Complaint dismissed for mentioning wrong section of law in the memo of complaint. The magistrate has dismissed the complaint by stating that the section mentioned in the complaint is not correct. This mistake could be rectified if an opportunity provided to us by the court. But the court without providing any opportunity to rectify the mistake he has dismissed the complaint. My advocate file a revision against the order of the magistrate but that is also dismissed by the sessions court. Can I file second complaint on the same cause of action or there is any remedy to rectify the mistake.
Asked from: Rajasthan
A complaint cannot be dismissed merely on the grounds of mentioning incorrect sections of law. Section 2(d) of the Code of Criminal Procedure defines a complaint as any allegation made orally or in writing to a Magistrate, with the intention of prompting action under this Code, stating that some person—whether known or unknown—has committed an offence.
The essential ingredients of a complaint are:
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There must be an allegation against a person, known or unknown.
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The allegation must be made to a Magistrate with a view to initiating action under the provisions of the CrPC (Sections 200 to 204).
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Allegations or contents of the complaint should disclose the commission of an offence—whether cognizable or non-cognizable
When the above said conditions are met the court must admit the complaint and proceed against the accused. Neither Section 2(d) nor Section 200 of the CrPC requires the complainant to specify the name of the offence or the sections of law under which the act of the accused constitutes an offence. A second complaint on the same facts is permissible, but given the present circumstances, it may not be necessary. It would be more appropriate to seek the quashing of the orders passed by the Magistrate and the Revisional Court.
The dismissal of the complaint is erroneous, and you have a remedy to challenge it. You should file a petition in the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) seeking quashing of both the Magistrate’s and the Revisional Court’s orders, along with a direction to hear the matter afresh. The Magistrate would then be bound to register your case as a complaint and proceed further against the accused. The complaint has been wrongly dismissed solely for mentioning an incorrect section.