, a charge against the accused, as ordained by Section 246(1). Thereafter, the charge shall be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. However, if the accused refuses to plead guilty or does not plead so or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether, he wishes to cross-examine any, and if so, which of the witnesses for the prosecution, whose evidence has been taken and if he elects to do so, the witnesses named by him, would be recalled and, after cross-examination and re-examination (if any), they would be discharged. As per Section 246(6), the evidence of the remaining witnesses for the prosecution would next be taken and after cross-examination and re-examination, if any, they shall also be discharged. It is subsequent thereto, that in terms of Section 247, the accused would then be called upon to enter upon his defence and produce his evidence; and thereafter the provisions of Section 243, applicable for cases instituted on a police report, would apply.