Conditions Requisite For Initiation Of Proceedings

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This article is written by Zeerak Jabeen of Central University of Kashmir, an intern under Legal Vihdiya

“It is the job of the criminal justice system to ensure that the guilty are punished and the innocent are protected.”

– Kofi Annan

INTRODUCTION

In criminal law, initiating criminal proceedings is critical and requires careful consideration and adherence to certain conditions and requirements. In many legal systems, including India, criminal proceedings cannot be initiated unless certain conditions are met, and the proper authorities have taken cognizance of the matter. The prerequisites and standards for beginning criminal proceedings and taking cognizance of a case are intended to guarantee a fair and just process and prevent people from being wrongfully charged or the target of unwarranted legal activities. Understanding the condition requisites for initiation of proceeding and cognizance is therefore essential for lawyers, law students, and anyone involved in the criminal justice system. This knowledge can help ensure that criminal proceedings are initiated appropriately, that individuals are afforded their rights under the law, and that justice is served. ^[1]

Generally speaking, “cognizance” refers to “knowledge” or “notice,” and the phrase “taking cognizance of offences” refers to cognizance of the alleged commission of an offence. According to the dictionary, “cognizance” means “judicial hearing of a matter.”^[2] Before beginning to conduct the trial, the judicial officer must take cognizance of the offense. Taking cognizance does not entail any formal actions; rather, it happens as soon as a magistrate applies his or her judgment to the alleged commission of an offense in order to initiate legal action. Therefore, taking awareness is referred to as applying the judicial mind.^[3] It also involves taking actions to determine whether there is a basis for initiating a court process in relation to an offense or the desire to do so. It is common knowledge that the court must determine if the elements of the alleged offense are present before granting cognizance. Only once can a court take cognizance before it becomes “functus officio.” If a magistrate decides to pursue a particular course of action, such as directing a investigation under Section 156(3) or issuing a search warrant for investigative purposes, rather than for the reasons mentioned above, it cannot be assumed that he has taken cognizance of an offence.^[4]

The Criminal Procedure Code does not have a definition for “cognizance of offence.” The methods by which and the restrictions subject to which various criminal courts are constituted to take cognizance of offences are covered in Sections 190, 191, 192, 193, 194, 195, 196, 197, 198,199. But the courts have clearly defined what the phrase means. The first and most important step in preparing for a trial is taking responsibility. Before he can conduct or hold a trial, the judicial authority must take cognizance of the offence.^[5]

In Tula Ram v. Kishore Singh^{^[6]}, the court ruled that taking cognizance happens as soon as a magistrate applies his thoughts to the alleged commission of a crime in order to continue to take further steps towards harm or trial. To take cognizance of an offence does not require any formal or actual action.. Additionally, a Magistrate cannot be deemed to have taken cognizance of the violation when he applies his mind to something other than the proceeding stated above, such as ordering an investigation under section 156(3) or granting a search warrant for investigative purposes. And under the Code, the term “cognizance” refers to the moment when a magistrate or judge first takes judicial notice of an offense.

In P. Kunhumuhammed v. State of Kerala^{^[7]}, it was said:If a police officer’s report following an investigation that goes against Section 155(2) is believed to involve the commission of a cognizable offence at the beginning of the investigation, or if there is doubt about it and the investigation only reveals the commission of a non-cognizable offence, then it may be considered a complaint under Section 2(d) and Section 190(1)(a).

In Smt. Mona Panwar v. The Hon’ble HC of Judicature^{^[8]}, According to Justice Panchal, “Taking cognizance” happens as soon as a magistrate puts his thoughts to the alleged commission of an offense rather than requiring any formal action or even any action at all. The moment a Magistrate first takes judicial notice of an offense is when cognizance occurs. This is the situation regardless of whether the Magistrate declares an offense after receiving a complaint, a police report, or other information.

