Dr.
Absarul Hasan Kidwai
Dept. of Law
AMU
Study Material
CRIMINAL PROCEDURE CODE
B.A.LL.B. (HONS) VIII SEMESTER
Unit 4
A. Cognizance by court (SS. 190-199)
‘‘Cognizance’’ in general meaning is said to be ‘knowledge’ or ‘notice’, and taking
‘cognizance of offences’ means taking notice, or becoming aware of the alleged commission
of an offence. The dictionary meaning of the word ‘cognizance’ is ‘judicial hearing of a matter’.
The judicial officer will have to take cognizance of the offence before he could proceed with
the conduct of the trial. Taking cognizance does not involve any kind of formal action but
occurs as soon as a magistrate as such applies his mind to the suspected commission of an
offence for the purpose of legal proceedings. So, taking cognizance is also said to be the
application of judicial mind.
It includes the intention of starting a judicial proceeding with respect to an offence or taking
steps to see whether there is a basis for starting the judicial proceeding. It is trite that before
taking cognizance that court should satisfy that ingredients of the offence charged are there or
not. A court can take cognizance only once after that it becomes ‘functus officio’.
If a magistrate involves his mind not for reason of proceeding as mentioned above, but for
taking action of some other kind, example ordering investigation under Section 156(3) or
issuing the search warrant for the purpose of the investigation, he cannot be said to have taken
cognizance of offence.
The term ‘Cognizance of offence’ has not been defined in the Criminal Procedure
Code. Section 190, 191, 192, 193, 194, 195, 196, 197, 198, and 199 deals with methods by
which and the limitations subject to which various criminal courts are established to take
cognizance of offences. However, the meaning of the term is well defined by the Courts. Taking
cognizance is the first and foremost steps towards the trail. The judicial officer will have to
take cognizance of the offence before he could proceed to conduct or trail.
In the case of R.R Chari v. State of U.P., it was held by the Apex Court that:
“Taking cognizance does not mean any formal action or expected action of any kind but occurs
as soon as a magistrate as such involves his mind to the suspected commission of an offence.”
Cognizance of offences by Magistrate
In Section 190, Any Magistrate of the first class and the second class may take cognizance of
any offence-
1. Upon receiving a complaint of facts related to offences.
2. Upon police reports of facts.
3. Upon information received from a person (other than a police officer), or upon his own
knowledge.
SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
In Section 190(2), it is given that Second class magistrate can be empowered by Chief Judicial
Magistrate to take cognizance under Section 190(1).
Transfer on the application of the accused
Section 191 deals with ‘Transfer on the application of the accused’.
When a Magistrate takes cognizance by another person other than a police officer, or upon his
own knowledge, then accused is entitled to have the case inquired into or tried by another
judicial magistrate. If accused or any of accused object to further proceedings before the
magistrate taking cognizance, the case shall be transferred to such other magistrate specified
by the Chief Judicial Magistrate.
In simple words, when a Magistrate takes cognizance by another person other than a police
officer, or upon his own knowledge, then accused can change Judicial Magistrate according to
his desire before taking any evidence.
Making over of cases to Magistrates
Section 192 deals with ‘Making over of cases to Magistrates’.
Any Chief Judicial Magistrate can make over the case for inquiry or trial to any competent
Magistrate subordinate to him. The Chief Judicial Magistrate can give general or specific order
to any first-class magistrate to make over the case for inquiry or trial to another competent
Judicial magistrate.
Cognizance of offences by Courts of Session
According to Section 193, “Courts of Session are not allowed to take cognizance of any offence
(as a court of original jurisdiction) unless the case has been committed to it by a Magistrate.”
When it is expressly provided by this code or by any other law, then only Courts of Session are
allowed.
Limitations on the power to take cognisance
Prosecutions for contempt of the lawful authority of public servants
According to Section 195(1)(a), “Court will not take cognizance to those cases which
punishable under Section 172 to Section 188 of Indian Penal Code unless a written complaint
is made by a public servant.” Section 172 to 188 of IPC deals with offences related to contempt
of public servant. The court will not take cognizance in case of an attempt, conspiracy,
abetment of offence given in Section 172 to 188 of IPC.
According to Section 195(2), ‘‘Court will not further proceed with the trial when the order of
withdrawal is given by a superior officer of a public servant (who has complained).’’ Provided
that if trial in the court has been concluded then no such withdrawal shall be ordered.
Prosecution for offences against public justice
According to Section 195(1)(b)(i), ‘‘Court will not take cognizance to those cases which are
offensive under Section 193 to 196, 199, 200, 205 to 211 and 228 of Indian Penal Code unless
a written complaint is made by that court or by some other court to which that Court is
subordinate.” Above mentioned sections of IPC deals with offences against public justice. The
SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
court will not take cognizance in case of an attempt, conspiracy, abetment of offences against
public justice.
