CHAPTER XVI

CHAPTER XVI - COMMENCEMENT OF PROCEEDINGS BEFORE

MAGISTRATES

204. Issue of process –

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for

proceeding, and the case appears to be—

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) 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 himself) some other Magistrate having jurisdiction

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list

of the prosecution witnesses has been filed

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant

issued under sub-section (1) shall be accompanied by a copy of such complaint

(4) When by any law for the time being in force any process-fees or other fees are payable, no

process shall be issued until the fees are paid and, if such fees are not paid within a reasonable

time, the Magistrate may dismiss the complaint

(5) Nothing in this section shall be deemed to affect the provisions of section 87

Comments

(i) A summoning order passed by Magistrate under section 204 of the Code cannot necessarily

be treated to be an interlocutory order thereby completely barring a revision against the same in

view of the bar under section 397 (2) of the Code The test to examine whether such an order is

an interlocutory order or not is that if the decision against such an order finally terminates the

criminal proceedings, it would not be treated as an interlocutory order On the other hand if

decision given either way would still allow the proceedings to go on then the order would not be

a final order but an interlocutory order and then a revision against such an order would be barred

under section 397(2) of the Code; Umakant Panday v A JM, (1997) 2 Crimes 27 (All)

(ii) Even after issue of process in summons case the accused can plead of absence of any triable

case against him and the Magistrate, on being satisfied on reconsideration of the complaint, has

discretionary power to order, dropping of the proceedings against the accused; Awadhesh Prasad

Singh alias Awadhesh Prasad Sharma v State of Bihar, (1997) 3 Crimes 70 (Pat)

(iii) Accused are responsible for the conduct of business the necessary requirement issue process

against the company is fulfilled Rejection of recalling of process issued against petitioner is

proper; Orient Syntex Ltd v Besant Capital Tech Ltd, 2000 Cr LJ 210 (Bom)

205. Magistrate may dispense with personal attendance of accused -

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with

the personal attendance of the accused and permit him to appear by his pleader

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the

proceedings, direct the personal attendance of the accused, and, if necessary, enforce such

attendance in the manner hereinbefore provided

206. Special summons in cases of petty offence –

(1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be

summarily disposed of under section 260, the Magistrate shall, except where he is, for reasons to

be recorded in writing of a contrary opinion, issue summons to the accused requiring him either

to appear in person or by pleader before the Magistrate on a specified date, or if he desires to

plead guilty to the charge without appearing before the Magistrate, to transmit before the

specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount

of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the

charge through such pleader, to authorise, in writing, the pleader to plead guilty to the charge on

his behalf and to pay the fine through such pleader:

Provided that the amount of the fine specified in such summons shall not exceed one

hundred rupees

(2) For the purposes of this section, "petty offence" means any offence punishable only with fine

not exceeding one thousand rupees, but does not include any offence so punishable under the

Motor Vehicles Act, 19391, or under any other law which provides for convicting the accused

person in his absence on a plea of guilty

(3) The State Government may, by notification, specially empower any Magistrate to exercise

the powers conferred by sub-section (1) in relation to any offence which is compoundable under

section 320 or any offence punishable with imprisonment for a term not exceeding three months,

or with fine or with both where the Magistrate is of opinion that, having regard to the facts and

circumstances of the case, the imposition of fine only would meet the ends of justice

207. Supply to the accused of copy of police report and other documents

In any case where the proceeding has been instituted on a police report, the Magistrate shall

without delay furnish to the accused, free of cost, a copy of each of the

following:—

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the

prosecution proposes to examine as its witnesses, excluding therefrom any part in regard

to which a request for such exclusion has been made by the police officer under subsection

(6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the

police report under sub-section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is

referred to in clause (iii) and considering the reasons given by the police officer for the request,

direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks

proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause

(v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he

will only be allowed to inspect it either personally or through pleader in Court

208. Supply of copies of statements and documents to accused in other cases triable by

Court of Session -

Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing

process under section 204 that the offence is triable exclusively by the Court of Session, the

Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the

following:—

(i) the statements recorded under section 200 or section 202, or all persons

examined by the Magistrate;

(ii) the statements and confessions, if any, recorded under section 161 or

section 164;

(iii) any documents produced before the Magistrate on which the prosecution

proposes to rely:

Provided that if the Magistrate is satisfied that any such document is voluminous, he

shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to

inspect it either personally or through pleader in Court

209. Commitment of case to Court of Session when offence is triable exclusively by it -

When in a case instituted on a police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by

the Court of Session, he shall—

(a) commit, after complying with the provisions of section 207 or section 208,

as the case may be, the case to the Court of Session, and subject to the

provisions of this Code relating to bail, remand the accused to custody

until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody

during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to

be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session

STATE AMENDMENTS

Gujarat:

In section 209 for clause (a), the following clause shall be substituted, namely:—

"(a) Commit the case, after complying with the provisions of section 207 or section 208, as the

case may be, to the Court of Session and, subject to the provisions of this Code relating to bail,

remand the accused to custody until such commitment has been made"

Vide President's Act 30 of 1976, sec 2 (wef 7-7-1976)

Uttar Pradesh:

In section 209 for clauses (a) and (b), the following clauses shall be substituted and be deemed

always to have been substituted, namely:—

"(a) as soon as may be after complying with the provisions of section 207, commit the case to

Court of Session;

(b) subject to the provisions of the Code relating to bail, remand the accused to the custody until

commitment of the case under clause (a) and thereafter during and until the conclusion of the

trial"

[Vide UP Act 16 of 1976, sec 6

Comments

(i) It is well settled that the Magistrate is forbidden to apply his mind to the merit of the matter

and determine as to whether any accused need be added or subtracted to face trial before the

Court of session; Bhola Rai v State of Bihar, (1997) 3 Crimes 48 (Pat)

(ii) The Magistrate has no option but to commit the case to the Court of Session only in respect

of those persons who have been chargesheeted; Bhola Rai v State of Bihar, (1997) 3 Crimes 48

(Pat)

(iii) When the offence made out under section 376 triable by Session Court discharge of accused

under section 209 Cr P illegal; Kavita (Smt) v State, 2000 Cr LJ 315 (Del)

210. Procedure to be followed when there is a complaint case and police investigation in

respect of the same offence

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a

complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial

held by him, that an investigation by the police is in progress in relation to the offence which is

the subject-matter of the inquiry or trial held by him, 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

(2) If a report is made by the investigating police officer under section 173 and on such report

cognizance of any offence is taken by the Magistrate against any person who is an accused in the

complaint case, the Magistrate shall inquire into or try together the complaint case and the case

arising out of the police report as if both the cases were instituted on a police report

(3) 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

Comments

Filing of complaint case and FIR lodged simultaneously Magistrate empowered to stay

complaint call for report on police officer and tried together was proper; Birendra Kumar v State

of Bihar, 2000 Cr LJ 145 (Pat)