Chapter XIV of the Criminal Procedure Code (CrPC) pertains to the “Conditions Requisite for Initiation of Proceedings.” In accordance with this chapter, a court is authorized to take cognizance of an offence only when the conditions specified for the initiation of proceedings before it are fulfilled. If these conditions are not met, the court does not have the authority to try the offence in question.^[9]

1. SECTION 190- COGNIZANCE OF OFFENCES BY MAGISTRATES

190. Cognizance of offences by Magistrates.—

Section 190 of the CrPC in India outlines the conditions for a Magistrate to take cognizance of an offense. According to this section, any Magistrate of the first class and any Magistrate of the second class with special authorization can take cognizance of an offense under certain conditions. These conditions include receiving a complaint containing facts that constitute the offense, receiving a police report with the relevant facts, receiving information from a person who is not a police officer, or having knowledge of the offense. The Chief Judicial Magistrate has the power to empower a Magistrate of the second class to take cognizance of offenses that fall within their competence to inquire into or try.^[10]

When a Magistrate starts the process under section 200, it can be considered that he has taken cognizance.^[11] Determining whether or not the Magistrate has taken cognizance is a factual inquiry that must be made on a case-by-case basis.^[12] The Magistrate must ensure that the complaint indeed qualifies as an offence before taking cognizance. Additionally, the Magistrate must consider whether there is adequate justification or reason to take cognizance of the offence by applying his or her own judgment.^[13]

Section 190 states that cognizance is based on the Magistrate’s examination of the allegations in the complaint. During this stage, the Magistrate must determine if there is a reasonable basis for proceeding, rather than deciding if there is sufficient evidence for a conviction. The assessment of whether the evidence is adequate to support a conviction can only be made during the trial.^[14]

After the Magistrate has taken cognizance, he focuses on the offense itself and not the offenders. It then becomes his responsibility to investigate and identify the individuals who are responsible for the offense. If the Magistrate concludes that other individuals, in addition to those already presented by the police, are involved, he must proceed against them as well. Thus, if a Magistrate takes cognizance based on a report by a police officer, he is not limited to issuing process only to the individuals charged by the police.^[15] In case the Magistrate concludes that the details mentioned in the final report actually represent an offense, he can still take cognizance of the offense under clause (c), even if the police have expressed an opposite viewpoint in the final report.^[16]

2. SECTION 191- TRANSFER ON APPLICATION OF THE ACCUSED

191. Transfer on application of the accused.—^{^[17]}

This section states that if a Magistrate takes cognizance of an offense under section 190(1)(c), the accused must be informed before any evidence is taken that they have the right to request the case be tried by another Magistrate. If the accused or any of the accused objects to further proceedings before the current Magistrate, the case must be transferred to another Magistrate designated by the Chief Judicial Magistrate. The Magistrate who initially took cognizance of the offense is not allowed to proceed with the trial unless the accused is informed of their right to request a different court before evidence is presented. ^[18]

3. SECTION 192- MAKING OVER OF CASES TO MAGISTRATES

192. Making over of cases to Magistrates.—

Section 192 states that the Chief Judicial Magistrate has the power to transfer a case to any subordinate Magistrate for inquiry or trial after taking cognizance of an offence. Similarly, a Magistrate of the first class who has been given the authority by the Chief Judicial Magistrate can transfer the case to another competent Magistrate, as specified by the Chief Judicial Magistrate through a general or special order, after taking cognizance of the offence. The Magistrate to whom the case is transferred can then hold the inquiry or trial. ^{^[19]}

The scope of cognizance is not limited to offenses alone. A Magistrate can take cognizance of any matter that falls under the purview of an inquiry or trial as per the provisions of the Code. This includes cases under sections 107, 110, and 145, among others.^[20] To clarify, a Magistrate can only transfer cases that they have already taken cognizance of under section 190.^[21]To put it differently, once a case has been transferred to a Magistrate’s court, that Magistrate cannot further transfer the case to another court.^[22] The Supreme Court has ruled that the Chief Judicial Magistrate has a unique authority under section 192(1) of the CrPC, as typically a Magistrate who takes cognizance of an offense is responsible for handling the case. However, an exception has been created for Chief Judicial Magistrate, possibly due to his administrative responsibilities.^[23]

4. SECTION 193- COGNIZANCE OF OFFENCES BY COURTS OF SESSION

This section states that unless provided otherwise by this Code or any other current law, a Court of Session cannot take cognizance of an offence as a court of original jurisdiction unless the case has been referred to it by a Magistrate under this Code. ^[24]

There is a Supreme Court ruling to the following effect.^[25]:

A Supreme Court decision has clarified that a Special Court under the relevant Act is essentially a Court of Session, and therefore can only take cognizance of an offence when case has been committed to it by a Magistrate according to the provisions of the Code. This means that a complaint or charge-sheet cannot be directly presented to the Special Court without first being committed by a Magistrate.^[26]

5. SECTION 194- ADDITIONAL AND ASSISTANT SESSIONS JUDGES TO TRY CASES MADE OVER TO THEM

Section 194 of the Code of Criminal Procedure states that Additional and Assistant Sessions Judges are authorized to try cases that are transferred to them by the Sessions Judge of the division through general or special order, or as directed by the High Court through a special order.^[27]

This section empowers the Sessions Judge to allocate work among Additional and Assistant Sessions Judges. It should be noted that the term “cases” mentioned in this section pertains to matters that are subject to trial, and does not encompass appeals.^[28] This section allows the High Court to give a special order directing an Additional Sessions Judge or Assistant Sessions Judge to try certain cases. Additionally, the Sessions Judge of the division can also make over cases for trial to the Additional or Assistant Sessions Judge by a general or special order.^[29]

6. SECTION 195- PROSECUTION FOR CONTEMPT OF LAWFUL AUTHORITY OF THE PUBLIC SERVANTS, FOR THE OFFENSES AGAINST PUBLIC JUSTICE AND FOR THE OFFENSES RELATING TO THE DOCUMENTS GIVEN IN EVIDENCE

This is a section of the Code of Criminal Procedure (CrPC) in India which deals with the prosecution for the contempt of lawful authority of public servants, for the offences against public justice and for the offences relating to the documents given in an evidence.

Section mentioned prohibits any court from taking cognizance of any offence under the mentioned sections of the Indian Penal Code unless a written complaint is filed by the concerned public servant. This section falls under the category of sections that restrict the court’s power to take cognizance of certain offences unless a complaint is filed by a specific person or authority.^[30]

This section establishes a strict prohibition against the court’s ability to take any action in the case unless it is done according to the procedures outlined in the section. The section is clear that a magistrate is not authorized to take any action, and any attempt to do so would be unlawful and beyond their jurisdiction.^[31]

The purpose of this section is protection against unfounded and careless prosecutions brought by private individuals for offenses related to the administration of justice and disrespect for lawful authority. Its goal is to reduce the risk of unwarranted harassment caused by unwarranted, baseless, or vexatious prosecution.^[32]

According to subsection 1 (b), the offense must be committed “in or in relation to any proceeding in any court.” These words have a broad and general meaning and include proceedings that are being considered before a criminal court.^[33]

7. SECTION 195A- [PROCEDURE FOR WITNESSES IN CASE OF THREATENING, ETC.^{^[34]}

Section 195A outlines the procedure for filing a complaint in relation to an offence under that section(Section 195A) of the Indian Penal Code (45 of 1860) for a witness or any other person who has been threatened or intimidated.^[35]

8. SECTION 196- PROSECUTION FOR OFFENSES AGAINST STATE AND FOR CRIMINAL CONSPIRACY TO COMMIT SUCH OFFENSE^{^[36]}

Prosecution for offences against the state

Section 196(1) states that a court cannot take action against cases punishable under Chapter VI or Sections 153A, 153B, 295A or 505 of the IPC, which deal with offenses against the state, without the consent of the Central or State Government. These sections cover offenses like disturbing communal harmony, making statements that hurt religious sentiments, and creating public mischief.^[37]

Prosecution for the offence of criminal conspiracy

Section 196(2) states that the Court cannot proceed with a case of criminal conspiracy under Section 120B of the IPC, unless it is a conspiracy to commit a serious offence punishable by the death, life imprisonment or imprisonment for more than two years, and the State Government or District Magistrate provides written consent to start the proceedings. However, if the case falls under Section 195, there is no need for such consent.^[38]

As per Section 196(3), a police officer whose rank is not lower than an inspector is required to conduct an initial inquiry before the Central Government, State Government, or District Magistrate gives their approval.^[39]

9. SECTION 197- PROSECUTION OF JUDGES AND PUBLIC SERVANTS

Section 197 pertains to the prosecution of judges and public servants. A public servant in this context refers to someone who can be dismissed from their position either by the government or with its permission. Without prior approval from the central or state government, no court can initiate legal proceedings against a public servant for any offense committed while they were employed in connection with the affairs of the union.^[40]