Prosecution for offences relating to documents given in evidence
According to Section 195(1)(b)(ii), ‘‘Court will not take cognizance to those cases which
offensive under Section 463, or punishable under Section 471, 475 or 476 of the IPC unless a
written complaint is made by that court or by some other court to which that Court is
subordinate.” Above mentioned sections of the IPC deals with offences related to documents
given in evidence. The court will not take cognizance in case of an attempt, conspiracy,
abetment of offences relating to documents given in evidence.
Section 195(3) deals with the meaning of ‘court’ in Section195(1)(b). ‘Court’ means a Civil,
Revenue or Criminal Court, and included a tribunal constituted by or under a Central,
Provincial or State Act if that Act has declared as Court for the purpose of this section.
Section 195(4) deals with the concept of the superior court and subordinate court discussed in
Section 195(1)(b). When Court ‘A’ has apples jurisdiction of the decision given by Court ‘B’,
then we will say that Court ‘B’ is subordinate to Court ‘A’.
Prosecution for offences against the state
According to Section 196(1), ‘‘Court will not take cognizance to those cases which punishable
under Chapter VI (Of Offences against the State) or under Section 153A, Section
153B, Section 295A or Section 505 of Indian Penal Code except with the consent of the Central
Government or of the State Government.”
Above mentioned sections of IPC deal with offences against the state. Chapter VI of IPC deals
with the offence against the state. Section 153A of IPC deals with harmony, 295A deals with
the offence of statements which result in infringements of religious belief. Section 505 deals
with an offence related to public mischief.
Prosecution for the offence of criminal conspiracy
According to Section 196(2), “Court will not take cognizance to offences of any criminal
conspiracy under Section 120B of Indian Penal Code (other than a criminal conspiracy to
commit a cognizable offence punishable with death, imprisonment for life or rigorous
imprisonment for two a term of two years or upwards) unless consent in writing is given by the
State Government or the District Magistrate to initiation of the proceedings.”
Where Criminal Conspiracy under Section 195 applies, no such consent shall be necessary.
According to Section 196(3), “A preliminary investigation by a police officer (not below the
rank of inspector) is necessary before giving consent by Central Government, State
Government or District Magistrate.”
Prosecution of Judges and Public Servants
According to Section 197(1), “Court will not take cognizance to offences done by Judges,
Magistrates or any Public Servants during the course of employment unless consent in writing
is given by the State Government(when offender is under course of employment of state
government) or the Central Government(when offender is under course of employment of
SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
central government) to initiation of the proceedings.” In the case of State emergency in any
state, only Central Government will give consent for such proceedings.
There is no consent requires for cognizance when Judges, Magistrate or Public Servants has
done offence which is punishable under Section
161A, 161B, 354A to 354D, 370, 376, 376A, 376B, 376C and 509 of Indian Penal Code.
Prosecution of members of Armed Forces
According to Section 197(2), “Court will not take cognizance to offences done by any member
of the Armed Forces of the Union during the course of employment unless consent given by
the Central Government.”
According to Section 197(3), “Section 197(2) will also apply to such class or category of the
members of Forces charged with the maintenance of public order.”
According to Section 197(4), “The Central Government and the State Government may
determine the person who will prosecution of such Judge, Magistrate or public servant.”
Prosecution for offences against marriage
According to Section 198(1), “Court will not take cognizance to offences punishable under
Chapter XX (Of Offences related to Marriage) of Indian Penal Code unless complaint made by
the victim”.
1. With the consent of Court, the third person can also make a complaint on behalf of a
victim who is idiot, lunatic, minor, sick, women (who can’t appear in public).
According to Section 198(3), ‘Initially, guardian of the victim has reasonable
opportunities to be heard’.
2. Third-person who is authorised by husband (serving in the armed forces of union and
unable to get leave) can make a complaint on his behalf. According to Section 198(4),
‘Authorization given by husband shall be in writing, signed or attested by husband,
countersigned by his Commanding officer and shall be accomplished by a certificate
signed by that officer’. According to Section 198(5), ‘Any Certificate and signed
document which is discussed in Section 198(4) is not presumed genuine and received
in evidence unless the contrary is proved’.
3. Father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or
sister of the wife who is the victim under Section 494 of Indian Penal Code can make
the complaint on behalf of the wife.
According to Section 198(2), “Court will not take cognizance to offences punishable
under Section 497 or Section 498 (where the victim is husband) of the IPC unless the husband
makes a complaint. Provided that in case of absence of the husband, some person who had care
of the women on his behalf can make a complaint on behalf of the husband”.
