PART II

COURT IN SESSION

120
 Chapter 4

COURT IN SESSION:
PRE - APPEARANCE STAGE

4.1 Taking Cognizance

The process of taking cognizance has been included in Chapter XIV of
Code of Criminal Procedure, 1973 under the head ‘Conditions requisite for
initiation of proceedings’. Taking cognizance is a prerequisite for initiation of
proceedings. So, in fact, taking cognizance itself is not initiation of proceedings
and it is only a condition which is required for initiation of proceedings. Sec.
190 to 199 deal with the process of taking cognizance. The provisions contained
in Sec.195 to 199 prescribe the bar to taking cognizance in certain circumstances
mentioned therein.
Sec.190 which deals with cognizance of offence by Magistrates reads as
follows:
Cognizance of offences by Magistrates.- Subject to the provisions of this
Chapter, any Magistrate of the first class, specially empowered in this behalf under
sub-section (2), may take cognizance of any offence-
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon it police report of such facts;
(c) Upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.

121
 (2) The Chief Judicial Magistrate may empower any Magistrate of the
second class∗ to take cognizance under sub-section (1) of such offences as are
within his competence to inquire into or try.

4.1.1 Cognizance - What amounts to?

The expression ‘cognizance’ merely means ‘become aware of’ and when
used with reference to a court or judge, it connotes to take notice of judicially.1 In
common parlance, ‘cognizance’ means ‘taking notice of’.2 Taking cognizance is a
mental as well as judicial act. It ordinarily means that the Magistrate has come to
the conclusion that there is a case to be enquired into. The word “cognizance” is
used in the Code of Criminal Procedure to indicate the point when a Magistrate or
a Judge first takes judicial notice of an offence.
The expression ‘taking cognizance’ under Section 190 of the Code, in its
broad and literal sense, means taking notice of an offence. It would include the
intention of initiation of judicial proceedings against the offender in respect of that
offence or taking steps to see whether there is any basis for initiating judicial
proceedings or for other purposes.3 The word ‘cognizance’ in Sec.190 of the Code
means judicial hearing of a matter.4

4.1.2 Cognizance- Definition

The term cognizance has not been defined in the Code of Criminal
Procedure. It is not of definite import also. It is neither practicable nor desirable
to precisely define as to what is meant by taking cognizance.5 The word
“cognizance” is defined in Wharton's Law Lexicon, 14th Edition, as “the hearing
of a thing judicially”.

∗
In Kerala, the judicial second class magistrate’s courts were upgraded as judicial first class
magistrate’s courts as per the provisions of Kerala Judicial Service Rules, 1992.
1
Ratan Lal & Dhirajlal, The Code of Criminal Procedure, 19th Enlarged Edition., LexisNexis
Butterworths Wadhwa Nagpur, 2010, p. 748
2
Kalimuthu v. State, AIR 2005 SC 2257
3
State of West Bengal v. Mohammed Khalid, AIR 1995 SC 785
4
State of Karnataka v. Paster Raju (2006), 6 SCC 728
5
Fakrudin Ahamed v. State of Uttaranjal, AIR 2009 SC (Supp.) 803

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 In The Major Law Lexicon ‘cognizance’ is defined as knowledge upon
which a Judge is bound to act without having it proved in evidence as the public
statutes of the realm, ancient history of the realm, the order and course of
proceedings in Parliament, the privileges of the House of Commons, the existence
of war with a foreign State, several seals of the king, the Supreme Court and its
jurisdiction and many other things.6

4.1.3 Application of mind for proceeding under Chapter XV Cr.P.C.

In order that a Magistrate is taking cognizance of an offence u/s.191(a) he
must not only have applied his mind to the contents of the complaint, but he must
have also done so for the purpose of proceeding u/s.200 and subsequent provisions
of Chapter XV of Cr. PC. But, when the Magistrate applied his mind not for the
purpose of proceeding under Chapter XV, but for taking some other action i.e., for
ordering investigation u/s.156(3) Cr.P.C. or for issuing a search warrant for the
purpose of investigation, he cannot be said to have taken cognizance of the
offence.7
The term ‘cognizance’ has no esoteric or mystic significance in criminal
law. It merely means ‘become aware of” and when used with a reference to, a
court or a judge, it connotes, ‘to take notice of judicially’. It indicates the point
when the court or a Magistrate take notice of an offence with a view to initiating
proceedings in respect of such offence. Taking cognizance does not involve
formal action of any kind. It occurs as soon as a Magistrate applies his mind to
suspicious commission of an offence with a view to proceed against the
offender.8

