Dismissal of Complaint Under S.203 Cr.P.C. When the Complainant Abandons the Complaint Without Offering Statements - Legality –Regarding

(By Vakkom P.S. Balasubramaniam, Advocate, Thiruvananthapuram)

In the decision reported in 2001 (2) KLT SN 48 (Case No. 55), it has been ruled that S.203 of the Code of Criminal Procedure, 1973 (for short "the Code") is attracted only after considering the statements on oath of the complainant and of the witnesses and the result of inquiry or investigation under S.202, the Magistrate is of opinion that there is no sufficient ground for proceeding the complaint.

But an instance of dismissing a complaint under S.203 (for short "the Section) of the Code, even in the absence of such statements might be legal, if the complainant absents himself from appearing before Court and if he fails to produce witnesses. A careful examination of the section read along with an illustration may rejuvenate this aspect.

S.203 of the Code reads as follows:-

"203. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under S.202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

On a reading of the said section, it could be seen that the section has two parts. The first part lays down the materials, if any, which the magistrate must consider. The second part says that if after considering those materials there is in his view no sufficient grounds for proceeding, he shall dismiss the complaint.

So, under S.203 of the Code, the statements, if any, made by the complainant on oath before Court read with the allegations in the complaint, constitutes the material for determining the fate of the complaint. Here, the cardinal aspects to be considered by the Magistrate is whether the complaint has the essential ingredients of the offence alleged and it would be a waste of time to proceed with the complaint.

As stated earlier, what the Code empowers the Magistrate is to consider, the statements. if any, on oath of the complainant. In other words, the code does not direct the Magistrate to wait for the complainant's statement on oath, if the complainant fails to appear before the Court. That is why, the words "if any" is included in the provision.

On the other hand, if the Magistrate was bound to wait till the complaint appears and offers his statement on oath, then the section would have been drafted excluding the words "(if any)". As such it could be seen that the words "(if any)" had been included purposely to avoid waste of precious judicial time and thereby to avoid the abuse of the process of law. Same is the case in the matter of an inquiry under S.202 Cr.P.C, envisaged in S.203 of the Code, if the complainant fails to produce witnesses before the Magistrate.

Therefore, S.203 of the Code might be applicable to cases, where a complainant absents himself, as a result of which he fails to offer statements on oath and when he fails to produce witnesses.

The following illustration may explicate the aspect further: (This may be one of the several possible situations)

'A' files a complaint against 'B' alleging an offence punishable under S.324 IPC before a Magistrate. But before offering his statements on oath or of the witnesses, 'A' gets advice that he may not-succeed in the case and may become liable for malicious prosecution. So, 'A' abandons the complaint. Thenceforth, 'A' does not appear before Court and produce witnesses. As a result of this, the Magistrate cannot record the statement of 'A' or any of the witnesses on oath.

In such circumstances, what would be the course of action open to the Court? Whether the Magistrate has to keep the case on file till 'A' offers his statements on oath?

In those situations, it would be a waste of precious judicial time to proceed with the complaint. Further, the Code does not authorise the Magistrate to supplement the sworn statement of the complainant to determine the fate of the complaint under S.203 of the Code. Whereas, the Code, by way of the usage "(if any)", empowers the Magistrate to dispense with the complainant's statements on oath and to dismiss the complaint on merits by recording the reasons thereof. So, it could be seen that S.203 of the Code could be applied even without examining the complainant and holding inquiry under S.202 of the Code, if he fails to appear before the Magistrate and if he fails to produce witnesses and the Magistrate feels from the conduct of the complainant that he is abstaining from appearing purposely.

If the complaint could be dismissed only after the complainant offers his statement on oath and only after producing witnesses before the Magistrate, then the complaint might have to be kept on file (for ever), till the complainant shows mercy to the Court.

A Comment on 2001 (2) KLT 767

(By Yesudasan Varghese, Advocate, Thiruvananthapuram)

The Honourable High Court of Kerala, very recently in Gopalakrishnan v. State of Kerala 2001 (2) KLT 767 ruled that 'the accused has no absolute right to cross examine the prosecution witnesses under S.244, Cr.P.C With utmost respect to the Honourable Justice and the High Court, the writer begs to disagree with the said ruling firstly for the reason that the said section neither confers an absolute right on the prosecution to examine its witnesses, as such. What is exactly provided under S.244 is a combination of a duty or power of the court coupled with a right of the prosecution. The right accrued to the prosecution thereby is a right to a hearing and the production of evidence (not witnesses as such). The examination of witnesses for prosecution is only an incidental or consequential right, accruing therefrom. It is humbly submitted that neither Criminal Procedure Code nor Civil Procedure Code confers on either party an absolute right to examine their respective witnesses. The right to examination of witnesses is conferred by the Evidence Act by necessary implication. According to the Evidence Act, when there is an examination in chief of a witness by any party, it must be followed by a cross-examination, unless waived by the adverse party (Please see S.138).

