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Conditions Requisite for Initiation of Proceedings under Criminal Procedure Code, 1973

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Conditions Requisite for Initiation of Proceedings

CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS (S. 190-199)

Common Introduction – A court can only take cognizance of an offence only if the conditions required for initiation of proceedings are fulfilled.

General Rule – A person having knowledge of the commission of an offence may set the law in motion by a complain even if he is not personally interested or affected by an offence.

Exceptions – S. 195-199.

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S. 190 – COGNIZANCE OF OFFENCES BY MAGISTRATES

Clause 1 – This clause provides that a Magistrate may take cognizance of an offence on receipt of a:-

  1. Complaint or
  2. Police report or
  3. Information received from any person other than a police officer or
  4. On his own knowledge

Clause 2 provides that a Chief Judicial Magistrate may empower any magistrate of second class also to take cognizance under clause 1 of offences which are within his competence.

Essential Ingredients

  1. Specially empowered – It has been laid down in Aggarwal v. Ram Kali., that if a magistrate not empowered takes cognizance of offence, not erroneously but in good faith, then his proceedings shall not be set aside merely on the ground of him not being so empowered. But if he takes cognizance without complaint or police report, then the proceedings would be void.
  2. May take cognizance – It has been held that the words “may take cognizance” are to be construed as must take cognizance and no discretion is vested in this regard on the magistrate otherwise the section will be violative of Article 14 of the Constitution. The magistrate is bound to examine the complainant and then can either :-
  3. Issue summons to the accused or
  4. Order an inquiry u/s 202 or
  5. Dismiss the complaint u/s 203.
  6. Cognizance – The term cognizance means taking notice of the matter judicially. Taking cognizance is sine qua non for trial. It is not the same thing as issue of process. Insofar as S. 190 is concerned, it basically means application of judicial mind to the averments made in the complaint. At this stage, only thing about which the magistrate is to be satisfied is that whether there exists sufficient ground for proceeding and not whether there is sufficient ground for conviction.

Cognizance of offence and not offenders – It is to be noted that magistrate takes cognizance of the offence and not the offenders. Therefore, he is not restricted to issue process to only those persons who are named in the police report.

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Not bound with opinion of Police – If the magistrate is of the opinion that the facts in the police report reveal commission of an offence, he must take cognizance of the same even if the police has expressed a contrary opinion in the final report.

Order for summoning person as co-accused – If magistrate comes to the conclusion that some other persons are also involved besides those mentioned in the police report, the magistrate may proceed against them. In Atibal Singh v. State of M.P. it was held that summoning of additional accused is a necessary ingredient of taking cognizance.

  • Magistrate – The magistrate here means judicial magistrate. Therefore, SDM sending case to Sessions court u/s 209 was held to have acted without jurisdiction.
  • Complaint cases – The magistrate may treat an invalid complaint u/s 190(1) as information received from any person. Also, in complaint cases the cognizance of the offence can be taken first and thereafter the complainant and his witnesses may be examined.
  • Police report – This section applies to any police report whether of a cognizable or non cognizable offence.
  • Information received from any other person – Means only such information which does not constitute a complaint or a police report. This section applies to cases where the private individual who is injured or aggrieved does not come forward to make a formal complaint.
  • Upon his own knowledge – The magistrate can take cognizance under this provision only when it comes to his knowledge that an offence has actually been committed. Mere suspicion is not enough.
  • Locus Standi – Prosecuting offenders is a social need. Therefore, the concept of locus stand is inapplicable to criminal jurisprudence.
  • Dismissal of complaint – If a complain has been dismissed, the magistrate may revive the same on his own initiative or under orders of the appellate or revisional court.

S. 191 – TRANSFER ON APPLICATION OF THE ACCUSED

This section provides that when a magistrate takes cognizance of an offence, he shall before taking any evidence, inform the accused that he can have his case inquired into or tried by another magistrate.