4.1.4 Initiation of Proceedings & Commencement of Proceedings

The process of taking cognizance has been included in Chapter XIV
Cr.P.C. under the head ‘conditions requisite for initiation of proceedings’. In fact,

6
P.Ramanatha Aiyar, The Major Law Lexicon, 4th Edition., LexisNexis Butterworths Wadhwa Nagpur,
2010, p. 1226
7
supra note 5
8
S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd., AIR 2008 SC 1213

123
Chapter XIV does not deal with initiation of proceedings as such; but it provides
for the conditions which are to be complied with for initiating the criminal
proceeding. Chapter XVI deals with commencement of proceedings which is after
complying with the conditions requisite for initiation of proceedings. For the
purpose of commencement of proceedings under Chapter XVI, it is mandatory that
the Magistrate should take cognizance of the offence.9 So, taking cognizance is a
sine qua non for commencement of proceedings under Chapter XVI.

4.1.5 Chapter XV Cr.P.C.- Post Cognizance Stage

Chapter XV of the Cr.P.C. deals with complaints to magistrate. It contains
Sec.200 to 203 which deal with the procedure to be followed by the Magistrate in
the case of complaints.
Sec.200 Cr.P.C. reads as follows:
“Examination of complainant. - 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:
Provided that, 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:
Provided further that 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.”

9
ibid

124
 So, Sec.200 Cr.P.C. is post cognizance stage. In the case of a complaint,
when the magistrate decides to examine the complainant on oath he can be said to
have taken cognizance of the offence. It is with a view to proceeding under
Chapter XV that the Magistrate applied his mind to the facts stated in the
complaint. That is why he is proceeding to examine the complainant on oath. In
the case of the complaints which are mentioned under the clause (a) and (b) of the
1st proviso to Sec.200 Cr.P.C., examination of the complainant is not necessary.

4.1.6 Visible Expression of Taking Cognizance

As far as a complaint except that is mentioned under clause (a) and (b) of
the 1st proviso to Sec.200 Cr.P.C.is concerned, the visible expression of taking
cognizance is the decision of the magistrate to examine the complainant on oath.
But, as regards a police report, the visible expression of taking cognizance is the
issuance of process u/s.204 Cr. PC.
So, Sec.204 Cr.P.C. also is post cognizance stage. In the case of a
complaint except those mentioned in clause (a) and (b) of the 1st proviso of
Sec.200 Cr.P.C., there is an intermediary stage between filing of the complaint and
the issuance of the process namely the examination of the complainant which is
illustrative of cognizance having been taken by the Magistrate. But, in the case of
a police report, the visible expression of taking cognizance is the issuance of
process. The term ‘a Magistrate taking cognizance of an offence’ appearing in
Sec.204 Cr.P.C. shows that it is post cognizance stage.
The act of taking cognizance involves the application of mind with a view
to proceed further. How can this be found out? When the magistrate, on perusal
of the complaint, is satisfied that the complaint discloses an offence and that there
is no reason to reject the complaint on that stage and proceeds further in the
matter, it is indicative of having taken cognizance of the offence. The fact that the
words “cognizance taken” is not mentioned in the order would not make any

125
difference. The term issuance of process should not be confused with taking
cognizance.10

4.1.7 When can a case be said to be instituted in a court

From the scheme of Code of Criminal Procedure, the content and the
marginal heading of Sec.190 Cr.P.C. and the caption of Chapter XIV, it is clear
that a case can be said to be instituted in a court only when the court takes
cognizance of the offence alleged therein. The ways in which such cognizance
can be taken are set out in clauses (a), (b) and (c) of Sec. 190 (1) Cr.P.C. Whether
the Magistrate has or has not taken cognizance of the offence will depend on the
circumstances of the particular case including the mode in which the case is
sought to be instituted, and the nature of the preliminary action, if any, taken by
the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate
applies his mind for the purposes of proceeding under Sec. 200 and the succeeding
sections in Chapter XV Cr.P.C., he is said to have taken cognizance of the offence
within the meaning of Sec. 190(1) (a) Cr.P.C. 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 Sec. 156 (3) Cr.P.C., he cannot be said
to have taken cognizance of any offence.11

