DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

Project work on

“Powers of Magistrate under Section 190

Cr PC”

Submitted To: Mr. Vipul Vinod

(Assistant Professor (Law))

Submitted By: Shreepath Jain

Roll :168

5th semester section : B

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Acknowledgement

I feel myself highly delighted, as it gives me incredible pleasure to present a research

work on“Powers of Magistrate under Section 190 Cr PC”.

I would like to enlighten my readers regarding this topic and I hope I have tried my
best to pave the way for bringing more luminosity to this topic.

I am grateful to my faculty Mr Vipul Vinod who has helped me to venture this project
as well as the library of Ram Manohar Lohiya National Law University.

I would like to thank all concern for their interest in providing me a good back up
material.

Shreepath Jain.
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Contents

RESEARCH METHODOLOGY................................................................................................4

INTRODUCTION....................................................................................................................5

Cognizance of offence..............................................................................................................6

Complaint...............................................................................................................................11

Scrutiny of the complaints......................................................................................................12

Commitment of case to Court of Session................................................................................15

Conclusion..............................................................................................................................16

Bibliography...........................................................................................................................17
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RESEARCH METHODOLOGY

The researchers have adopted a purelyDoctrinalmethod of research as the research

paper discusses the matter in which no field work is required for the same and the
Doctrinal approach is perfectly suited for the same.

Aims and Objectives:

The aim of the project is to present a detailed study of “Powers of Magistrate under
Section 190 Cr PC”, which is undertaken in formulation of this project work.

Scope and Limitations:

Though “Powers of Magistrate under Section 190 Cr PC” is an immense project and
pages can be written over the topic but because of certain restrictions and limitations
we were not able to deal with the topic in great detail.

Sources of Data

The following secondary sources of data have been used in the project

1. Books
2. Articles
Method of Writing:

The method of writing followed in the course of this research paper is primarily
explanatory as well as descriptive.
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INTRODUCTION

Chapter XIV of the Code speaks about conditions requisite for initiation of
proceedings. Section 190 deals with cognizance of offences by Magistrates. In terms
of subsection (1) subject to the provisions of the said Chapter, any Magistrate of first
class, and any Magistrate of the second 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 a 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.

Sub-section (3) of Section 156 of the Code enables any Magistrate empowered under
Section 190 may order such an investigation in terms of sub-section (1) of that
section.

It is clear that any judicial magistrate before taking cognizance of the offence can
order investigation under Section 156(3) of the Code. If he does so, he is not to
examine the complainant on oath because he was not taking cognizance of any
offence therein.

When a magistrate receives a complaint he is not bound to take cognizance if the facts
alleged in the complaint disclose the commission of an offence. The magistrate has
discretion in the matter. If on a reading of the complaint, he finds that the allegations
therein disclose a cognizable offence and the forwarding of the complaint to the
police for investigation under Section 156(3) will be conducive to justice and save the
valuable time of the magistrate from being wasted in enquiring into a matter which
was primarily the duty of the police to investigate, he will be justified in adopting that
course as an alternative to taking cognizance of the offence itself. As said earlier, in
the case of a complaint regarding the commission of 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). However, if he once takes such cognizance and
embarks upon the procedure embodied in Chapter XV, he is not competent to revert
back to the precognizance stage and avail of Section 156(3).
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Where a Magistrate orders investigation by the police before taking cognizance under
Section 156(3) of the Code and receives the report thereupon he can act on the report
and discharge the accused or straightaway issue process against the accused or apply
his mind to the complaint filed before him and take action under Section 190 of the
Code.

Alternatives when a Magistrate chooses to take cognizance:

Where a Magistrate chooses to take cognizance he can adopt any of the following
alternatives:

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for
proceeding he can straightaway issue process to the accused but before he does so he
must comply with the requirements of Section 200 and record the evidence of the
complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any
other person or an investigation by the police.

In case the Magistrate after considering the statement of the complainant and the
witnesses or as a result of the investigation and the enquiry ordered is not satisfied
that there are sufficient grounds for proceeding he can dismiss the complaint.

