Unit 5: Pre-Trial Proceedings (by or before Court of Judicial Magistrates and Sessions Court)

We will discuss pre-trial proceedings under the following heads:

A. Cognizance of Offences
Relevant Provisions of the Code: Sections 190 to 199 (Chapter XIV); Sections 200-204 (XV)
 However, as per the syllabus we will dicuss in detail Section 190, Sections 191-194, Section 199 Of Chapter XIV & Sections
200-203 of Chapter XV
 We will also discuss the stage of Issue of Process witht the help of relevant provisions under Chapter XVI (Sections 204 to
208)

B. Committal Proceedings

Relevant Provisions of the Code: Section 209 (including Sections 207 and 208) [Read section 209 with section 323 which is
supplementary to it]

C. Concept of 'Charge' under Criminal Porcedure and Rules Relating to Framing of Charge

Relevant Provisions of the Code: Sections 211 to 224 (Chapter XVII)

 A. Cognizance of Offences

Plain Meaning of Cognizance & 'Taking Cognizance':

 The word ‘cognizance’ has not been defined under the Code.
 Cognizance literally means knowledge or notice
 In plain and dictionary meaning taking cognizance means 'taking note of', 'taking account of', 'to know about', 'to gain
knowledge about', 'awareness about certain things' etc.

Legal Meaning of the word Cognizance (or the expression 'Taking Cognizance of Offence'):
 In law, the common understanding of the term 'cognizance' is: ‘taking judicial notice by a court of law, possessing
jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings
and determination of the cause or matter 'judicially'.

 In other words, in law the expression taking cognizance of offence means, taking notice or becoming aware of the alleged
commission of offence.

 Taking cognizance of offence means judicial notice by a court of law on a crime which, according to such court, has been
committed against the victim, to take further action if facts and circumstances so warrant.’

Thus, 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;

 It is an established principle of law that cognizance is taken of the offence and not of the offender. Therefore, the
Magistrate will have to take cognizance of the offence first before he could proceed to conduct a trial.
 Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as
such applies his mind to the suspected commission of an offence for the purpose of proceeding to take subsequent steps
towards inquiry or trial. [Chief Justice Hiralal J Kania in R.R. Chari v. The State of Uttar Pradesh (1951)]

 Reiterated in Smt. Mona Panwar v. The Hon'ble High Court of Judicature At Allahabad through its Registrar and others
(Feb.2, 2011 SC) wherein Justice Panchal observed, “Taking cognizance does not involve any formal action or indeed
action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence.
Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an 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.”

 There may be circumstances where the Magistrate applies his mind to the facts placed before him, not with an intention
to proceed with any kind of inquiry or trial and in such circumstances it cannot be said that he has taken cognizance of
the offence.
For example, examination of a criminal complaint for referring a case to the police for investigation under section 156(3) of
the Cr.P.C., issuing orders for search of any premises etc.

The subject of taking cognizance of offences is dealt under Chapter XIV of the Code in which:

 Sections 190 to 194 deal with taking cognizance of offences by the different courts in different situations.

 Sections 195 to 199 deal with bar on taking cognizance of certain offences except under certain circumstances.
Q. Who is empowered to take cognizance of offences under the Code?

Under the provisions of the Code, cognizance may be taken by:

I. Judicial Magistrate which includes:
(i) Judicial Magistrate First Class [Section 190 (1)]
(ii) J.M. Second Class empowered by Chief Judicial Magistrate [Section 190 (1) r/w (2)]
(iii) Chief Judicial Magistrate [Section 192 (1)] - Also every CJM is a JM first class therefore one may read here Section 190(1)
as well.

II. Court of Session [under Section 199 (2) or under any special laws]
 I. Cognizance of Offence by Judicial Magistrate

Modes of Taking Cognizance of Offences by Judical Magistrates: [Section 190]

According to Section 190(1) of the Cr.P.C, any Magistrate of the first class and any Magistrate of the second class specially
empowered in this behalf by the Chief Judicial Magistrate under sub-section (2) may take cognizance of any offence -

(a) upon receiving a complaint of the facts which constitute such offence;
(b) upon a police report of such fact
(c) upon information received from any person other than a police officer, or upon his own knowledge that such offence
has been committed

Lets discuss each mode of taking cognizance in brief detail:

(a) Magistrate taking Cognizance of Offence upon a Criminal Complaint [Sec. 190 (1)(a)]

The word Complaint is defined under section 2(d) of the Code as:
“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code,
that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a non-
cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to
be the complainant;
Issue: When can it be said that the Magistrate has taken cognizance upon receiving a complaint?
 The answer to the question question whether the Magistrate has taken cognizance of the offence depends upon the steps
taken afterwards.
If the Magistrate applies his mind to proceed with the complaint under sections 200 to 203, he must be said to have taken
cognizance; whereas if he applies his mind to the complaint and proceed under section 156(3) or section 93, he cannot be said
to have taken cognizance of the offence.

