How to File a Complaint with a Magistrate in India: Steps, Key Elements, and Legal Provisions
Introduction
- Meaning: Any allegation made orally or in writing to a magistrate, with a view to his taking action under the provisions of the law, that some person, whether known or unknown, has committed an offence, but does not include a police report. In criminal law, a complaint is defined under section 2(d) of the CrPC, which has been replaced by section 2(1)(h) of BNSS, 2023.
- Scope: Generally, a complaint is made against a non-cognizable offence. However, despite compliance with sections 173(1) and 173(4) BNSS, 2023, if the police officer fails to register a cognizable offence, the aggrieved person can file a petition before the magistrate under section 175(3) BNSS, 2023, which may be considered as a complaint in specific instances.
- Elements: Details of the complainant, description of the offence committed, all necessary particulars of the case, including the date, time, place, etc, of the committed offence, and the information of the offender, in the prescribed manner in law.
- Complainant: The victim, the witness, or any other person in good faith may file a complaint with the concerned magistrate, unless otherwise provided, taking an oath before the Oath Commissioner.
Procedure
- Petition to Magistrate: A petition under section 210 of the BNSS (previously section 190 of the CrPC), presented before the concerned magistrate of the area in which the crime has been committed, including the facts of the parties involved, details of the incident, and other necessary facts, the relief sought, along with an affidavit in support of the application.
- Examination of the Complainant: Once a complaint is received, under section 223 of BNSS, 2023 which replaced section 200 of the CrPC, 1973, empowers the magistrate to examine the complainant and any witnesses present (the role of such assessment is to prevent the court from entertaining trivial complaints or allegations while there is no seem prima facie case at all to warrant more investigations).
- Examination on Oath: The magistrate then administers an oath to the complainant and any witnesses (if present) to determine whether there is sufficient cause to warrant proceeding with the case.
- Written Record: The magistrate then records the essence of such examination of the complainant and witnesses in writing, which the magistrate, the complainant, and the witnesses (if any) sign.
- Exemption from Examination: When the complaint is made in writing and such is made by a public servant or if the magistrate refers the matter to another magistrate under section 212, the magistrate may exempt the examination of the complainant and witnesses.
- Notice to the Accused: In the interest of justice, a notice under section 223 of BNSS, 2023, is issued to the accused, providing an opportunity to be heard before taking cognizance by the magistrate.
- Taking Cognizance: Section 210 of BNSS empowers the Magistrate to proceed with an action by applying his judicial mind and determining whether, prima facie, an offence has been committed or not. Thus, the judicial proceedings begin. A magistrate can take cognizance of any offence:
- When a complaint of facts that constitute such an offence has been made
- Upon a police report
- On the information of any other person or suo moto by the magistrate
- Inquiry and Investigation: Under the provisions of section 225 of BNSS, 2023, and section 202, CrPC, to determine whether there is sufficient ground for proceeding, the magistrate may issue a process to the accused, but where the accused resides beyond the jurisdiction of the magistrate, the magistrate can adjourn issuing of process. The magistrate may
- Inquire Himself: The magistrate can conduct a preliminary inquiry to determine whether there is a basis to proceed with the case.
- Direct an Investigation: A magistrate may order a police officer or any other competent person to investigate the circumstances stated in the complaint. This type of inquiry is helpful when the facts are unclear or the magistrate requires additional information to take action.
- Dismissal of Complaint: Section 226 of BNSS, 2023 states that the magistrate possesses the prerogative to dismiss the complaint at the preliminary stage if there is insufficient ground to proceed after considering the statements under oath (if any) of the complainant and witnesses under section 223 BNSS, 2023 and result of inquiry or investigation (if any) under section 225 BNSS, 2023. The magistrate must provide reasons for dismissing the complaint. This provision is equivalent to section 203 of the CrPC and prevents the entertaining of frivolous or baseless complaints.
- Issuance of Process: Under section 227 BNSS, 2023, if the magistrate is satisfied with the material against the accused that justifies proceeding with and hearing the case, he shall issue a summons or warrant, as the case may be, which may also be issued electronically. The issuance of the process is crucial as it indicates that the magistrate has found a basis for the commission of the offence.
- Summons for Minor Offences: For charges that do not carry a potential penalty of more than two years' imprisonment, the magistrate may issue a summons to the accused person to appear in court.
- Warrant for Serious Offences: In cases involving serious offences (where imprisonment of two years or more may be imposed), the magistrate may issue a warrant of arrest to bring the accused to trial.
- Pre-trial or Trial: The process of pre-trial or trial will be initiated as provided by the law.
Conclusion
In India, the procedure for filing a complaint before a Magistrate is a critical process that includes technicalities. A complaint must include all relevant details of the offence alleged. In practice, it has been observed that the absence of necessary details or a lack of appropriate information may lead to the dismissal of the complaint or a weak prosecution. Therefore, it is advised to hire a seasoned lawyer to represent your case. To know more about complaints, click here.
