DRAFTING OF PLEADING AND CONVEYANCING
- Execution Petition
- Memorandum of Appeal and Revision
- Petition under Art. 226 and Art. 32 of the Constitution of India
- Criminal Miscellaneous Petition
- Bail Application
- Memorandum of Appeal and Revision
- Essentials of a Deed
- Sale Deed
- Mortgage Deed
- Lease Deed
- Gift Deed
- Promissory Note
- Power of Attorney
COMPLAINT: Cases relating to crimes are triable by the Criminal courts of which the fir court is that of judicial or Metropolitan Magistrate Ordinary and simple crimes are tribal by Metropolita Magistrates, while the serious ones are initially investigated and then sent up to the sessions courts trial. The schedule appended to the code of Criminal procedure gives and provides a list of crimes and offences tribal by Metropolitan Magistrate and by the count of sessions.
(I) COMPLAINT: Cases relating to crimes are triable by the Criminal courts of which the fir court is that of judicial or Metropolitan Magistrate Ordinary and simple crimes are tribal by Metropolita Magistrates, while the serious ones are initially investigated and then sent up to the sessions courts trial. The schedule appended to the code of Criminal procedure gives and provides a list of crimes and offences tribal by Metropolitan Magistrate and by the count of sessions.
What the students have to remember is that in cases of a serious nature where the police take cognizance of the case, it is the police which takes over the task of prosecuting the accused and leads evidence to establish the guilt of such. persons. In the cases of defamation, malicious prosecution complaints are generally taken up by the private individuals on their own expenses;
Generally the formate used in all such complaints is similar because the complaint, whatever it nature, has to be filed before the Metropolitan Magistrate of the Area/District.
Normally a criminal case begins with the filling of an F.I.R. with the police station of the area and if there is a serious case, fatal! serious injury/ rape etc. the victim (s) have to undergo medical examination in order to establish the nature of the injury and the real cause of the injury (death) etc. thereafter the prosecution completes the investigation and puts the accused on trial. Students are advised to read the CR. P. C. of the author for further commentary.
There are certain private complaints which may be taken direct to the Metropolitan Magistrate with or without the participation of the police. However the complainant must have reported the nature and the facts of the case to the local police and must have obtained a receipt thereof which must from a part of the complaint.
Hints on Drafting a Complaint : while drafting a complaint everyone should, remember the "Ten commandants" :-
1. Be brief,
2. Be positive,
3. Be precise,
4. Be relevant,
5. Plead fact and not evidence,
6. Plead fact not low,
7. Do not plead what the low or the court takes for granted or what the other side has got to prove.
8. Give particulars of fraud etc.
9. Do not change your terminology and do not use fine language or words that you do not understand.
10. Do not use the passive voice participle, phrases, pronouns or any sort of ambiguity.
Form of Complaint: No special form as such is provided by law. The minimum requirements of a complaint are:
i. It must be addressed to a Magistrate;
11. Stating facts which fulfill the ingredients to the offence complained of, iii. And praying for action against the offender for punishment.
Apart from the other legal requirement, in practice the complaints are drafted in the following manner, and it should state;
a.Name of the court in which the complaint is to be lodged;
b.The Criminal case No. of the court
c.The name and description including age, occupation and place of residence of the complainant.
d.Then "versus" or "vs".
e.The name or names of the accused with his address.
f.The heading of- the complaint showing the section or section constituting the offences and prescribing punishment therefore.
g.The body or the substance of complaint. It is usually commenced in anyone of the following manners:
i.The complaint begs to state as follows:
ii.May it please the complainant above named begs to state on oath or solemn affirmation as follows:
iii.The complainant above named;
v.The place and date;
vi.Lastly the signature or the thumb mark of the complainant.
vii.The list of witnesses to be examined.
While giving the substance of the offence in the main body of the complainant, care should be taken to see that all the ingredients of the offences are complied with and incorporated without any exaggeration. It is advisable to avoid, as far as practicable, the details and circumstances of the commission of offence which consequently widen the scope of the cross-examination.
To entitle a magistrate to take cognizance there should not, only a complaint, which means allegation of commission of offence, but it must contain facts which constitute the offence. The basic facts and materials should be pleaded on which the allegation is founded are required to be stated. Factual details or evidential details need not be however incorporated in the complaint, but it must contain the path and substance of primary facts on the basic if which the allegation of the commission of on offence is being made.
Taking cognizance of an offence is the first and foremost step towards trial. The code of Criminal procedure has not defined the expression "cognizance of an offence" or "taking cognizance of an offence". Literally meaning of cognizance is knowledge or notice and taking cognizance of offence means taking notice, or becoming aware of the alleged commission of an offence. The judicial officer wit have to take cognizance of the offence before he could proceed to conduct a trial. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as seen as a magistrate as such applies his mind to the suspected commission of an offence for the purpose of proceeding to take steps (under sec.200, or section 202, 204) towards inquiry or trial. It includes intention of a judicial proceeding against an offender in respect of an offence or taking steps to see whether there is a basis for initiating Judicial proceeding.
When a magistrate applies his mind not for the purpose of proceeding as mentioned above, but for taking action of some other kind, that is ordering investigation under sec. 156 (3), or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence. A magistrate can take cognizance of an offence only within the time limits prescribed by law for this purpose (sec. 467 - 473) the accused is entitled to raise on objection to the maintainability of the complaint either on the ground of limitation or of jurisdiction or any other analogous ground. It is desirable that such preliminary points should be raised and decided at the beginning so that the time of the court could be saved and the accused person would also be saved from trouble and unnecessary expend time. There may be cases in which preliminary points should not be allowed to be raised. But there are cases where the objection goes to the very root of the maintainability of the complaint and in such cases it is not only permissible but desirable that such objections should be raised at the earliest opportunity and decided so that unnecessary waste of time of the court and of the litigant public might be avoided.
An accused person has a right to raise a preliminary objection to the maintainability of the complaint and to have it decided so that he may not be put to the necessity of under going a trial in case he succeeds on the preliminary objection. The complaint is in the nature of an indictment. Therefore averments in a complaint must be established and properly proved by evidence. Before anyone can be convicted on charges formulated in a complaint, all those charge must be fully and properly proved in accordance with procedure and the law of evidence applicable to Criminal charges.