By Gloria James-Civetta

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Magistrates Complaint

3 min read
If the person that called the police does not want to prosecute, does that mean that no charge will be filed by police?

If a crime is considered under the Criminal Procedure Code to be ‘seizable’, the police can arrest the suspect immediately without needing a warrant. But if it’s not, then it is up to the victim to seek his own redress. He can complain to a magistrate who can then instruct the police to investigate and take up a private prosecution, or file a civil suit for damages.

This list of seizable offences reflects crimes that the State deems as the more serious ones that require immediate police attention, such as murder, rape, kidnapping, robbery and theft. For the not-so-serious ones, such as perjury, mischief and cheating, the police have no power to arrest or even investigate unless a magistrate orders it.

A seizable offence has to cause an injury that is ‘grievous’, ie. it has to meet one of 10 criteria set out in the Penal Code. The criteria include permanent loss of sight or hearing, castration, fracture and permanent loss of limb or joint, as well as whether the victim is hurt badly enough to feel pain such that he cannot go about his normal activities for 20 days or more. Someone who punches another person is not immediately taken into custody. The police would direct the victim to make a Magistrate’s complaint instead.

The Magistrate may then direct a police officer to make inquiries to test the truth of the complaint. An instance when this is done is when the identity of the accused is not known. The Magistrate may compel the attendance of the accused to testify and determine whether there are sufficient grounds for proceeding with the complaint.

Alternatively, the Magistrate may refer a complaint to mediation in a Community Mediation Centre. This is done for relatively minor criminal offences for which prosecution may constitute an excessive application of the state’s resources, and which may do little to assuage the underlying matter of the relationship between the parties involved. Lastly, the Magistrate may decide to allow time for the parties to resolve the matter amicably by themselves.

Instead, of making a Magistrate’s complaint, the victim may instead choose to press civil charges. If so, rather than having the state impose a fine or a short jail term on the accused, the victim would be able to get compensatory damages from the accused.

Advantage Disadvantage
Magistrate’s Complaint aka private prosecution – Less cumbersome and faster than civil trials- Legal costs are rarely awarded against the complainant even if the prosecution fails – Even if the accused is found guilty, the victim would not be given compensation unless he commences a separate civil action.
Civil claim – Victim may receive compensatory damages – More cumbersome and slower than Magistrate’s Complaints- Legal costs may be awarded against the complainant if the claim fails
Public prosecution – The trial is conducted by a public prosecutor. In both magistrate’s complaints and civil claims, the complainant has to bear the cost of hiring his own lawyer.

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