Issue of Process

Issue of Process by Criminal Court, Postponement of it far holding an inquiry and When can a cognizance be said to be taken

Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police, and their powers to investigate. Section 156(1) vests in an officer in charge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate, Section 156(3) authorities a Magistrate, empowered under section 190, to order an investigation as mentioned in Section 156(1). The provisions from section 157 onwards are concerned with the power and procedure for investigation.

Chapter XIV of the code deals with conditions requisite for initiation of the proceedings. Section 190 authorise the Magistrate to take cognizance (a) upon receiving the complaint of facts which constitutes such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Chapter XV (Section 200 to 203) of the Code deals with “complaints to Magistrates”. A Magistrate taking cognizance of an offence on complaint is required by S.200 to examine upon oath the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the complaint, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is on the opinion that there is no sufficient ground for proceeding.

Chapter XVI deals with “commencement of proceedings before Magistrate” and Section 204 enables a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.

It is seen from the provisions referred to above, on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under section 200.

Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under section 203. If in his opinion there is sufficient ground for proceeding he may issue process under section 204. However, if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is not sufficient ground for proceeding.

On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under section 156(3). The police will then investigate and submit a report under section 173(1) of the code.

On receiving the police report the Magistrate may take cognizance of the offence under section 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under section 200 of the code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under section 156(3) and received a report under section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from the proceeding under section 200, 203, 204 of the code.

Thus a Magistrate who on receipt of a complaint orders an investigation under section 156(3) and receives police report under section 173(1) may thereafter do one of three things:-

1 He may decide that there is no sufficient ground for proceeding further and drop action.

2 He may take cognizance of the offence under section 190(1)(b) on the basis of police report and issue process, this he may do without being bound in any manner by conclusion arrived at by the police in their report,

3 He may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complaint and his witnesses under section 200. If he adopts the third alternative he may hold or direct an inquiry under section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be.

When the offence complained of is triable exclusively by court of session he has no other way but to call upon the complainant to produce all his witnesses and examine them on oath.