4.1.8 Filing of the complaint & Taking cognizance

There is possibility that taking cognizance of the offence may be
misunderstood as filing of the complaint by the complainant. Taking cognizance
of an offence by the court has to be distinguished from filing of the complaint by
the complainant. Taking cognizance would mean the action taken by the court for
initiating judicial proceedings against the offender in respect of the offence
regarding which the complaint is filed. Before it can be said that any Magistrate
or court has taken cognizance of an offence, it must be shown that he has applied

10
CREF Finance Ltd. v. Sri Santhi Homes Pvt. Ltd., AIR 2005 SC 4284
11
Devarapally Lekshmi Narayana Reddi v. Narayana Reddi, AIR 1976 SC 1672

126
his mind to the fact for the purpose of proceeding further in the matter at the
instance of the complainant.12

4.1.9 Not bound by the opinion of police

In the case of taking cognizance of an offence on a police report, the
Magistrate is not bound by the opinion of the investigating officer and he is
competent to exercise his discretion in this behalf irrespective of the view
expressed by the police in their report and decide whether the offence has been
made out or not. This is because the purpose of the report u/s.173(2) Cr.P.C.
which will contain the facts discovered or unearthed by the police as well as
conclusion drawn by the police there from, is primarily to enable the Magistrate to
satisfy himself whether on the basis of the report and the materials therein, the
case for cognizance is made out or not.13
In the case of a complaint filed before the Magistrate, he may without
taking cognizance, order an investigation to be made by the police u/s. 156(3)
Cr.P.C. When such an order is made, the police is obliged to investigate the case
and submit report u/s.173(2) Cr.P.C. On receiving the police report, if the
Magistrate is satisfied with the facts discovered or unearthed by the police there is
sufficient material for the cognizance of the offence, he may take cognizance of
the offence u/s. 191(b) of Cr.P.C. Sec.191(b) of Cr.P.C. does not lay down that a
Magistrate can take cognizance of an offence only if investigating officer gives an
opinion that an investigation makes out a case against the accused. So, he can
ignore the conclusion arrived at by the investigating officer.14
The Magistrate is entitled to take cognizance of an offence under Section
190(1)(b) of the Code even if the police report is to the effect that no case is made
out against the accused. The Magistrate can take into account the statements of the

12
Narasingh Das Tadpadia v. Goverdhan Das Partani, AIR 2000 SC 2946
13
supra note 5
14
ibid

127
witnesses examined by the police during the investigation and take cognizance of
the offence complained of and order the issue of process to the accused.15

4.1.10 Cognizance after Investigation as per order u/s. 156(3) Cr.P.C.

Even in the case of a report u/s.173(2) of Cr.P.C. on the basis of the
investigation as per the order of the Magistrate u/s. 156(3) Cr.P.C. on a complaint,
the Magistrate can take cognizance u/s.191(b) Cr.P.C.on the police report even if
the police report is to the effect that no case was made out. The Magistrate can
take cognizance u/s.191(b) Cr.P.C. if he is satisfied that there are sufficient
materials for taking cognizance.16
A magistrate who on receipt of a complaint, orders an investigation under
Sec. 156 (3) and receives a police report under Sec. 173 (1), may, thereafter, do
one of the three things : (1) he may decide that there is no sufficient ground for
proceedings further and drop action; (2) he may take cognizance of the offence
under Sec. 190 (1) (b) Cr.P.C. on the basis of the police report and issue process,
this he may do without being bound in any manner by the conclusion arrived at by
the police in their report; (3) he may take cognizance of the offence under Sec. 190
(1) (a) Cr.P.C. on the basis of the original complaint and proceed to examine upon
oath the complainant and his witnesses under Sec. 200 Cr.P.C. If he adopts the
third alternative, he may hold or direct an inquiry under Section 202 if he thinks
fit. Thereafter, he may dismiss the complaint or issue process, as the case may
be.17

