Subject 03: CRPC

1. Explain the limitation on the powers of the Magistrate to take cognizance of an

offence relating to defamation marriage
‘‘Cognizance’’ in general meaning is said to be ‘knowledge’ or ‘notice’, and taking
‘cognizance of offences’ means taking notice, or becoming aware of the alleged commission
of an offence. The dictionary meaning of the word ‘cognizance’ is ‘judicial hearing of a
matter’. The judicial officer will have to take cognizance of the offence before he could
proceed with the conduct of the trial. Taking cognizance does not involve any kind of formal
action but occurs as soon as a magistrate as such applies his mind to the suspected
commission of an offence for the purpose of legal proceedings. So, taking cognizance is also
said to be the application of judicial mind.

The term ‘Cognizance of offence’ has not been defined in the Criminal Procedure Code.
Section 190, 191, 192, 193, 194, 195, 196, 197, 198, and 199 deals with methods by which
and the limitations subject to which various criminal courts are established to take cognizance
of offences. However, the meaning of the term is well defined by the Courts. Taking
cognizance is the first and foremost steps towards the trail. The judicial officer will have to
take cognizance of the offence before he could proceed to conduct or trail.
Cognizance of offences by Magistrate
In Section 190, Any Magistrate of the first class and the second class may take cognizance of
any offence-
1. Upon receiving a complaint of facts related to offences.
2. Upon police reports of facts.
3. Upon information received from a person (other than a police officer), or upon his
own knowledge.
In Section 190(2), it is given that Second class magistrate can be empowered by Chief
Judicial Magistrate to take cognizance under Section 190(1).
Transfer on the application of the accused
Section 191 deals with ‘Transfer on the application of the accused’.
When a Magistrate takes cognizance by another person other than a police officer, or upon
his own knowledge, then accused is entitled to have the case inquired into or tried by another
judicial magistrate. If accused or any of accused object to further proceedings before the
magistrate taking cognizance, the case shall be transferred to such other magistrate specified
by the Chief Judicial Magistrate.
Making over of cases to Magistrates
Section 192 deals with ‘Making over of cases to Magistrates’.
Any Chief Judicial Magistrate can make over the case for inquiry or trial to any competent
Magistrate subordinate to him. The Chief Judicial Magistrate can give general or specific
order to any first-class magistrate to make over the case for inquiry or trial to another
competent Judicial magistrate.
Cognizance of offences by Courts of Session
According to Section 193, “Courts of Session are not allowed to take cognizance of any
offence (as a court of original jurisdiction) unless the case has been committed to it by a
Magistrate.” When it is expressly provided by this code or by any other law, then only Courts
of Session are allowed.

Limitations on the power to take cognisance

Prosecutions for contempt of the lawful authority of public servants
According to Section 195(1)(a), “Court will not take cognizance to those cases which
punishable under Section 172 to Section 188 of Indian Penal Code unless a written complaint
is made by a public servant.” Section 172 to 188 of IPC deals with offences related to
contempt of public servant. The court will not take cognizance in case of an attempt,
conspiracy, abetment of offence given in Section 172 to 188 of IPC.
Prosecution for offences against public justice
According to Section 195(1)(b)(i), ‘‘Court will not take cognizance to those cases which are
offensive under Section 193 to 196, 199, 200, 205 to 211 and 228 of Indian Penal Code
unless a written complaint is made by that court or by some other court to which that Court is
subordinate.” Above mentioned sections of IPC deals with offences against public justice.
The court will not take cognizance in case of an attempt, conspiracy, abetment of offences
against public justice.
Prosecution for offences relating to documents given in evidence
According to Section 195(1)(b)(ii), ‘‘Court will not take cognizance to those cases which
offensive under Section 463, or punishable under Section 471, 475 or 476 of the IPC unless a
written complaint is made by that court or by some other court to which that Court is
subordinate.” Above mentioned sections of the IPC deals with offences related to documents
given in evidence. The court will not take cognizance in case of an attempt, conspiracy,
abetment of offences relating to documents given in evidence.
Prosecution for offences against the state
According to Section 196(1), ‘‘Court will not take cognizance to those cases which
punishable under Chapter VI (Of Offences against the State) or under Section 153A, Section
153B, Section 295A or Section 505 of Indian Penal Code except with the consent of the
Central Government or of the State Government.”
Prosecution for the offence of criminal conspiracy
According to Section 196(2), “Court will not take cognizance to offences of any criminal
conspiracy under Section 120B of Indian Penal Code (other than a criminal conspiracy to
commit a cognizable offence punishable with death, imprisonment for life or rigorous
imprisonment for two a term of two years or upwards) unless consent in writing is given by
the State Government or the District Magistrate to initiation of the proceedings.”

