Pre- Trial Proceedings I

(S. 190,193,199, 200,202,209-224,228)

Cognizance of offences

s. 190(1)

 S. 190 talks about three ways in which magistrate can take cognizance.
 cognizance is taken by Judicial Mag. I/MM or JM II if empowered by CJM.
(a)
ma
On receiving complaint- 190(1)(a)[S. 2(d)+ S. 200-203]
On police report- 190(1)(b) Shar
(b)
j a l i
(c)
An)
Suo moto- 190(1)(c
 s. 190(2)
By whom cognizance is to be taken:

a) Any magistrate of I st class

b) Any magistrate of II nd class, empowered by CJM.
c) CoS cannot take cognizance unless case is committed to it.


r m a
A private citizen has two courses, if he intends to initiate criminal proceedings-
a
a l i Sh
An
cognizable offence j
1. Giving information to the police, for 2. Go to magistrate irrespective of cognizable or non-
OR
cognizable (Complaint)
(FIR)

 Cognizance of an investigation can take place even after the lapse of several years of commission of the offences.
I. Complaint proceedings:
 S. 190(1)(a)- Magistrate taking cognizance on receiving complaint.
Complaint S.
2(d)

Allegation
(it’s a Oral/written JM-I
a r a
With a view to his
m Against
Commission of
Police report

h
charge) taking action an offence-
(you can give

a l i S u/this code. known/unknown (complaint be not included

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an oral (complainant must be taken only
complaint but wiling to participate after
it has to be in proceedings- get
commission of
reduced in examined u/s 200
writing by an offence)
Otherwise mag. Can
paying fees. order investigation
u/156(3) & take cog
u/s 190(1)(c )
 S. 200: examination of complainant

Mag. After Taking

cognizance
Shall examine
an oath Sign of
Cognizance of
offence Complaint Complaint/witnesses
At this stage mag.
Will apply his
a r ma +
Witnesses (if any)
+
JM will also sign
mind whether-

a l i Sh Witnesses comes on

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1. To dump case request of complainant
or, ((its NOT
2. order SUMMONED)
investigation
or examination
of complainant • The moment mag. Orders examination of & witnesses then its called he has ‘taken cognizance’.
+ witnesses • U/S 202 mag. May order investigation.
• Accused has no role to play at this stage. He will come after issue of process u/s 204.
 If mag. Orders investigation without examining any complainant/witnesses & passes an order of investigation- its an
investigation U/S 156(3)/ S. 155(2).
COMPLAINT Post-cognizance
S.200 EXAMINATION S.202 INVESTIGATION
S.2(D)
OR

Pre-cognizance
Investigation
ordered u/s.156(3)
a r ma POLICE

h
INVESTIGATION S. 190(1) (b)
s.155(2)
a l i S REPORT

1.
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When complaint to JM u/s 190(1)(a)- four things can be done by him
Do nothing & dump the case.
2. Order investigation u/s 156(3)/155(2)[order of investigation pre-cognizance]
3. Take cognizance on complaint u/s 200 or s. 190(1)(a )
4. Take cognizance on information u/s 190(1)(c ) and then
Order issue
of process
 S. 200 Proviso I & II: no need of examination u/s
200 if complaint made in writing by-
Proviso I:
 Clause 1
By Public servant Need not to examine public By Court
s.172-188 IPC servant or court. s. 193
s. 195 (1) (a) s.195(1) (b) CRPC+s. 340
CRPC CRPC

a r m a
h
 Clause 2 Making over
JM
j a l i S JM

An
 Mag. Makes over u/s 192 to another JM for inquiry or trial.

PROVISO II: Other mag./CJM need not to examine once 1 st mag./CJM has examined.
 S. 202: POSTPONMENT OF ISSUE OF PROCESS.