The judgment proceeds to record that from a reading of sub-s. (1) of S.244 along with sub-ss.(4) and(5) of S.246 it is clear that the legislature does not intend to confer on the accused an independent right of cross-examination under S.244 of the Criminal Procedure Code (Sic). It is humbly submitted that the provisions under sub-ss.(4) and (5) of S.246 only indicate the intention of the legislature to afford an opportunity to the accused to cross-examine the prosecution witnesses who were earlier examined under S.244 and whose cross examination was either waived or incomplete or could not be had for any reason whatsoever. Because oral evidence cannot be good evidence unless it is gone through the three stages enumerated under S.137 of the Evidence Act and tested under provision of S.138 of that Act. Of course. the concerned parties have a right to waive either cross-examination or re-examination.

It may also be please noted in this context that even though the words, "the Magistrate shall proceed to hear etc." in sub-s. (1) of S.244 have been used, it is not mandatory to hold an enquiry under that section as the word, "shall" can mean "may" in view of the provision under S.246(1) which lays down that "if, when such evidence has been taken, or at any previous stage of the case......etc". Under the circumstance, the observation recorded in para-4 of the judgment that the trial in a warrant case instituted otherwise than on a police report does not start till the evidence is taken under S.244 of the Criminal Procedure Code' (Sic) is respectfully dissociated with. It is also humbly submitted that any criminal trial starts only with the framing of charge and, to be more precise, by the reading over of the charge to the accused.

I further most humbly disagree with the observation made in the judgment (para-4 itself) that even if no opportunity is given to the accused to cross-examine the witness during the enquiry, no prejudice would be caused to him, since he gets the opportunity to cross-examine the witnesses at the trial stage', (sic). If it is so, the witnesses get an additional opportunity to learn and discuss what they have already told the court, to get advised and tutored on the anticipated questions in cross, there by mitigating the prospect of a good cross-examination and then come prepared to stand the test of cross-examination at the trial stage. Of course, the accused also get a similar opportunity of learning and discussing the deposition in chief and prepare unanticipated questions in cross as far as possible. However, tension continues in the minds of the witnesses examined in chief as to what is going to be asked in the cross and in the mind of accused as to what is going to be answered in the cross till the suspense is broken at the trial stage. So, it cannot be said that no prejudice is caused to the accused if he is not allowed to cross-examine witnesses at the enquiry stage. It can be said that prejudice is caused to both parties. So, it is always fair and safe to avoid a contingency. Please also note that the postponement of the cross-examination of a prosecution witness is a discretion of the court under the proviso to S. 242 of the Code in the trial of a warrant case.

S.309(1) of Criminal Procedure Code lays down that "in every enquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded" obviously, the section is applicable to an enquiry also and there is nothing to indicate that a witness cannot be cross-examined in an enquiry. The words, "have been examined" must only mean that the witnesses have been examined in accordance with the provisions under the Evidence Act. So also, S.244 does not expressly or impliedly prohibit the cross-examination of a prosecution witness. It is not a discretion of the court to permit cross-examination at the enquiry stage as observed in the judgment, but an independent right itself.

For the above reasons, it is humbly submitted that the refusal of a Magistrate to allow the accused to cross-examine the witnesses examined under S. 244 of the Criminal Procedure Code is per se illegal.

It is humbly submitted further that the law as laid down by the Supreme Court in AIR 1979 SC 94, which the Honourable High Court has relied on the case, ruling that once charge is framed Magistrate cannot cancel it or discharge the accused - Order of discharge after framing of the charge is illegal, etc. does not now hold good in view of the decisions of the Honourable Supreme Court itself in Pepsi Foods v. Special Judicial Magistrate 1997 (9) Supreme 279, laying down that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless and in Satish Mehra v. Delhi Administration 1996 (5) Supreme 742 holding that when it is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure.

The most humble submission of the writer is that the framing of a charge is only an interim order which does not come within the ambit of S.362, Cr.P.C. and hence it can be reconsidered, altered or rescind by the same court that framed it.