Cognizance of offence

Taking cognizance of an offence is the first and the foremost step towards trial.
Cognizance literally means knowledge or notice, or becoming aware of the alleged
commission of an offence. Obviously the judicial officer will have to take cognizance
before he could proceed to conduct a trial.
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The code has not defined or specifically mentioned ‘cognizance of an offence’ or

taking cognizance of an offence. However the meaning of the expression is well
settled by courts. Taking cognizance does not involve any formal action or indeed
action of any kind but occurs as soon as the magistrate as such applies his mind to the
suspected commission of the offence for the purpose of proceeding to take subsequent
steps(Section 200 ,section 202,section 203) towards inquiry and trial. It includes
intention of initiating judicial proceeding against an offender in respect of an offence
or taking steps to see whether there is a basis of initiating judicial proceeding. The
magistrates orders to take cognizance should reflect the application of his mind. It is
trite that before taking cognizance ,the court should satisfy that the ingredients of the
offence charged are there.

This provision authorises a Magistrate of the first class or a Magistrate of the second
class specially empowered in this behalf, to take cognizance.

According to the provisions of Section 3(3) of the Code these Magistrates should be
Judicial Magistrates. Chief Judicial Magistrate can take cognizance of an offence
committed at any place in the District. Section 190 does not provide that the
Magistrate taking cognizance should have jurisdiction to do so.

Section 204 which provides for issuance of process after taking cognizance, on the
other hand states that the Magistrate who has taken cognizance can issue summons or
warrants for appearance before such Magistrate or before some other Magistrate
having jurisdiction, if he has no jurisdiction himself. This necessarily implies that the
law warrants taking of cognizance by a Magistrate who may not have jurisdiction
himself, but in such cases he cannot try and has to direct the accused whom he may
summon, to appear before a Magistrate having jurisdiction.

If a Magistrate is not empowered to take cognizance under clause (b) or (c) he bona
fidely takes cognizance, proceedings before him cannot be quashed only on the
ground that he did not have the power to do so. The defect would stand cured under
section 460 of the Code.If cognizance was taken bona fidely the conviction in trial
will not be quashed unless it is shown that it was knowingly done mala fidely.
However, if a Magistrate not empowered by law to take cognizance under clause (c)
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of section 190(1) takes cognizance, the proceedings would be void as provided by

section 461(k).

• No formal action but application of mind.-As to when cognizance is taken of

an offence will depend upon the facts and circumstances of each case and it is
impossible to attempt to define what is meant by taking cognizance. No formal action
or set formula is needed for a criminal court to take cognizance of commission of
offences which that court is empowered to take cognizance of. Taking cognizance
does not involve any formal action but occurs as soon as a Magistrate applies his
mind to the commission of the offence. When the Magistrate first takes judicial notice
of an offence, he takes cognizance of the offence. This is the position whether the
Magistrate takes cognizance of an offence on a complaint or on a police report or
upon information of a person other than a police officer.

It is not necessary for the Magistrate to specifically state that he is taking cognizance
of the offence. Where Magistrate has proceeded to record sworn statement of the
complainant and has also marked certain exhibits produced by the complainant, this
indicates that the Magistrate has taken cognizance of the offence. Further, from the
fact that the Magistrate on receipt of the complaint directed that it be registered and
then adjourned the case to another date and that on that date as well on subsequent
date, examined the complainant, clearly indicates that he had taken cognizance of the
offence. Mere fact that while passing a formal order issuing process, the Magistrate
has again stated that cognizance is taken does not take away the effect of his earlier
action which indicated that he had already taken cognizance. The second order is only
superfluous and this cannot vitiate the entire proceedings.