Prosecution of the husband for rape
A husband can also rape his own wife when the wife is under fifteen years of age. According
to Section 198(6), “Court will not take cognizance to offences punishable under Section 376 of
Indian Penal Code if more than one year has elapsed from the date of commission’.
SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
According to Section 198(7), Section198 also applies on abetment or attempt to commit an
offence under chapter XX of IPC”.
Prosecution for defamation
According to Section 199(1), “Court will not take cognizance to offences which are punishable
under Chapter XXI (Of Defamation) of the IPC unless the complaint is made by the victim’’.
Provided that the third party can also make a complaint on behalf of the victim, with the
permission of the Court when the victim is not able to make a complaint.
According to Section 199(2), “Court of sessions will take cognizance to offences which are
punishable under Chapter XXI of the IPC, alleged to have been committed against the President
of India, the Vice President of India, the Governor of a state, the Administrator of a Union
territory or a Minister of the Union or of a state or of a union territory, or any other public
servant employed under state or union. The complaint in writing made by the Public
Prosecutor”. Section 199(2) is an exception to Section 193.
Section 199(3) deals with ‘Contents of Complaint’. It includes information about facts of the
offence, the nature of that offence and information about every sufficient point in a complaint
through which sufficient notice is given to accused who have done offence of defamation.
According to Section 199(4), ‘‘Court will not take cognizance to offences which are punishable
under Chapter XXI of the IPC, alleged to have been committed against Governor, Public
servant and Minister of State unless the complaint is made by the Public prosecutor with the
consent of State Government’’ and if the same is alleged to have been committed against the
President, the Vice President, Public Servant employed under Union, then also Court will not
take cognizance unless the complaint is made by the Public prosecutor with the consent of the
Central Government.
According to Section 199(5), ‘‘It is mandatory to the complaint by the public prosecutor in the
above section within 6 months of the commission of the offence’’.
According to Section 199(6), ‘‘Public Servant can also make complaint himself in Magistrate
Court’’.
B. Filing of Complaints (SS. 200-203)
Complaints to magistrates
Examination of complainant
Section 200 deals with ‘Examination of the complainant’. The complaint shall examine upon
oath the complainant and the witnesses present, and it should also be in writing and signed by
the complainant, witnesses and also by Magistrate. Provided that, the Magistrate need not
examine the complainant and the witnesses when the complaint is made in writing.
There is no need for re-examination in case of a ‘complaint by a public servant or court’ and
‘Magistrate makes over the case to another Magistrate under Section 192’.
The procedure by Magistrate not competent to take cognizance of the case
According to Section 201, ‘‘If a complaint is made before a Magistrate who is not competent
to take cognizance of the case, then Magistrate will do two things are follows-
SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
1. If Complaint is made in writing, then Magistrate will refer that case to that proper Court.
2. If the Complaint is not in writing, then Magistrate will direct the complainant to the
proper Court.’’
Postponement of issue of process
According to Section 202, ‘‘The Magistrate authorised to take cognizance or made over to him
under Section 192 may postpone the issue against the accused, and either inquire himself or by
police officers or other persons as he thinks fit, for the purpose of deciding whether or not there
is sufficient ground for proceeding”.
Dismissal of the complaint
Section 203 provides power to the Magistrate to dismiss a complaint. The Magistrate can
dismiss the complaint if he is of the opinion that there are no sufficient grounds for conducting
the proceedings. The Magistrate comes to this conclusion after conducting an appropriate
inquiry or investigation under Section 202. The Magistrate can also dismiss the complaint if
the processing fee is not paid properly and this ground of dismissal is mentioned in Section
204. In the case of Chimanlal v Datar Singh, it was said that the dismissal of a complaint is not
proper if the Magistrate has failed to examine material witness under Section 202. The
Magistrate can dismiss the complaint or can refuse the issue of the process when:
1. The Magistrate finds out no offence has been committed after the complaint is reduced
to writing according to Section 200;
2. If the Magistrate distrusts the statements made by the complainant;
3. If the Magistrate feels that there is a need to conduct further investigation, then he can
delay the issue of process.
C. Commencement of Proceedings before Courts (SS. 204-210)
Issuing a summons or warrant
Section 204 of this act provides the Magistrate power to issue a process if it is found that there
are sufficient grounds for carrying out the proceeding. The Magistrate can issue a summons if
it’s a summons case. A warrant is issued in case of a warrant case. The Magistrate can also
issue summons to the accused in order to make him appear before the Magistrate concerned
within a certain date. No process shall be issued by the Magistrate if there are any arrears in
the payment of “process-fee” until the fee is paid within a reasonable time. No summons or
warrants can be issued against the accused until a list of the prosecution witness has been
provided. This section will not affect the provisions provided in Section 87 of the act. Section
87 enables the Magistrate to issue a warrant of arrest whenever it is necessary under this
section.