4.1.11 No need to ascertain the truth

For the purpose of taking cognizance, there is no need to ascertain the truth
of the allegations made in the complaint. If the court is prima facie of the opinion
that the allegations make out an offence, cognizance can be taken. There is no
need to ascertain that the allegations made are true in fact.18

15
Sanjay Bansal v. Jawajarla Vats, AIR 2008 SC 207
16
Indiacarat Pvt.Ltd. v. State of Karnataka, AIR 1989 SC 885
17
H.S.Bains v. State, AIR 1980 SC 1883
18
Rajiv Modi v.Sanjai Jain, AIR 2009 SC (Supp.) 2044

128
4.1.12 Cognizance when cannot be taken
But, when the allegations made in the complaint and the statements made
by the complainant and witnesses before the Magistrate taken on their face value
do not make out an offence, cognizance cannot be taken. When no offence can be
said to have been made out on the allegation made in the complaint ,the order of
taking cognizance is invalid.19
When on consideration of the allegations made in the complaint and the
statement of the complainant and witnesses made before the Magistrate, necessary
ingredients of any offence are not made out and the complaint itself is a vague one
excepting bald allegations, cognizance cannot be taken.
Similar, is the case when the allegations in the complaint amounts to an
abuse of the process of the court. When the complaint is a product of fraud, no
cognizance can be taken on it and the complaint is liable to be quashed, since the
act of fraud is ab initio-void. When the complaint is exfacie an act of fraud by a
fictitious person and an abuse of process of court every action taken on the said
complaint gets vitiated. 20

4.1.13 Cognizance is of offence and not of offender

Cognizance is taken of offence and not of offender.21 At the stage of taking
cognizance of the offence, as per the provisions of Sec.190 Cr.P.C., the Magistrate
takes cognizance of an offence and not the offender. After taking cognizance of
the offence, the Magistrate is empowered u/s. 204 Cr.P.C. to issue process to the
accused if there is sufficient ground for proceeding. Once he takes cognizance of
the offence, it is his duty to find out who the offenders really are and to proceed
against those persons. When he comes to the conclusion that apart from the
persons sent up by the police, some other persons are also involved, it is his duty
to proceed against them. 22

19
Asok Chathurvedi v. Shitul H.Chanchani, AIR 1998 SC 2796
20
Vijay Sekhar v. Union of India, AIR 2004 SC 3976
21
supra note 8
22
Swill Ltd. v. State of Delhi, AIR 2001 SC 2747

129
4.1.14 No territorial restriction
The power of the Magistrate to take cognizance is not impaired by
territorial restrictions. It is an erroneous view that the Magistrate taking
cognizance of an offence must necessarily have territorial jurisdiction to try the
case as well. As per Sec.190 Cr.P.C., the only restriction to the power to take
cognizance is “subject to the provisions of this chapter”. Chapter XIV Cr.P.C.
contains 9 Sections and none of them incorporates any restrictions on the power in
relation to territorial barrier. The territorial jurisdictional aspect becomes relevant
only when the question of enquiry or trial arises. So, it is erroneous to say that
only a Magistrate having jurisdiction to try the case has the power to take
cognizance of the offence.23

4.1.15 Accused has no role

It is fairly settled legal position that at the time of taking cognizance of the
offence, the Court has to consider only the averments made in the complaint or in
the charge-sheet filed under Sec. 173 Cr.P.C., as the case may be. It is not open
for the Court to sift or appreciate the evidence at that stage with reference to the
material and come to the conclusion that no prima facie case is made out for
proceeding further in the matter.24 Accused has no right to produce any material at
the time of taking cognizance. It is well settled that at the stage of quashing of
order taking cognizance, accused cannot be permitted to use the material which
would be available to him only as his defence.25 So, the accused is not entitled to
be heard at this stage.

4.1.16 Locus - Standi of Complainant

To pursue an offender in the event of commission of an offence is to sub-
serve a social need. Society cannot afford to have a criminal escape his liability,
since that would bring about a state of social pollution, which is neither desired

23
Trisuns Chemical Industry v. Rajesh Agarwal, AIR 1999 SC 3499.
24
Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397
25
Jagadeesh v. State of U.P., AIR 2009 SC (Supp.) 19.

