Examination of complainant
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Summary
When taking cognizance of a complaint, a Magistrate must examine the complainant and any present witnesses on oath, record the substance in writing, and have it signed by the complainant, the witnesses and the Magistrate. The accused must be given an opportunity to be heard before cognizance. Written complaints by a public servant or a Court, or transfer under section 212, may excuse examination. For offences by a public servant in the course of duty, the public servant must be allowed to explain and a report from his superior must be obtained before cognizance.
Example
Rohan complains that a police constable on duty struck him. The Magistrate examines Rohan and the witnesses on oath, records and signs their statements, but will not take cognizance until the constable is given a chance to explain and a report from the superior officer is received.
Bare Act
Enacted text(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
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(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
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(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:
Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless-
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(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and
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(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.
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