In the State of Orissa vs Ganesh Chander Jew^{^[41]} case, it was determined that Section 197(1) of the code provides mandatory protection to public servants, as indicated by the use of the phrase ‘no court shall take cognizance of such offense except with the previous sanction’. The words ‘no’ and ‘shall’ make it clear that no court can entertain a complaint without obtaining prior sanction from the central or state government, depending on the case. The term ‘official duty’ suggests that the act or omission in question must have been committed by the public servant while performing their duties and responsibilities. This section does not provide blanket protection to every action or inaction of a public servant while in service, but only covers those related to the discharge of official duties. Additionally, the phrase ‘who is or was’ implies that even retired public servants may require prior sanction to prosecute.^[42]

The main object of the section is to guard against the vexatious proceedings against the public servants so that they will do their work fearlessly. Thus, before such criminal proceedings are launched against the public servants, it has been considered that the opinion of a superior authority is obtained..^[43]

For this section to be applicable, the following requirements must be met:

The individual accused of an offense must be a current or former public servant.
The accused should only be removable from their post with the consent of the state or central government, depending on whether they are employed in state or central government affairs.
The accusation must pertain to an offense allegedly committed by the accused while acting in their official capacity or claiming to do so.
At the time of an alleged offense, the accused must have been employed in connection with the affairs of the state or union, as appropriate.

If any of the above mentioned conditions are not satisfied, the case will not fall under the protection of this section.^[44]

10. SECTION 198- PROSECUTION FOR OFFENCES AGAINST MARRIAGE^{^[45]}

Prosecution for offences against marriage

Section 198(1) of the Indian Penal Code states that a court cannot take legal action against offenses under Chapter XX (which pertains to offenses related to marriage) unless a complaint is lodged by the victim. However, under certain circumstances, a third-party complaint may be made with the court’s permission. These circumstances include cases where the victim is unable to file the complaint themselves due to reasons such as being a minor, suffering from a mental illness, or being a woman who cannot appear in public. In such situations, the guardian of the victim is given the opportunity to be heard under Section 198(3). Furthermore, if the husband is serving in the armed forces of the union and is unable to take leave, a third-party authorized by the husband may make the complaint on his behalf. The authorization must be in writing, signed or attested by the husband, countersigned by his commanding officer, and accompanied by a certificate signed by the same officer, as stipulated in Section 198(4). However, any such certificate or signed document is not presumed to be genuine and admissible as evidence unless proven otherwise under Section 198(5). According to the Section 198(2), “Court will not take the cognizance to offenses punishable under Section 497 or Section 498 of the IPC unless the husband makes a complaint. Provided that in case of an absence of the husband, some person who has care of the women on his behalf can make a complaint on behalf of the husband”. Finally, in cases where the victim is the wife under Section 494 of the IPC, the complaint may be lodged by the victim’s father, mother, brother, sister, son, daughter, or by her father’s or mother’s brother or sister.^[46]

Prosecution of the husband for rape

A husband who engages in sexual intercourse with his wife can be charged with rape if the wife is under fifteen years old. However, the court will not entertain any complaint under Section 376 of the IPC, if more than one year has passed since the offense was committed, as per Section 198(6). Furthermore, Section 198(7) stipulates that Section 198 also applies to abetment or attempted commission of an offense under Chapter XX of the IPC.^[47]

11. SECTION 198A- PROSECUTION OF OFFENCES UNDER SECTION 498A OF THE INDIAN PENAL CODE^{^[48]}

Section 198A of the Criminal Procedure Code (CrPC) deals with the prosecution of offenses under section 498A of the Indian Penal Code (IPC). It states that a court can take cognizance of an offense under section 498A IPC on a police report of facts which constitute an offense. Additionally, a relative of the married woman as listed in section 198A CrPC can also file a complaint regarding the offense under section 489-A IPC. The aim of this section is to eradicate the problem of dowry demands and the resulting harassment of married women. The parliament enacted this section, which makes the husband or relative of the husband punishable with imprisonment for up to three years if they have caused cruelty to the married woman.

