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CHAPTER 1
Practice in the trial of Criminal Cases
PART B -- INITIATION OF PROCEEDINGS
1. ***[Omitted]
*
[2. Right of accused for transfer of a case taken up by a Magistrate on
information or knowledge. - In most cases Magistrates take cognizance of an offence on
a complaint under clause (a), or on the report of a Police Officer under clause (b) of
sub-section (1) of section 190 of the Code of Criminal Procedure 1898.
A Magistrate taking cognizance of an offence under clause (c) of sub-section (1) must,
before any evidence is taken, inform the accused person that he is entitled to have the
case tried by another Court, and if the accused objects to being tried by such Magistrate,
the case must be sent in the case of a Judicial Magistrate to the Sessions Judge and in
the case of an Executive Magistrate to the District Magistrate for being transferred to
another Magistrate (section 191 Cr. P.C)]
3. Complaints how to be dealt with.-- Complaints of offences made in writing
should be received during office hours on all days other than public holidays. Upon the
institution of a complaint, the date of presentation should be immediately endorsed
thereon, together with the name of the Magistrate to whom the case is to be sent for
inquiry or trial under section 192 of the Code, and the complainant directed to appear
before him either the same day or one of the following days for examination. Similarly if
the complaint has not been made in writing, the Magistrate should direct the complainant
to the proper court.
*
[4. Complaints how to be dealt with. Oral examination of complainant and
preliminary enquiry. - The first duty of a Magistrate taking cognizance of an offence
on complaint is to examine the complainant upon oath, except when the complaint is made in
writing and (a) by a Court or by a public servant acting or purporting to act in the
discharge of his official duties, or (b) when a Judicial or Executive Magistrate empowered
under sub-section (2) or (3) of section 192 of the Code decides to transfer the complaint
to a Judicial or Executive Magistrate, as the case may be or (c) when the offence is
triable exclusively by a Court of Session.]
5. ***[Omitted.]
6. Importance of examination of complainant before issue of process.-- The
examination of complainants prescribed by the Code of Criminal Procedure is not a mere
formality, as the result of this examination enables the Magistrate to determine whether
he will put the machinery of the Criminal Court in motion by issuing a summons or warrant
to cause the attendance of the accused before him. Section 203 lays down that if, in the
judgment of the Magistrate, there is no sufficient ground for proceeding, he shall dismiss
the complaint. The preliminary examination, therefore, if properly made, will frequently
result in the summary dismissal of a complaint and save an innocent person from the
trouble and annoyance of appearing at the bar of a Criminal Court. In the interests of the
public, therefore, as well as with a view to the rapid despatch of work, a careful
observance of the law in this particular is incumbent upon Magistrates.
*
[7. No preliminary examination of complainant necessary in police
challans. - The power to hold a preliminary Magisterial inquiry into cases reported by
the Police, conferred by section 159 of the Code, should not be lost sight of. For the
duties of Magistrates in ordering remands to Police custody, Chapter 2 of this Volume
should be consulted. After completion of the investigation, the Police present a report
under section 173 of the Code of Criminal Procedure (usually called "Challan"),
and upon such a report a Magistrate can take cognizance under clause (b) of sub-section
(1) of section 190. In such cases no preliminary examination of the complaint is necessary
as in cases instituted on complaint under clause (a) of sub-section (1) of section 190.]
8. Inquiry into nature of offence and other preliminaries in order to see whether
court has jurisdiction.-- The question of jurisdiction requires careful attention at
the initial stage. Schedule II of the Code of Criminal Procedure shows the classes of
Courts by which different offences are triable. In determining the nature of the offence,
the facts ascertained by the examination of the complainant and the preliminary inquiry
(if any) should be taken into consideration and importance should not be attached to the
particular section specified or the offence alleged in the complaint, as complaints are
often drafted by men ignorant of law, and there is also a tendency to exaggerate the
nature of the offence. It should be also remembered that certain offences cannot be taken
cognizance of at all except upon the complaints of certain persons or Courts or with the
previous sanction of the Government (vide Section *[195 to 198-A of the
Code of Criminal Procedure)].
9. Jurisdiction also depends on the place of commission of offence.-- The
question of jurisdiction arises also with reference to the place of inquiry or trial. The
general rule prescribed by section 177 is that an offence shall be ordinarily inquired
into and tried by a Court within the local limits of whose jurisdiction it was committed,
but the subsequent sections create various exceptions to this rule.
10. Cases where place of commission of offence is uncertain.-- When, for
instance, it is uncertain in which of several local areas an offence was committed; or
where an offence is committed partly in one local area and partly in an other; or where
the offence is a continuing one and continues to be committed in more local areas than
one; or where the offence consists of several acts done in different local areas, -- it
may be inquired into or tried by a Court having jurisdiction over any of such local areas.
The same rule applies to offences committed on a journey, which may be inquired into or
tried at any place through which the offender or property affected passed in the course of
such journey.
*
[11. Procedure where Magistrate thinks that he has no jurisdiction or
cannot impose proper sentence. -- If a Magistrate finds that the offence disclosed is
not triable by him, he should report the case, in the case of a Judicial Magistrate, to
the Sessions Judge and in the case of an Executive Magistrate to the District Magistrate,
for its transfer to a competent Court. Whenever a Magistrate of the second or third class,
having jurisdiction, is of opinion, after hearing the evidence for the prosecution and the
accused, that the accused is guilty, and that he ought to receive a punishment different
in kind from, or more severe than, that which such Magistrate is empowered to inflict, or
that he ought to be required to execute a bond under section 106 of the Code, he may
record his opinion and submit the proceedings, and forward the accused to a Magistrate of
the first class specially empowered in this behalf by the Provincial Government.]
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