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SECTION 156(3) CRPC or 200 CRPC, WHERE TO GO?

In my recent blog, I shall be discussing about the two provisions which confuse people as they cannot decide how to proceed further and under what provision should one head so that he gets justice and his case does not lag. Most of the common man having no idea about the provisions have the concept that Section 156(3) can be skipped for speedy trial and a complaint u/s 200 CrPc, as the provision says ‘Examination of a complaint by magistrate’ is a better option because under that, the magistrate shall have authority and sanction. Reference of Sections in the blog shall be of CrPc until and unless specifically mentioned to be of some other Act or Code. In this blog I shall briefly discuss the following points as under – mentioned. 1.    What is section 156(3) and section 200.2.    Can investigation be made u/s 156(3) even though complaint is made u/s 200.3.    How important is section 190?4.    Why is there a confusion with section 190 and section 200?5.    Conclusion.What is section 156(3) and section 200 CrPcBefore going into further discussion, it is very important that one understands what is the section. Hence, the start of my blog shall contain the meaning of these two sections as has been produced in the Code of Criminal Procedure. Section 156(3) – Power of Magistrate empowered u/s 190 to order for investigation u/s 156.Section 200 – Examination of Complainant. If a case is registered u/s 156(3) which shall thereafter have two reasons for such, which are the following: 1.    The Police Station and the Superintendent of Police have not lodged your FIR. 2.    The Police Station and the Superintendent of Police have lodged your FIR, but proper investigation is not being done. Under the above circumstances an aggrieved person can knock the doors of the court vide provision 156(3) and the Magistrates empowered u/s 190 shall thereafter order for proper investigation as in Point 2 or order for registration of FIR and to investigate the matter properly as in Point 1. If a case is registered u/s 200 then, a magistrate needs to follow a full throttle process as has been laid down by the code which starts from Section 200 [Examination of Complainant] and ends at Section 203 [Dismissal of Complaint]. However, it must be stated here that in the recent times there have been a huge number of Private Complaints against parties and the usage of Section 200 has resulted to a lot of false complaints between private parties, many of which have been found to be of frivolous nature. This makes it necessary to verify the details of such complaint by examining the Complainant on Oath and thereafter direct for an inquiry by the magistrate himself or to direct for an investigation by the Police Officers. Can investigation be made u/s 156(3) even though complaint is made u/s 200.As I have already mentioned above, the answer to this is a big YES.The Magistrate has complete powers to give direction for investigation by the Police u/s 156(3) even though the Complaint was filed u/s 200 as a ‘Private Complaint’. Relevant Citation – Madhao vs State of Maharashtra, 2013, 5 SCC 615.In light of the above – 1.    It is not the primary duty of the Magistrate to take immediate cognizance of a complaint filed u/s 200 only because of the fact that it is a ‘Private Complaint’. The Magistrates do have discretionary powers as to whether they will or will not take cognizance. Section 200 in itself is a pre – cognizance stage, therefore the Magistrate is at full liberty to direct for inquiry by the magistrate himself or direct for investigation by police. It is after such inquiry or investigation that the Magistrate shall take cognizance based on merits and facts. 2.    