• Mental and judicial act.-Taking cognizance is both mental as well as a judicial

act. Before a Magistrate can be said to have taken cognizance under section 190(1)(a),
he must not only have applied his mind to the complaint but must have done so for
proceeding in a particular way under the subsequent provision. If the Magistrate has
not applied his mind for the above purpose but for taking some other kind of action,
there is no cognizance of the offence. Taking cognizance of an offence does not
necessarily lead to the conclusion that judicial proceedings against any offender have
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been started. It indicates only the point of time when a criminal court first takes notice
of an offence. The Magistrate takes cognizance only when he applies judicial mind for
the purpose of proceeding in a particular way given in subsequent provisions. It is
well-settled that cognizance takes place as soon as the competent court applies its
mind to the offence with the intention of initiating judicial proceedings against the
offenders in respect of the offence. If the Magistrate has only observed that "he was
satisfied that it was necessary and expedient in the interest of justice that those
witnesses be tried summarily for giving false evidence", there is no cognizance of the
offence under section 193, I.P.C. and the order of the successor Magistrate
summoning the accused before him under section 344, read with section 193, I.P.C.
cannot be allowed to sustain.

Where the F.I.R. clearly discloses commission of rape, it can never be said to be
absurd or inherently improbable. As such, the cognizance taken by the Magistrate
cannot be interfered with. Cognizance cannot be taken in a mechanical way. It is a
judicial function which has to be performed by the Magistrate independently.41

• Application of mind for finding out existence of prima facie case.-At the time
of taking cognizance the court is not required to closely scrutinize the evidence on
record. The court, at that stage, after application of mind to the evidence of the
witnesses, has to satisfy itself that a prima facie case is made out. Prima facie
evidence means evidence that is sufficient to establish a fact or to raise a presumption
of truth of facts unless controverted . The court has to merely find out if, the materials
alleged are sufficient to make out a prima facie case of offence alleged to have been
committed by the accused. It is, therefore, sufficient if the Magistrate refers to the
relevant material on record, but the order taking cognizance has to be speaking one. In
taking cognizance the court applies its mind for the purpose of finding out whether an
offence has been committed or not. Where the order-sheet mentions that cognizance
of the offence has been taken but does not bear the signature of the Judge, there is no
application of the judicial mind and the cognizance has not been taken. But where the
Magistrate has issued process after examining the complainant and the witnesses, it
may be said that impliedly the Magistrate has taken cognizance. If the complainant is
examined under section 200 of the Code , that amounts to taking cognizance, but
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where upon taking cognizance the Magistrate desires to postpone the issue of process
for compelling the attendance of the person complained against, he must go under
section 202. A Magistrate is said to take cognizance when he applies his mind to the
commission of an offence.

To conclude, therefore, at the stage of taking cognizance, the sine qua non is the
existence of a prima facie case and not the possibility of conviction or acquittal. The
Magistrate is not required at that stage, to make an indepth analysis of the evidence on
record. Therefore, at the stage of taking cognizance, the Magistrate has simply to be
satisfied whether the allegations against the accused prima facie make out a case for
trial or not. When the Magistrate records statements of witnesses and issues process to
the accused, he shall be deemed to have taken cognizance.

Limitation on the power to take cognizance

Sections 195 to 199 are exceptions created by the Code, to the general rule that any
person, having knowledge of the commission of an offence, may set the law in motion
by a complaint, though he is not personally interested or affected by the offence.
Sections 195 to 199 regulate the competence of the court and bar its jurisdiction in
certain cases excepting in compliance therewith.

• Prosecution for contempt of lawful authority of public servants-

No court shall take cognizance-

-of any offence punishable under section 172-188 of IPC, or

-of any abetment of, or attempt to commit , such offence, or

-of any criminal conspiracy to commit such offence

• Prosecution for offence against public justice and for offence relating to
documents given in evidence- No court shall take cognizance-
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-of any offence punishable under any of the following sections of IPC, namely sec
193-196,199,200,205-211, and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in any court, or

• of any criminal conspiracy to commit or attempt to commit, or the abetment

of, any offence specified in sub-clause (i) and sub-clause(ii)

