WWW.LIVELAW.

IN

THE CURIAL ACTS OF “TAKING COGNIZANCE OF

OFFENCES LEADING TO THE FRAMING OF CHARGES”
Q.1 Which are the sources of taking cognizance of an offence?

Q.2 What is the distinction between cognizable and non-cognizable

offences?

Q.3 What is a “police report” and when does it become a source for
taking cognizance of an offence?

Q.4 What is a “private complaint” and whether it can include both

cognizable and non-cognizable offences?

Q.5 What is the distinction between “cognizable offence” and the

curial act of taking cognizance of an offence?

Q.6 After registering an FIR for a cognizable offence, the Police arrests
the accused and produces him before the Magistrate with a
remand report. The Magistrate applies his mind to the FIR and
remand report and remands the accused to judicial custody for 14
days. Has the Magistrate taken cognizance of the offence?

Q7. When a cognizable offence is brought to the notice of the

Magistrate in a police report under Section 190 (1) (b) C.r.P.C, Is
the Magistrate bound to take cognizance of the offence?

Q8. Will cognizance taken on an incomplete Police report vitiate the

proceedings ?

Q.9 Can a Magistrate who does not have territorial jurisdiction to

try the case, take cognizance of the offence ?
 WWW.LIVELAW.IN
Justice V Ramkumar,
2 Former Judge, High Court of Kerala

Q.10 (a) Has the Magistrate taken cognizance of the offences in any
of the following six situations?

(b) If the Magistrate has taken cognizance of the offences in any

of the following situations, in which situation did he first
take cognizance of the offences?

Six Situations

i) At 4.30 p.m a Magistrate receives a private complaint

alleging the commission of cognizable offences by the named
accused therein. The complainant and his witnesses are
present. After going through the complaint the Magistrate
looks up at the clock and adjourns the case to the next day.

ii) In the above situation, instead of adjourning the case, the

Magistrate issued a search warrant as requested by the
complainant.

iii) In the above situation the Magistrate after making a record in

the proceedings which reads “for recording the sworn
statement of the complainant and the witnesses” adjourns
the case to the next day.

iv) In Situation (i) above the Magistrate after adjourning the

case, records the sworn statement of the complainant and
the witnesses on the next day.

v) After perusing the complaint the Magistrate applies his mind

and forwards the complaint to the Police under Section 156
(3) Cr.P.C. for investigation and report.
 WWW.LIVELAW.IN
Justice V Ramkumar,
3 Former Judge, High Court of Kerala

vi) After recording the sworn statement of the complainant and

the witnesses, the Magistrate issues summons to the
accused.

Q.11 Is there any category of persons exempted from examination

under Section 200 Cr.P.C and if so, who are they?

Q.12 When a Magistrate making over the complaint to another

Magistrate under Section 192 Cr.P.C., has been exempted from
examining the complainant and the witnesses by virtue of Clause (b) to
the first proviso to Section 200 Cr.P.C., does not the proviso to the said
Clause (b) contradict the said Clause (b) ?

Q.13 Can a complaint which does not make out any offence, be
dismissed at the threshold?

Q.14 Is inquiry under Section 202 Cr.P.C, a must in all situations?

Q.15 Barring the above situations, is inquiry under Section 202 (1)
Cr.P.C compulsory?

Q.16 Are there situations where the Magistrate cannot direct

investigation by the Police under Section 202 (1) Cr.P.C. in respect of
any case, and if so, which are they?

Q.17 Why is it that the proviso to Section 202 (2) Cr.P.C. contains a
mandatory inquiry by the Magistrate if the offence is triable exclusively
by the Court of Session?
 WWW.LIVELAW.IN
Justice V Ramkumar,
4 Former Judge, High Court of Kerala

Q.18 As per Clause (b) of the proviso to Section 202 (1) Cr.P.C., after
excluding a complaint by a “Court”, it is stated that a direction for
investigation under Section 202 (1) can be made only if the complainant
and his witnesses, if any, have been examined under Section 200 Cr.P.C.
Does this proviso apply to a complaint by a “public servant” who has
been exempted from examination under Section 200 by virtue of
Clause (a) of the proviso to Section 200?

Q.19 can a complaint be dismissed under Section 203 Cr.P.C at the

post-cognizance stage?

Q20. If the accused is present in Court during the examination of the

complainant or his witnesses under Section 200 Cr.P.C. or during
Section 202 inquiry, can he not participate in the proceedings?

Q21. Is not the Court of Session entitled to directly take cognizance of

an offence exclusively triable by a Court of Session, either on a “Police
Report” or a “private complaint” and is there any exception to it?
Q22. Is it necessary that “initiation of proceedings” under Chapter XV
Cr.P.C. should precede “commencement of proceedings” under
Chapter XVI ?

Q23. When does the trial begin in summary and summons cases ?

Q24. When does the trial start in warrant and sessions cases ?