ISSUE OF PROCESS
S.200
DISMISS THE COMPLAINT
S. 202
INVESTIGATIO or INQUIRY
 if there is any doubt to mag. then he can do so

a r ma N

h
 No direct Investigation is to be ordered u/s. 202 when-

a l i S
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When matter (offence)
exclusively triable by COS

 S. 202 applies only after taking cognizance.

 Purpose is to find out whether there is sufficient material.
 Matters which are exclusively triable by cos- only inquiry be conducted not investigation.
 S. 203: Dismissal of complaint.
 After investigation/inquiry- no sufficient ground for proceeding then dismissal of complaint.
 REMEDY AFTER DISMISSAL:
 Revision lies to HC u/s 401 & COS u/s 399.
 2nd complaint on same facts in NOT allowed, unless there is any dismissal on mala-fide grounds, absurd ground etc.


a r m
If new facts are found- 2nd complaint is allowed.a
a l i Sh
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 S. 201: Procedure by mag. Not competent to take cognizance of the case.
 Mag. Do not have jurisdiction- then will send it to proper mag.
 It can be applied before or after cog. But generally applied after taking cog.
 Quick revision: complaint proceedings

 Mag. Takes cognizance upon a complaint.

Complaint s.202 postponement of

a
2(d)
Issue of process
Examination
ha r m Either dismissal of complaint

S
s.203 or proceed further for trial
u/s 200
a l i
Anj Investigation ordered
by mag. or inquiry by
mag.
 Transfer of cases
s.191
on application of accused:

 Accused be informed before taking any evidence that he is entitled to have the case inquired into or tried by
another magistrate. He can get transfer his case to another magistrate.
 Failure to tell accused of his right to be tried by another magistrate vitiates the trial.

TIME LIMITATIONS:
a r m a
a l i S h
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A magistrate can take cognizance of an offence only within the time limits prescribed by law (s. 467-473)
 S. 204 issue of process:

 Magistrate taking cognizance of an offence there is sufficient ground for proceeding.

 summons-case, he shall issue his summons for the attendance of the accused, or

 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

r m a
himself) some other Magistrate having jurisdiction.
List of prosecution witness be filed. Sha

j a l i
n in complaint cases.
 Copy of complaint be A attached
 Fees be paid on time, otherwise mag. Will dismiss the complaint.
 Committal proceedings: (s. 209 & 323)

 Section 209 deals with the commitment of the case to the Court of Session. According to this section if a
Magistrate feels that if the offence is triable exclusively by the Court of Session after instituting a case, then-
1. The Magistrate can commit the case to the Court of Session;
2. The accused can be remanded in custody until the proceedings are subject to the other provisions relating to
bail;
The Magistrate can send evidence and h a r m a
3.
j a l i S other relevant evidence to the concerned court to carry out the

4.
proceedings;
A n
The Magistrate can also notify the Public Prosecutor of the commitment of the case to the Court of Session.
 S. 323 - If, in any inquiry into an offence or a trial before a
Magistrate, it appears to him at any stage of the proceedings
before signing judgment that the case is one which ought to
be tried by the Court of Session,
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he shall commit it to that
a l i
Court under the provisions Sh hereinbefore contained and
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thereupon the provision of Chapter XVIII shall apply to the
commitment so made.
 Stages of Committal Proceedings: S. 209, 323
 When the offence is triable exclusively by a Court of session (stages where committal can be made)

Police
FIR PR IP Doc. charge trial report
190(1)(b)
Committal to
CoS

a r ma
a l i Sh
AnIPj
trial
cognizance Doc. charge
Complaint
190(1)(a)
proceedings
Committal to CoS

cognizance IP charge trial

Doc.
190(1)(c )
Committal to CoS
 S. 193: Cognizance of offences by Courts of Session

 Cognizance of offences by Courts of Session only taken after committal.

 Not in original jurisdiction.
S. 197: prosecution of judges & public servant-
S.199: prosecution for defamation-


a r m a
When any offence under chapter XXI of the IPC is committed against a person who at the time of commission of

a l i S h
the said offence belongs to any of the constitutional functionaries or public service mentioned in the sub section,

 A n j
the court may take cognizance of such offence based on a complaint in written made by the public prosecutor.
The public prosecutor needs to obtain previous sanction from:
1. Of the State government, for a person who is or has been a Governor of that state or a Minister of that government.
2. Of the State government, in the case of any other public servant employed in the connection of state government.
3. Of the Central government, in any other case.
 Ajay Kumar Parmar v. State of Rajasthan, (2012) 9 SCALE 542

