This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) in School of law, SASTRA. This is an exhaustive article which deals with the various provisions related to commencement of proceedings before Magistrate.
The Code of Criminal Procedure,1973 is one of the oldest legislation that regulates the substantial criminal law in India. It mentions the various procedures and processes to be followed while conducting a criminal proceeding. Chapter XVI of The Code of Criminal Procedure deals with the commencement of proceedings before Magistrate. The Magistrate has to follow all the provisions provided in the chapter so that it will not be difficult during the proceedings.
Scope of the topic
The Magistrate in India has a lot of power to conduct criminal proceedings. The cases in the criminal procedure code are divided into two types namely: summary case and warrants case. The main difference between both of them is the punishment awarded. The offences in warrants case are usually awarded punishments like death, life imprisonment or imprisonment for up to two years. The offences which cannot be awarded punishments like the death penalty and life imprisonment can be tried under summary trials. This chapter deals with the commencement of the proceedings. When an accused is summoned to appear before the Magistrate under this chapter, then the complaint cannot be dismissed under Section 203. This chapter provides answers to various questions like the issue of process, the supply of a copy of statements and documents related to the investigation and it also deals with the procedure to be followed when there is a complaint case.
Scrutiny of the complainant before issues of process
The examination of the complainant is an initial process that strengthens the entire proceedings. This process adds credibility to complaints in the beginning stages. It is necessary to scrutinize the complaint before issuing the process. Chapter XVI would come into play only after this examination is over. The locus standi of the complainant is verified using this examination. The Magistrate will also verify whether the complainant would come under the exceptions provided in Section 195 to Section 199. The magistrate can issue the process without postponing: when the prima facie case is made out in the investigation. This process of scrutinizing the complainant has to be done by the Magistrate himself and not by the advocate, however, the concerned advocate can help in the process. Section 190 of the Code of Criminal Procedure provides the condition to take cognizance of offences by magistrates.
According to this section, the Magistrate can take cognizance when:
- After receiving a police complaint;
- After receiving complaints of facts which constitutes any offence;
- After receiving information from any person other than a police officer, or upon his own knowledge, that such offence has been committed;
- The Chief Judicial Magistrate can empower any Magistrate of the second class to take cognizance of offences which are within his competence to conduct an inquiry or a trial.
The Magistrate can scrutinize the complaint and examine it completely before issuing a process.
Examination of complainant
Section 200 of the Code of Criminal Procedure deals with the examination of the complainant. The magistrate after taking cognizance of an offence has to examine the complainant and witnesses present. This examination has to be done upon oath. The magistrate also has the duty to note down the relevant information found in such examination. The substance of such examination should be given in writing and that has to be signed by the complainant and the witnesses. The magistrate need not conduct this examination when:
- If the complaint is made by a public servant who is acting or purporting to act in the discharge of his official duties or a Court;
- If the Magistrate makes over the case for enquiry or trial to another Magistrate under Section 192.
If the magistrate in charge has examined the case and makes over the case for enquiry or trial to another magistrate, then the latter magistrate does not need to examine the cases again.
Inquiry or Investigation for further scrutiny of the complainant
Section 202 of the act provides further scrutiny of the complainant. The issuance of the process can be postponed if the Magistrate feels there is a need for further investigation. The Magistrate will decide whether there is a proper ground for conducting the proceeding. The scope of enquiry under this section is restricted to the ascertainment of truth or falsehood made out in the complaint.
Dismissal of complaint
Section 203 provides power to the Magistrate to dismiss a complaint. The Magistrate can dismiss the complaint if he is of the opinion that there are no sufficient grounds for conducting the proceedings. The Magistrate comes to this conclusion after conducting an appropriate inquiry or investigation under Section 202. The Magistrate can also dismiss the complaint if the processing fee is not paid properly and this ground of dismissal is mentioned in Section 204. In the case of Chimanlal v Datar Singh, it was said that the dismissal of a complaint is not proper if the Magistrate has failed to examine material witness under Section 202. The Magistrate can dismiss the complaint or can refuse the issue of the process when:
- The Magistrate finds out no offence has been committed after the complaint is reduced to writing according to Section 200;
- If the Magistrate distrusts the statements made by the complainant;
- If the Magistrate feels that there is a need to conduct further investigation, then he can delay the issue of process.
