Document Fragment View

Matching Fragments

7. We are however concerned herein with a situation wherein the initial report was not to the jurisdictional Magistrate under Section 200 of the Cr. P.C., but, only to the police, and it is on the police investigating into the same and submitting the 'B' report, that the complainant asked the Magistrate to take cognizance under Section 190(1)(a) of the Cr. P.C., on the basis of what he called protest application. The question is whether such a protest application is not required to be in the form of complaint within the meaning of Section 2(d) of the Cr. P.C., and whether it will suffice if it is merely in the form of a protest petition such as the one mentioned in the earlier cases referred to above, or to be precise, in a case like the one referred to in Ninganagowda's case, supra. In other words, even if the protest application does not conform to the definition of a 'complaint' in Section 2(d) of the Cr. P.C., whether it can still be construed as such a complaint. Before answering this question, I may first deal with the submission of Sri Rajashekar Siri, learned Counsel for the respondent-complainant that the protest application concerned herein does meet the requirements of Section 2(d) of the Cr. P.C. I have extracted the whole of the protest application above. Since the complainant is asking the Magistrate to take cognizance under Section 190(1)(a) of the Cr. P.C., all references in the protest application extracted above to the 'B' report or to what the Investigating Officer has done etc., would be of no avail to the complainant. The only sentence in the protest application insofar as it is material for application being considered as complaint within the meaning of Section 2(d) of the Cr. P.C., is this: "The accused have committed offences punishable under heinous offences". One more sentence relevant in this regard is: "Hence, it is prayed that the 'B' F.R. filed by the police may not be accepted and complainant may be permitted to prove the charges against the accused persons before this Hon'ble Court". As will be presently seen, it would not suffice to merely say that the accused have committed offences. That takes us nowhere, and it will not be possible for the learned Magistrate to apply his mind with regard to taking of cognizance under Section 190(1)(a) of the Cr. P.C. What is required is the acts committed. It is those essential ingredients that are lacking in the protest application concerned. As to how facts necessary for constituting an offence would be essential in a complaint under Section 200 of the Cr. P.C., could be better understood if the relevant provisions are looked into. Section 2(d) of the Cr. P.C. defines 'complaint' as meaning any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person whether known or unknown, has committed an offence, however, the said complaint does not include a police report. The essential features therefore are that, there should be an allegation made orally or in writing, that it should be before a Magistrate, that the allegation should be that some person known or unknown has committed an offence, and such an application before the Magistrate should have been made with a view to his taking action under the Code. It is such a complaint that Section 200 of the Cr. P.C. speaks of. When Section 200 of the Cr. P.C. speaks of a Magistrate taking cognizance of an offence on such a complaint, it is referring to the taking of cognizance under clause (a) of sub-section (1) of Section 190 of the Cr. P.C. The said Section 190(1)(a) of the Cr. P.C. speaks of the Magistrate taking of cognizance of any offence upon receiving a complaint of facts which constitute such offence. In other words, it should be containing facts that constitute such offence, of which, the learned Magistrate is taking cognizance. Unless these essential ingredients are there, there would be no way enabling a Magistrate to take cognizance under Section 190(1)(a) of the Cr. P.C. on a complaint. I am of the opinion that, the mere sentence viz., that the accused have committed offences punishable as heinous offences would not be a complaint of facts which constitute an offence, cognizance of which is being taken by the learned Magistrate under Section 190(1)(a) of the Cr. P.C. There was therefore no complaint under Section 200 of the Cr. P.C. before the learned Magistrate within the meaning of Section 2(d) of the Cr. P.C. upon which, the Magistrate could have taken cognizance of an offence under Section 190(1)(a) of the Cr. P.C.