 This appeal has been preferred against the impugned judgment passed by the High Court of Judicature for
Rajasthan at Jodhpur in Criminal Revision Petition by way of which, the High Court has upheld the
judgment passed by the Sessions Judge in Revision Petition.
 An FIR was lodged by one Pushpa on 22.3.1997, against the appellant stating that the appellant had raped
her on 10.3.1997. An investigation ensued and the appellant was medically examined. Wherein it was
opined by the doctor that she was habitual to sexual intercourse, however, a final opinion regarding

m a
r under Section 161, wherein she narrated the incident as
fresh intercourse would be given only after receipt of report from the Chemical Examiner.
a
 Statement of the prosecutrix was S
a l
mentioned in the FIR, statingjthat i h
recorded

for the past six years.A

n she had been employed as a servant at the residence of one sister Durgi
Close to the residence of sister Durgi, Dr. D.R. Parmar and his son Ajay Parmar were
also residing.
 One day she was called by Ajay Parmar to his residence where she was raped by him and was restrained
from going out for a long period of time and kept indoors without provision of any food or water.
 She then filed an FIR but police was not investigating properly. She then made her statement recorded u/s
164.
 Prosecutrix mentioned it to be a false statement & no such offence was alleged to be committed.
 The Judicial Magistrate, Sheoganj, taking note of the statement given by the prosecrutix under Section

a r ma
164 Cr.P.C., passed an order of not taking cognizance of the offences under Sections 376 and 342 IPC.

a l i Sh
Anj
 Aggrieved, the public prosecutor filed a revision before the Learned Sessions Judge, Sirohi & the
order was reversed, on 2 grounds:-
1. that a case under Sections 376 and 342 IPC was triable by the Sessions Court and the Magistrate,
therefore, had no jurisdiction to discharge/acquit the appellant on any ground whatsoever, as he was
bound to commit the case to the Sessions Court, which was the only competent court to deal with
the issue.

a r m a
2.

a l i S h
The alleged statement of the prosecutrix under Section 164 Cr.P.C. was not worth reliance as she had

 A n j
not been produced before the Magistrate by the police.
This court is of the opinion that the learned magistrate, whilst refusing to take cognizance on the police
report for a session trial offence, overstepped the jurisdiction & the learned sessions judge has rightly
set aside the said order of the learned magistrate.
 The revision petition hereby rejected. the triable court is directed to proceed with the trial
expeditiously.
 Appellant went to high court, where the decision of the sessions' court was upheld.
 Thus, it is evident from the aforesaid judgment that when an offence is cognizable by the Sessions court, the
Magistrate cannot probe into the matter and discharge the accused. It is not permissible for him to do so, even
after considering the evidence on record, as he has no jurisdiction to probe or look into the matter at all.
 The order of discharge is therefore, a nullity, being without jurisdiction.
 The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C., mandate the Magistrate to

r m a
commit the case to the Court of Sessions, when the charge-sheet is filed.
a

a l i S h
A casej instituted by the police is mandatory.
A conjoint reading of these provisions make it crystal clear that the committal of a case exclusively triable by
the Court of Sessions, in an
 The judgement & order of the revisional court as well as High court is upheld. the sessions court is requested to
proceed strictly in accordance with law, expeditiously & take the case to its logical conclusion without any
further delay.
 S. 210: Complaint case and police investigation in same offence

Complaint case Both are in respect of the same Police investigation

offence.

 Magistrate is conducting complaint proceedings & in the process he comes to know about investigation going on in the same
offence.

a r m a
The Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer
conducting the investigation.
a l i S h
 Magistrate shall inquire into orn
A j together the complaint case and the case arising out of the police report as if both the cases
try
were instituted on a police report.
 If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any
offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the
provisions of this Code
 Filing of complaint case and FIR lodged simultaneously Magistrate empowered to stay complaint call for report on
police officer and tried together was proper;
 Charge framing (few examples)

 Charge framing: when more than one heads.

Eg. X commits theft in y’s house. Meanwhile he has also committed house trespass or house breaking if he breaks
lock of the house. So three offences committed under one head only i.e. house trespass, house breaking and theft.
Charge will be framed of all the three offences.
Eg. A charged with the murder of B.
a r m a
a l i S h
A's act fell within the definition of murder given u/s 299 & 300 of IPC, that it did to fall within any of the general

n j
exceptions of the said code id to be
A
mentioned.
Eg. A is charged u/s 326 IPC with voluntarily causing grievous hurt to B, by means of an instrument for shooting.
This is equivalent to the statement that the case was not provided for by s. 335 of IPC and the general exceptions did
not apply. (no sudden & grave provocation was given here). This is to be mentioned.
 Charge: S. 211-224
Framing of charge: S. 228

 Form no. 32, Schedule II- format of charge.

