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Conditions requisite for initiation of proceedings –
Cognizance – When Judicial Magistrate applies his mind into the commission of alleged crime for the purpose of inquiry or trial, it is called taking cognizance of offence by the Magistrate. When
Magistrate grants bail or remand, it is not called the taking of cognizance. Cognizance is taken only for starting the trial of offence.
As per section 190, any magistrate of the 1st class and any Magistrate of the second class (if authorized by CJM) may take cognizance of any offence.
(a) upon a complaint.
(b) upon a police report u/s 173(2)
(c) suo motu + 191 + 461
Commitment – Section 193 provides that except in few cases session court is not
empowered to take cognizance of an offence Judicial Magistrate under Sec 190 will take cognizance of all offences and’ after taking cognizance he founds that offences as triable by court of
session then he will commit (under Sec. 209) the case to court of session for trial and session court will try this case.
Sec 199(2) provides that if defamation has been done against higher dignitary (President / VP / Governor ? Public servant etc.) cognizançe of this offence will be taken by Session Court on complaint of Public Prosecutor within six months from the date of alleged offence.
Procedure for trial of this offence –
Trial for offences instituted under S. 199(2) has been given under sec 237. Court of séssion after taking cognizance of an offence under section 199(2), shall try the case in accordance with the procedure for the trial of warrant cases institute otherwise than on police report before court of Magistrate.
Sec 237(3) and (4), Session Judge after acquitting or discharging the accused, founds that the complaint is without any reasonable ground and it was not made on behalf of President / Vice President, Governor or Administrator of Union Territory. Court may award compensation to accused person not exceeding Rs. One Thousand Rupees.
Limitation in power of taking Cognizance.-
ln criminal matters generally any person can start the Criminal proceedings and the rule of locus standi is not applicable in Criminal law. But in certain matters the criminal proceeding is instituted only on previous sanction of Govt. or a complaint of particular persons.
There are followings –
(1) Sec 195 :- Contempt of Court etc
(2) Sec 196:- Offences against State
(3) Sec 197:- Offences committed by Judges or Sub servant.
(4) Sec 198:- Offences against marriage
(5) Sec 198A- Offences U/s 498A IPC
(6) Sec 199:- Prosecution for defamation.
Period of limitation for taking cognizance
Section 468 provides that except as otherwise provided elsewhere in this code no court shall take cognizance of an offence specified in sub sec. (2), after that expiry of the period of limitation.
(a) six months, if the offence is punishable with fine only.
(b) one year, if the offence is punishable with imp. for a term not exceeding one year.
(c) three years, if the offence is punishable with imp. for a term exceeding one year and not exceeding three years.
(d) any time, if the offence punishable with imp more than three
Restrictions /limitation as to complaint etc
In certain matters court can take cognizance only on sanction of
State / Central Govt. or on a complaint by particular aggrieved person-
(a) Sec 195:- Contempt of lawful authority etc (Sec 172 – 180) and 193 – 196, 199, 200, 205 to 211 & 228 etc, court shall take cognizance in writing of public servant concerned or of some
other public servant to whom he is subordinate or of that court.
- b) 195-A- For offer u/s 195-A IPC, complete by threatment witness or any other pension.
(c) Sec 196:- Offences against state (sec 153A, 295A, 505, 153-B, 120B etc)- The court shall take cognizance of these offences only on previous sanation of state / central out, In case of sec
120B, 153A, 505, D.M. may also give sanction.
(d) Sec 197:- Prosecution of judges or pub. servant – Court carn take cognizance of offences committed by Judges or public servants during the course of his official capacity with the
previous sanction of State/Central Govt
(e) Sec 198:- Prosecution of offences against marriage The court can take cognizance of offences under Sec 493-498, only on complaint of aggrieved person.
(f) Sec-198A Prosecution U/s 498A IPC – No court shall take cognizance of this offence exception police report or a complaint made by aggrieved person.
(g) Sec 199:- Prosecution for defamation : – Sec 491 IPC)
No court shall take cognizance of an offence punishable under Chapter XXI which deals with defamation except upon a complaint made by some person aggrieved by the offence.
By reading the above sections (Sec 195-199) we are opinion that the court shall directly take cognizance of that offences only on a complaint except sec 196 & 197 which prescribes for sanction of
Govt. We can also say that no FIR can be lodged or these offences in PS.
Sec 210:- Procedure to be followed when there is a complaint case and police investigation in respect of the same offence –
(1) During the course of enquiry or trial held by Magistrate, it appears that an investigation by police is in progress in respect of offence which is the subject matter of the enquiry or trial held by
the Mag shall stay the proceedings of such inquiry or trial and call for a report on the matter from police conducting.
(2) Where police report and complaint case both are available, the Magistrate shall enquire into or try together the complaint case and the case arising out of police report, as if both cases were instituted on a police report.