Issuing a summons or warrant
Section 204 of this act provides the Magistrate power to issue a process if it is found that there are sufficient grounds for carrying out the proceeding. The Magistrate can issue a summons if it’s a summons case. A warrant is issued in case of a warrant case. The Magistrate can also issue summons to the accused in order to make him appear before the Magistrate concerned within a certain date. No process shall be issued by the Magistrate if there are any arrears in the payment of “process-fee” until the fee is paid within a reasonable time. No summons or warrants can be issued against the accused until a list of the prosecution witness has been provided. This section will not affect the provisions provided in Section 87 of the act. Section 87 enables the Magistrate to issue a warrant of arrest whenever it is necessary under this section.
Power to dispense with the personal attendance of the accused
Section 205 provides the Magistrate powers to dispense the personal attendance of the accused in certain situations. The Magistrate can dispense the personal attendance of the accused and permit him to appear by his pleader if there are proper reasons. The Magistrate can also direct the personal attendance of the accused in any stage of the investigation if it is necessary. The exemption from personal appearance cannot be claimed as a right but it is completely under the discretion of the court after applying relevant judicial principles. The Magistrate considers various factors to dispense attendance like:
- Social status.
- Customs and practice.
- The distance at which the accused resides.
- The necessity of personal attendance with regards to the offence and the stages of the trail.
Special summons in cases of petty offences
The Magistrate can issue some special summons in cases of petty offences according to Section 206 (2) For the purposes of this section,” petty offence” means any offence punishable only with a fine not exceeding one thousand rupees, but does not include any offence so 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. When a Magistrate takes cognizance of petty offences the case can be summarily dismissed according to Section 260, but sometimes the Magistrate will send the summons for the person to appear in person or by pleader when it is needed. The reason for such a decision has to be recorded.
Supply to the accused of copies of statements and other documents
It is essential to supply relevant documents to the accused so that they can understand the procedure followed and the status of the case. The documents supplied might also be used for future reference whenever necessary. The main need behind providing such documents is to avoid prejudice during the trial. The non-supply of materials by the Magistrate that is provided in Section 207 can be successfully used for setting aside a conviction.
Where the proceeding is instituted on a police report
Section 207 provides that the Magistrate has to provide certain copies of documents to the person accused when the proceedings are instituted on a police report. The documents must be provided free of cost. The necessary documents that have to be provided are:
- The police report;
- The First Information Report(FIR) which is recorded under Section 154;
- The statements which are recorded Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses;
- The confessions and statements that are recorded under Section 164 if available;
- Any other relevant document which is forwarded to the Magistrate with the police report.
In the case of Viniyoga International New Delhi v. State, it was said that the accused is entitled to get copies of statements that are recorded under Section 161 and of the documents sought to be relied on by the prosecution. It was also said that it is mandatory to provide copies of challan to the accused. This section does not deal with how to handle the situation when some of the witnesses are not examined, but only provides furnishing of statements of the persons examined.
Where the proceeding is in respect of an offence exclusively triable by the Court of Session
The court has to provide certain documents to the accused when the offence is triable exclusively by the Court of Session according to Section 208. These documents should be provided when the case is not instituted based on the police reports. The documents are:
- The statements recorded under Section 200 or Section 202 after the investigation by Magistrates;
- Any documents that are produced before the Magistrate on which the prosecution proposes to rely;
- The statements and confessions that are recorded under Section 161 or Section 164 if available.
The commitment of the case to Court of Session
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,
- The Magistrate can commit the case to the Court of Session;
- 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 other relevant evidence to the concerned court to carry out the proceedings;
- The Magistrate can also notify the Public Prosecutor of the commitment of the case to the Court of Session.
Consolidation of cases
Section 210 deals with the procedures to be followed when there is a consolidation of cases instituted on a police report and on a complaint. The Magistrate can stay the proceedings of any inquiry or trial and call for a report on the matter from the police officer conducting the investigation if it is done in the same subject of inquiry. If the police report does not relate to any accused in the 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, according to other provisions in the code. If a report is made by the investigating police officer according to Section 173 and based on such report cognizance of any offence is taken by the Magistrate against any person who is accused, then the Magistrate shall inquire into or try together both the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
This chapter is very essential as it deals with the commencement of proceedings. The provisions in this chapter have to be followed properly so that it regulates the other stages of the proceedings. The issue of proceedings is one of the important procedures in conducting a criminal investigation. The supply of copies of documents to the accused relating to the proceedings is also necessary. Thus, the provisions of this chapter have to be followed carefully so that it will not affect the other parts of the proceedings.
- 1998 CriLJ 267, 1997 (1) WLN 396.
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