CRIMINAL

procedure code….
ASSIGNMENT-I

School of law and legal affairs

Submitted to: Compiled by:

Name :
Anjali kumari

Roll no.: ls-llb-

13-002

Course : l .l .b
( Hons.)

(assistant professor) Session : 2013 -

2016
 ACKNOWLEDGEMENT….

First of all,I am highly indebted to my assistant professor Mr./Mrs.…SUSHIM SHUKLA……...for providing

me an opportunity to work on the project topic…… Commencement of Proceeding-Complaint in The Code
of Criminal Procedure……………………………………from the subject……THE CODE OF CRIMINAL
PROCEDURE…. I am thankful for his/her guidance , constant supervision as well as for providing
necessary information regarding the project .I am also thankful for his/her support in completion of the
project.

Other than that, I would like to express my gratitude towards my parents & friends for their kind
co-operation and encouragement which helped me in completion of this project within the limited time
frame.

And last but not the least I would like to express my special gratitude and thanks to classmates
for giving me such attention and time. My thanks and appreciations also go to my colleague in
developing the project and people who willingly helped me out with their abilities .I wish to thank all of
them for their support and encouragement throughout. I also wish to express the gratitude to the
officials and other staff members of NOIDA INTERNATIONAL UNIVERSITY,GREATER NOIDA who
rendered their helping hand during my project work. This project has been outcome of my own personal
efforts. However, it would not have been possible without the assistance of my family members, friends
and some individuals. I would like to extend my sincere thanks and deepest appreciation to all of them.

CERTIFICATE….
This is to certify that Miss ANJALI KUMARI a 2nd year student of
course L.L.B, from School of Law and legal affairs (SLLA)of NOIDA
INTERNATIONAL UNIVERSITY,GREATER NOIDA has comple-
-ted the project on ………Commencement of Proceeding-Complaint in The
Code of Criminal Procedure ………………………………….…………..
……………………………………………………………………………
from the subject …CODE OF CRIMINAL PROCEDURE...Law under the
guidance of…SUSHIM SHUKLA……..acknowledge that she/he has
successfully completed the project dated on …25 TH April,2015towards
the completion of her course session 2013-2016.

(Assistant Professor Signature)

INDEX….
1) Research Methodology…………............……………………..4
 2) Introduction………………………............……………………5
3) Cognizance of offence.............................................................6-10
4) Complaint..…………............................................................11-14
5) Commitment of case to court of session...................................15
6) Conclusion (Critical Analysis)……………...............................16
7) Bibliography…………..............................…………..…............17
 Books refered
 Sites refered

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.1

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
1 Ratish Rai v. Mohesh Singh,1985 CrLJ 94(Gau)
issue of process, and not whether there is sufficient ground for conviction. 2 In a complaint case triable by a court of
Session it is not incumbent upon the magistrate to examine all prosecution witnesses before commitment of the
case.3

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

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. 4 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. 5 The
magistrates orders to take cognizance should reflect the application of his mind. 6 It is trite that before taking
cognizance ,the court should satisfy that the ingredients of the offence charged are there.7

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 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.
2 Vadilal Panchal V. Ghadigaonkar,AIR 1960 SC 1113
3 Frank Dalton V. State(Delhi Admn.),1985 CrLJ 377 (Del)
4 Tularam V. Kishor Singh (1977)4 SCC 459
5 Pitambar Buhan v. State,1992 Cri LJ 645 (Ori HC)
6 Arvind Bhai Ravjibhai Patel V. State of Gujrat,1998 Cri LJ
7 Gautam Sahu v. State of Orissa,1999 Cri LJ 838(Ori HC)
 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.8 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.

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. 9

 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

8 S.H. Taralangatti v. Director General, All India Radio, 1994 (5) Kant LJ 594
9 AIR 1955 Sau 10
 offence under section 193, I.P.C. and the order of the successor Magistrate summoning the accused before
him under section 344, read with section 193, I.P.C. cannot be allowed to sustain. 10

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.41

 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. 11A Magistrate is said to take cognizance when he
applies his mind to the commission of an offence.

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 indepth 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.

10 5 PLT 505 : AIR 1924 Pat 691.

11 AIR 1955 Sau 10
  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 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 Ipc12

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. 13When 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. 14A 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

12 Dina Nath V. Hans Raj,(1974)1 Cri LJ198(J&k HC)

13 N. Sundareswaran v. K.K. Babu, 1981 Cr LJ 966
14 Fazaul Rahiman v. State of Karnataka, 1984 Cr LJ 1625.
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 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. 15In 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
complaint16 are all the part of the scrutiny of the complaint.

Issue of 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
 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 Jindal17,that he cannot recall the process.
The Supreme Court in Subramanium Sethuraman v. State of Maharashtra 18 , 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.

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

16 Kailash Choudhary V. State of U.P.,1994 Cri LJ 67 (All HC)
17 (2004) 7 Scale 137
18 Cr. App.No.1253 of 2002
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 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)]
 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. 19

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. 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.20

Conclusion

19 Gurbanchan Singhv. State of Punjab,AIR 1957 SC 623

20 State v. Jairam, 1976 Cri LJ43
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.

Bibliography

 BOOKS REFERED

 The commentary on The Code Of Criminal Procedure,Dr. Murli Dhar

Chaturvedy,Allahabad Law Agency Publications,2009

 Ratanlal And Dhirajlal’s 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