130
nor warranted and this is irrespective of the concept of locus. The doctrine of
locus-standi is totally foreign to criminal jurisprudence.26 Unless the law
prescribes any bar in taking cognizance except upon the report by the police or
upon the complaint by any particular person, the court is at liberty to take
cognizance of the offence on the complaint by any person.

4.1.17 Reasoned Order not required

There is no need to conduct an elaborate enquiry at the stage of taking
cognizance. The court need not pass a detailed and reasoned order.27 The
Magistrate is not required to mention the documents, which he considered for
satisfying himself to take cognizance.28

4.2 Issue of process

Sec. 204 of the Code of Criminal Procedure deals with issue of process. It
reads as follows:
“Issue of process.- (1) If in the opinion of a Magistrate taking cognizance
of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) A summons-case, he shall issue his summons for the attendance of the
accused, or
(b) A warrant-case, he may issue a warrant, 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 (if he has no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-
section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every
summons or warrant issued under sub-section (1) shall be accompanied by a copy
of such complaint.

26
Manohar Lal v. Vinesh Anand, 2001 AIR SCW 1590.
27
State of West Bengal v. Mohammed Khalid, AIR 1995 SC 785.
28
supra note 1, p.754.

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 (4) When by any law for the time being in force any process-fees or other
fees are payable, no process shall be issued until the fees are paid and, if such fees
are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of
section 87.”
It is post cognizance stage. If in the opinion of a Magistrate taking
cognizance of an offence, there is sufficient ground for proceeding, he shall issue
summons to the accused if it is a summons case and he may issue a summons or a
warrant to the accused if the case is a warrant case.

4.2.1 Sufficient ground – What amounts to?

The Magistrate can issue process to the accused only if there is sufficient
ground for proceeding. In the case of a complaint, the object of examination of
the complainant and the witnesses is to ascertain the truth or falsehood of the
complaint and to determine whether there is a prima facie case against the
offender. If upon examination of the complainant and/or witnesses, the Magistrate
is prima facie satisfied that a case is made out against the person accused of
committing an offence, then he is required to issue process. Section 202 empowers
the Magistrate to postpone the issue of process and either inquire into the case
himself or direct an investigation to be made by a police officer or such other
person as he may think fit for the purpose of deciding whether or not there is
sufficient ground for proceeding. Under Sec. 203 Cr.P.C., the Magistrate can
dismiss the complaint if, after taking into consideration the statements of the
complainant and his witnesses and the result of the inquiry/investigation, if any,
done under Sec. 202 Cr.P.C., he is of the view that there does not exist sufficient
ground for proceeding. On the other hand, Sec. 204 Cr.P.C. provides for issue of
process if the Magistrate is satisfied that there is sufficient ground for doing so.
The expression “sufficient ground” used in Sections 203, 204 and 209 of
Cr.P.C.means the satisfaction that a prima facie case is made out against the

132
person accused of committing an offence and not sufficient ground for the purpose
of conviction.29

4.2.2 Condition precedent for issuance of process

It is a condition precedent for the issue of process u/s. 204 Cr.P.C. that the
Magistrate has to satisfy that there is sufficient ground for proceeding. This is
done by the examination of the complainant and the witnesses or by the enquiry
contemplated u/s. 202 Cr.P.C.30
Summoning of an accused in a criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of course. It is not that the complainant
has to bring only two witnesses to support his allegations in the complaint to have
the criminal law set into motion. The order of the Magistrate summoning the
accused must reflect that he has applied his mind to the facts of the case and the
law applicable thereto. He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in support thereof. It is not
that the Magistrate is a silent spectator at the time of recording of preliminary
evidence before summoning of the accused. Magistrate has to carefully scrutinise
the evidence brought on record and may even himself put questions to the
complainant and his witnesses to elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any offence is prima facie committed
by all or any of the accused.31

4.2.3 Accused has no role

What is necessary or a condition precedent for issuing process under Sec.
204 Cr.P.C. is the satisfaction of the Magistrate either by examination of the
complainant and the witnesses or by the inquiry contemplated under Sec. 202
Cr.P.C. that there is sufficient ground for proceeding with the complaint. In none
of these stages, the Code has provided for hearing the summoned accused, for