Doct. To the trial

charge IP accused CHARGE

 Plea of guilt: charge is read over to the accused during trial- “whether the accused pleads guilty to the charge”?
 With PoG trial begins.

a r ma
charge

a l i Sh Plea of guilt
charge is a written statement by

Anj

preceding officer which gives
notice of the offence to the
accused.
Pleads not Pleads guilty
guilty

Convict him or Conduct

Conduct trial on charge trial

 Plea of guilt cannot be equated to confessions. Rather accused only admits in PoG that he will not participate in the trial.
 Principles of charge framing:
 Accused be told all the details of the offence, so as to enable him to prepare
S.211: contents of charge
 Name of offence.
 Section number of the offence.

S. 212: Particulars as to time, place & person-

a
Eg- criminal breach of trust or misappropriation of property/money-

-gross sum

ha r m
-describe property

a l i S
Anj Contents of charge framing
-dates when offence was committed

S. 213: When manner of committing offence must be stated

name section law place time date manner

Eg. Theft- manner not be told as only one way of committing it.

Cheating- manner is to be told as several ways of committing it.

Charge form given in schedule 2 nd form no. 32

 S. 214: Words in charge taken in sense of law under which offence is punishable.
 S. 215: Effects of errors r/w S. 464
Conditions must be fulfilled-
1. Because of error/omission accused was mislead.
2.

a r a
Because of error/omission there was failure of justice, accused was not able to take proper defence.
m
a i S h
Material defect in the charge is a situation
ofljustice.
where in the accused was in fact mislead & could not take an effective

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defence i.e. there was a failure
 S. 464: Effect of omission to frame or absence of or error in charge

Omission to Irregularity
frame the charge (error/omission/irregularity)

a
Finding of court or
order will not be

ha r m
S
invalid Irregularities in Statements of Irregularities in

a l i particulars proceedings

Anj omission error

Not signed by
accused or court Plea of guilt

Misjoinder of
charge Charge not read
Finding of court or order (s.219-222) & explained
will not be invalid
S. 216: Alteration of charge
Eg. If NEW charge is entirely different- New trial
If new charge is NOT different- NO NEW trial (like s. 325,324 IPC same category offence)
 Previous sanction is taken if public authority does something in official capacity.

a
 Upon alteration of charge- witnesses can be re-examined.

ha r m
S. 217: Recall of witnesses when charge altered.

a l i S
Anj
 Separate trial for separate charge:

S.218: Separate charge for distinct offences. Separate trial for

separate offences
Eg. A charged with 3offences.
 Theft-trial Joinder of trial is an
exception to S.218
 Murder-trial
 Forgery-trial
a r m a
a l i S h


A n j
There can be separate trial for all three offences or a joint trial for all three offences.
A files application to be tried together- he can be tried together.
 If in same transaction A has committed all three offences then court will join the charges. It’s a JOINDER OF
CHARGES.
S. 219: Three offences of same kind within a year may be charged together.

3offences in
one yr
Eg. Commission of an offences & its attempt}- same kind
S. 220: Trial for more than one offence

a
1. In same transaction- distinct
offences committed

ha r m
a l i S
Anj
Eg. A rescue B from lawful custody & caused grievous hurt to C, a constable in whose custody B was. Section 225,333
Eg. A commits robbery on B doing so voluntarily cause hurt to him. There can be joinder of charge.
Eg. A-------adultery-------------- B (House breaking-S. 453 IPC)
(Adultery – s. 497 IPC)
Eg. Offence of Falsification of accounts. It happens in many transactions over a period of time.
3. Same act falls under definition of
different offences-

