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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

1 month ago

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Sexual Harassment "POSH" and Men

Today in a country like India which is said to be one of the largest democracy in the world where we, the citizens of India speak about the laws being gender neutral and with the development of the society with man and woman standing on the same ground everywhere with equal opportunities almost everywhere, gone are those days when women were said to be the household workers and men had to take the responsibility of being the bread earner for the family. The male domination has been reduced ever since and all laws have been made to upheld the integrity and reputation of a female in the society. Today, in my blog, I will be discussing about a pestering question which comes to my mind when I read the “POSH” provisions. POSH or as we know it ‘Prevention of Sexual Harassment’ was brought into force after the landmark case of Vishaka vs. State of Rajasthan. The question which my blog will deal with today is – Can a man initiate any sort of proceedings under such an Act if in case he is sexually harassed or bullied in any manner whatsoever. Ø The straight and general answer to such a question is a BIG NO. Ø A man cannot initiate any sort of proceedings for himself is in case he is sexually abused/harassed or bullied in any manner whatsoever. Ø The law in itself is not gender neutral as it expressly covers only women who are sexually harassed. The heading of the Act reads as ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’Ø It is clear from the above heading that this Act is implemented to protect Women and not men. Ø The answer to this question gets further clarity when we dig inside the ‘POSH’ Act.Ø The Jurisdiction of the Act extends to the whole of India as per section I of The POSH Act. Furthermore, it defines the term ‘aggrieved woman’ u/s 2(a) of the Act. Nowhere is there any mention of a term as ‘aggrieved man’ or ‘aggrieved person’ by which one can speculate that even a man can be subject to sexual violence and needs to be protected under such acts which once made should not be exclusively kept for the redressal of women. Ø This act not being a gender-neutral legislation fails to protect the ‘male victims’ of such sexual violence who do not find any sort of protection under the same. Therefore, the safeguards under such Act is for the women only and so to say it is also exclusive in its nature. Now the next question that comes to my mind is – ‘Can someone else file a complaint under the Act?’Ø The answer to that is a YES. If we look into section 9 (2) of the Act it does provide for someone else to file a complain provided that 1.      The aggrieved woman is unable to make the complain herself due to physical or mental inability or in case of death of such person.her legal heirs or any other person who is prescribed may file a complain on her behalf. However, the Act does not specify any other individual apart from a woman who can have the liberty to file a complain under the proviso of this Act. APPLICABILITY OF THE ACTTo answer the first question, I must say that we should look into the applicability of the Act as it will give us a clear idea of the people to whom such Act is applicable. When we read the applicability of the Act, we find that this Act is applicable only to women. An aggrieved woman can invoke the ‘POSH’ Laws but on the other hand if the victim of the same is a man then in such a circumstance he needs to rely on the company rules/regulations/policies and procedures because the ‘POSH’ Laws do not cover aggrieved men under its broad ambit and purview.INDIAN PENAL CODE IN RELATION TO ‘POSH’ LAW When we look into the Indian Penal Code, 1860 and relate the same to sexual offence we find a newly inserted section in the Penal Laws which deals with Sexual Harassment. Section 354A of The Indian Penal Code, 1860 deals with Sexual Harassment and it has also made it a ‘cognizable offence’. By making Sexual Harassment a cognizable offence one means to say that – A police at any time may arrest without warrant any such person who is charged under the above-named section. Section 354A in itself is not gender neutral as it levies the conduct of Sexual Harassment to a man whereas imposes the victimization of the same to a woman. The law makers did not feel the need to introspect into the idea that ‘Sexual Harassment’ in itself is a gender-neutral crime and anyone can be sexually harassed irrespective of their gender. The section reads as follows: - 1.     A man committing any of the following acts shall be deemed to be guilty of an act of sexual offence. a.      Physical Contact b.     Sexual Advances which are unwelcoming c.      Explicit Sexual overturesd.     Request for Sexual favorse.      Making Sexually colored remarks f.       Showing pornography content against the will of such person Such person shall be punished with rigorous imprisonment for a term extending to a maximum period of three years with fine or with both. Other than the above section there are other various sections of IPC which deal with offences of Sexual Harassment. Such as Section’s 354/354C/354D/375/376 and 509. CRITICISM OF THE ‘POSH’ ACTThere have been many criticisms about the said Act and most of which have been resolved in the Draft Bill of 2012. The major criticisms are as under: -1.     The Act did not cover women of the armed forces and those who are agricultural workers.As a result of which the terminology of the Act changed its clause to “No woman shall be subjected to sexual harassment at any workplace” as a result of which widening its scope to every woman in India and giving them protection under the Act. 2.     Another major criticism is that the bill does not cover or protect men in any way. Manoj Mitta of The Times of India complained that Bill does not protect men, saying it "is based on the premise that only female employees needed to be safeguarded.3.     There have been some tribunals who have commented on the constitutionality of section 4 and 7 of the said Act. PERSONAL OPINIONFrom the above it is very clear that a man under whatsoever circumstance cannot take any legal action under the ‘POSH’ Act. The Act in itself is not gender neutral and it believes female to be the weaker sex who can be exploited and hence need protection. It clearly sets an example whereby upon the bare reading of the provisions of the Act one can come to a conclusion that a female can never be the sexual offender however; she can always be the one who is sexually exploited. On the contrary the framework of such a legislation without prejudice categorizes a man as a sexual offender and fails to introspect a situation whereby even a man can be a victim to such a heinous crime, setting the legislation up as non-gender neutral, this Act formulates the policy that it is only the female employee or for that fact only a female who needs protection from Sexual Harassment and that men cannot be Sexually Harassed as they are always the one who are the force behind such Sexual Offences. Under any circumstance if a man becomes a victim of Sexual Offence whereby the wrong doer is a woman then in no circumstance is there any legislation which particularly protects the victimized male gender just like there is ‘POSH’ which protects the victimized female gender. The man needs to be at the mercy of company policies/bye laws/rules and regulations as there is no particular statute which gives any form of redressal to the victimized man.  

Posted By

Shreyash Mohta

4 months ago

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