Q25. When the accused pleads guilty, is it an instance of judicial

confession and should the Magistrate follow the safeguards
provided under Section 164 (3) and (4) Cr.P.C. ?
 WWW.LIVELAW.IN
Justice V Ramkumar,
5 Former Judge, High Court of Kerala

DISCHARGE/CHARGE
The procedure for discharging the accused or for framing charge against the accused can be
illustrated by the following table :-

DISCHARGE

WARRANT TRIAL SESSIONS TRAIL

(Chapter XIX) (Chapter XVIII)
Section 227 – Discharge, if the Judge
considers that there is no sufficient ground
for proceeding against the accused.

Instituted on a Police Report Instituted otherwise than on a Police Report

(Part A of Chapter XIX) (Part B of Chapter XIX)

S.239 - Discharge, if the charge S.245(2)- Discharge at any stage, if the

against the accused is charge against the accused is groundless.
groundless S.245(1)- Discharge, if upon taking all
evidence u/s 244 no case against the
accused is made out which, if unrebutted,
would warrant his conviction.

FRAME CHARGE

WARRANT TRIAL SESSIONS TRAIL

(Chapter XIX) (Chapter XVIII)

S. 228(1)(b) – Frame charge if

On a Police Report there is ground for presuming
Otherwise than on
(Part A of Chapter XIX) that the accused has
a Police Report
Frame charge (Part B of Chapter XIX) committed an offence which
u/s 240(1). Frame charge is exclusively triable by a
u/s 246(1). Court of Session.

1) if there is ground for presuming that the accused S. 228(1)(a) – Frame charge
has committed an offence triable under Chapter and transfer the case to JFCM
XIX. if there is ground for
2) if the Magistrate is competent to try the offence. presuming that the accused
has committed an offence
3) if the offence could be adequately punished by
which, however, is not
the Magistrate.
exclusively triable by a Court
of Session.
 WWW.LIVELAW.IN
Justice V Ramkumar,
6 Former Judge, High Court of Kerala

Questions on Discharge/Charge
Q.26 What is the criteria under Sec. 227 Cr.P.C. for discharging and
under Sec. 228 Cr.P.C. for framing a charge against the accused ?

Q.27 What do you mean by misjoinder of charges ?

Q.28 The charge is conspiracy to commit an offence followed by a

charge in respect of that offence as well. Conspiracy is not
established and the accused is acquitted of the offence of
conspiracy. Can the accused be convicted in respect of the
substantive offence ?

Q.29 The charge is criminal conspiracy to commit a particular

offence. Prosecution failed to prove that particular offence. Can
there be a conviction for criminal conspiracy alone ?

Q.30 The overt acts committed pursuant to the criminal conspiracy

were committed beyond the jurisdiction of the Court having
jurisdiction to try the offence of criminal conspiracy. Can that
Court try the other offences ?

Q.31 Court is having jurisdiction to try the offences committed in

pursuance of the criminal conspiracy. But the offence of criminal
conspiracy was committed outside its territorial limits. Can that
court also try the offence of criminal conspiracy ?

Q.32 In a charge for offences punishable under Sections 498 – A and

304 – B I.P.C. against the accused for subjecting his deceased
wife to such cruelty and harassment as to drive her to commit
suicide, is it permissible for the court to convict the accused
 WWW.LIVELAW.IN
Justice V Ramkumar,
7 Former Judge, High Court of Kerala

without a specific charge for an offence punishable under Sec.

306 I.P.C. by drawing the presumption under Sec. 113 – A of
the Evidence Act along with or instead of Sec. 498 – A I.P.C. in a
case where the offence under Sec. 304 – B has not been
proved?

Q.33 The charge is that the accused committed murder punishable

under Sec. 302 I.P.C. and also caused disappearance of the
evidence of murder punishable under Sec. 201 I.P.C. Accused is
acquitted of the offence of murder. Can he be convicted under
Sec. 201 I.P.C ?

Q.34 Where the accused are charged under Section 302 read with
Sec. 149 I.P.C., can they be convicted for Sec. 302 with the aid of
Sec. 109 I.P.C. without a specific charge under Section109 I.P.C?
Q.35 Accused persons faced trial for charge under Sections 211, 215,
216, 218, 221 and 464 I.P.C. There was no charge under
Section 34 I.P.C. Court convicted them with the aid of Sec. 34
I.P.C. Is it legal ?

Q.36 Can an irregularity in the charge become an incurable illegality ?

Q.37 How to determine the question of prejudice?

Q.38 Charge was framed under Sec. 149 I.P.C. and not under Sec. 34
I.P.C. But conviction recorded by applying Sec. 34 I.P.C. Is it
correct ?
 WWW.LIVELAW.IN
Justice V Ramkumar,
8 Former Judge, High Court of Kerala

Q.39 Does the non-framing of a charge under Section 149 I.P.C.

which creates a distinct and separate offence vitiate the
conviction ?

Q.40 Is it permissible to prosecute directors who were in-charge of

and responsible to the company without simultaneously
prosecuting the company as well ?

Justice V. Ramkumar,
Kochi, Former Judge,
17-07-2020 High Court of Kerala.