Chapter Conditions Requisite For Initiation Of Proceeding

XIV
190 Cognizance of offences by Magistrates
191 Transfer on application of the accused
192 Making over of cases to Magistrates
193 Cognizance of offences by Courts of Session
194 Additional and Assistant Sessions Judges to try cases made over to
them
195 Prosecution for contempt of lawful authority of public servants, for
offences against public justice and for offences relating to documents
given in evidence
196 Prosecution for offences against the State and for criminal conspiracy
to commit such offence
197 Prosecution of Judges and public servants
198 Prosecution for offences against marriage
199 Prosecution for defamation

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.
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.

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.

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.

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 in
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, of Indian
Penal Code, or 2 Section 295 A 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.

(1A) 2 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 1 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 2 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 1 Subs. Act. 45
of 978, s. 16, for" a cognizable offence" (w. e. f. 18- 12- 1978 ) 2 subs. and ins by
act 63 of 1980 s. 3 (w. e. f. 23- 9- 1980 )

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: 1 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" were substituted.

(3A) 1 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, Magis- trate or public servant is to be
conducted, and may specify the Court before which the trial is to be held.

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.

1. Added and Ins. by Act 43 of 1991, s. 2 (w. e. f. 1991 ).

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 1 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 2 , 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 com- mitted 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 subsection (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 subsection (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 1 Subs. by Act 45 of 1978 , s. 17, for" section 494" (w. e. f. 18- 12-
1978 ). 2 Ins. by s. 17, ibid. (w. e. f. 18- 12- 1978 ).

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, where such offence consists of sexual intercourse the 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.

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

198A. 1 Prosecution of offences under section 498A of the Indian Penal Code. No
Court shall take cognizance of an Offence Punishable section 498A of the Indian
Penal Code 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 caused of the offence alleged to
have been committed by him.

1. Ins. by Act 46 of 1983, s. 5.

(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.