Can a private complaint to magistrate be filed directly in sessions court?

A NBFC has collected excess EMI for about 28 months through an act of ommission in violation of a SC order that amounts to cheating and dishonest concealment of facts. Prima facie there is evidence of wilful disobedience to court orders, RBI guidelines, money laundering offences under paragraph A & B of schedule A of PMLA act for which the maximum imprisonment term is 10 yrs, & committed forgery in the loan agreement, Promissory note and made invalid entries as well as altered entries in the loan agreement and made illegal demand on the same constituting offences under IPC 120B, 34, 417,419, 420, 465, 467, 468, 471. However FIR has been registered generally against bank staff inspite of us naming the CMD , CFO as accused & for less serious ipc offences 34, 417, 419, 465, 468, 471 which carry maximum imprisonment of 7 years only and PMLA offences has been left out and sections 120B, criminal conspiracy which can make the top management direct accused has been left out inspite of prima facie evidence. 467 which has a maximum imprisonment of 10 years has also been left out. FIR has been registered 3 months back and not much progress inspite of us giving a letter to the I/O about list of accused. Only notices under section 91 was issued for which they responded by submitting the documents from their end which clearly demonstrate forgery as alleged by us. No police summons or warrant has been issued or statements of accused & witnesses recorded as they are powerful & influential persons. 
I/O says cases like these drag on forever without reaching any conclusion as finding the exact accused among 20000 employees is next to impossible. What are our options?
-1. Can we ask the magistrate to register our private complaint under 200 crpc and proceed against accused top management against whom prima facie evidence of Serious offence having maximum imprisonment under ipc 467, 420 and 120B which are lef out in the FIR, along with other FIR registered offences so that the accused in the top management do not get benefit of prolonged investigation against accused staff of the organization (A1 in FIR) and delay in chargesheet filing without which the trial will never start.
- 2. Can we include in the prayer to the magistrate to direct the police to include offences under ipc 467, 420 & 120B, since prima facie evidence against the top management is available with us
- 3. can we include in the prayer for directions to ED to investigate offences of money laundering as prima facie evidence of money laundering is also there with us so that earliest recovery of proceeds of crime is enabled before it evaporates? 
- 4. can we approach the judicial magistrate directly in a sessions district court bypassing the trial court for the private complaint under section 200 crpc since offences related to 120B, 467, and PMLA are serious in nature and involve more than 7 yrs jail term?

Asked 10 months ago in Criminal Law

Religion: Hindu

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7 Answers

1. You can restrict yourself only to giving the complaint, it is for the law enforcing agency to implicate the accused in proper provisions of law. If you feel that that the charge sheet has left out the vital information made in your complaint then you can file a petition under section 173(8) cr.p.c. before court seeking further investigation and to include the offences that were left out by police in their charge sheet.

2. You can file a petition before trial court as suggested above, the court will not entertain any private complaint while there is a FIR pending on the same subject.

3. Without a complaint before ED, they cannot involve in this case.

4. A private criminal complaint has to be filed before the judicial magistrate court

T Kalaiselvan

Advocate, Vellore

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FIR has already been lodged .if no FIR was lodged then you could have filed complaint before magistrate to direct police to investigate and submit report

2) wait for police investigations to be completed and charge sheet filed

3) you can always complain against IO to commissioner of police if police are not proceeding with investigations

Ajay Sethi

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- If there is already an FIR against the said accused then a private complaint cannot be entertained and maintainable.

- However, if there an FIR and the police has not implicated them under the specified sections, then you can lodge a compliant before the higher police official for seeking status of the investigation and to add those section under which that accused should be implicated.

- Further, if there is no positive response then you can file an application before the same judicial magistrate for replacing the I.O. of the case on the ground of dissatisfied with the conducted enquiry by him, and there you can pray to the court for re-investigation of the case.

Mohammed Shahzad

Advocate, Delhi

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File a complaint in the Court of Magistrate under Section 210 for offences under Section 467, 420 and 120B.

Offences under pmla are triable by Sessions Court designated as Special Court you can file complaint there as per Section 43 of pmla.

You can also file a petition under Section 216 for addition of charged in the Court after charge sheet but before judgment.

Ravi Shinde

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Dear Client,

1. Private Complaint under Section 200 CrPC: The answer to this is yes, but a private complaint will be under Section 200 CrPC before the magistrate. It enables you to straightaway depone or narrate your side and evidence against top management involving grave offences that were not included in the FIR, such as IPC 467, 420, and 120B offences. The magistrate can issue summons to process the accused in accordance with the law of the complaint.

2. Including Offences in the Prayer: Namely, the police will be authorised by the magistrate required by you in your private complaint to include omitted offences under IPC 467, 420, and 120B. You have to prove that, for mens rea purposes, those concerned in the top management of the company were involved in these serious offences, at the very least on the balance of probabilities.

3. Requesting ED Investigation: Yes you may also pray in your prayer to the magistrate to direct the enforcement directorate ed, pursuant to the money laundering offences under the PMLA. Offer initial credible substantiation that money laundering offences have been committed so as to warrant an ED investigation to help in the recovery of the proceeds of the crimes.

4. Approaching Sessions Court: In general, the section 200 CrPC complaints are lodged with a magistrate from private parties. However, because of the gravity of the mentioned offences (IPC 120B, 467, and the PMLA), you can ask the magistrate to transfer the case to the higher court if necessary, but first, the complaint has to be lodged before a magistrate, who then will decide whether to continue the trial at a lower court or transfer the case to a superior court.

These steps can assist in the prevention of serious offences and the involvement of top management in investigations.