Mcnaghten Rule, No Longer a Golden Scale Rule

(By V.K. Babu Prakash, Judicial First Class Magistrate, Karunagappally)

To bring home a charge for most of the offences of the Indian Penal Code, the prosecution has to bring about the fact that the accused had committed the act of offence which do not require the state of mens rea, nevertheless they are very few countable by the finger tips. The element of mens rea rhytmes through the latin Maxim “actus non facit reum, nisi mens sit rea” which is a running thread in the web of Indian Penal Code, in the sense that an act which would otherwise be a crime, if done without a criminal intention, the doer of the act cannot be held liable. Judicial interpretation of the element of mens rea has widened the scope of the expression which looms large now in the act of doing things voluntarily, knowingly, fraudulently, dishonestly and like wise negligently. In all these aspects, the element of mens rea or mental element can be seen or precipitated. Chapter IV of Indian Penal Code under the caption General Exceptions formulate various categories of exceptions which an accused can put forth as defence. Ss.76 to 106 are those kinds of exceptions which the accused gets to crack the wall of prosecution case. S.81 IPC touches upon the aspect of mens rea which makes out the rule that one cannot be held liable for an act which would otherwise be a crime, but for that alone he cannot hold liable if the act was done without any criminal intention. Among the other kinds of exceptions, this article wishes to think around S.84 of the Code which streamlines the exception of insanity. The plea of insanity or unsoundness of mind goes along with the wisdom of exception formulated under S. 81 regarding lack of mens rea as a madman does not know how his mind moves on.

S.84 of the Code says that nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. Plea of insanity sometimes may be used by the defence, though not often as a shield to ward off the prosecution attribution. The principal embodiment of S.84 goes hand in hand with S.81 in the sense that a close scanning of these sections ekes out the aspect that it does not contain mental element or criminal intention of the act done of. The four kinds of persons who can succeed to be non compos mentis (not of sound mind) in defending an offensive act area:- (1) An idiot (2) Unsound mindness by illness (3) lunatic (4) one who is drunk. When History rolls back to the Shakespherean's realm and gives a cue on the drama Hamlet, we see that prince Hamlet the delusive minded hero of Shakesphere was cornered with plea of insanity for his misdeeds. Hamlet being charged with his nocturnal activities termed it as coinage of the brain and Hamlet answers to the charge as "it is not madness, that I have uttered, bring me to the Test, and I the matter will re word, which madness would gambol from". So do the way of Hamletian tell tale the codification of insanity as a general defence of exception stems up from an 18th century incident happened. It was the murder of Mr. Edward Drummond, the Private Secretary to Sir Robert peel. Drummond was shot dead by a man called Mcnaghten, who was suffering from delusions of persecution and who killed Drummond in mistake for Sir Robert Peel himself. Mcnaghten was tried and after evidence as to his delusions had been heard, he was acquitted on the ground of insanity. The House of Lords had to accept the plea of defence of insanity and public reaction was so furious so that certain principles had to be formulated by the House of Lords on this score which are called the famous Mcnaghten Rules. The rule takes the following essentials in its periphery. In order to establish a defence on the grounds of insanity, it must be clearly proved that at the time of committing the act, the accused was labouring under such defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or if he did know what he was doing that he did not know that it was wrong. The second important element is that if the accused commits the act by reason of a delusion, the degree of responsibility which must be attached to him, and therefore, in law the degree of culpability which must be attributed is based upon the justification which the delusion would provide if it were true.

This rule ruled the roost of England for a considerable period and very much culprits escaped through the golden scale of rule either by clinical psychologist's report or by some stray behaviour of past delusions for which the accused had undergone some treatment or other. At last the Lord Chancellor's committee and the Royal Medico Psychological Association as a sequel decided to sweep away the golden wing of this rule and recommended that the legal criteria of responsibility expressed in the rule should be abrogated and the responsibility of an accused to shoulder the criminal liability or to make a plea of defence on the ground of insanity should be left as question of fact to be decided by the jury. The jury has to frame up questions as follows:- (1) Did the person commit the act. (2) If he did, was he at the time of insane. (3) If insane, the act of crime unrelated to his mental disorder?