If the accused objects to further proceedings by the magistrate taking cognizance, then the case shall be transferred to some other magistrate which may be specified by the Chief Judicial Magistrate in this regard.

However, the accused has no right to select or determine the magistrate by which he wants to get his case decided.

S. 192 – MAKING OVER OF CASES TO MAGISTRATES

Object – Distribution of work amongst different magistrates.

Clause (1) – Provides that the CJM may after taking cognizance of an offence make over the case for inquiry or trial to any other competent magistrate subordinate to him. Similarly, u/s 410, a superior magistrate may withdraw any case from subordinate magistrate and no notice to the accused in this regard is necessary.

Clause (2) – Provides that JMIC may transfer a case to any other competent magistrate in his district who is competent to try the accused or commit him for trial. 

Case Law :- Mathura v. Kamta

Held :- If the magistrate to whom the case is transferred lacks jurisdiction to try the case, the order of transfer is bad in law.

S. 193 – COGNIZANCE OF OFFENCES BY COURTS OF SESSION

This section provides that except in cases in which a court of sessions is expressly empowered to take cognizance of an offence as a Court of original jurisdiction, it has no power to do so unless a case has been committed by a magistrate.

Object – The object of restricting the sessions court from taking cognizance of an offence is to secure a preliminary inquiry, so that the accused gets some information about the case he is to meet.

S. 194 – ADDITIONAL AND ASSISTANT SESSIONS JUDGES TO TRY CASES MADE OVER TO THEM

This section provides that the High Court or Sessions Judge may direct the Additional or Assistant Sessions judge to try cases.

S. 195 – PROSECUTION FOR CONTEMPT OF LAWFUL AUTHORITY OF PUBLIC SERVANTS ETC.

S. 195-199 are exceptions to the general rule that any person having knowledge of the commission of an offence can set the law in motion by a complaint.

Scope

  1. The operation of this section is confined only to offences under IPC.
  2. S. 340 prescribes the procedure as to how a complaint may be filed u/s 195 of CrPC.

Object of the Section

  1. To stop a private person from obtaining sanction as a means of wreaking vengeance.
  2. To give court the discretion to decide as to whether any prosecution is necessary or not.

Description of Provisions of S. 195

This section deals with prosecution in the following three cases :-

  1. Contempt of lawful authority of public servants
  2. Offences against public justice and
  3. For offences relating to documents given in evidence

Sub-section 1 :- This clause provides that no court shall take cognizance of the following offences except on a complaint made in writing by a public servant :-

  1. Offences stated in section 172 – 188 (Contempts Of The Lawful Authority Of Public Servants) of Indian Penal Code, 1860
  2. Abetment or attempt or criminal conspiracy to commit any of the above offence.

The clause further states that no court shall take cognizance of the following offences except on a complaint made in writing by the court :-

  1. Offences u/s 193 to 196 (False evidence etc.), 205 to 211(Fraud on court etc.), 199, 200 and 228. These offence must have been alleged to have been committed in relation to the proceeding in a court.
  2. Offences u/s 463 (Forgery), 471, 475 or 476 (Counterfeiting etc.). These offences must have been committed in respect of the document given in evidence in a court.
  3. Abetment or attempt or criminal conspiracy to commit any of the offences mentioned immediately above in point 1 & 2.

A complaint can be made by any of the following courts :-

  1. The concerned court or
  2. any officer of the court authorized to do so or
  3. a court to which the concerned court is subordinate 

Sub-section 3 provides thatthe expression court under this section includes the following :-

  1. Criminal Court
  2. Civil Court
  3. Revenue Court
  4. Tribunal, if declared to be a court for the purposes of this section.

Sub-section 4 provides that a court shall be deemed to be subordinate to that court to which appeals ordinarily lie from it, provided that :-

  1. If appeals lie to more than one court, then the appellate court of inferior jurisdiction shall be the court to which the concerned court shall be deemed to be subordinate.
  2. If appeals lie to both, civil and revenue court, then in order to decide as to which court the concerned court shall be deemed to be subordinate, the nature of the case has to be looked into.

