Commencement of proceedings before magistrate

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proceeding can be commenced before a magistrate

Sections 204-210, chapter XVI, talk about how a proceeding can be commenced before a magistrate. Under section 204 a magistrate can issue summon or warrant for the attendance of the accused after the witnesses of the prosecution have been filed.

Under the old Code (i.e. the 1898 Code), it was necessary to refer to the fourth column of the Second Schedule to ascertain whether a summons or a warrant should be issued in a particular case. In the old code the classification of offences in the Schedule was, generally not based on any general principle, and was not the same as between a summons- case and a warrant-case, because in such condition there are possibilities that a warrant might have to be issued in a summons-case, and vice-versa. A simpler procedure was hence desirable, so that a summons could be issued in a summons-case, and a warrant in warrant-case, unless otherwise ordered by the Magistrate.

Section 204: Issue of Process

In the present code this change has been incorporated, and it now S. 204 states that if, in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding available, and the case appears to be —

A summon-case:

He must issue summons for the attendance of the accused; or

A warrant-case:

If he thinks fit then he may issue a warrant, or 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, in the matter.

Moreover, no summons or warrant can be issued against the accused under this section, unless a list of prosecution witnesses has been filed. If under any law, any process fee or other fee is payable, no process can be issued until such fee is paid. If such fees are not paid within a reasonable time, the Magistrate can dismiss the complaint.

The Madras High Court has held that a neglect to maintain a wife is not an offence, and therefore, an application for maintenance under S. 125 of the Code should not be dismissed owing to the applicant’s failure to comply with an order for the payment of process fees.

It is also to be remembered that, under Article 361 of the Constitution, no process for the arrest or imprisonment of the President or the Governor of a State can be issued by any Court during the term of office of such a person.

The only condition necessary for the issue of process is that the complainant’s deposition must show some sufficient ground for proceeding in the matter. Therefore, unless there is sufficient ground for proceeding with the complaint, or sufficient material to justify issue of a process, the Magistrate should not issue the process.

However, if two counter-complainants prefer complaints before a Magistrate, he can validly issue a process in one case, and postpone the issue of a process in the other case, until disposal of the first case.

Section 205: Magistrate may dispense with personal attendence of accused

205, which contains a salutary rule of procedure, provides that whenever a Magistrate issues a summons, he may dispense with the personal attendance of the accused, and allow him to appear through his Pleader, if there is sufficient reason for doing so. It will be seen that this section deals with exemption from initial appearance and not with exemption from appearance at the final trial.

This power can be exercised by a Magistrate only when a summons has been issued, but not when a warrant is issued. However, at any stage of the proceedings, the Magistrate may, in his discretion, direct the personal attendance of the accused, and if necessary, enforces such attendance in the manner prescribed by the Court.

The Mysore High Court has observed that where the alleged offences are of a serious nature involving moral turpitude, and are punishable with a sentence of imprisonment, whilst granting exemption under this section, the status of the accused should not be considered.

Although there is no specific exemption made by S. 205 in favour of a pardanashin woman, the Magistrate must exercise his discretion in such a case with reference to the social status of the woman, the custom of the society, and the nature of the offence. Ordinarily, an exemption from personal appearance should be granted to such a woman, unless a strong prima facie case has been made out for ordering otherwise.

Thus, it has been held that a Magistrate is not justified in refusing exemption to such a woman merely on his impression that she is not a pardanashin lady, or on the ground that other ladies of the same class, who were also pardanashin, had appeared in Court out of their own free will.

Section 206: Special Summons in case of Petty Offence

It is section 206 of the Code of Criminal Procedure that provides an abridged procedure for the disposal of ‘petty offences’. As per Section 206(2) of the Code, ‘petty offence’ means any offence punishable only with fine not exceeding one thousand rupees, but any offence so punishable under the Motor Vehicles Act, 1939, or under any other law which provides for convicting the accused person in his absence on a plea of guilty, is not included.

Under S. 206, if a Magistrate is taking cognizance of a petty offence, and if the case can be summarily disposed of under S. 260 of the Code, the Magistrate must (unless he records a contrary opinion in writing) issue summons to the accused, requiring him either to appear in person or by a pleader on a specified date, or if he desires to plead guilty without appearing before the Magistrate, to transmit to the Magistrate before the specified date, such a plea in writing and the amount of fine specified in the summons, or to plead guilty through a Pleader and to pay such fine through the Pleader.

The obvious intent of S. 206 is to avoid unnecessary inconvenience to a person accused of petty offences, i.e., offences which are punishable only with a fine not exceeding Rs. 1,000, but excluding offences punishable under Motor Vehicles Act, or any other law which provides for conviction of the accused in his absence on a plea of guilty. In such cases, an option is given to the accused to plead guilty to the charge, and remit the fine specified in the summons by post, or by messenger, or by a Pleader authorised by him in writing.

The scope of S. 206 was considerably enlarged by the 1978 Amendment, so that now the State Government may empower a Magistrate to exercise the powers under the section with respect to a compoundable offence, or any offence punishable with less than three months imprisonment, or fine, or both, if the Magistrate is of the opinion that, with regard to the circumstances of any case, the meeting of justice can be done only by imposing fines.

