Project work on:

Commencement of Proceeding-Complaint in the

Code of Criminal Procedure

SUBMITTED TO: SUBMITTED BY:

ASST. PROF. PANKAJ UMBHARKAR MUKUL CHOPDA

MATS LAW SCHOOL MU13BBALLB15

V SEMESTER
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Acknowledgement

I feel myself highly delighted, as it gives me incredible pleasure to present a research

work on Commencement of proceeding- Complaint in Crpc.

I would like to enlighten my readers regarding this topic and I hope I have tried my
best to pave the way for bringing more luminosity to this topic.

I am grateful to my faculty Mr. PANKAJ who has helped me to venture this project as
well as the library of Mats Law School.

I would like to thank all concern for their interest in providing me a good back up
material.

Mukul Chopda .
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TABLE OF CONTENTS

S. No TITLES PAGE Nos.

1 Introduction 5

2 Cognizance of offence 6 - 10

3 Complaint 11 - 14

4 Commitment of case to court of session 15

5 Conclusion (Critical Analysis) 16

6 Bibliography 17
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RESEARCH METHODOLOGY

The researchers have adopted a purely Doctrinal method of research as the research
paper discusses the matter in which no field work is required for the same and the
Doctrinal approach is perfectly suited for the same.

Aims and Objectives:

The aim of the project is to present a detailed study of Commencement of

proceeding- Complaint in Crpc, which is undertaken in formulation of this project
work.

Scope and Limitations:

Though Commencement of proceeding- Complaint in Crpc is an immense project

and pages can be written over the topic but because of certain restrictions and
limitations we were not able to deal with the topic in great detail.

Sources of Data

The following secondary sources of data have been used in the project

1. Books

2. Articles

Method of Writing:

The method of writing followed in the course of this research paper is primarily
explanatory as well as descriptive.
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CHAPTER-I

INTRODUCTION

The proceedings acts as the basics of any allegations levied on an accused, turning
into a judgement making the accused guilty or innocent .Proceedings as the word
suggests means legal action taken against someone.. The complaint is the foundation
of the entire proceedings. The examination of a complainant is a procedure which
adds to the credibility of the complaint at the initial stage. So, it should have the test
credibility by examining the complainant on oath as regards the facts of the
complaint.

The enquiry envisaged under Section 200 to 203 is for ascertaining the truth or
falsehood of the complainant, that is, for ascertaining whether there is evidence in
support of the complaint so as to justify the issue of process, and not whether there is
sufficient ground for conviction.

. In a complaint case triable by a court of Session it is not incumbent upon the

1

magistrate to examine all prosecution witnesses before commitment of the case.

. Where in a case exclusively triable by the court of session, the magistrate has
2

chosen to proceed under the section under consideration, has recorded the sworn
statements of the complainant and one witness and held that there were sufficient
grounds to proceed with the case and has accordingly issued the process. The
procedure adopted cannot be said to be erroneous at all.

1VadilalPanchal V. Ghadigaonkar,AIR 1960 SC 1113

2Frank Dalton V. State(Delhi Admn.),1985 CrLJ 377 (Del)

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CHAPTER-II

COGNIZANCE OF OFFENCE

Taking cognizance of an offence is the first and the foremost step towards trial.
Cognizance literally means knowledge or notice, or becoming aware of the alleged
commission of an offence. Obviously the judicial officer will have to take cognizance
before he could proceed to conduct a trial.

The code has not defined or specifically mentioned cognizance of an offence or

taking cognizance of an offence. However the meaning of the expression is well
settled by courts. Taking cognizance does not involve any formal action or indeed
action of any kind but occurs as soon as the magistrate as such applies his mind to the
suspected commission of the offence for the purpose of proceeding to take subsequent
steps(Section 200 ,section 202,section 203) towards inquiry and trial.

3
It includes intention of initiating judicial proceeding against an offender in respect of
an offence or taking steps to see whether there is a basis of initiating judicial
proceeding.

. The magistrates orders to take cognizance should reflect the application of his mind.
4

5
It is trite that before taking cognizance , the court should satisfy that the ingredients
of the offence charged are there.

