Commencement of Proceedings before Magistrates under the Criminal Procedure Code, 1973

Commencement of Proceedings before Magistrates (Sec. 204 – 210)

Sec. 204 – Issue of Process

Scope & Objective

• When the accused is summoned to appear before the Magistrate, the proceedings under this chapter commence thereafter.
• At the time of issuing a process i.e., warrant or summon, the Magistrate is required to find out whether there is prime facie case.
• It need not determine the adequacy of the evidence or the probability of the accused being guilty.
• It should be seen whether a cursory perusal of the complaint and the evidence recorded during preliminary inquiry, there is prime facie evidence in support of the charge levelled against the accused.
• At this stage, the Magistrate shall not enter into a detailed discussion on the merits or demerits of the case.

Opinion of the Magistrate

• The Magistrate has to merely form an opinion as to the sufficiency of grounds for proceedings against the accused persons.
• At this stage, the accused defence against the charges levelled shall not be the concern of the Court.

Sufficient ground for proceeding – Prime Facie case

• The Magistrate is required to find out whether there is a prime facie case made out against the accused.
• The Court is not required to go deep into the probative value of the material on record.

Filing of list of witnesses (Sub. Sec. 2)

• It is mandatory to file the list of witnesses along with the complaint.
• A separate list of witnesses may not be necessary, if the complainant incorporates the name of the witnesses in the complaint itself.
• However, a complaint cannot be dismissed for non-compliance of the requirement provided u/s. 204(2).

Copy of Complaint (Sub. Sec. 3)

• A copy of the complaint shall be sent along with the warrant or summons issued to the accused.
• In case such copy of complaint is not provided to the accused, it shall not vitiate the trial.
• Such copy can be provided even before the proceedings actually start.

Dismissal of Complaint (Sub. Sec. 4)

• A dismissal of the complaint u/s. 204(4) for failure to pay process fee is not a dismissal on merits.

Sec. 205 – Magistrate may dispense with personal attendance of the Accused.

Scope

• By virtue of Sec. 205 the Magistrate is empowered to dispense with the requirement of personal attendance of the accused.
• It is only applicable to cases in which summons are issued.
• In case a warrant is issued to the accused, his attendance cannot be dispensed with.
• The personal attendance of the accused is the general rule and exemption may be granted in suitable cases.
• Such exemption cannot be claimed by a person as a matter of right.

Cases where personal attendance can be dispensed with.

• The Court may dispense with the requirement of personal attendance of the accused if after due consideration of the facts and circumstances of the case deems fit to do the same.
• Following are some of the illustrative cases where the condition of personal attendance may be dispensed with:
• Where no useful purpose will be solved by requiring personal attendance of the accused.
• Where the progress of the case is likely to be hampered.
• Where a delay is likely to be caused in the completion of the trial.
• Where the offence is not of a very serious nature.
• Where a person is merely involved in the case by virtue of his post/office.
• Where a person is suffering from some ailment.

Permit the accused to appear by his pleader.

• Pleader is defined under section 2(q) of the CrPC as a person authorised to practise in the Court.
• Therefore, the only person who can appear in a case in which the personal attendance of the accused is dispensed with is a pleader.
• Any person against whom proceedings have been initiated has a right to legal representation i.e., the right to be defended by a pleader.

Rule of Personal exemption to a Woman accused

• In the case of Shakuntala v. Virupanna it was held that the grant of exemption from personal appearance to a woman accused on bail in a criminal proceeding is a rule and its refusal is an exception.

Other important factors u/s. 205

• The Court shall adopt a generous approach i.e., the power to grant exemption from personal appearance is discretionary, facts and circumstances of each case have to be seen.
• The Court may exercise its judicial discretion while granting such exemption.

Withdrawal of Exemption

• When the personal appearance of the accused is initially dispensed with on valid reasons, there can be no ground to withdraw the exemption unless there is a reasonable apprehension of possible abscondence of the accused.
• The Court may withdraw the exemption from personal hearing for reasons recorded in writing.

Sec. 206 – Special Summon in cases of petty offences.

• This section provides quick disposal of petty cases which are numerous in number but are petty in nature.
• The procedure provided u/s. 206 is mandatory in nature, qua the petty offences.
• It permits the accused to plead guilty in absentia in case of petty offences
• In case the Magistrate holds an opinion that the procedure provided u/s. 206 shall not be followed then he shall record such reasons in writing.
• A petty offence means any offence punishable only with fine not exceeding Rs. 1000/-

Sec. 207 – supply to the accused of copy of police report and other documents.

Scope & Object

• This section only applies to cases, where proceeding has been instituted on a police report and not to cases based on a private complaint.
• The object of this section is to provide the accused an opportunity to know the charge brought against him and the materials by which the charge is going to be substantiated.
• In other words, it gives the accused adequate notice of the material which is going to be used against him by the Prosecution.
• It ensures that the accused is not prejudiced by any way.
• The purpose of the provision is to ensure just and fair trial.