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

207 lays down that in every case where the proceeding has been instituted on a Police Report, the Magistrate must, without any delay, furnish to the accused, free of cost, a copy of the following documents:

(i) The Police Report;

(ii) The First Information Report, [recorded under S. 154];

(iii) If the prosecution proposes to examine the statement of persons which have been recorded under S.161 (3) as its witnesses, excluding from any request made for such exclusion by the Police Officer.

(iv)The confessions and statements, if any [recorded under S. 164]

(v)  If there is any other document, or any other relevant extracts thereof, forwarded to the Magistrate with the Police Report [under S. 173(5)].

If, however, the Magistrate is of the opinion that any document referred to in clause (v) above is voluminous, he may direct that, instead of furnishing a copy to the accused, the opportunity of inspection the record is given to the accused, either personally or through a Pleader in Court.

Section 208: Supply of copies of statements and documents to accused in other cases triable by court of session

208 provides that in a case which is instituted otherwise than a Police Report, in case it appears to the Magistrate who is issuing the process that the offence can be tried exclusively by the Court of Sessions, then in such case the Magistrate must, furnish to the accused, free of cost, a copy of each of the following documents without further delay:

(i) Recorded under S.200 or S.202, the statements of all persons examined by the Magistrate.

(ii) Recorded under S.161 or S.164, the statements and confessions.

(iii) The copy of such documents produced before the Magistrate on which the prosecution proposes to rely.

If, however, the Magistrate is satisfied that any such document is voluminous, instead of furnishing the accused with a copy thereof, he may direct that the accused is only to be allowed to inspect it, either personally or through a Pleader in Court.

Section 209: Commitment of case to Court of Session when offence is triable exclusively by it

It has been stated in S. 209 that in a case which is instituted on a Police Report, or otherwise if it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he must—

(a) After complying with Ss. 207 and 208, he should commit the case to the Court of Sessions and in the meanwhile, remand the accused to custody (subject, of course, to the provisions of the Code relating to bail);

(b) Remand the accused to custody during, and until the conclusion of, the trial according to the provisions of the Code relating to bail;

(c) If there are any record of the cases and the documents and articles which are to be produced in evidence, then such records are sent to the court; and

(d) Notify the public prosecutor of the commitment of the case of the Court of Sessions.

Section 210: Procedure to be followed when there is a complaint case and police investigation in respect of the same offence

1. 210 of the Code has introduced a new procedure to be followed when there is both a complaint case and police investigation in respect of the same offence. It provides that, in such a case, the Magistrate must stay all the proceedings in respect of the inquiry or trial in the complaint case, and call for a report on the matter from the Police Officer who is conducting the investigation.

If a Report is made by the investigating Police Officer, and on such a Report, cognizance of any offence is taken by the Magistrate; the Magistrate must try the complaint case and the case arising out of the Police Report, as if both the cases were instituted on a Police Report. If, however, the Police Report does not relate to the accused in the complaint case or if the Magistrate does not take cognizance of any offence on the Police Report, he must proceed with the inquiry or trial stayed by him (as above) as per the provisions of the Code.

There was no provision corresponding to S. 210 in the old Code. This new section is intended to ensure that private complainants do not interfere with the course of justice.

Frequently Asked Questions:

1) Can summons or Warrants be issued against an accused if witness has not been filed?

No summons or warrant can be issued against the accused under this section, unless a list of prosecution witnesses has been filed.

2) When can Magistrate’s power to dispense accused with personal attendance be issued?

His power can be exercised only when a summons has been issued, but not when a warrant is issued. However, at any stage of the proceedings, the Magistrate may, in his discretion, direct the personal attendance of the accused, and if necessary, enforces such attendance in the manner prescribed by the Court.

3) Can Magistrate exercise power to a compoundable offence?

Yes it is true, by the 1978 Amendment, now the Magistrate is empowered by the State Government to exercise the powers with respect to a compoundable offence, or any offence punishable with less than three months imprisonment, or fine, or both, if the Magistrate is of the opinion that, with regard to the facts and circumstances of the case, the fine imposition would help to meet the ends of the case.

4) How does Magistrate determine whether the process is issued or not?

In determining whether he should issue a process or not, the Magistrate must proceed according to the provisions of the Code, and then if he opines that there exists a prima facie case, he ought to issue the process.

Edited by Shuvneek Hayer

Approved & Published – Sakshi Raje

Referances

1) https://www.latestlaws.com

2)www.shareyouressays.com

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Mahak Gandhi
I am pursuing B.com LLb(H) from Amity Law School, Noida . It is my third year of college and I have come across various subjects of law which include Company law , competition law , labour laws , administration law , family law , evidence etc. and all of these subjects never fail to disappoint me with their diverse provisions and their landmark cases . However, it is the uniqueness of CrP.C. and IPC which makes me want to further pursue criminal law studies . It was the curiosity to know how criminal procedure comes into action , what is the role of evidences in any offence , the provisions related to imprisionments and bails , the penalties and fines to be imposed and many other questions that drew me to pursue law as a career. I like to participate in moot courts and mock trials to enhance my skills and get practical knowledge of how things happen in an actual court . I also like to read fictional books, play badminton and dance in my leisure time . I aspire to become a very successful, well renowned lawyer someday !