Power to dispense with the personal attendance of the accused
Section 205 provides the Magistrate powers to dispense the personal attendance of the accused
in certain situations. The Magistrate can dispense the personal attendance of the accused and
permit him to appear by his pleader if there are proper reasons. The Magistrate can also direct
the personal attendance of the accused in any stage of the investigation if it is necessary. The
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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
exemption from personal appearance cannot be claimed as a right but it is completely under
the discretion of the court after applying relevant judicial principles. The Magistrate considers
various factors to dispense attendance like:
1. Social status.
2. Customs and practice.
3. The distance at which the accused resides.
4. The necessity of personal attendance with regards to the offence and the stages of the
trail.
Special summons in cases of petty offences
The Magistrate can issue some special summons in cases of petty offences according to Section
206 (2) For the purposes of this section,” petty offence” means any offence punishable only
with a fine not exceeding one thousand rupees, but does not include any offence so 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. When a Magistrate takes cognizance of petty
offences the case can be summarily dismissed according to Section 260, but sometimes the
Magistrate will send the summons for the person to appear in person or by pleader when it is
needed. The reason for such a decision has to be recorded.
Supply to the accused of copies of statements and other documents
It is essential to supply relevant documents to the accused so that they can understand the
procedure followed and the status of the case. The documents supplied might also be used for
future reference whenever necessary. The main need behind providing such documents is to
avoid prejudice during the trial. The non-supply of materials by the Magistrate that is provided
in Section 207 can be successfully used for setting aside a conviction.
Where the proceeding is instituted on a police report
Section 207 provides that the Magistrate has to provide certain copies of documents to the
person accused when the proceedings are instituted on a police report. The documents must be
provided free of cost. The necessary documents that have to be provided are:
1. The police report;
2. The First Information Report (FIR) which is recorded under Section 154;
3. The statements which are recorded Sub-section (3) of Section 161 of all persons whom
the prosecution proposes to examine as its witnesses;
4. The confessions and statements that are recorded under Section 164 if available;
5. Any other relevant document which is forwarded to the Magistrate with the police
report.
In the case of Viniyoga International New Delhi v. State, it was said that the accused is entitled
to get copies of statements that are recorded under Section 161 and of the documents sought to
be relied on by the prosecution. It was also said that it is mandatory to provide copies of challan
to the accused. This section does not deal with how to handle the situation when some of the
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Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
witnesses are not examined, but only provides furnishing of statements of the persons
examined.
Where the proceeding is in respect of an offence exclusively triable by the Court of Session
The court has to provide certain documents to the accused when the offence is triable
exclusively by the Court of Session according to Section 208. These documents should be
provided when the case is not instituted based on the police reports. The documents are:
1. The statements recorded under Section 200 or Section 202 after the investigation by
Magistrates;
2. Any documents that are produced before the Magistrate on which the prosecution
proposes to rely;
3. The statements and confessions that are recorded under Section 161 or Section 164 if
available.
The commitment of the case to Court of Session
Section 209 deals with the commitment of the case to the Court of Session. According to this
section if a Magistrate feels that if the offence is triable exclusively by the Court of Session
after instituting a case, then,
1. The Magistrate can commit the case to the Court of Session;
2. The accused can be remanded in custody until the proceedings are subject to the other
provisions relating to bail;
3. The Magistrate can send evidence and other relevant evidence to the concerned court
to carry out the proceedings;
4. The Magistrate can also notify the Public Prosecutor of the commitment of the case to
the Court of Session.
Consolidation of cases
Section 210 deals with the procedures to be followed when there is a consolidation of cases
instituted on a police report and on a complaint. The Magistrate can stay the proceedings of
any inquiry or trial and call for a report on the matter from the police officer conducting the
investigation if it is done in the same subject of inquiry. If the police report does not relate to
any accused in the case or if the Magistrate does not take cognizance of any offence on the
police report, he shall proceed with the inquiry or trial, which was stayed by him, according to
other provisions in the code. If a report is made by the investigating police officer according
to Section 173 and based on such report cognizance of any offence is taken by the Magistrate
against any person who is accused, then the Magistrate shall inquire into or try together both
the complaint case and the case arising out of the police report as if both the cases were
instituted on a police report.
SFA
Dr. Absarul Hasan Kidwai
Dept. of Law
AMU
SUGGESTED BOOKS:
1. Ratanlal: The Code of Criminal Procedure
2. Prof. Haffezul Rehman: Lect. on Criminal Procedure
3. Mishra: The Code of Criminal Procedure
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