12. SECTION 198B-COGNIZANCE OF OFFENCE^{^[49]}

A recent addition to the CrPC is Section 198B, which was included after the Criminal Law (Amendment) Act, 2013, following the recommendations of the Justice JS Verma Committee. This provision concerns a new offence under Section 376 of the IPC, which makes sexual intercourse by a husband with his wife during separation punishable. Section 198B outlines the conditions that must be met before a court can take cognizance of this offence.

13. SECTION 199- PROSECUTION FOR DEFAMATION^{^[50]}

In Section 199(1) of the CrPC, it is stated that the court cannot take legal action for defamation charges mentioned in Chapter XXI of the IPC unless the victim files a complaint. However, if the victim is unable to file a complaint, a third party can do so with the court’s permission.^[51]

Section 199(2) provides an exception to Section 193 and states that a court of sessions can take cognizance of offences under Chapter XXI of the IPC if they are alleged to have been committed against high-ranking officials such as the President^[52], Vice President, Governor, or Minister. In such cases, the complaint must be made in writing by the Public Prosecutor.

Section 199(3) pertains to the ‘Contents of Complaint’ and requires that the complaint includes details about the facts of the offence of defamation, its nature, and every necessary point that would provide sufficient notice to the accused who committed the offence.^[53]

Section 199(4) states that the court cannot take cognizance of offenses punishable under Chapter XXI of the IPC against the Governor, Public servant, and Minister of State unless the complaint is made by the Public Prosecutor with the consent of the State Government. Similarly, if the offense is alleged to have been committed against the President, the Vice President, or a Public Servant employed under the Union, the court cannot take cognizance unless the complaint is made by the Public Prosecutor with the consent of the Central Government.^[54]

Section 199(5) states that the complaint must be made by the public prosecutor within 6 months from the date of the offence, as per the aforementioned provisions.^[55]

Section 199(6) states that a public servant has the option to file a complaint on their own behalf in a Magistrate Court.^[56]

CONCLUSION

Section 190 of the Code provides the magistrate with the authority to take cognizance of an offense in situations where the victim is unable to file an FIR with the police station for any reason or if the police refuse to register the FIR. The purpose of this provision is to protect the interests of the victims while simultaneously regulating the police’s unrestricted powers. The clause is divided into three distinct parts, each of which gives the magistrate the power to take cognizance based on different scenarios. This includes the receipt of a complaint of facts, a police report of such facts, information provided by someone other than a police officer, or the magistrate’s own knowledge that such an offense has been committed. In conclusion, the condition requisites for initiation of proceeding play a crucial role in ensuring that criminal proceedings are initiated fairly and justly. The legal system must ensure that only genuine and well-founded cases are brought to trial and that individuals are not subjected to frivolous legal actions. The proper application of these condition requisites also helps to safeguard the rights of individuals accused of crimes, ensuring that they are not falsely accused or subjected to unjust legal actions. The cognizance process ensures that cases are properly investigated and that the accused are provided with an opportunity to defend themselves against any allegation made against them. By understanding and applying the condition requisites for initiation of proceeding and cognizance, the criminal justice system can ensure that justice is served for all parties involved, and that the rights of individuals are protected in the process.

REFERENCES:

Ratanlal & Dhirajlal: Code of Criminal Procedure (PB), 23rd ed., 2020.
Krishna Murari Yadav, Krishna’s Criminal Procedure, 1st ed., 2020.
Mukund Sarda, Police Report vis-a-vis Court’s Power to Include a Person as an Account Not Mentioned in the Report – A Study
The Code of Criminal Procedure, 1973.

^[1] Ratanlal & Dhirajlal, Code of Criminal Procedure , 552-619, (23rd ed., 2020)

^[2] Ibid.

^[3] Ibid.

^[4] Ibid.

^[5] Ibid.

^[6] Tula Ram v. Kishore Singh, 1977 AIR 2401, 1978 SCR (1) 615

^[7] P. Kunhumuhammed Vs State of Kerala, 1981 CriLJ 356.

^[8] Smt. Mona Panwar v. The Hon’ble High Court of Judicature At Allahabad through its Registrar and others, 2011(2) ALJ 445(SC)

^[9] Mohammad Safi v State of West Bengal, AIR 1966 SC 69 : 1966 Cr LJ 75 : 1965 SCR (3) 467 .

^[10] S. 190, Criminal Procedure Code, 1973.