Documents that shall be forwarded to the accused

The copies of following documents shall be provided to the accused as contemplated under section 207:

1. Police Report
2. FIR
3. Statement of witness recorded u/s. 161.
4. Statements or confessions u/s. 164.
5. Any other document on which the prosecution wants to rely or extracts therefrom.

Furnishing of copies

• This section imposes an obligation to supply copies of the statement of witnesses who are intended to be examined at the trial to enable the accused to utilise them in the course of cross examination to establish such defence as may be desired to put up and also to shake the testimony of the witnesses.

Failure to furnish copies

• The duty of the Magistrate to furnish fee of cost copies of documents is a judicial obligation.
• In case of failure to do so, the Court is justified in directing that the conviction be set aside.

Procedure in case of Voluminous Report

• If the Magistrate is of the opinion that the report is voluminous, then he shall instead of furnishing the accused with a copy of the same, direct that he will only be allowed to inspect it either personally or through pleader in Court.

Sec. 208 – Supply of copies of statements and documents to the accused in other cases triable by the Court of Sessions.

• This section provides for cases instituted otherwise than on a police report where the Magistrate issuing process under section 204 id of the opinion that the case is triable exclusively by a Court of Session.
• In such case the following documents shall be furnished to the accused:
• Statements recorded u/s. 200 or 202;
• Statements and confessions, recorded u/s. 161 or 164.
• The documents produced before the Magistrate on which the prosecution relies.
• The same rule as contemplates qua the voluminous documents shall apply to documents made available to the accused u/s. 208.
• In case of non-compliance of the Sec. 208, the Court has to give specific findings as to prejudice caused to the accused by such non furnishing of documents, in order for it to have any vitiating effect on the trial.

Sec. 209 – Commitment of Case to Court of Session when the offence is triable exclusively by it.

Scope

• When the accused appears before the Magistrate or his brought before him and it appears that the offence committed by him is exclusively triable by the Court of Sessions, in such circumstances Sec. 209 comes into operation.
• The moment the Magistrate commits the case to the Court of Sessions u/s. 209 he becomes functus officio.
• Such committal proceedings are neither inquiry nor trial.

Object

The object of this section is twofold:

1. To prevent committal of cases where there is no reasonable ground for conviction.
2. To provide that no person shall be committed for trial without being acquainted with the facts and circumstances of the offence impugned against him.

Presence of accused before the committal Court

• The presence of the accused before the committal Court is must when the committal order is passed.
• Therefore, an order of committal shall not be passed when the accused is absconding or has never been brought before the Court at all.
• However, the case may be committed if one of the several accused in custody has absconded.
• S.209 does not envisage splitting up of cases of absconder and appearing accused.

Discretion of the Magistrate  

• The Magistrate is not obliged mechanically to commit a case.
• This section gives him the discretionary power in this regard.
• Such discretion is limited to what is apparent on the face of record.
• The Magistrate cannot discharge the accused merely because it appears to him that the offence is not exclusively triable by the Court of Sessions, in such case he shall take the cognizance of offence himself.

Enquiry as to prime facie case

• The Magistrate is competent to inquire into a prime facie case for the purpose of commitment.
• He shall examine the materials on record, and if on such examination he is satisfied that a prime facie case exclusively triable by the Court of Sessions exists, the same shall be committed to such Court.
• In forming such opinion, the Magistrate is not to weigh the evidence and probabilities in the case, he is not required to hear the accused.

Sec. 210 – Procedure when there is a complaint case and police investigation in respect of the same offence.

Scope

• This section comes into operation when the following two things are simultaneously going on:
• Private complaint is received by the Magistrate; and
• Police is also investigating the same case.
• In the aforementioned eventuality, the Magistrate who receives such private complaint shall stay the proceedings before him until the Police investigation is over.
• The provisions of Sec. 210 are mandatory.

Power to stay proceedings

• The provision for staying the proceedings in the complaint case is not to stay the complaint case indefinitely till the investigation in the police case is over or till the filing of the final report in the case, more so when the concerned police officer does not act expeditiously in the manner and/or does not submit his report to the Court at an early date.

Condition precedent for application of S.210

• The condition precedent for applicability of this section is pendency of an inquiry or trial.
• When it does not appear from the record that an investigation by the Police is in process in relation to the offence which was the subject matter of the enquiry or trial held by the Magistrate, this section could not be made available.

Joint trial

• A case instituted on a police report and a complaint case cannot be tried together.
• Where offences are distinct and separate offences, joint trial was held impermissible.
• Where the Magistrate does not take cognizance of an offence on a Police report he can proceed with the complaint case.

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