A Complaint and a First Information Report

The definition of “complaint” in section 2(1), BNSS 2023

“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation. — A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

📖 Tula Ram v. Kishore Singh, (1977) 4 SCC 459

Facts: A Magistrate, on receiving a complaint, directed the police to investigate, and thereafter, on receiving the report, examined the complainant and issued process. The question was whether he had exceeded his powers, and how the different provisions under which a Magistrate may act on a complaint relate to one another.

Held: The Supreme Court set out the Magistrate’s options and held them to be distinct. On receiving a complaint he may order an investigation before taking cognizance, in which case the police investigate as they would on a first information report; or he may take cognizance and examine the complainant on oath; or, having taken cognizance, he may postpone the issue of process and either inquire himself or direct an investigation by a police officer for the limited purpose of deciding whether there is sufficient ground for proceeding. The Court held that an investigation directed after cognizance is of a different character from one directed before: it is not a full police investigation but an aid to the Magistrate’s own decision, and the police cannot thereafter submit a report as though the case were a police case. It further held that a Magistrate who has directed an investigation before cognizance and received the report is not bound by it, and may take cognizance on the complaint notwithstanding a contrary report.

Ratio: A Magistrate may order an investigation before taking cognizance, or take cognizance and examine the complainant, or postpone process and inquire or direct a limited investigation. An investigation directed after cognizance is an aid to his own decision, not a full police investigation.

📖 Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287

Facts: Applications directing the police to register cases and investigate were being made routinely and in large numbers, frequently against officials and in matters which were essentially civil disputes, without any verification of the allegations and often without the applicant having approached the police at all.

Held: The Supreme Court held that the power to direct an investigation on such an application is not to be exercised mechanically, and that the provision was being grossly misused as a means of pressure in disputes which were civil in nature. The Court directed that an application of that kind must be supported by an affidavit duly sworn by the applicant, so that he takes responsibility for what he alleges and can be proceeded against if the allegations are false. It held that the Magistrate should satisfy himself that the applicant has first approached the police under the provisions available to him, and should apply his mind to the material rather than pass a direction as a matter of course, since a direction to register a case sets the criminal law in motion against a citizen and is not a routine order. The Court emphasised that verification of the credentials of the applicant and application of mind by the Magistrate are what stand between the provision and its abuse.

Ratio: The power to direct an investigation is not to be exercised mechanically. Such an application must be supported by an affidavit so the applicant takes responsibility for his allegations, and the Magistrate must satisfy himself that the police were first approached and apply his mind.

⚠ Two further points

The form of the application is immaterial; what matters is what the Magistrate does with it. A document headed “complaint” on which he directs an investigation is an application under section 175(3); a document headed “application” on which he takes cognizance and examines the applicant on oath is a complaint.

A Magistrate who directs an investigation before cognizance is not bound by the report. Where the police report that no offence is made out, he may still take cognizance on the complaint — the informant being entitled to be heard before the report is accepted.

But once he has taken cognizance he cannot revert. An investigation directed under section 225 is an aid to his own decision, not a police investigation, and the police cannot thereafter submit a report as though the case were a police case.

And the proviso to section 223 is new. A Magistrate shall not take cognizance on a complaint without giving the accused an opportunity of being heard — a requirement the Code did not contain.

The position stated shortly

1. A complaint is an allegation made orally or in writing to a Magistrate with a view to his taking action, but does not include a police report.

2. An FIR is information relating to a cognizable offence given to the officer in charge of a police station under section 173.

3. They are alternative routes, not stages: an FIR sets the police in motion, a complaint sets the Magistrate in motion.

4. A complaint may relate to any offence; an FIR concerns a cognizable one.

5. A police report which, after investigation, discloses a non-cognizable offence is deemed to be a complaint, and the officer the complainant.

6. A Magistrate may order an investigation before cognizance (section 175(3)); or take cognizance and examine the complainant (section 223); or, having done so, postpone process and inquire or direct a limited investigation (section 225): Tula Ram.

7. An investigation directed after cognizance is an aid to the Magistrate’s decision, not a full police investigation.

8. The power to direct an investigation is not to be exercised mechanically; the application must be supported by an affidavit and the Magistrate must apply his mind: Priyanka Srivastava.

9. Section 175(3) codifies that, requiring an affidavit and a report from the police officer concerned.

10. And the proviso to section 223 is new: no cognizance on a complaint without giving the accused an opportunity of being heard.