^[11] D Lakshminarayana v Narayana, 1976 Cr LJ 1361 : AIR 1976 SC 1672 : (1976) 3 SCC 252 ; KG Sharma v Pratap Autowheels, 2002 Cr LJ 3711 (Raj), when the Magistrate applies his mind for registering a case and further orders that statements of the complainant and its witnesses be recorded under sections 200 and 202, he takes cognizance.

^[12] Sarup Ram v State of Haryana, 1977 Cr LJ 1420 (P&H).

^[13] State of HP v Naval Thakur, 1991 Cr LJ 1377 (HP); Stephen v Chandra Mohan, 1988 Cr LJ 308 (Ker).

^[14] Bhushan Kumar v State (NCT of Delhi), AIR 2012 SC 1747 : (2012) 5 SCC 424 : (2012) 2 SCC (Cri) 872 .

^[15] Raghubans Dubey v State of Bihar, AIR 1967 SC 1167 : 1967 SCR (2) 423 ; Trinimong Sangtam v State of Nagaland, 1978 Cr LJ NOC 174 (Gau); Hareram v Tikaram, 1978 Cr LJ 1687 : AIR 1978 SC 1568 : (1978) 4 SCC 58.

^[16] Abhinandan Jha v Dinesh Mishra, (1967) 3 SCR 668 : AIR 1968 SC 117 : 1968 Cr LJ 97.

^[17] S. 191, Criminal Procedure Code, 1973.

^[18] Emperor v Chedi, (1905) 28 All 212 ; Baldeo Prasad, (1933) 12 Pat 758.

^[19] S. 192, Criminal Procedure Code, 1973.

^[20] Hafizar Rahman v Aminal Haque, (1941) 1 Cal 67 .

^[21] Gopaldas v State of Assam, AIR 1961 SC 986 : (1961) 2 Cr LJ 39 ; Md Abdullah Khan v State of Bihar, 2002 Cr LJ 3875 (Pat).

^[22] Jarina Bibi v Bank Ray Riang, AIR 1966 Tripura 22 .

^[23] Anil Saran v State of Bihar, AIR 1996 SC 204 : 1996 Cr LJ 408 : (1995) 6 SCC 142 .

^[24] S. 193, Criminal Procedure Code, 1973.

^[25] Gangula Ashok v State of AP, (2000) Cr LJ 819 : (2000) 1 Rec Cri R 797 : AIR 2000 SC 740 : (2000) 2 SCC 504.

^[26] The view taken by the High Courts of Madhya Pradesh (Meerabai v Bhujbai Singh, (1995) Cr LJ 2376 (MP); Pappu Singh v State of UP, (1995) Cr LJ 2803 (All); Jhagur Mahto v State of Bihar, (1993) (1) Crimes 643 (Patna); Jyoti Arora v State of Haryana, 1998 (2) All CLR 73 : (1998) Cr LJ 2662 (P&H); Referring Officer Rep By State of AP v Shekar Nair ̧ (1999) Cr LJ 4173 (AP) on the aforesaid question was approved by the Hon’ble Supreme Court. Vidhyadharan v State of Kerala, AIR 2004 SC 536 : (2004) 1 SCC 215 : 2004 Cr LJ 605 , a special Court remains an ordinary Court of session, there can be no cognizance unless the case is committed by a Magistrate.

^[27] S. 194, Criminal Procedure Code, 1973.

^[28] Abdur Razzak, (1915) 37 All 286

^[29] Keshar Singh v. State(Delhi Administration), 1989 Cr LJ 1

^[30] Ratanlal & Dhirajlal, Code of Criminal Procedure , 552-619, (23rd ed., 2020)

^[31] Ibid.

^[32] Re Gafur Daud Saheb, (1924) 26 Bom LR 1235 : 85 Ind Cas 64.

^[33] S. 195 (1) (b), Criminal Procedure Code, 1973.

^[34] Ins. by Act 5 of 2009, section 17 (w.e.f. 31-12-2009).

^[35] S. 195A, Criminal Procedure Code, 1973.

^[36] S. 196, Criminal Procedure Code, 1973.

^[37] S. 196 (1), Criminal Procedure Code, 1973.

^[38] S. 196 (2), Criminal Procedure Code, 1973.