Police Report Case and Complaint Warrant Case Compared

Police-Report Case and Complaint Warrant Case Compared: Why the Two Procedures Differ, the Pre-Charge Evidence Stage and the Right of Recall

Chapter XX of the Bharatiya Nagarik Suraksha Sanhita, 2023 contains two complete procedures for trying the same class of offence. Which one applies turns on a single question: how was the case instituted? If on a police report, sections 261 to 266. If otherwise — on a complaint, or on a report deemed to be a complaint — sections 267 to 270.

The difference is frequently described as a difference in the order of events, and it is that: charge first in one, evidence first in the other. But the order of events is a consequence rather than the point. The point is that in a police-report case an official agency has already collected and tested the material and reduced it to a report; in a complaint case nobody has. The statute compensates for the absence of the investigation by requiring the complainant to prove his case in open court before the accused is put on trial.

1. The Comparison

Figure 1: The two procedures point by point

Stage	On a police report	Instituted otherwise
Institution	An FIR under section 173, an investigation, and a report under section 193	A complaint under section 223, or a report deemed to be a complaint under the Explanation to section 2(1)(h)
Before the trial	Section 230: documents supplied free and within fourteen days. Section 261 requires the Magistrate to satisfy himself that this has been done	Section 231 where the case is Sessions-triable; otherwise the material the Court directs
First step at trial	Consideration of discharge on the report and documents: section 262	Taking all the prosecution evidence: section 267
Discharge test	The charge is groundless, on the report and documents, after examining the accused and hearing both sides	No case is made out which, if unrebutted, would warrant a conviction, upon taking all the evidence
Time for the application	Sixty days from the supply of copies — new	No period prescribed; the question arises when all the evidence has been taken
Charge framed on	The documents	The evidence
Cross-examination	Witnesses are examined after the charge and cross-examined in the ordinary way	Section 269(4): the accused may have witnesses examined before the charge recalled for cross-examination
Complainant’s absence	Does not arise	Section 272: in a compoundable or non-cognizable case, the Magistrate may discharge before the charge is framed
On failure	Does not arise	Section 273: compensation for an accusation made without reasonable cause

2. The Pre-Charge Evidence Stage

Figure 2: The four steps in the complaint branch

📖 Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115

Facts: In a warrant case instituted on a complaint, the accused applied for discharge before the prosecution evidence had been taken, relying on the provisions relating to discharge. The question was at what stage the question of discharge arises in that branch, and how the two branches of the warrant-case procedure differ in structure.

Held: The Supreme Court set out the scheme in detail. It held that in a warrant case instituted otherwise than on a police report, the Magistrate must first hear the prosecution and take all such evidence as may be produced in support of it, and that the question of discharge under the corresponding provision arises only upon taking all that evidence — not before. The proviso permitting discharge at a previous stage is available only where the Magistrate, for reasons recorded, considers the charge to be groundless, and it is an exception and not the ordinary course. The Court contrasted this with the police-report branch, where the Magistrate considers discharge at the outset on the report and the documents, and explained that the difference exists because in the complaint branch there is no investigation and no report — the pre-charge evidence supplies what the investigation supplies in the other branch. It held that a Magistrate who discharges in a complaint case without taking the evidence, other than in the exceptional case the proviso allows, has not followed the section.

Ratio: In a complaint warrant case the question of discharge ordinarily arises only after all the prosecution evidence has been taken. The pre-charge evidence supplies what the investigation supplies in a police-report case.

📖 Sunil Mehta v. State of Gujarat, (2013) 9 SCC 209

Facts: A Magistrate in a warrant case instituted on a complaint discharged the accused after examining only some of the witnesses the complainant had produced, without taking all the evidence in support of the prosecution. The question was whether he was entitled to do so.

Held: The Supreme Court held that the requirement to take all such evidence as may be produced in support of the prosecution is mandatory, and that the Magistrate cannot stop short and discharge the accused on part of the evidence. The complainant is entitled to have the whole of his evidence recorded before the Court decides whether to put the accused on trial, and a discharge on incomplete evidence deprives him of that. The Court held that the word “all” in the section is not surplusage: it is the guarantee that the decision whether to frame a charge is taken on the complainant’s complete case, and it is the counterpart of the completed investigation in the other branch. It set aside the discharge and directed the Magistrate to take the remaining evidence.

Ratio: The Magistrate must take all the evidence produced in support of the prosecution before considering discharge in a complaint warrant case. A discharge on part of the evidence cannot stand.

3. Why the Difference Exists

The two procedures are not arbitrary alternatives. Each is designed for the material it has to work with.

A police-report case arrives with a filter already applied. The offence has been investigated by an agency with statutory powers; witnesses have been examined; documents have been collected; a forensic examination may have been conducted; and an officer has formed an opinion and stated it in a report. The material is untested in the sense that no witness has been cross-examined, but it has been gathered and assessed by somebody other than the accuser.
A complaint case arrives with no filter at all. A private person has made an allegation. Nothing has been investigated, nothing collected, nothing assessed. The complaint may be entirely true, and it may be entirely invented, and on the material before the court there is no way of telling.
So the statute supplies a filter. It requires the complainant to bring his witnesses and prove his case in open court, on oath, in the presence of the accused, before any charge is framed. That is the filter, and it is why the branch is longer.
And it supplies a deterrent. Section 273 permits compensation against a complainant whose accusation had no reasonable ground, and section 272 permits a discharge where he simply stops attending. Neither has any counterpart in the police-report branch, because neither is needed there.