The expression “concerned court” means the court in which the document is alleged to have been produced or given in evidence.

Case Law :- MS Ahlawat v. State of Haryana

Held :- Every incorrect or false statement does not make it mandatory to order for the court to order prosecution as the court has to exercise judicial discretion only in larger interest of the administration of justice.

Sub-section 2- This section provides that a complaint made by a public servant under sub-section 1 can be withdrawn by an authority to which the complainant is administratively subordinate. In this regard, a copy of such order of withdrawal has to be sent to the court and upon the receipt of the same, the court shall discontinue the proceedings unless the same has been concluded.

Case Law :- Chotalal v. Phulchand

Held :- The provisions of this section do not apply to defamation, therefore, a person who is defamed by a witness when in a witness box is at liberty to file a complaint against his defamer without any sanction or permission of the court.

Explanation of Essential Ingredients

  1. No court shall take cognizance – under this section unless a complaint is made in writing by a public servant. The charged framed without such complaint and conviction the basis of it were held as liable to be quashed.
  2. Except on a complaint in writing by public servant – “Public servant” is defined under S. 21 of IPC. The responsibility for prosecution under this section rests entirely upon the public servant or court.
  3. Administratively subordinate – The subordination that is contemplated under this section is of the official superior. Although police officers in a district are subordinate to District magistrate, but the subordination contemplation under this section is not such subordination. It contemplate some superior officer of police.
  4. Offence committed in respect of a document produced or given in evidence – in a proceeding in any court. The question as to whether it was committed by a party to the proceeding or a witness is irrelevant, for the simple reason that court is the complainant.
  5. Court – Following have been held to be not court for the purposes of this section :-
  6. Commission of inquiry
  7. Registrar of Co-operative societies
  8. Sales Tax officer

S. 195 – A : PROCEDURE FOR WITNESSES IN CASE OF THREATENING ETC.

This section provides that a complaint in relation to an offence u/s 195-A (Threatening any person to give false evidence) of IPC may be filed by:-

  1. A witness or
  2. Any other person

This provision was added in 2009.

S. 196 – PROSECUTION FOR OFFENCES AGAINST THE STATE AND FOR CRIMINAL CONSPIRACY TO COMMIT SUCH OFFENCE

Sub-section 1 :- This section provides that no court shall take cognizance of the following offences except with the previous sanction of the Central or State govt :-

  1. Offences against state or
  2. Promoting enmity b/w different groups on grounds of religion, caste etc. or
  3. Outraging of religious feelings or
  4. Imputations prejudicial to national integration or
  5. Statements conducing to public mischief or
  6. Criminal conspiracy to commit any of the above offence or
  7. Abetment in India of afore-mentioned offences committed outside India.

Sub-section 2 :- Except in cases of criminal conspiracy to commit a cognizable offence which is punishable with death or imprisonment for life or rigorous imprisonment for two years or above, no court shall take cognizance of an offence of other criminal conspiracy without the consent of District Magistrate or State govt. 

Sub-section 3 :- Before according sanction or consent, the appropriate authority under sub-section 1 & 2, may order a preliminary investigation by a police officer not below the rank of inspector.

Object – of this section is as follows :-

  1. To prevent prosecution by private persons.
  2. To ensure prosecution only after due consideration by the appropriate authority with a view to avoid frivolous and needless prosecutions.

Case Law :- IM Sharma v. State of A.P.

Held :- While according sanction under this section, the govt acts purely in an executive capacity and not judicial capacity. It is not necessary that the authority should give reasons for sanctioning or withholding the prosecution.

S. 197 – PROSECUTION OF JUDGES AND PUBLIC SERVANTS

Scope & Object

  1. This section is intended to prevent vexatious proceedings against judges, magistrates and public servants.
  2. The protection under this section extends to a person who is no longer a public servant but was in office when the offence charged against them was said to have been committed. The protection is as much necessary after retirement as before.