Prosecution for offences against the state

No court shall take cognizance of-

• any offences punishable under chapter vi or under sec. 153-A,sec 153-

B,section 295-A or sec. 505 of Ipc

• a criminal conspiracy to commit such offence or

• any such abetment ,as is described in sec 108-A of Ipc

Complaint

There is nothing in the definition of "complaint" which requires it to be made by the

person aggrieved or allows it to be made only in a non-cognizable case. But according
to sections 198, 198-A and 199, only aggrieved person can file a complaint in respect
of certain offences mentioned in those sections. A member of a company or a private
individual may initiate a prosecution. When a complaint is filed by the payee in due
course of the cheque which is dishonoured, the Magistrate has necessarily to take
cognizance if the other ingredients are satisfied. If the Magistrate has earlier refused
to take cognizance on a police report, even then the Magistrate can take cognizance of
an offence on a complaint. Complaint may be filed and the Magistrate may take
cognizance on complaint, when the police delayed the investigation. Where the forest
officer uses the form of a police challan to make a complaint, which includes all the
relevant information, it is a proper complaint. A report submitted by the public
servant under section 11 of the Essential Commodities Act must contain the facts
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constituting the offence. Without the compliance of the provision of section 11, the
Magistrate cannot take cognizance of the offence. The satisfaction of the public
servant is essential. If the report indicates that the public servant is not satisfied that
any offence is made out, then the court cannot invoke the provisions of section 190(1)
(a) and (b). To that extent, section 190(1)(a) and (b) is restricted by the provisions of
section 11 of the Essential Commodities Act.If the complaint alleges the commission
of more than one offence of which one or more requires sanction of the appropriate
authority, the Magistrate can proceed in the complaint in respect of offences not
requiring sanction. Where a complaint alleges commission of offence under section
120-B, I.P.C. read with sections 500, 501 and 502, I.P.C. and there is no sanction for
the offence under section 120-B, I.P.C., the Magistrate may proceed with the trial in
respect of the allegation of substantive offence under sections 500, 501 and 502,
I.P.C. In respect of an offence committed before a Magistrate complaint can be made
only under section 195 and not under section 190

Scrutiny of the complaints

A complaint can be oral , written. A magistrate on receiving the complaint, may or

may not take cognizance of the offence in the complaint.

It may happen that the complaint is made to a magistrate , who is not competent to
take cognizance of the offence. In such a case magistrate shall-

• If the complaint is in writing ,return it for presentation to the proper court with
the endorsement to that effect;

• If the complaint is not in writing, direct the complainant to the proper court.

Examination of the complainant, inquiry or investigation for further scrutiny of the

complaint , dismissal of complaint are all the part of the scrutiny of the complaint.
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Issue of process

If the magistrate taking cognizance of an offence considers that there is sufficient

ground for proceeding, he shall issue process against the accused person in the
following manner-

• If the case appears to be a summons case, he shall issue his summons for the
attendance of the accused; or

• If the case appears to be a warrant case , or if he thinks fit, a summons for

causing the accused to be brought or to appear at a certain time before such magistrate
or some other magistrate having jurisdiction .(section 204.(1))

The question as to whether the magistrate after issuing process could recall it. It is
now settled in Adalat Prasad v. RooplalJindal ,that he cannot recall the process.

The Supreme Court in SubramaniumSethuraman v. State of Maharashtra , that the

only course available to an aggrieved person to challenge the issuance of process
under Section 204 is by the way of petition under Section 482.

Special summons in cases of petty offences

Section 206 has been enacted to avoid unnecessary inconvenience to persons accused
of petty offences and also to reduce to some extent congestion in magistrates’ court.
The section provides abridged procedure in the disposal of petty cases in which the
accused person may be inclined to plead guilty. For this purpose the magistrate has
been appointed and empowered to issue a special summons to the accused person.
The analysis of the section brings out the following points-

• The section is applicable to such cases where the alleged is punishable only
with fine up to Rs. 1000. [S. 206(1)]. However the state government may empower to
exercise power in relation to offences under S.320, or any offence which is
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punishable with imprisonment up to three months ,or with fine or with both.[S.
206(3)]

