The
Code of Criminal Procedure, 1973
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 arc within his competence to inquire into or try.
STATE AMENDMENT
In Punjab and Union Territory of Chandigarh, w.e.f. 27th June, 1983
After section 190 the following section shall be inserted: -
"190A.
Cognizance of offences by Executive Magistrate
Subject to the provisions of this Chapter any Executive Magistrate may
take cognizance of any specified 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."
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
In Punjab
In section
191, for the words "clause (c) of sub-section (1) of
section 190" the words "section 190A" shall be substituted
and for the words "Magistrate" and "Chief Judicial Magistrate" wherever
occurring, the words "Executive Magistrate" and "District
Magistrate" respectively shall be substituted.
In Union Territory of Chandigarh, w.e.f. 27th June, 1983
In Section
191, for the words "clause (c) of sub-section (1) of
section 191", the words "section 191A" shall be substituted
and for the words "Magistrate" and "Chief Judicial Magistrate",
the words "Executive Magistrate" and "District Magistrate" respectively
shall be substituted.
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
In Punjab
In section
192, for the words "Chief Judicial Magistrate" and
words "magistrate of the First class" or Magistrate" wherever
they occur, substitute the words "District Magistrate" and "Executive
Magistrate" respectively.
In Union Territory of Chandigarh, w.e.f. 27th June, 1983
In section
192, 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 shall be substituted.
193. Cognizance of offences by Courts of Session
Except as otherwise expressly provided by this Code or by any other
law for the lime 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.
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, or 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 sections
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 the 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.
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,
8[section 295A or sub-section (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.
9[(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 10[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 proceedings:
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 11[under sub-section (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 sub-section (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:
12[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 while 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" where
substituted.
13[(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 (43 of 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 bc held.
STATE AMENDMENTS
In Assam, w.e.f. 5th June, 1980
For sub-section (3), the following sub-section shall be substituted:
-
"(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 member 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."
In Maharashtra, w.e.f. 5th October, 1981
After section 197, the following section shall be inserted: -
"197A.
Prosecution of Commissioner or Receiver appointed by civil Court
When any
person who is a Commissioner or Receiver appointed by a Court under
the provisions of the Code of Civil Procedure, 1908, is accused of
any offence alleged to have committed by him while acting or purporting
to act in the discharge of his functions as Commissioner or Receiver,
no Court shall take cognizance of such offence except with the previous
or Receiver, no Court shall take cognizance of such offence except
with the previous sanction of the Court, which appointed such person
as Commissioner or Receiver, as the case may be."
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 14[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 15[or,
with the leave of the Court, by any other person related to her by blood,
marriage or adoption].
(2) For the purposes 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.
16 [198A. Prosecution of offences under section 498A of the Indian Penal
Code
(1) 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 Governor
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.
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