Sub-section 1 :- This section provides that no court shall take cognizance of an offence which is alleged to have been committed by a Judge or Magistrate or a public servant except with the previous sanction of the Central or State govt, as the case may be. However, this protection or privilege of immunity shall be available only if the following two conditions are satisfied :-

  1. The act or omission must have been in discharge of his official duty &
  2. The Judge, Magistrate or Public servant is one who is not removable from his office except with the sanction of the govt.

No such sanction would be required in case a public servant is accused of having committed a sexual offence or an offence under S. 166A (public servant disobeying direction under law) and 166B (Punishment for non-treatment of victim). This provision had been added in 2013 on the recommendations of Justice Verma Committee.

Explanation of essential ingredients :-

  1. Not removable from office – This protection is available to only those public servants who cannot be removed from their officer except with the sanction of the govt. Therefore, this provision clearly intends to draw a line between public servants of higher authority and lower authority, and sanction only in the former cases is necessary.
  2. While discharging his official duty – To take the protection under this section, the act performed must be within the scope of his official duty. The offence must be connected with the official act so as to form part of the same transaction. Taking bribe is not an act done in execution o duty. There has to be a nexus between official duty and offence. Following are few examples :-
  3. Action of Tehsildar in seizing property of govt debtor
  4. Police excess in election duty
  5. Complaint of police excess in search.
  6. Sanction – The sanction is necessary only if the acts of the public servant are so integrally connected with the duties attached to his office, so as to be inseparable from them. No sanction would be required to prosecute a public servant for an offence of bribery u/s 161 of IPC. The sanction is a matter of procedure.

The accused cannot be summoned or evidence cannot be taken against them without a sanction. Nevertheless, the complainant can be examined without a sanction.

Case Law :- B. Vaghaji v. LK Darot

Held :- Police inspector is removable from office without sanction of the state govt, hence no protection u/s 197 is available to him.

Sub-section 2 :- This clause provides that no court shall take cognizance of an offence committed by a member of the armed forces of the union except with the previous sanction of the central govt, provided that the same was committed in discharge of his official duty.

Sub-section 3 provides that the provisions of sub-section 2 may be extended to such category of the members of the forces which are charged with the maintenance of public order.

Sub-section 4 :- This clause provides that the Central or State govt can decide the following :-

  1. The person by whom such prosecution is to be conducted
  2. The court before which trial should be held
  3. The manner in which the prosecution should be conducted
  4. The offence(s) for which such prosecution should be conducted

S. 198 – PROSECUTION FOR OFFENCES AGAINST MARRIAGE

Sub-section 1 :- This clause provides that no court shall take cognizance of offences relating to marriage (Chapter XX of IPC) except on a complaint made by the person aggrieved by the offence. However, in the following cases some other person can also make a complaint on behalf of the person aggrieved, if the person aggrieved is :-

  1. Under 18 years or
  2. Idiot or lunatic or
  3. Suffering from sickness or infirmity and is unable to make a complaint
  4. A woman who as per the local customs is not to be compelled to appear in public (pardanashin lady)

In the above four cases, leave of the court is required.

  • The husband is serving in the Armed Forces of the Union and he is unable to take leave from his commanding officer to make the complaint personally. In this case, any person authorized by husband can make this complaint and permission of court is not required. Following are the requirements of the authorization (sub-section 4) :-
  • It should be in writing
  • Signed or attested by the husband
  • It shall contain a statement that he has informed about the allegations upon which the complain is to be filed
  • It shall be countersigned by his commanding officer
  • It shall be accompanied by a certificated signed by the commanding officer certifying that it is not possible to grant leave to the husband for the time being

Sub-section 5 provides that the above documents shall be presumed to be genuine and shall be received in evidence.