• The abridged procedure under this section applies only in such cases where
the magistrate is of the opinion that the case may be summarily disposed off under
S.206

• The abridged procedure procedure shall not be applicable in a case where the
magistrate, for reasons to be recorded in writing, decides not to dispose off the case
summarily. [S. 206(1)]

• The abridged procedure shall not be applied in cases , where the offence is
punishable under the Motor Vehicles Act , 1939, or under any other law, which
provides for convicting the accused person in his absence on a plea of Guilty. [S.
206(2)]

• If the accused person chooses to plead guilty, without appearing before the
magistrate, he is to transmit ,within the specified time, the said plea in writing and the
amount to be mentioned in the special summons.[S.206(1)]

• The accused person chooses to appear by the pleader and to plead guilty
through such pleader, he can do so by giving such authority to the pleader in writing
and by paying fine as mentioned.[S.206(1)]

• The amount of fine to be specified in the special summons shall not be more
than Rs. 100

Supply to the accused person copies of statements, documents and police report

In any case institution on a police report, the magistrate is required by section 207 to
furnish to the accused, without delay and free of cost, a copy of each of the following-
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• The police report;

• The first information report;

• The statements recorded under S.161(3) of all persons whom the prosecution
proposes to examine as its witnesses;

• The confession and statements if any recorded under section 164;

• Any other document relevant extract thereof forwarded to the magistrate with
the police report under section 173(5).

The object to supply the accused with the copies of the above is to put him on notice
of what he has to meet at the time of the inquiry or trial and to prepare himself for his
defence.

Commitment of case to Court of Session

Certain offences are exclusively triable by the court of session according to section 26
read with the First Schedule. Such court cannot, however, directly take cognizance of
these offences. It can deal with such a case when the same is committed to it by the
magistrate taking cognizance is any such offence. Therefore, for the purpose of
committing such a case to the court of session, Section 209 prescribes the necessary
procedure. According to that section, when accused appears or is brought before the
magistrate and it appears to the , magistrate that the offence is triable exclusively by
the court of session, he shall-

• Commit after complying with the provisions of the section 207 or section 208,
the case of the court of session, and subject to the provisions relating to bail, remand
the accused to custody until such commencement has been made.

• Subject to the provisions relating to bail, remand the accused to custody

during and until the conclusion of the trial
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• Send to that court the record of the case and the documents and the articles, if
any ,which are to be prepared in evidence;

• Notify the public prosecutor of the commencement of the case to the court of
session.

Under the above provision(S. 209)the magistrate is only to examine the police report
and other documents referred to in the section and find out whether the facts stated
out in the report make out any offence exclusively triable by the court of sessions.
Once the conclusion is reached the magistrate ,he is not required to here the accused.
In other words, he is not to hold an inquiry.

Conclusion
To conclude, as remarked by the Supreme Court, there is no special charm or any
magical formula in the expression 'taking cognizance' which merely means judicial
application of the mind of the Magistrate to the facts mentioned in the complaint with
a view to take further judicial action.

Legal sense of taking judicial notice by a court of law or a Magistrate is altogether

different from the view and idea a layman has for it; however, a broad and general
comprehension is 'judicial notice by a court of law on a crime which, according to
such court, has been committed against the complainant, to take further action if facts
and circumstances so warrant'
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Bibliography

• The commentary on The Code Of Criminal Procedure,Dr. MurliDhar

Chaturvedy, Allahabad Law Agency Publications,2009

• Ratanlal And Dhirajlal’s The Code of Criminal Procedure, Ratanlal

Ranchhoddas, Wadhwa and company Nagpur,2007

• The Practical Approach to Criminal Procedure, John Sprack, Oxford

University Press,2008

• The Code of Criminal Procedure, Dr.N.V. Paranjape, Central Law Agency

Allahabad,2006

• www.manupatra.com

• www.westlaw.com

• www.indiankanoon.org

• www.legallyindia.com