 This position was eaxplained by Supreme Court in Tula Ram v. Kishore Singh (1977) 4 SCC 459, wherein Hon’ble Justice
Syed Murtaza Fazal Ali observed: “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 taking further action. What section 190 contemplates is that the Magistrate takes cognizance once he makes himself
fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said
allegations. Therefore, in complaint cases if the Magistrate does not proceed as per sections 200, 202 or 203 and has
ordered investigation under section 156(3), or issues a search warrant under section 93 for the purpose of investigation, he
cannot be said to have taken cognizance of the offence.”

 In Devarpalli Lakshminaryana Reddy & Ors. v. V. Narayana Reddy & Ors. (May 4, 1976) Justice Sarkaria observed:
“Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under
Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence
within the meaning of section 190(1) (a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his
discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering
investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.”
Procedure followed by Magistrate if he/she takes cognizance upon Complaint and Proceeds as per Sections 200 to 203
(Chapter XV):

Section 200: Examination of Complainant

 Judicial proceeding under section 200 is the nature of ‘Inquiry’.
 Section 200 comes into play when Magistrate has taken cognizance on complaint under section 190(1)(a) but before issue
of process under section 204 he is bound to follow procedure under section 200 so that frivolous and vexatious complaint
can be rejected and accused may be saved from unnecessary summons and warrants as the case may be.

Section 200 may be divided into two parts namely:

(i) Mandatory Examination (on oath) of Complainant and Witnesses if any (General Rule): A Magistrate taking cognizance of
an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of
such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the
Magistrate.
Q. What is the relevance of doing examination on Oath u/s 200 of the Code?

(ii) Exceptions to the General Rule of Mandatory Examination (Proviso to Section 200): when the complaint is made in
writing, the Magistrate need not examine the complainant and the witnesses:
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192

Note: if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and
the witnesses, the latter Magistrate need not re-examine them.
After examination of complainant & witnesses if any u/s 200, the Magistrate has three options:

Option 1: To Conduct Personal Inquiry or Direct Investigation: According to section 202 the Court may (and shall if accused
is residing at a place beyond the area in which he exercises his jurisdiction,) either conduct personal inquiry or direct for
investigation.
Cases in which Magistrate cannot direct for investigation:
(i) Offence is exclusively triable by Court of Session, and
(ii) before examination of complainant and the witnesses present (if any) under section 200 except where the complaint is
made by a Court i.e. Judge/ Magistrate is the Complainnat.

Option 2: Dismiss the Complaint: According to Section 203 If, after considering the statements on oath (if any) of the
complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is
of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall
briefly record his reasons for so doing

Option 3: Issue of process as per Section 204.

Difference between an Order of Magistrate for investigation under Section 156(3) and an Order directing Investigation
under Section 202:
 Section 156(3) occurs in Chapter XII, under the caption: ‘Information to the Police and their powers to investigate’;
while Section 202 is in Chapter XV which bears the heading ‘complaints to Magistrates’.

 The power to order police investigation under Section 156 (3) is different from the power to direct investigation
conferred by Section 202 (1). The two operate in distinct spheres at different stages. The first is exercisable at the pre
cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case.

 'That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156
(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a) . But if he once
takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to
the pre-cognizance stage and avail of Section 156 (3). It may be noted further that an order made under Section 156 (3),
is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation
under Section 156(1). Such an investigation embraces the entire continuous proces which begins with the collection of
evidence under Section 156 and ends with a report or charge sheet under Section 173.