29
Shivjee Singh v. Nagendra Tiwary, AIR 2010 SC 2261
30
Everest Advertising Pvt. Ltd. v. State Govt. NCT of Delhi, AIR 2007 SCW 2510
31
Pepsi Foods Ltd. v. Special Judicial Magistrate, AIR 1998 SC 128

133
obvious reasons because this is only a preliminary stage and the stage of hearing
of the accused would only arise at a subsequent stage provided for in the latter
provision in the Code.32
After the proceedings u/s.200 and 202 Cr.P.C., the only stage of dismissal
of the complaint arises under section 203 of the Code at which stage the accused
has no role to play. Therefore, the question of the accused on receipt of summons
approaching the Court and making an application for dismissal of the complaint
under Sec. 203 of the Code for a reconsideration of the material available on
record is impermissible because by then Sec. 203 is already over and the
Magistrate has proceeded further to Section 204 stage.33

4.2.4 Recalling of issuance of summons

During the stage of arriving at the conclusion that there is sufficient ground
for proceeding, the Code of Criminal Procedure does not provide for hearing the
accused. The provisions of Sec.190, 200, 202, 203 and 204 of Cr.P.C.do not
provide any opportunity to the accused to raise any contentions before the court.
So, it is impermissible for the accused to apply for dismissal of the complaint u/s.
203 Cr.P.C. after receiving the summons since on issuance of summons u/s. 204
Cr.P.C., the court has already passed the stage of Sec.203 Cr.P.C. The remedy of
an accused who received the summons where there is no sufficient ground for
proceeding is not to invoke Sec.203 Cr.P.C. but, to invoke the remedy u/s. 482
Cr.P.C.34 The decision of the Hon’ble Supreme Court in K.M.Mathew v. State of
Kerala35 to the effect that the accused is entitled to apply for recalling an order of
issue of process and that no specific provision of law is required for that purpose
has been held as incorrect by the Hon’ble Supreme Court in Adalat Prasad v.
Rooplal Jindal.36

32
ibid
33
Adalat Prasad v.Rooplal Jindal, AIR 2004 SC 4674
34
ibid
35
AIR 1992 SC 2206
36
supra note 33

134
4.2.5 No detailed order is required
No detailed order is required to arrive at the conclusion that there is
sufficient ground for proceeding. What is required is that the order of the
Magistrate summoning the accused must reflect that he has applied his mind to the
facts of the case and the law applicable thereto.37
The Honb’ble Supreme Court, held as follows: “If there is no legal
requirement that the trial Court should write an order showing the reasons for
framing a charge, why should the already burdened trial Courts be further
burdened with such an extra work. The time has reached to adopt all possible
measures to expedite the court procedures and to chalk out measures to avert all
road-blocks causing avoidable delays. If a Magistrate is to write detailed orders at
different stages, the snail-paced progress of proceedings in trial Courts would
further be slowed down. It is quite unnecessary to write detailed orders at the stage
of issuing process, remanding the accused to custody, framing of charges and
passing over to next stages in the trial.”38

4.2.6 Matters for relevant consideration

What is relevant to arrive at the conclusion that there is sufficient ground
for proceeding is to examine as to whether the allegations in the complaint make
out a prima facie case. The factors such as whether the evidence has been made
out, whether the accused is liable and what are the defences available to him are
no matters at this stage for consideration.39
At the stage of issuing process, the Magistrate is mainly concerned with the
allegation made in the complaint or the evidence led in support of the same and he
is only to be prima facie satisfied whether there are sufficient grounds for
proceeding against the accused. It is not the province of the Magistrate to enter
into a detailed discussion of the merits or de-merits of the case. It is true that in
coming to a decision as to whether a process should be issued the Magistrate can

37
In Polution Control Board v. Mohan Meakin Ltd., AIR 2000 SC 1456
38
ibid
39
Anil Saran v. State of Bihar, AIR 1996 SC 204

135
take into consideration inherent improbabilities appearing on the face of the
complaint or in the evidence led by the complainant in support of the allegations.
But, there appears to be a very thin line of demarcation between a probability of
conviction of the accused and establishment of a prima facie case against him. The
Magistrate has been given an undoubted discretion in the matter and he has to
exercise that discretion judicially.40