The position has undergone a sea-change now in England, where the right or wrong test of Mcnaghten rule no longer dominates this branch of criminal law to the exclusion of mental abnormality falling short of complete insanity as a limited defence establishing a claim of limited responsibility. Under the Homicide Act of 1957 if two psychiatrists certify that the Homicidal act of the accused was influenced by abnormal conditions of his mind, he cannot be convicted of murder but be held liable for manslaughter. In India, whereas he sets up such a plea of insanity and proves it, he gets a clean acquittal and not hold liable for culpable homicide not amounting to murder under the Indian Penal Code which is equivalent to manslaughter under the Homicide Act of England.

In India it is the burden of proof to establish legal insanity upon the accused himself. It is not insanity of every description that can be pleaded in defence, but it must be legal insanity which exhonerates the act of criminal liability. Medical insanity is not a ground of defence in India. By medical insanity is meant the prisoner's consciousness of the bearing of his act on those affected by it and legal insanity is meant the prisoner's consciousness in relation to himself. There can be no legal insanity unless the cognitive faculties of the accused are as a result of unsoundness of mind completely impaired. Likewise though drunkness is kept in par with insanity, mere drunkness is no excuse, but delirium tremens caused by drinking, if it produces such a degree of madness, even for a time as to render a person incapable of distinguishing right from wrong, relieves him from criminal liability. Thus to sum up, the defence of Mcnaghten rule or plea of insanity is not a golden scale rule which could precisely draw a sketch of effective defence at all the times.

Dismissal of Complaint Under S.203 Cr.P.C. A Misconception

(By E.P. Abu, Advocate, Mannarkkad)

In dissenting with the order reported in 2001 (2) KLT SN 48 (Cases No. 55), the writer of the article in 2001 (3) KLT, page 9 has misconceived or perhaps misinterpreted the order of Hon'ble Mr. Justice N. Krishnan Nair.

What the order implies is that the Magistrate should not dismiss the complaint strait away on seeing that there is no offence made out in the complaint itself.

What S.203 Cr.P.C. envisage is that after considering the statement of complaint and witnesses on oath the court sees that there is no offence made out, it is but to dismiss the complaint, not before that.

Certainly the court need not wait until the statement is recorded, but even if there the complaint itself does not reveal an offence, what the provision desires that the Magistrate should consider the statement of complainant and witness on oath and if this statement made out an offence then the Magistrate shall proceed with the case, lest ends.

It does not mean that the Magistrate should wait for the statements of complainant and witnesses, but only when the complainant render his presence to the access of the court and then, only then the Magistrate should enquire into the matter after considering the statements of the complainant and witnesses.

It is not mandatory on the part of the Magistrate that the court should wait for a long time to get the statements recorded, but, when complaint itself does not reveal any offence, the complaint should not be dismissed without filing statements on oath of the complainant and witnesses, if he himself made available to the access of the court.

That is what is intended by the decision, according to me.

A Dead Proviso

(By R. Rama Narayana Prabhu, Advocate, Ernakulam)

As we all know, all the tenants under the Kerala Buildings (Lease and Rent Control) Act, 1965 are entitled for protection against eviction under S.11(3) by the grace of 2nd proviso to S.11 (3) of the Act. it is also a well settled preposition that whoever claims protection under any proviso shall prove that he is entitled for the protection. When it comes in the case of 2nd proviso protection the burden to prove the same is heavy on the shoulders of tenants.

2. Before going in deep with regard to the various aspects of the 2nd proviso, it will not be out of context to mention about the background for the Rent Control Legislations. Act 2 of 1965 is a welfare legislation, intended to prevent illegal and arbitrary eviction of tenants by the landlords, under the ordinary law. In Nagindas v. Dalpathram (AIR 1974 SC 471) the Apex Court of India justified the Legislative intention behind the various Rent Control Legislations in the country.

3. It is also to be borne in mind that, in order to meet the socio-economic crisis which was the off shoot of the Second world war, the Legislatures enacted various Rent Control Legislations such as the Madras Buildings (Lease and Rent Control) Act, 1949, the Travancore-Cochin) Building Lease and Rent Control) Order 1950, the Kerala Buildings (Lease and Rent Control) Act, 1959 etc. in order to check illegal and arbitrary eviction and demand of higher and unconscienable rent by the landlords.

4. But, what about the present socio-economic condition prevailing in the State? If we are keeping a close eye, it can be seen that the socio-economic conditions are changing rapidly. Now, the tenants are no longer a weaker section as they were. They are affluent and strong enough to stand on their own legs, without any support from the landlords. The tenants 'now a days' are not dependent on their landlords for the building. Most of the tenants are having buildings of their own and the remainder is capable of putting up the buildings. They are making handsome profit out of their businesses, conducted in the tenanted buildings.