The Magistrate in this case is justified in taking an alternative remedy or an alternative course of action before taking cognizance. Investigation u/s 156(3) shall be conducive to justice and shall also save the time of the court from wasting time to enquiring into a matter which primarily should’ve been investigated by the Police Officers. However, once the Magistrate has taken cognizance of the matter and decides to proceed as per the procedure established in chapter XV of the Code, he shall not be allowed to proceed under the pre – cognizance stage to avail the liberty of invoking Section 156(3). How important is section 190?If we read the bare provision of Section 156(3) it clearly states “Any Magistrate empowered u/s 190 may order such an investigation” This in itself means that 156(3) is not self-reliable but needs to be r/w Section 190 which therefore empowers a Magistrate to duly order for investigation u/s 156(3). Both these provisions are interlinked and cannot be left alone. It is only when we read both of them together, that we can come to a conclusion. Now, when we read chapter XIV of the Code it starts with Section 190. Let us start by understanding this Section in itself. Section 190 – Cognizance of offences by Magistrates. The clear mention of the word ‘Cognizance’ means that the magistrate is bound to take cognizance of this complaint and thereafter proceed as per process of Section 200 and dismiss the complaint u/s 203, the same which we have read under the chapter named ‘Complaints to Magistrate’. In the above view, the Magistrate shall take cognizance u/s 190 and then proceed. Section 190 has wider scope and perspective than Section 200. Why is there a confusion with section 190 and section 200?Both these sections would basically mean the same thing. They are interlinked to each other and are interwoven. A complaint u/s 200 is also a Complaint u/s 190. However, both these sections serve different purpose. Wherein Section 190 lays down the process as to how cognizance of offences can be taken by a Magistrate. It is also a well settled rule of law that only when cognizance is taken up, is the legal machinery set in motion and not before that. Now, cognizance can be taken in one of the following ways as mentioned u/s 190 reproduced below, 1.    By way of a Complaint. 2.    Police report u/s 173 [Charge Sheet, Closure Report, etc]3.    Own knowledge of the Magistrate or on the basis of information received from any person who is not a police officer. Stressing on Point 1, if the Magistrate is taking cognizance by way of a Complaint, [Which may or may not be a Private Complaint]Then, such Magistrate has to proceed as per provisions of Section 200 to 203 and if needed, also Section 204. Thus, we can say that power to take cognizance of a Complaint is u/s 190 whereas u/s 200 the power of examining the complainant and other witness [if any] for the purpose of verification is laid down. Both these sections refer complaint to the same thing as has been defined u/s 2(d) of the Code which defines the term ‘Complaint’.The relevancy of Section 200 is only for a Complaint, the cognizance of which is being taken u/s 190(1)(a) and the same shall not be relevant when cognizance is taken u/s 190(1)(b), i.e., Police Report filed u/s 173 after the completion of investigation. ConclusionAfter all that we have read, we can conclude, 1.    That the Magistrate is not expected to act in a mechanical way on the mere submission of a 156(3) Petition and direct the registration of FIR only because a party is asking for it. 2.    That the court needs to be satisfied as to the substance of the application filed and must decide whether there has been the commission of a cognizable offence [Non-Bailable] and that such offence requires proper investigation and inquiry. 3.    Also, if the Magistrate so feel, he can treat an application u/s 156(3) to be a complaint case and thereafter adopt the procedure laid down u/s 200 to 202 by recording evidences and thereafter a)    Dismiss such complaint u/s 203. b)    Summon the accused u/s 204 if evidences laid down u/s 200 to 202 bring in enough light to the same. To end with, in my opinion: 1.    One should proceed u/s 190 r/w section 156(3) only in case of cognizable offences. 2.    One should proceed u/s 200 when offence committed is of non - cognizable in nature.

