The Magistrate should take the cognizance of the offence first and thereafter proceed to examine the complainant and his witnesses on oath. It is only after this stage that summons may be issued if necessary.
The Magistrate must give the complainant an opportunity to be heard in person or through his pleader. Having done so, he may order an inquiry under Section 202 or dismiss the complaint under Section 203 if he finds that there are no sufficient grounds to proceed with the case.
Where a complaint is made by a public servant acting or purporting to act in discharge of his official duty or by a Court or if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192, the Magistrate need not examine the complainant and the witnesses.
An omission to examine the complainant and his witnesses by the Magistrate as required by this section is a serious irregularity but it does not necessarily vitiate the proceedings, so long as the person objecting has not been prejudiced by such irregularity.
In a significant decision handed down by the High Court of Kerala in Pramod v. C.K. Velayudhan, it has been held that Criminal Court will not get any jurisdiction to proceed against a person at the mere sight of the details on the docket-sheet or the cause- title.
No Court shall act upon the sole tag, label or the badge veiled on the cause-title nor shall it be carried away by the prints and dots on the veil of cause-title. In other words, the Court is bound to unveil the complaint, feel the texture of its contents and test the criminality because criminality lies not on how a person is Christianed at the cause-title, but how he has acted, as per the contents of the complaint.
Karnataka High Court in Durvasa v. Chandrakala, has held that non-examination of complainant upon oath is a mere irregularity and does not vitiate the proceedings under this section. Where the accused person himself voluntarily appears before the Magistrate to answer a charge, his examination on oath becomes immaterial.
The High Court of Karnataka in V.S. Joshi v. N.G. Bhat Chitrigi held that order issuing process could not be set aside merely on hypothetical ground where the Magistrate after taking notice of accusations made in complaint, had proceeded to record sworn statements of the complainant and witnesses. This clearly showed that he had taken cognizance of the offence.
Therefore, the fact that he had not specifically mentioned in his order that “he had taken cognizance of the offence” did not render the process issued by him liable to be set aside merely on such hypothetical ground.
In Zain Sait v. Intex Painter, the Magistrate took cognizance of offences under Sections 323/341, IPC on a private complaint, which was lodged by two complainants jointly. The High Court of Kerala took the view that the word complainant’ having been used in Section 20 in singular form clearly suggests that a joint complaint by two or more complainants is not maintainable under this section, but the Magistrate has the jurisdiction to treat the complaint as if filed by one of the complainants at their option, and proceed with the case. Since no such option was exercised by the complainant in the instant case, cognizance taken by Magistrate was vitiated. Similar opinion has been expressed by the High Court of Madras in Narayan Swami v. Egappa.
But the Allahabad High Court has taken a contrary view and held that applying the provisions of Section 13 of the General Clauses Act, the word ‘complainant’ would also include its plural form i.e. ‘complainants’.
In Shakuntala Devi v. State of U.P., it has been held that in spite of availability of Civil remedy, criminal case is not barred by Section 200, CrPC as the two remedies are not mutually exclusive but they are clearly co-existensive.
The Court in this case observed that when a civil remedy is available, filing of a criminal complaint is not automatically barred because of the availability of that remedy and each case has to be decided on the basis of its peculiar facts and circumstances to find out whether on facts of the case a criminal offence was made out or not.
In criminal trial one of the cardinal principle for the Court is to look for plausible explanation for the delay in lodging the complaint or report. Delay in filing complaint affords opportunity to the complainant to make fabrication.
Therefore, if there has been delay in either filing F.I.R. before the Police or complaint before the Court, the Courts always view allegations with suspicion and insist for satisfactory explanation for delay in filing F.I.R./complaint. Mere statement by the complainant that police did not take action is not a satisfactory explanation for justifying delay in filing of the complaint before the Magistrate.
In the case of Tulsidas v. State of Rajasthan, earlier complaint was filed by the petitioner and the Police submitted final report after investigation saying that only an offence under Section 323, IPC was made out against the accused which was a non- cognizable offence.
Thereupon the petitioner filed second complaint by way of protection petition which was dismissed by the Magistrate after hearing the complainant as it was found that there existed no new facts which could be brought on record. The High Court upheld the order of the Magistrate and the appeal was dismissed.