5. Now we return to 2nd proviso to S.11(3) which reads as follows:- 'Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business'.

There are two limbs for this proviso (i) if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on the such building and (ii) and there is no other suitable building available in the locality for such, person to carry on such trade or business.

Here the tenant has to prove both these limbs then only he will be entitled to the protection, otherwise not. In order to prove the first limb, the tenant can produce books of accounts, balance sheet etc. of his business. If the tenant has other business apart from the business conducted in the tenanted premises, he has to produce relevant documents of that business before the Court for a comparison as to his main source. But the irony is that, if a tenant is conducting a 'multi crore' turnover business in the tenanted building and conducting a 'multylakh' turn over business in another building, is it a fit case to grant protection saying that the tenant is depending for his livelihood mainly on the income derived from the 'multi crore' turnover business carried on in the tenanted building? The answer is 'No'. Then how can the Court grant benefit to a tenant who is really depending for his livelihood mainly on the income derived from the trade or business carried on in the tenanted premises? The answer is very simple. He shall produce all the relevant documents of his business to prove the same before the court and also adduce oral evidence to that effect and here the court can adopt the 'test of comparative hardship' to ascertain whether the tenant is entitled for the protection of first limb of second proviso to S.11(3) of the Act.

6. The test of 'comparitive hardship' envisaged under S.11(10) suits to second proviso to S.11(3) rather than to S.11(8). The Court, on the evidence on record, can come to a conclusion by applying the said test. If the available evidence leads to a irresistible conclusion that the hardship which may be caused to the tenant by granting eviction will out weigh the advantage to the landlord, it may grant protection to the tenant as to first limb otherwise not. By this test of comparative hardship the Court can do justice to those tenants who would be on roads if the eviction is ordered. Hence word 'livelihood' assumes great importance in deciding the matter.

7. Then comes the second limb:- Here the tenant has to prove that no other suitable buildings are available in the locality. The tenant cannot escape from the burden saying that it is a negative proof. In landmark decision reported in 1976 KLT 1 (D.B.) our High Court held that 'it is capable of easy and positive proof by examination of Accommodation Controller or such other effective means'. One could see many practical difficulties in relying the 'vacancy register' maintained by the Accommodation Controller. Invariably the 'Vacancy Register' also will be 'Vacant' and to the contrary one could see numerous new building bearing 'to let' boards. Here the words 'such other effective means' employed in 1976 KLT 1 assumes great importance by which the tenant is duty bound to plead and prove by effective means that 'no other suitable buildings are available in the locality'. The 'suitability' of the building may vary with the size of the pocket of the tenants. But by means of the relevant documents that to be produced by the tenant to prove the 'main source' the court can also come to a conclusion that whether the tenant can afford the building available in the locality, in deciding the second limb to proviso (2) to S.11(3) of the Act.

8. The decision of our High Court (D.B.) reported in 1999 (3) KLT 373 in my opinion created some confusion with regard to the 'burden of proof under second proviso to S.11(3). But the Hon'ble High Court of Kerala in another decision reported in 2000 (3) KLT 809 explained 1999 (3) KLT 373 and held that 'we do not see anything in the decision of this Court in Krishnankunju Raveendran v. Sukumara Pillai, which compells us to take a different view' and further held that 'mere oral assertion without any supporting materials to show the income is not sufficient to prove that the tenants are mainly depending for their livelihood on the income derived by them from the business carried on in the petition schedule building'. 'The evidence regarding the income derived by them is peculiarity with in their knowledge and the best available evidence should be produced by them', and the Hon'ble High Court settled another controversy by further holding that', 'It cannot be expected that a tenant would now get a building on the rent that he originally agreed to pay to his landlord, in the same locality and in the same town. Rents have gone up. He will have to pay the prevalent rent in the locality consistent with the economic situation now obtaining'. 'The use of the expression 'suitable building' can only mean suitable for his needs'. 'Thus the Hon'ble High Court interpreted the word 'suitable building' also.

9. On the analysis of the second proviso, facts and the case laws discussed herein above, one could see that the burden to prove the second proviso to S.11(3) of the Act becomes heavier and heavier on the shoulders of the tenants. The tenants have to plead and prove by cogent evidence, oral as well as documentary both the limbs of second proviso which is practically impossible. Proving of only one limb will not entitle the tenant for such protection. Hence one cannot be blamed in saying that the second proviso to S.11(3) of the Act is 'a dead proviso'.