Posted By

Shreyash Mohta

3 weeks ago

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Protecting yourself against IPC Section 498A

At some point in time, undeniably women in comparison with men are more often victimized in cases of domestic violence on the wife both by the husband and the husband’s family. However, in cases of false allegations men fall prey to more than women do. The explicit purpose of Section 498A IPC is the protection of women who may be victimized as a result of a conspiracy or an unholy nexus between the husband and the husband’s family. Increasingly though, truly innocent men & their families have been mercilessly maligned as a result of married women misusing the legal system.What is Section 498A?Directly quoting IPC Section 498A mentions – “Husband or relative of husband of a woman subjecting her to cruelty shall be subject to imprisonment for a term of three years and shall also be liable to fine.”Currently, though, Section 498A IPC empowers Indian women to lodge grievances against their husbands for mental, physical, as well as psychological or any other ordeal that amounts to harassment. 498a cases are well-known for the provision of punishment if the law is violated or flouted. In other words, the general public is well-aware of 498A cases as there is a pile-up of cases in the pipeline.In this day and age, each and every woman is well-aware of how and when 498A can be used to their advantage as a trump card against any sort of matrimonial disputes. A 498A offense is a cognizable, non-bailable and non-compoundable offense in India. Since the past couple of decades, Indian history is replete with cases of numerous women protection laws being amended and reformed, specifically for the purpose of safeguarding the rights and interests of Indian women. Over the past couple of years though activists have been vociferous and vehemently opposed to any such law that is biased. Over the past couple of years, increasingly misuse or false filing of cases u/s Section 498 IPC has been the trend. These laws, it’s been observed neither protect nor acknowledge or accept the fact that cases of perpetration of abuse to men were more in number in comparison with women which is a reflection of the inherent disparity of the system.  The procedure of seeking protection against Section 498A IPC Given Indian laws are replete with unidentified loopholes the legal recourses for anyone in case a spouse’s motive of misusing the law is known and even indicates registering a false case u/s 498A for personal profit.Get all Evidence & Documents: First and foremost in proving an accusation is false would require gathering all corroborating evidence emphasizing adequately on the 498A case details. One ought to start collating and compiling as much evidence as possible, including: Any discussion amongst the husband’s family member and the wife or any form of communication including SMS, emails, letters, call recordings and so on between the wife or her relatives. Any evidence at all that the wife walked out of her own volition Any proof at all that dowry wasn’t demanded prior to or post-weddingAnticipatory Bail: If the husband thinks his wife may under Section 498A file an FIR, he may have a criminal defense lawyer get an anticipatory bail preventing the husband’s as well as his family member’s arrest.  Anticipatory bail is similar to a precautionary bail averting arrest Any of the spouses can file for an anticipatory bail u/s 438 of Crpc. Quash 498A FIR: Any of the spouses can get the false 498A FIR voided by appealing to the High Court u/s 482 of CrPC[2]. Once an FIR has been filed the Courts are usually reluctant to void an FIR or get involved in the Police process, however, if there is enough evidence, the court can void the fake 498A FIR that the wife may have filed. File an FIR alleging the wife for false 498 A complaint: The husband may file an FIR against his wife as well for blackmailing or filing a fake 498A case against the husband. The Indian police simply do not approve such FIR; the only exception being if the case is invincible even the Police permits/allows such FIR. A good criminal lawyer ought to draft the husband’s complaint so that even the police would be compelled to accept it. If in case the police refuse to register the husband’s FIR, the husband may implicate the officer-in-charge of that police station.File a case for Conjugal Rights Restitution: If the wife has walked out of her matrimonial home and had gone back to live in her parental home, the husband could be filing a case for RCR i.e. restitution of conjugal rights against the wife u/s 9 of Hindu Marriage Act. The husband would have the upper hand and can call the shots and may mention the terms and conditions that she’ll need to be following so that both spouses van live as married couples once again. File a defamation case against false 498A case: A husband can file a defamation case as well against the wife for maligning the husband’s image by filing a fake 498A case against the husband. While 498A case is pursued, the timescale of the case would depend to a great extent on the proof submitted or filed with the court and the efficiency of the husband’s lawyer representing the husband’s case in the court of law.Ways of easing the onslaught of a 498A caseThe Supreme Court had rolled out specific guidelines for the enforcement authorities to follow while dealing with 498A cases in India and they are: At a district level, one or more Family Welfare Committees ought to be established by the District Legal Services Authorities for dealing with cases filed u/s 498AComplaints u/s 498A IPC involving the police or Magistrate must be referred to the committeeThe committee, in turn, ought to investigate the issue and send a report on it within 30 days to the authority that referred the complaint.Until and unless the committee sends the report, no arrests can be made. With a day’s notice, if an anticipatory bail for 498A is filled, it must be decided within that timescaleFamily members personally appearing in court may not be necessary. Appearing through video conferencing ought to be permitted for outstation family members.

Posted By

Avik Chakravorty

2 months ago

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