4.2.7 Should not be mechanical

Before deciding to issue process, the Magistrate has to be aware that by
doing so he is compelling a person to undergo an enquiry or trial in a criminal
proceeding. So, issuance of process in a criminal case cannot be viewed lightly.
The fact that the accused can approach the High Court against the order to issue
process u/s.482 Cr.P.C. should not be a ground for issuance of process in a
mechanical manner.
Judicial process should not be an instrument of oppression or needless
harassment. The Court should be circumspect and judicious in exercising
discretion and should take all the relevant facts and circumstances into
consideration before issuing process lest it would be an instrument in the hands of
private complainant as vendetta to harass the persons needlessly.41

4.2.8 When liable to be set aside

The order to issue process to an accused passed by the Magistrate is liable
to be set aside in the following cases.
(1) Where the allegations made in complaint or the statement of the
witnesses recorded in support of the same taken at their face value make
out absolutely no case against the accused or the complaint does not
disclose the essential ingredients of an offence which is alleged against the
accused;

40
Nagawwa v. Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947
41
Panjab National Bank v. Surendra Prasad Sinha, AIR 1992 SC 1815

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 (2) Where the allegations made in the complaint are patently absurd and
inherently improbable so that no prudent person can ever reach a
conclusion that there is sufficient ground for proceeding against the
accused;
(3) Where the discretion exercised by the Magistrate in issuing process is
capricious and arbitrary having been based either on no evidence or on
materials which are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental legal defects, such as,
want of sanction, or absence of a complaint by legally competent authority
and the like.42

4.2.9 No weighing of evidence

At the stage of Sections 203 and 204 of Cr.P.C., in a case exclusively
triable by the Court of Session, all that the Magistrate has to do is to see whether
on a cursory perusal of the complaint and the evidence recorded during the
preliminary inquiry under Sections 200 and 203 of Cr.P.C., there is prima facie
evidence in support of the charge levelled against the accused. All that he has to
see is whether or not there is “sufficient ground for proceeding” against the
accused. At this stage, the Magistrate is not to weigh the evidence meticulously as
if he were the trial court. The standard to be adopted by the Magistrate in
scrutinising the evidence is not the same as the one which is to be kept in view at
the stage of framing charges. The truth, veracity and effect of the evidence which
the complainant produces or proposes to adduce at the trial, is not to be
meticulously judged. A fortiori, at the stage of Sections 202/204 of Cr.P.C., if
there is prima facie evidence in support of the allegations in the complaint relating
to a case exclusively triable by the Court of Session, that will be a sufficient
ground for issuing process to the accused and committing them for trial to the
Court of Session.43

42
supra note 40
43
Kewal Krishnan v. Suraj Bhan, Air 1980 SC 1780

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 From the scheme of the Code of Criminal Procedure, 1973, it is evident
that in a case instituted on a complaint in respect of an offence traible by the court
of session, the standard for ascertaining whether or not evidence collected in the
preliminary enquiry discloses sufficient grounds for proceeding against the
accused is lower than the standard to be adopted at the stage of framing charge in a
warrant case traible by the Magistrate.

4.2.10 Not bound by the opinion of Police

In deciding whether there is sufficient ground for proceeding, the
Magistrate is not bound by the opinion expressed by the police in the final report.
On receiving the police report, the Magistrate may take cognizance of the offence
under Sec. 190 (1) (b) Cr.P.C. and straightway issue process. This he may do
irrespective of the view expressed by the police in their report whether an offence
has been made out or not. The police report under Sec. 173 Cr.P.C. will contain
the facts discovered or unearthed by the police and the conclusions drawn by the
police therefrom. The Magistrate is not bound by the conclusions drawn by the
police and he may decide to issue process even if the police recommend that there
is no sufficient ground for proceeding further. The Magistrate, after receiving the
police report, may, without issuing process or dropping the proceeding, decide to
take cognizance of the offence on the basis of the complaint originally submitted
to him and proceed to record the statements upon oath of the complainant and the
witnesses present under Sec. 200 Cr.P.C. and thereafter decide whether to dismiss
the complaint or issue process. The mere fact that he had earlier ordered an
investigation under Sec. 156 (3) Cr.P.C. and received a report under Sec.173 will
not have the effect of total effacement of the complaint and therefore the
Magistrate will not be barred from proceeding under Secs. 200, 203 and 204 of
Cr.P.C.44

44
supra note 17

138