Cases relating to crimes are triable by the Criminal courts of which the fir court is that of judicial or Metropolitan Magistrate Ordinary and simple crimes are tribal by Metropolitan Magistrates, while the serious ones are initially investigated and then sent up to the session’s courts trial.
The schedule appended to the code of Criminal
procedure gives and provides a list of crimes and offences tribal by Metropolitan
Magistrate and by the count of sessions. What the students have to remember is
that in cases of a serious nature where the police take cognizance of the case,
it is the police which takes over the task of prosecuting the accused and leads
evidence to establish the guilt of such. persons.
In the cases of defamation, malicious prosecution complaints are generally taken up by the private individuals on their own expenses; Generally the formate used in all such complaints is similar because the complaint, whatever it nature, has to be filed before the Metropolitan Magistrate of the Area/District.
Normally a criminal case begins
with the filling of an F.I.R. with the police station of the area and if there
is a serious case, fatal! serious injury/ rape etc. the victim (s) have to
undergo medical examination in order to establish the nature of the injury and
the real cause of the injury (death) etc. thereafter the prosecution completes
the investigation and puts the accused on trial. Students are advised to read
the CR. P. C. of the author for further commentary.
There are certain private complaints which
may be taken direct to the Metropolitan Magistrate with or without the
participation of the police. However the complainant must have reported the
nature and the 70 facts of the
case to the local police and must have obtained a receipt thereof which must
from a part of the complaint.
Hints on Drafting a Complaint
: while drafting a complaint everyone
should, remember the "Ten commandants" :-
1. Be brief,
2. Be positive,
3. Be precise,
4. Be relevant,
5. Plead fact and not evidence,
6. Plead fact not low,
7. Do not plead what the low or the court
takes for granted or what the other side has got to prove.
8. Give particulars of fraud etc.
9. Do not change your terminology and do not
use fine language or words that you do not understand.
10. Do not use the passive voice participle,
phrases, pronouns or any sort of ambiguity.
Form of Complaint:
No special form as such is provided by law.
The minimum requirements of a complaint are:
i.
It must be
addressed to a Magistrate;
ii.
Stating facts
which fulfill the ingredients to the offence complained of,
iii.
And praying for
action against the offender for punishment.
Apart from the other legal requirement, in
practice the complaints are drafted in the following manner, and it should
state;
a. Name of the
court in which the complaint is to be lodged;
b. The
Criminal case No. of the court
c. The name and description including age,
occupation and place of residence of the complainant.
d. Then "versus" or "vs".
e. The name or names of the accused with his address.
f. The heading of· the complaint showing the
section or section constituting the offences and prescribing punishment
therefore.
g. The body or the substance of complaint.
It is usually commenced in anyone of the
following manners:
i.
The complaint
begs to state as follows:
ii.
May it please
the complainant above named begs to state on oath or solemn affirmation as follows:
iii.
The complainant
above named;
iv.
The prayer, v.
The place and date;
v.
Lastly the
signature or the thumb mark of the complainant.
vi.
The list of
witnesses to be examined. While giving the substance of the offence in the main
body of the complainant, care should be taken to see that all the ingredients
of the offences are complied with and incorporated without any exaggeration. It
is advisable to avoid, as far as practicable, the details and circumstances of
the commission of offence which consequently widen the scope of the
cross-examination.
To entitle a magistrate to take cognizance
there should not, only a complaint, which means allegation of commission of offence,
but it must contain facts which constitute the offence. The basic facts and
materials should be pleaded on which the allegation is founded are required to
be stated.
Factual details or evidential details need
not be however incorporated in the complaint, but it must contain the path and
substance of primary facts on the basic if which the allegation of the
commission of on offence is being made. Taking cognizance of an offence is the
first and foremost step towards trial. The code of Criminal procedure has not
defined the expression "cognizance of an offence" or "taking
cognizance of an offence". Literally meaning of cognizance is knowledge or
notice and taking cognizance of offence means taking notice, or becoming aware
of the alleged commission of an offence.
The judicial officer wit have to take
cognizance of the offence before he could proceed to conduct a trial. Taking
cognizance does not involve any formal action or indeed action of any kind but
occurs as seen as a magistrate as such applies his mind to the suspected
commission of an offence for the purpose of proceeding to take steps (under
sec.200, or section 202, 204) towards inquiry or trial.
It includes intention of a judicial
proceeding against an offender in respect of an offence or taking steps to see
whether there is a basis for initiating Judicial proceeding. When a magistrate
applies his mind not for the purpose of proceeding as mentioned above, but for
taking action of some other kind, that is ordering investigation under sec. 156
(3), or issuing a search warrant for the purpose of investigation, he cannot be
said to have taken cognizance of the offence. A magistrate can take cognizance
of an offence only within the time limits prescribed by law for this purpose (sec.
467 - 473) the accused is entitled to raise on objection to the maintainability
of the complaint either on the ground of limitation or of jurisdiction or any
other analogous ground.
It is desirable that such preliminary points
should be raised and decided at the beginning so that the time of the court
could be saved and the accused person would also be saved from trouble and
unnecessary expend time. There may be cases in which preliminary points should
not be allowed to be raised.
But there are cases where the objection goes
to the very root of the maintainability of the complaint and in such cases it
is not only permissible but desirable that such objections should be raised at
the earliest opportunity and decided so that unnecessary waste of time of the
court and of the litigant public might be avoided. An accused person has a
right to raise a preliminary objection to the maintainability of the complaint
and to have it decided so that he may not be put to the necessity of under
going a trial in case he succeeds on the preliminary objection.
The complaint is in the nature of an
indictment. Therefore averments in a complaint must be established and properly
proved by evidence. Before anyone can be convicted on charges formulated in a
complaint, all those charge must be fully and properly proved in accordance
with procedure and the law of evidence applicable to
Criminal charges.
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