CHAPTER XIV

CHAPTER XIV - CONDITIONS REQUISITE FOR INITIATION OF

PROCEEDINGS

190. Cognizance of offences by Magistrates -

(1) Subject to the provisions of this Chapter, any Magistrate of the 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

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take

cognizance under sub-section (1) of such offences as are within his competence to inquire into or

try

State amendment

Punjab and Union Territory of Chandigarh:

After section 190 insert the following section, namely:—

191. Transfer on application of the accused –

When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section

190, the accused shall, before any evidence is taken, be informed that he is entitled to have the

case inquired into or tried by another Magistrate, and if the accused or any of the accused, if

there be more than one, objects to further proceedings before the Magistrate taking cognizance,

the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial

Magistrate in this behalf

STATE amendments

Punjab:—In section 191, for the words "clause (c) of sub-section (1) of section 190"

substitute the words "section 190A" and for the words "Magistrate" and "Chief Judicial

Magistrate" substitute the words "Executive Magistrate" and "District Magistrate" wherever

occurring

Union Territory of Chandigarh:—In section 191, for the words "clause (c) of sub-section (1)

of section 191", substitute the words "section 191A" and for the words "Magistrate" and "Chief

Judicial Magistrate" The words "Executive Magistrate" and "District Magistrate" respectively

[Vide Punjab Act 22 of 1983 (wef 27-6-1983)

192. Making over of cases to Magistrates –

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case

for inquiry or trial to any competent Magistrate subordinate to him

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate

may, after taking cognizance of an offence, make over the case for inquiry or trial to such other

competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify,

and thereupon such Magistrate may hold the inquiry or trial

State amendments

Punjab:

In section 192, for the words, "Chief Judicial Magistrate" and the words "Magistrate of the First

Class" or Magistrate" wherever they occur, substitute the words "District Magistrate" and

"Executive Magistrate" respectively

Union Territory of Chandigarh:

Section 192 shall be so read as if for the words "Chief Judicial Magistrate", and the words

"Magistrate of the first class", or "Magistrate", wherever occurring, the words "District

Magistrate" and "Executive Magistrate", respectively were substituted

Vide Punjab Act 22 of 1983 (wef 27-6-1983)

193. Cognizance of offences by Courts of Session

Except as otherwise expressly provided by this Code or by any other law for the time being in

force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction

unless the case has been committed to it by a Magistrate under this Code

Comments

A Court of Session to which a case is committed for trial by Magistrate can, without itself

recording evidence, summon a person not named in Police Report under section 173 CrP (though

named in FIR) to stand trial along with those already named therein such power is under section

193 of the Code and not under section 319 of the Code;" Kishun Singh v State of Bihar, 1993(1)

Crimes 495 (SC)

194. Additional and Assistant Sessions Judges to try cases made over to them –

An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions

Judge of the division may, by general or special order, make over to him for trial or as the High

Court may, by special order, direct him to try

195. Prosecution for contempt of lawful authority of public servants, for offences against

public justice and for offences relating to documents given in evidence –

(1) No Court shall take cognizance—

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive)of the Indian

Penal Code (45 of 1860), or

(ii) of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit, such offence, except on the complaint in

writing of the public servant concerned or of some other public servant to whom he is

administratively subordinate;

(b) (i) of any offence punishable under any of the following section of the Indian Penal

Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211

(both inclusive) and 228, when such offence is alleged to have been committed in, or in

relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475

or section 476, of the said Code, when such offence is alleged to have been committed in

respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the

abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the

complaint in writing of that Court, or of some other Court to which that Court is

subordinate

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any

authority to which he is administratively subordinate may order the withdrawal of the complaint

and send a copy of such order to the Court; and upon its receipt by the Court, no further

proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance

has been concluded

(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court,

and includes a tribunal constituted by or under a Central, provincial or State Act if declared by

that Act to be a Court for the purposes of this section

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to

the Court to which appeals ordinarily lie from appealable decrees or sentences of such former

Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the

principal Court having ordinary original civil jurisdiction within whose local jurisdiction such

Civil Court is situate:

Provided that—

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction

shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed

to be subordinate to the civil or Revenue Court according to the nature of the case or

proceeding in connection with which the offence is alleged to have been committed