 A wrongfully strikes B with a cane. This act constitutes an offence as per section 323 (voluntarily causing hurt) as well as S 352 (assault or
criminal force other than on grave provocation). Thus, the person may be charged with both & tried for both the offences at the same trial.
4.
Several acts combined= constitutes

a r ma
h
one act

l i S
when several acts together constitute an offence and those acts, which taken individually or in groups, also constitute another offence or offences, the
a
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person committing those acts may be charged with and tried at one trial.
Eg. A commits robbery on B and in doing so voluntarily causes hurt to him. A may be separately charged with & convicted of offences u/s 323, 392 &
394 (voluntarily causing hurt while committing robbery) of IPC.
 Alternative Charge

S. 221- where it is doubtful what offences has been committed.

 3 alternatives:

Charge of all offences is Offence of S 379 IPC (theft) OR,

Charge of only one offence is put.

a
framed Offence of S 417 IPC (cheating)

ha r m
a l i S
Trial of all
charges Anj Framing of
charge in
alternative
Framing of
charge of only
one offence
Offence of s. 379
And
Offence of 417 Eg. Stolen property
found with B. There is
doubt who has
Framing of all the charges committed theft. A or B
S. 222: when offence proved included in offence charged
Minor offence, if included in
Murder Charge was framed

Major offence Culpable No charge of Cul.

Homicide Homicide If, it was proved

r
No need to frame charge of CH- not amounting to murder.

a ma
i Sh
S.31CRPC: Sentence in case of conviction of several offences at one trial.

a l
Anj
 Joinder of charge- Theft, House trespass, mischief.
 One after other i.e. consecutive running of sentence or concurrent running of sentence.

S.71 IPC: Limit of punishment of offence made up of several offences.

Punishment for 1
Offence under 2 or more 2 or more offence Offender be punished
offence
definition combination for more sever offence
(if several parts)
S.223: What persons may be charged jointly
There are few criteria for joinder of accused- to be studies from bare act s.223)

a
 Joinder of accused

ha r m
a l i S
Eg. Abatement
Attempt
Anj By 2 or more people-
charge together

 In course of same transaction, different offences committed.

S.224: Withdrawal of remaining charges on conviction on one of several charges.
Object- to save judicial time.
Stage of withdrawal- only after conviction in one of the charges.
Result of withdraw- acquittal

a
Limitation- acquittal is subject to HC order of setting aside conviction.
Court can stay charges.
ha r m
a l i S
Anj
Even complainant u/s 200 can withdraw.
When there are 2 charges or more- only when more than one charge is there then withdrawal can be made.
Withdrawal can be against the same person only.
Consent of central government not required.
 Case: Mohan Singh v. state of Bihar, (2011)9 SCC 227

This criminal appeal has been preferred from the judgment of the High Court .
The High Court upheld the judgment and order of conviction passed by the learned Additional Sessions Judge.
The learned Sessions Court held the appellant guilty of criminal conspiracy for murder under sections 120B of IPC and of
extortion under section 387 of IPC
Facts:
a r ma
a l i Sh
There was Conspiracy to commit murder. On appreciation of the evidence, the High Court came to the conclusion that

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Mohan Singh was performing one part of the act, and Laxmi Singh performed another part, both performing their parts of
the same act. Thus the case of conspiracy was made out.
Appellant (accused) was charged with murder, but specific name of section was not mentioned. Lower court & appellant
court convicted the accused. When matter went to supreme court this ques. was raised for the first time.
It is made very clear in charge that accused agreed with others to commit murder – Accused had full notice and had ample
opportunity to defend himself against same – And at no earlier stage of proceedings, accused had raised any grievance of
non-mentioning of S.302 IPC in charge – Charge not erroneous.
The purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature
of accusation that the accused is called upon to meet in the course of a trial. sec. 211 contents be fulfilled.
• name of charge be mentioned.
• name of specific section be mentioned.
•

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name of specific law under which charge is made be mentioned.

a l i S h
SC said its a valid charge because name of specific section i.e. murder was mentioned.

A
SC finding’s- This Court doesn jnot find that there is any reason to interfere with the concurrent finding in the instant
case. This Court, therefore, does not find any reason to take a view different from the one taken by the High Court. The
appeal is dismissed and the conviction of the appellant under Section 120B of IPC for life imprisonment is affirmed.
 Statements of informant (brother of the deceased) were supported by his father & brother. There were sufficient
evidences to prove criminal conspiracy.
 Thank you!

a r ma
a l i Sh
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