This provision authorises a Magistrate of the first class or a Magistrate of the second
class specially empowered in this behalf, to take cognizance.

According to the provisions of Section 3(3) of the Code these Magistrates should be
Judicial Magistrates. Chief Judicial Magistrate can take cognizance of an offence
3Tularam V. Kishor Singh (1977)4 SCC 459

4PitambarBuhan v. State,1992 Cri LJ 645 (Ori HC)

5ArvindBhaiRavjibhai Patel V. State of Gujrat,1998 Cri LJ

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committed at any place in the District. Section 190 does not provide that the
Magistrate taking cognizance should have jurisdiction to do so.

Section 204 which provides for issuance of process after taking cognizance, on the
other hand states that the Magistrate who has taken cognizance can issue summons or
warrants for appearance before such Magistrate or before some other Magistrate
having jurisdiction, if he has no jurisdiction himself. This necessarily implies that the
law warrants taking of cognizance by a Magistrate who may not have jurisdiction
himself, but in such cases he cannot try and has to direct the accused whom he may
summon, to appear before a Magistrate having jurisdiction.

If a Magistrate is not empowered to take cognizance under clause (b) or (c) he bona
fidely takes cognizance, proceedings before him cannot be quashed only on the
ground that he did not have the power to do so. The defect would stand cured under
section 460 of the Code. If cognizance was taken bona fidely the conviction in trial
will not be quashed unless it is shown that it was knowingly done mala
fidely.6 However, if a Magistrate not empowered by law to take cognizance under
clause (c) of section 190(1) takes cognizance, the proceedings would be void as
provided by section 461(k).

No formal action but application of mind

As to when cognizance is taken of an offence will depend upon the facts and
circumstances of each case and it is impossible to attempt to define what is meant by
taking cognizance. No formal action or set formula is needed for a criminal court to
take cognizance of commission of offences which that court is empowered to take
cognizance of. Taking cognizance does not involve any formal action but occurs as
soon as a Magistrate applies his mind to the commission of the offence. When the
Magistrate first takes judicial notice of an offence, he takes cognizance of the offence.
This is the position whether the Magistrate takes cognizance of an offence on a
complaint or on a police report or upon information of a person other than a police
officer.
6S.H. Taralangatti v. Director General, All India Radio, 1994 (5) Kant LJ
594
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It is not necessary for the Magistrate to specifically state that he is taking cognizance
of the offence. Where Magistrate has proceeded to record sworn statement of the
complainant and has also marked certain exhibits produced by the complainant, this
indicates that the Magistrate has taken cognizance of the offence. Further, from the
fact that the Magistrate on receipt of the complaint directed that it be registered and
then adjourned the case to another date and that on that date as well on subsequent
date, examined the complainant, clearly indicates that he had taken cognizance of the
offence. Mere fact that while passing a formal order issuing process, the Magistrate
has again stated that cognizance is taken does not take away the effect of his earlier
action which indicated that he had already taken cognizance. The second order is only
superfluous and this cannot vitiate the entire proceedings.7

Mental and judicial act

Taking cognizance is both mental as well as a judicial act. Before a Magistrate can be
said to have taken cognizance under section 190(1)(a), he must not only have applied
his mind to the complaint but must have done so for proceeding in a particular way
under the subsequent provision. If the Magistrate has not applied his mind for the
above purpose but for taking some other kind of action, there is no cognizance of the
offence. Taking cognizance of an offence does not necessarily lead to the conclusion
that judicial proceedings against any offender have been started. It indicates only the
point of time when a criminal court first takes notice of an offence. The Magistrate
takes cognizance only when he applies judicial mind for the purpose of proceeding in
a particular way given in subsequent provisions. It is well-settled that cognizance
takes place as soon as the competent court applies its mind to the offence with the
intention of initiating judicial proceedings against the offenders in respect of the
offence. If the Magistrate has only observed that "he was satisfied that it was
necessary and expedient in the interest of justice that those witnesses be tried
summarily for giving false evidence", there is no cognizance of the offence under
section 193, I.P.C. and the order of the successor Magistrate summoning the accused

7AIR 1955 Sau 10

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before him under section 344, read with section 193, I.P.C. cannot be allowed to
sustain.8

Where the F.I.R. clearly discloses commission of rape, it can never be said to be
absurd or inherently improbable. As such, the cognizance taken by the Magistrate
cannot be interfered with. Cognizance cannot be taken in a mechanical way. It is a
judicial function which has to be performed by the Magistrate independently.