 On the other hand Section 202 comes in at a stage when some evidence has been collected by the Magistrate in
proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the
prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct within the limits
circumscribed by that section, an investigation ‘for the purpose of deciding whether or not here is sufficient ground for
proceeding. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to
assist the Magistrate in completing proceedings already instituted upon a complaint before him
[See, Devarpalli Lakshminaryana Reddy & Ors. v. V. Narayana Reddy & Ors. (1976)]
 Section 156(3) Section 202(1)

1. Under Chapter XII 1. Under Chapter XV

2. Wider in Scope 2. Narrower in Scope

3. Here the purpose of investigation is to embrace the 3. Here purpose of investigation is limited. It is
entire continuous proces which begins with the conducted whether or not there is sufficient ground for
collection of evidence and ends with a report or charge issuing of process.
sheet under Section 173.

4. It is complete investigation. 4. It is basically in the nature of inquiry.

5. Order under this provision is made in pre-cognizance 5. Order under this provision is made during post
stage cognizance stage.
6. Order under this provision confined only to 6. Here order for investigation can be passed to
investigation of cognizable offence. investigate any types of offence. Because complaint can
be made regarding cognizable or non-cognizable
offence.
7. No such bar on the power of Magistrate to Order 7. In some cases order for investigation can not be
investigation. passed. For example, if offence exclusively triable by
Court of Session
Issue: Whether a second complaint can be entertained by a Magistrate who or whose predecessor had, on the same or similar
allegation, dismissed a previous complaint u/s 203, and if so in what circumstances should such a second complaint be
entertained.
Answer: An order of dismissal u/s 203 of the Code, is, however, no bar to the entertainment of a second complaint on the
same facts but it will be entertained only in exceptional circumstances, e.g, where the previous order was passed on an
incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or
where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings
have been adduced. [Justice S.K. Das in Pramath Nath Talukdar v. Saroj Ranjan Sarkar (SC, 1961)]

Procedure by Magistrate not competent to take cognizance of the case: [Section 201]
If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall -
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Cour
(b) Magistrate taking Cognizance of Offence upon Police Report [Sec. 190 (1)(b)]:
 The Magistrate may also take cognizance of an offence under section 190(1)(b) on receiving the police report.

Meaning of Police Report: According to section 2(r) “police report” means a report forwarded by a police officer to a
Magistrate under sub-section (2) of section 173

 If he is of the opinion that prima facie case is made out, he may straightaway issue a process (Section 204).
 The Magistrate is not bound by the conclusion reached by the police and it is open to him to take cognizance on the basis
of the police report, even though the police might have recommended in their report that no case is made out.

Note: Cognizance is taken of the offence and not of the offender. Therefore, the power of Magistrate to take cognizance
includes - those persons who have not been arrayed by the police but there is sufficient evidence to make out their
involvement in the alleged offence.

Q. Do you think Magistrate bound to take cognizance of an offence on the basis of final report under Section 173(2) of
Cr.P.C.?
Ans: Section 190 (1) uses the words “any Magistrate … may take cognizance ….”. So Magistrate is not bound to take
cognizance on the basis of police report and by using section 156(3), he may give direction for proper investigation.
 There were conflicting opinion of Supreme Court on the point regarding meaning of “… may take cognizance ….”.
Supreme Court in some cases held that word ‘may’ denotes discretionary power of Supreme Court.
 But in some cases the Court took just contrary opinion and said that ‘may’ should be read as ‘must’, otherwise it will be
violation of Article 14 of the Constitution of India.

Finally, Law Commission of India in its 41st Report recommended that ‘may’ denotes discretionary power of Court but this
(c) Magistrate taking Cognizance upon Information Received from any Person other than a Police Officer or suo mott [Sec.
190 (1)(c)]:

 According to Section 190(1)(c) of the Code, Magistrate may take cognizance upon information received from any person
other than a police officer, or upon his own knowledge, that such offence has been committed.

Object of Section 190(1)(c): To enable a Magistarte to see that justice is vindicated notwithstanding that the persons
individuallly aggrieved are uwilling or unable to lodge an FIR or file a complaint.

 The proper use of power conferred under clause (c) of section 190(1) is to proceed under it when the Magistrate has
reason to believe the commission of a crime, but is unable to proceed in the ordinary way owing to absence of any
complaint or police report about it.