⚠ Three consequences that follow from the difference

The complainant is put to proof first, and cannot avoid it. He must produce all his witnesses before the charge stage. A complainant who holds back evidence for the trial proper will find that there is no trial proper to hold it back for, because the accused may be discharged on what has been led.

The accused gets his cross-examination twice over, in effect. The witnesses are examined before the charge, and under section 269(4) he may have them recalled and cross-examined after it. That is a real advantage of the branch to an accused.

The case can end without any charge at all. In the police-report branch, a discharge is decided on documents in a single hearing. In the complaint branch, the case may run through the whole of the complainant’s evidence and then end in a discharge — which is why the branch consumes so much more of the court’s time.

4. Where the Two Meet

4.1 Section 233: when both exist

Where a complaint case and a police investigation relate to the same offence, section 233 requires the Magistrate to stay the complaint case and call for a report from the investigating officer. If a report is made and he takes cognizance on it against a person who is an accused in the complaint case, he shall inquire into or try together the complaint case and the case on the police report as if both had been instituted on a police report.

The last words are the significant ones. The two are tried on the police-report footing, which is the shorter branch, and the complainant is therefore relieved of the obligation to prove his case before the charge. The provision prevents the same occurrence being tried twice, and it resolves the procedural difficulty by choosing the more convenient of the two procedures.

4.2 The report deemed a complaint

The Explanation to section 2(1)(h) deems a police report which discloses, after investigation, a non-cognizable offence, to be a complaint, with the police officer as the complainant. The case is therefore tried under the complaint branch — all the prosecution evidence before the charge — even though an investigation has in fact been conducted.

⚠ An anomaly worth noticing

In that situation the material has been investigated, and the reason for the complaint branch — the absence of a filter — does not apply. Yet the branch applies, because the statute classifies the case by the form in which it reaches the court rather than by whether an investigation occurred.

The practical consequence is that a case which began as a cognizable investigation, and which turns out to disclose only a non-cognizable offence, is tried under the longer procedure, with the investigating officer as the complainant producing all his witnesses before the charge.

The same anomaly does not arise under section 174(2), where the police investigate a non-cognizable offence on a Magistrate’s order: the resulting report is a police report, because the officer was investigating with authority, and the case is tried under the police-report branch.

5. Key Takeaways

The position stated shortly

1. Which branch applies turns on how the case was instituted: sections 261 to 266 on a police report, sections 267 to 270 otherwise.

2. In a police-report case the charge is framed on the documents, and the evidence follows. In a complaint case all the prosecution evidence is taken first, and the charge is framed on the evidence.

3. The reason is that a police-report case arrives with a filter already applied — an investigation by an agency with statutory powers — while a complaint case arrives with none.

4. The pre-charge evidence in the complaint branch performs the function that the investigation performs in the other branch: Ajoy Kumar Ghose.

5. The Magistrate must take all the evidence produced in support of the prosecution before considering discharge; a discharge on part of the evidence cannot stand: Sunil Mehta.

6. The proviso to section 268, permitting discharge at a previous stage where the charge is groundless, is an exception and not the ordinary course.

7. The discharge tests differ: “groundless” on the documents in a police-report case; “no case which, if unrebutted, would warrant a conviction” after all the evidence in a complaint case.

8. Section 269(4) entitles the accused, on the framing of the charge in the complaint branch, to have the witnesses already examined recalled for cross-examination.

9. Sections 272 and 273 — discharge on the complainant’s absence and compensation for a baseless accusation — exist only in the complaint branch, because only there is there a private accuser.

10. Section 233: where a complaint case and a police investigation concern the same offence, the two are tried together as if both had been instituted on a police report — that is, under the shorter branch.

6. Frequently Asked Questions

What decides which warrant-case procedure applies?

How the case was instituted. A case instituted on a police report is tried under sections 261 to 266; a case instituted otherwise — on a complaint, or on a report deemed to be a complaint — is tried under sections 267 to 270.

Why is the evidence taken before the charge in a complaint case?

Because there has been no investigation. In a police-report case the material has been gathered and assessed by an agency other than the accuser, and the charge can be framed on it. In a complaint case there is only an allegation, so the statute requires the complainant to prove his case in court before the accused is put on trial.

Must the Magistrate take all the complainant’s evidence?

Yes. The requirement to take all such evidence as may be produced in support of the prosecution is mandatory, and the Magistrate cannot stop short and discharge on part of it: Sunil Mehta v. State of Gujarat.

Can the accused be discharged before the evidence is taken?

Only under the proviso to section 268, where the Magistrate, for reasons to be recorded, considers the charge to be groundless. That is an exception; the ordinary course is to take all the evidence first: Ajoy Kumar Ghose.

What happens if there is both a complaint case and a police case?

Section 233 requires the Magistrate to stay the complaint case and call for a report. If he takes cognizance on the report against an accused in the complaint case, he tries the two together as if both had been instituted on a police report — that is, under the shorter branch.

Which branch applies where a police report discloses a non-cognizable offence?

The complaint branch. The Explanation to section 2(1)(h) deems such a report to be a complaint, with the officer as complainant, so the case is tried under sections 267 to 270 even though an investigation was in fact conducted.

Related Topics

Trial of Warrant Cases: Sections 261 to 273, BNSS
Complaints to Magistrates: Sections 223 to 226, BNSS
Commencement of Proceedings: Sections 227 to 233, BNSS
Complaint, FIR and Police Report: The Distinction
Non-Cognizable Offences under the BNSS, 2023: Section 174
The Charge under the BNSS, 2023: Sections 234 to 247