Application of mind for finding out existence of prima facie case

At the time of taking cognizance the court is not required to closely scrutinize the
evidence on record. The court, at that stage, after application of mind to the evidence
of the witnesses, has to satisfy itself that a prima facie case is made out. Prima
facie evidence means evidence that is sufficient to establish a fact or to raise a
presumption of truth of facts unless controverted . The court has to merely find out if,
the materials alleged are sufficient to make out a prima facie case of offence alleged
to have been committed by the accused. It is, therefore, sufficient if the Magistrate
refers to the relevant material on record, but the order taking cognizance has to be
speaking one. In taking cognizance the court applies its mind for the purpose of
finding out whether an offence has been committed or not. Where the order-sheet
mentions that cognizance of the offence has been taken but does not bear the signature
of the Judge, there is no application of the judicial mind and the cognizance has not
been taken. But where the Magistrate has issued process after examining the
complainant and the witnesses, it may be said that impliedly the Magistrate has taken
cognizance. If the complainant is examined under section 200 of the Code , that
amounts to taking cognizance, but where upon taking cognizance the Magistrate
desires to postpone the issue of process for compelling the attendance of the person
complained against, he must go under section 202. 9A Magistrate is said to take
cognizance when he applies his mind to the commission of an offence.

85 PLT 505 : AIR 1924 Pat 691.

9AIR 1955 Sau 10

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To conclude, therefore, at the stage of taking cognizance, the sine qua non is the
existence of a prima facie case and not the possibility of conviction or acquittal. The
Magistrate is not required at that stage, to make an in depth analysis of the evidence
on record. Therefore, at the stage of taking cognizance, the Magistrate has simply to
be satisfied whether the allegations against the accused prima facie make out a case
for trial or not. When the Magistrate records statements of witnesses and issues
process to the accused, he shall be deemed to have taken cognizance.

Limitation on the power to take cognizance

Sections 195 to 199 are exceptions created by the Code, to the general rule that any
person, having knowledge of the commission of an offence, may set the law in motion
by a complaint, though he is not personally interested or affected by the
offence. Sections 195 to 199 regulate the competence of the court and bar its
jurisdiction in certain cases excepting in compliance therewith.

Prosecution for contempt of lawful authority of public servants-

No court shall take cognizance-

-of any offence punishable under section 172-188 of IPC, or

-of any abetment of, or attempt to commit , such offence, or

-of any criminal conspiracy to commit such offence

Prosecution for offence against public justice and for offence relating to
documents given in evidence

No court shall take cognizance of any offence punishable under any of the following
sections of IPC, namely sec 193-196,199,200,205-211, and 228, when such offence is
alleged to have been committed in, or in relation to, any proceeding in any court, or of
any criminal conspiracy to commit or attempt to commit, or the abetment of, any
offence specified in sub-clause (i) and sub-clause(ii)Prosecution for offences against
the state. No court shall take cognizance of-any offences punishable under chapter vi
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or under sec. 153-A,sec 153-B,section 295-A or sec. 505 of Ipc a criminal conspiracy
to commit such offence or any such abetment ,as is described in sec 108-A of Ipc10