Comments

(i) As the document alleged to have been forged was not produced in the Court the provisions of

section 195(1)(b)(ii) have no application; Sushil Kumar v State of Haryana, (1988) Cr LJ 427 :

AIR 1988 SC 419

(ii) Section 195(3) provides a pre-condition for taking cognizance of offence under section 193

of the Code; Chandrapal Singh v Maharaj Singh, AIR 1962 SC 1238 : (1982) Cr LJ 1731:

(1982) 1 SCC 466: 1982 SCC (Cr) 249: 1982 Cr LR (SC) 126

(iii) Clubbing of other cognizable offences would not be permissible to evade the provisions of

section 195 of the Code; Barappa v State of Karnataka, (1997) 2 Crimes 575 (Kant)

(iii) Section 340 Cr P prescribed the procedure as to how a complaint may be preferred under

section 195 Cr P while under section 195 Cr P it is open to the Court before which the offence

was committed to prefer a complaint for the prosecution of the offender Provisions under section

195 Cr P are mandatory and no Court can take cognizance of offences referred to therein; MS

Ahlawat v State of Haryana, AIR 2000 SC 168: 2000 Cr LJ 388 (SC)

196. Prosecution for offences against the State and for criminal conspiracy to commit such

offence

(1) No Court shall take cognizance of—

(a) any offence punishable under Chapter VI or under section 153A, section 295A or subsection

(1) of section 505 of the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of

1860), except with the previous sanction of the Central Government or of the State

Government

(1A) No Court shall take cognizance of —

(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of

section 505 of the Indian Penal Code (45 of 1860), or

(b) a criminal conspiracy to commit such offence, except with the previous sanction of

the Central Government or of the State Government or of the District Magistrate

(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under

section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit

an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of

two years or upwards, unless the State Government or the District Magistrate has consented in

writing to the initiation of the proceeding:

Provided that where the criminal conspiracy is one to which the provisions of section 195

apply, no such consent shall be necessary

(3) The Central Government or the State Government may, before according sanction under subsection

(1) or sub-section (1A) and the District Magistrate may, before according sanction under

sub-section (1A) and the State Government or the District Magistrate may, before giving consent

under sub-section (2), order a preliminary investigation by a police officer not being below the

rank of Inspector, in which case such police officer shall have the powers referred to in subsection

(3) of section 155

197. Prosecution of Judges and public servants –

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from

his office save by or with the sanction of the Government is accused of any offence alleged to

have been committed by him while acting or purporting to act in the discharge of his official

duty, no Court shall take cognizance of such offence except with the previous

sanction—

(a) in the case of a person who is employed or, as the case may be, was at the time of

commission of the alleged offence employed, in connection with the affairs of the Union,

of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of

commission of the alleged offence employed, in connection with the affairs of a State, of

the State Government:

Provided that where the alleged offence was committed by a person referred to in clause

(b) during the period while a Proclamation issued under clause (1) of Article 356 of the

Constitution was in force in a State, clause (b) will apply as if for the expression "State

Government" occurring therein, the expression "Central Government" were substituted

(2) No Court shall take cognizance of any offence alleged to have been committed by any

member of the Armed Forces of the Union whole acting or purporting to act in the discharge of

his official duty, except with the previous sanction of the Central Government

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall

apply to such class or category of the members of the Forces charged with the maintenance of

public order as may be specified therein, wherever they may be serving, and thereupon the

provisions of that sub-section will apply as if for the expression "Central Government" occurring

therein, the expression "State Government" were substituted

(3A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of

any offence, alleged to have been committed by any member of the Forces charged with the

maintenance of public order in a State while acting or purporting to act in the discharge of his

official duty during the period while a Proclamation issued under clause (1) of article 356 of the

Constitution was in force therein, except with the previous sanction of the Central Government

(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is

hereby declared that any sanction accorded by the State Government or any cognizance taken by

a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and

ending with the date immediately preceding the date on which the Code of Criminal Procedure

(Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged

to have been committed during the period while a Proclamation issued under clause (1) of article

356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the

Central Government in such matter to accord sanction and for the Court to take cognizance

thereon

(4) The Central Government or the State Government, as the case may be, may determine the

person by whom, the manner in which, and the offence or offences for which, the prosecution of

such Judge, Magistrate or public servant is to be conducted, and may specify the Court before

which the trial is to be held

STATE AMENDMENTS

Assam:

For sub-section (3) of section 197, the following sub-section shall be substituted, namely:—

"(3) The State Government may, by notification, direct that the provisions of sub-section (2)

shall apply—

(a) to such class or category of the members of the Forces charged with the maintenance

of public order, or

(b) to such class or category of other public servants [not being persons to whom the

provisions of sub-section (1) or sub-section (2) apply charged with the maintenance of

public order, as may be specified in the notification wherever they may be serving, and

thereupon the provisions of sub-section (2) shall apply as if for the expression Central

Government occurring therein, the expression State Government were substituted"

[Vide President's Act 3 of 1980 (wef 5-6-1980)

Maharashtra:

After section 197, the following section shall be inserted, namely:—

198. Prosecution for offences against marriage

(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian

Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the

offence:

Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is

from sickness or infirmity unable to make a complaint, or is a woman who, according to

the local customs and manners, ought not to be compelled to appear in public, some other

person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the

Union under conditions which are certified by his Commanding Officer as precluding

him from obtaining leave of absence to enable him to make

a complaint in person, some other person authorised by the husband in accordance with

the provisions of sub-section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under section 494 or section 495

of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf

by her father, mother, brother, sister, son or daughter or by her father's or mother's,

brother or sister , with the leave of the Court, by any other person related to her by blood,

marriage or adoption

(2) For the purpose of sub-section (1), no person other than the husband of the woman shall be

deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said

Code:

Provided that in the absence of the husband, some person who had care of the woman on

his behalf at the time when such offence was committed may, with the leave of the Court, make a

complaint on his behalf

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is

sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a

person who has not been appointed or declared by a competent authority to be the guardian of

the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed

or declared, the Court shall, before granting the application for leave, cause notice to be given to

such guardian and give him a reasonable opportunity of being heard

(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in

writing, shall be signed or otherwise attested by the husband, shall contain a statement to the

effect that he has been informed of the allegations upon which the complaint is to be founded,

shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate

signed by that Officer to the effect that leave of absence for the purpose of making a complaint in

person cannot for the time being be granted to the husband

(5) Any document purporting to be such an authorisation and complying with the provisions of

sub-section (4), and any document purporting to be a certificate required by that sub-section

shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence

(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45

of 1860), where such offence consists of sexual inter-course by a man with his own wife, the

wife being under fifteen years of age, if more than one year has elapsed from the date of the

commission of the offence

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as

they apply to the offence

198A. Prosecution of offences under section 498A of the Indian Penal Code

No Court shall take cognizance of an offence punishable under section 498A of the Indian Penal

Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a

complaint made by the person aggrieved by the offence or by her father, mother, brother, sister

or by her father's or mother's brother or sister or, with the leave of the Court, by any other person

related to her by blood, marriage or adoption

199. Prosecution for defamation -

(1) No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian

Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the

offence:

Provided that where such person is under the age of eighteen years, or is an idiot or a

lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who,

according to the local customs and manners, ought not to be compelled to appear in public, some

other person may, with the leave of the Court, make a complaint on his or her behalf

(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter

XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person

who, at the time of such commission, is the President of India, the Vice-President of India, the

Government of a State, the Administrator of a Union territory or a Minister of the Union or of a

State or of a Union territory, or any other public servant employed in connection with the affairs

of the Union or of a State in respect of his conduct in the discharge of his public functions a

Court of Session may take cognizance of such offence, without the case being committed to it,

upon a complaint in writing made by the Public Prosecutor

(3) Every complaint referred to in sub-section (2) shall set forth the facts which constitute the

offence alleged, the nature of such offence and such other particulars as are reasonably sufficient

to give notice to the accused of the offence alleged to have been committed by him

(4) No complaint under sub-section (2) shall be made by the Public Prosecutor except with the

previous sanction—

(a) of the State Government, in the case of a person who is or has been the Governor of

that State or a Minister of that Government;

(b) of the State Government, in the case of any other public servant employed in

connection with the affairs of the State;

(c) of the Central Government, in any other case

(5) No Court of Session shall take cognizance of an offence under sub-section (2) unless the

complaint is made within six months from the date on which the offence is alleged to have been

committed

(6) Nothing in this section shall affect the right of the person against whom the offence is alleged

to have been committed, to make a complaint in respect of that offence before a Magistrate

having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such

complaint