Legel Consequence of Cognizance taken by a Magistrate not Empowered:

 If any Magistrate not empowered to take cognizance of an offence under under clauses (a) and (b) of section 190(1) does
erroneously in good faith takes cognizance of an offence under any such clause his proceedings shall not be set aside
merely on the ground of his not being so empowered. [Read Section 460 (e)]

 If a Magistrate who is not empowered to take cognizance of an offence takes cognizance under clause (c) of section
190(1), his proceedings shall be void. [Section 461(k)]
Lets discuss Section 191 and 192 of the Code:

Section 191 takes care of the situations where the Magistrate himself is a complainant. This provision removes any doubt as
to the scope for prejudice or malice on the part of the Magistrate by allowing the Chief Judicial Magistrate to transfer the
case to any other Magistrate. Section 191 reads thus:
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall,
before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and
if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking
cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this
behalf.

Section 192: Making over of cases to Magistrates.—(1) Any Chief Judicial Magistrate may, after taking cognizance of an
offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of
an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate
may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.
 II. Cognizance of offence by Sessions Court

Section 193 of the Code provides for cognizance of offence by Court of Session which reads thus:
“Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall
take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate
under this Code.”

 On a plain reading of the aforesaid provision, it is clear that no Court of Session can take cognizance of any offence as a
court of original jurisdiction except as otherwise expressly provided by the Code or any other law for the time being in
force or unless the case has been committed to it by a Magistrate.

 The idea is that the Court of Session is not required to perform all the preliminary formalities under sections 207-209 of
the Code which the Magistrate have to do before the case is committed to the Court of Session.

Note: the Court of Session may take cognizance without commitment by the Magistrate if so expressly provided by the Code
or by any other law for the time being in force.
For example, Under section 199(2), Court of Session may take cognizance as a court of original jurisdiction
Q. What is the validity of a trial by Sessions Court where the cognizance was directly taken by the Sessions Judge without the
case being committed to it by the Magistrate as required under section 193 of the Code?
Ans: The trial of any case, though not committed, may not be vitiated inasmuch as there is no failure of justice or no
prejudice is caused to the accused person. In other words, where Sessions Court has taken cognizance without the
committal proceeding it shall not affect the trial and subsequent conviction unless it is proved that the same gives rise to
failure of justice. [See, Rattiram v. State of M.P., (2012) 4 SCC 516]

Q. Whether the Sessions Court can invoke powers under section 319 of the Code at the stage of section 193?
Ans: This question was finally answered affirmatively by the Constitutional Bench in Dharam Pal & Others v. State of
Haryana & Another, (2014) 3 SCC 306. The Bench reiterated the ratio of Kishun Singh v. State of Bihar, (1993) 2 SCC 16, and
held thus: “the powers under section 319 of the Code can be invoked at the committal stage. On committal, the Sessions
Court shall have all the powers under section 209. Hence, even without recording evidence, upon committal under section
209, the Session Judge may summon those persons not named as accused by the police to stand trial along with those
already named therein.”

 Power under section 319 can be exercised at any time after the charge sheet is filed and before the pronouncement of
the judgment, except during the stage of section 207/208, committal etc.The steps under section 207/208 and committal
cannot be termed as judicial steps which require only application of mind rather than application of judicial mind. The
compliance of section 207 and committal proceeding are administrative work. Therefore, in a case triable by Sessions
Court, the Magistrate is not allowed to apply his mind to the merits of the case and determine as to whether any accused
needs to be added or removed to face trial before the Sessions Court. [ See, Hardeep Singh v. State of Punjab, (2014) 3
SCC 92]
Period of Limitation for Taking Cognizance of Certain Offences: [Chapter XXXVI (Section 467 to 473]
 A Magistrate can take cognizance of offence only within the time limits prescribed by law for this purpose as per sections
467 to 473 of the Code.
Bar to Taking Cognizance after Lapse of the Period of Limitation [Section 468]
 No Court shall take cognizance of an offence of the category specified in sub-section (2),after the expiry of the period of
limitation. [Sec. 468(1)]
 The period of limitation shall be [Sec. 468(2)]
(a) 6 months, if the offence is punishable with fine only;
(b) 1 year, if the offence is punishable with imprisonment for a term not exceeding 1 year;
(c) 3 years, if the offence is punishable with imprisonment for a term exceeding 1 year but not exceeding 3 years.
 For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with
reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

Commencement of the period of limitation [Section 469]: The period of limitation, shall commence,
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the
first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or
(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to
the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.
Note 1: In computing the said period, the day from which such period is to be computed shall be excluded.
Note 2: Where the period of limitation expires on a day when the Court is closed, the Court may take cognizance on the day on
which the Court reopens. [Section 471]
Note 3: In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during
which the offence continues. [Section 472]