CHAPTER-III

COMPLAINT

There is nothing in the definition of "complaint" which requires it to be made by the

person aggrieved or allows it to be made only in a non-cognizable case. But according
to sections 198, 198-A and 199, only aggrieved person can file a complaint in respect
of certain offences mentioned in those sections. A member of a company or a private
individual may initiate a prosecution.11When a complaint is filed by the payee in due
course of the cheque which is dishonoured, the Magistrate has necessarily to take
cognizance if the other ingredients are satisfied. If the Magistrate has earlier refused
to take cognizance on a police report, even then the Magistrate can take cognizance of
an offence on a complaint. Complaint may be filed and the Magistrate may take
cognizance on complaint, when the police delayed the investigation. Where the forest
officer uses the form of a police challan to make a complaint, which includes all the
relevant information, it is a proper complaint.12A report submitted by the public
servant under section 11 of the Essential Commodities Act must contain the facts
constituting the offence. Without the compliance of the provision of section 11, the
Magistrate cannot take cognizance of the offence. The satisfaction of the public
servant is essential. If the report indicates that the public servant is not satisfied that
any offence is made out, then the court cannot invoke the provisions of section 190(1)
(a) and (b). To that extent, section 190(1)(a) and (b) is restricted by the provisions of
section 11 of the Essential Commodities Act. If the complaint alleges the commission
of more than one offence of which one or more requires sanction of the appropriate
10Dina Nath V. Hans Raj,(1974)1 Cri LJ198(J&k HC)

11N. Sundareswaran v. K.K. Babu, 1981 Cr LJ 966

12FazaulRahiman v. State of Karnataka, 1984 Cr LJ 1625.

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authority, the Magistrate can proceed in the complaint in respect of offences not
requiring sanction. Where a complaint alleges commission of offence under section
120-B, I.P.C. read with sections 500, 501 and 502, I.P.C. and there is no sanction for
the offence under section 120-B, I.P.C., the Magistrate may proceed with the trial in
respect of the allegation of substantive offence under sections 500, 501 and 502,
I.P.C.13In respect of an offence committed before a Magistrate complaint can be made
only under section 195 and not under section 190

Scrutiny of the complaints

A complaint can be oral , written. A magistrate on receiving the complaint, may or

may not take cognizance of the offence in the complaint.

It may happen that the complaint is made to a magistrate, who is not competent to
take cognizance of the offence. In such a case magistrate shall-

If the complaint is in writing ,return it for presentation to the proper court with the
endorsement to that effect;

If the complaint is not in writing, direct the complainant to the proper court.

Examination of the complainant, inquiry or investigation for further scrutiny of the

complaint , dismissal of complaint14 are all the part of the scrutiny of the complaint.

Issue of process-what is the process?

If the magistrate taking cognizance of an offence considers that there is sufficient

ground for proceeding, he shall issue process against the accused person in the
following manner-

If the case appears to be a summons case, he shall issue his summons for the
attendance of the accused; or

13K.M. Mathew v. P.K. Tungon, 1990 Cr LJ 244.

14KailashChoudhary V. State of U.P.,1994 Cri LJ 67 (All HC)

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If the case appears to be a warrant case , or if he thinks fit, a summons for causing the
accused to be brought or to appear at a certain time before such magistrate or some
other magistrate having jurisdiction .(section 204.(1))

The question as to whether the magistrate after issuing process could recall it. It is
now settled in Adalat Prasad v. Rooplal Jindal15,that he cannot recall the process.

The Supreme Court in Subramanium Sethuraman v. State of Maharashtra 16 , that the

only course available to an aggrieved person to challenge the issuance of process
under Section 204 is by the way of petition under Section 482.

Special summons in cases of petty offences

Section 206 has been enacted to avoid unnecessary inconvenience to persons accused
of petty offences and also to reduce to some extent congestion in magistrates court.
The section provides abridged procedure in the disposal of petty cases in which the
accused person may be inclined to plead guilty. For this purpose the magistrate has
been appointed and empowered to issue a special summons to the accused person.