  • Is woman under S. 494 or S. 495 of IPC (bigamy). In this case, the complaint can be made by her father, mother , brother, sister, son or daughter or by her father’s or mother’s brother or sister or

A complaint can also be made in this regard by any other person related to her by blood, marriage or adoption (Leave of the court required)

Person Aggrieved – Whether a person is aggrieved or not depends on the facts and circumstances of each case. The grievance must of such a nature which the law can appreciate. It must be a legal grievance and  a stat pro ratione voluntas reason.

Sub-section 2 :- This clause provides that in relation to the following offences, only the husband shall be deemed to be the aggrieved person :-

  1. Adultery (S. 497)
  2. Enticing or taking away or detaining with criminal intent a married woman (S. 498).

However, in the absence of the husband, some other person who had the care of the woman on his behalf may make a complaint with the permission of the court.

Sub-section 3 :- This clause merely provides that when a complaint is to being made under this section on behalf of a minor or a lunatic, by a person who is not declared to be the guardian and the court is satisfied that a guardian has been appointed officially, then the court shall before granting the leave to the complaint, serve a notice to the appointed guardian and give him a reasonable opportunity of being heard.

Sub-section 6 :-  This clause provides that no court shall take cognizance of an offence if the offence is pertaining to sexual intercourse by a man with his own wife, the wife being under the age of 18 years and more than one year has passed since the commission of the offence.

Sub-section 7 :- The provisions of this section also apply to the abetment or attempt to commit any of the offences dealt with under this chapter.

S. 198-A : PROSECUTION OF OFFENCES UNDER SECTION 498A OF IPC

This section provides that no court shall take cognizance of an offence under S. 498A (Husband or relative of husband of a woman subjecting her to cruelty) except on :-

  1. A Police report or
  2. Complaint made by person aggrieved or
  3. Complaint made by her father, mother, brother, sister or by her father’s or mother’s brother or sister or
  4. With the permission of the court, by any other person related to her by blood, marriage or adoption.

S. 198-B : COGNIZANCE OF OFFENCE

This provision has been added in 2013 on the recommendations of Justice JS Verma Committee. This provision provides that no court shall take cognizance of an offence under S. 376B of IPC (Punishes sexual intercourse by a husband upon his wife during separation) unless the court is prima facie satisfied with regard to the facts which constitute an offence. A complaint must have been filed by the wife.

S. 199 – PROSECUTION FOR DEFAMATION

Rule in Defamation of Persons in General

This section provides that no court shall take cognizance of an offence of Defamation unless a complaint is made by some person aggrieved (not necessarily the person defamed) by the offence. However, in the following cases some other person can also make a complaint on his or her behalf, with the leave of the court, if the person aggrieved is :-

  • Under 18 years or
  • Idiot or lunatic or
  • Suffering from sickness or infirmity and is unable to make a complaint
  • A woman who as per the local customs is not to be compelled to appear in public (pardanashin lady)

Following is an illustrative list wherein a person can be said to be aggrieved :-

  1. Husband in case of defamation of wife
  2. Where unchastity is imputed to widow, her brother with whom the former is residing.

Rule in Defamation of High Dignitaries

In cases of high dignitaries, where the defamation is in respect of conduct in discharge of public functions, the court of session can take cognizance on a complaint made in writing by the public prosecutor. But the complaint should be made within a period of 6 months (Sub-section 5). Also, the public prosecutor can lodge such complaint only with the previous sanction of the Central or State govt (Sub-section 4). The persons on whom these provisions apply are :-

  1. President of India
  2. Vice President of India
  3. Governor of State
  4. Administrator of Union Territory
  5. Minister of Union or State or Union Territory
  6. Any other public servant employed in Union or State.

The complaint lodged under sub-section 2 shall :-

  1. Give facts which constitute the offence
  2. Nature of the offence
  3. Necessary particulars as are sufficient to give the accused notice of the offence alleged to have been committed by him.

Case Law :- V. Veeraswami v. State of TN

Held :- While computing the period of six months, the time required for obtaining the sanction of the govt will not be excluded.


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