The analysis of the section brings out the following points

The section is applicable to such cases where the alleged is punishable only with fine
up to Rs. 1000. [S. 206(1)]. However the state government may empower to exercise
power in relation to offences under S.320, or any offence which is punishable with
imprisonment up to three months ,or with fine or with both.[S. 206(3)]

The abridged procedure under this section applies only in such cases where the
magistrate is of the opinion that the case may be summarily disposed off under S.206

The abridged procedure shall not be applicable in a case where the magistrate, for
reasons to be recorded in writing, decides not to dispose off the case summarily. [S.
206(1)]

15 (2004) 7 Scale 137

16Cr. App.No.1253 of 2002

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The abridged procedure shall not be applied in cases , where the offence is punishable
under the Motor Vehicles Act , 1939, or under any other law, which provides for
convicting the accused person in his absence on a plea of Guilty. [S. 206(2)]

If the accused person chooses to plead guilty, without appearing before the magistrate,
he is to transmit ,within the specified time, the said plea in writing and the amount to
be mentioned in the special summons.[S.206(1)]

The accused person chooses to appear by the pleader and to plead guilty through such
pleader, he can do so by giving such authority to the pleader in writing and by paying
fine as mentioned.[S.206(1)]

The amount of fine to be specified in the special summons shall not be more than Rs.
100 Supply to the accused person copies of statements, documents and police report

In any case institution on a police report, the magistrate is required by section 207 to
furnish to the accused, without delay and free of cost, a copy of each of the following-

The police report;

The first information report;

The statements recorded under S.161(3) of all persons whom the prosecution proposes
to examine as its witnesses;

The confession and statements if any recorded under section 164;

Any other document relevant extract thereof forwarded to the magistrate with the
police report under section 173(5).

The object to supply the accused with the copies of the above is to put him on notice
of what he has to meet at the time of the inquiry or trial and to prepare himself for his
defence.17

17GurbanchanSinghv. State of Punjab,AIR 1957 SC 623

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Commitment of case to Court of Session:

Certain offences are exclusively triable by the court of session according to section 26
read with the First Schedule. Such court cannot, however, directly take cognizance of
these offences. It can deal with such a case when the same is committed to it by the
magistrate taking cognizance is any such offence. Therefore, for the purpose of
committing such a case to the court of session, Section 209 prescribes the necessary
procedure. According to that section, when accused appears or is brought before the
magistrate and it appears to the , magistrate that the offence is triable exclusively by
the court of session, he shall-

Commit after complying with the provisions of the section 207 or section 208, the
case of the court of session, and subject to the provisions relating to bail, remand the
accused to custody until such commencement has been made.

Subject to the provisions relating to bail, remand the accused to custody during and
until the conclusion of the trial

Send to that court the record of the case and the documents and the articles, if any,
which are to be prepared in evidence;

Notify the public prosecutor of the commencement of the case to the Court of
Session.

Under the above provision (S. 209) the magistrate is only to examine the police report
and other documents referred to in the section and find out whether the facts stated
out in the report make out any offence exclusively triable by the court of sessions.
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Once the conclusion is reached the magistrate, he is not required to here the accused.
In other words, he is not to hold an inquiry.18

Conclusion

To conclude, as remarked by the Supreme Court, there is no special charm or any

magical formula in the expression 'taking cognizance' which merely means judicial
application of the mind of the Magistrate to the facts mentioned in the complaint with
a view to take further judicial action.

Legal sense of taking judicial notice by a court of law or a Magistrate is altogether

different from the view and idea a layman has for it; however, a broad and general
comprehension is 'judicial notice by a court of law on a crime which, according to
such court, has been committed against the complainant, to take further action if facts
and circumstances so warrant'

The entire procedure specified in the Code of criminal procedure, 1973 is based on
principle of justice and fairness. One of the fundamental principles of legal
jurisprudence is that a person accused of any offence should be given equal chance to
be heard and to defend himself.

18State v. Jairam, 1976 Cri LJ43

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BOOKS REFERED

The commentary on The Code Of Criminal Procedure, Dr. MurliDhar

Chaturvedy, Allahabad Law Agency Publications,2009
Ratanlal And Dhirajlals The Code of Criminal Procedure, Ratanlal
Ranchhoddas, Wadhwa and company Nagpur,2007
The Practical Approach to Criminal Procedure, John Sprack, Oxford
University Press, 2008
The Code of Criminal Procedure, Dr.N.V. Paranjape, Central Law Agency
Allahabad,2006

ELECTRONIC SOURCE OF DATA

www.manupatra.com

www.westlaw.com

www.indiankanoon.org

www.legallyindia.com
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