Prosecution of Judges and Public Servants

According to Section 197(1), “Court will not take cognizance to offences done by Judges,
Magistrates or any Public Servants during the course of employment unless consent in
writing is given by the State Government(when offender is under course of employment of
state government) or the Central Government(when offender is under course of employment
of central government) to initiation of the proceedings.” In the case of State emergency in any
state, only Central Government will give consent for such proceedings.
There is no consent requires for cognizance when Judges, Magistrate or Public Servants has
done offence which is punishable under Section
161A, 161B, 354A to 354D, 370, 376, 376A, 376B, 376C and 509 of Indian Penal Code.
Prosecution of members of Armed Forces
According to Section 197(2), “Court will not take cognizance to offences done by any
member of the Armed Forces of the Union during the course of employment unless consent
given by the Central Government.”
According to Section 197(3), “Section 197(2) will also apply to such class or category of the
members of Forces charged with the maintenance of public order.”
Prosecution for offences against marriage
According to Section 198(1), “Court will not take cognizance to offences punishable under
Chapter XX (Of Offences related to Marriage) of Indian Penal Code unless complaint made
by the victim”.
Prosecution of the husband for rape
A husband can also rape his own wife when the wife is under fifteen years of age. According
to Section 198(6), “Court will not take cognizance to offences punishable under Section
376 of Indian Penal Code if more than one year has elapsed from the date of commission’.
According to Section 198(7), Section198 also applies on abetment or attempt to commit an
offence under chapter XX of IPC”.
Prosecution for defamation
According to Section 199(1), “Court will not take cognizance to offences which are
punishable under Chapter XXI (Of Defamation) of the IPC unless the complaint is made by
the victim’’. Provided that the third party can also make a complaint on behalf of the victim,
with the permission of the Court when the victim is not able to make a complaint.
Complaints to magistrates
1. Examination of complainant
Section 200 deals with ‘Examination of the complainant’. The complaint shall examine upon
oath the complainant and the witnesses present, and it should also be in writing and signed by
the complainant, witnesses and also by Magistrate. Provided that, the Magistrate need not
examine the complainant and the witnesses when the complaint is made in writing.

2. The procedure by Magistrate not competent to take cognizance of the case

According to Section 201, ‘‘If a complaint is made before a Magistrate who is not competent
to take cognizance of the case, then Magistrate will do two things are follows-
1. If Complaint is made in writing, then Magistrate will refer that case to that proper
Court.
2. If the Complaint is not in writing, then Magistrate will direct the complainant to
the proper Court.’’

3. Postponement of issue of process.

According to Section 202, ‘‘The Magistrate authorised to take cognizance or made over to
him under Section 192 may postpone the issue against the accused, and either inquire himself
or by police officers or other persons as he thinks fit, for the purpose of deciding whether or
not there is sufficient ground for proceeding”.
4. Dismissal of the complaint
According to Section 203, “The Magistrate can also dismiss the complaint if inquiry or
investigation under Section 202 result no ground for proceedings”.
Conclusion
The word ‘Cognizance’ is not defined in the Criminal Procedure Code. Basically, it means
applying the Judicial mind in a suspected commission of the offence. Chapter XIV of Cr.PC
deals with ‘Conditions Requisite for initiation of proceeding’ and Chapter XV of Cr.PC deals
with ‘Complaints to Magistrates’.

2. Discuss the provisions relating to relerence and revision.

The reference is simply an application made by the trial court to the High Court for the
interpretation (explanation) of a matter relating to an Act, Legislation, and Regulation.
Reference can be defined as the terms to consult a various information from the trial Court
which is to make an application for the explanation of the Legislation, Act or regulation
pertaining to the case. Reference power is vested with the Court.

High Court empowers the reference power where the cases are transferred by the Subordinate
Courts. Reference can be done to the High Court as per the Section 395, for which the case is
pending and it has involved in any question pertaining to any of the Act or Regulation or
Ordinance or any Provision, which is necessary to determine to dispose a case.

Section 395 of Criminal Procedure Code

A reference arises when a case is before a trial court and such a case includes a question
relating to the validity of any regulation, ordinance or act or any provision of the act, which is
necessary for the determination of a criminal case. Such an act, regulation or ordinance may
be inoperative or invalid but the Higher Court like Supreme Court or High Court has not
declared it.

As such, the lower court or trial court shall refer to the High Court for its cause or opinion.
Such opinions or reasons may form the basis of the court’s decision. In such cases, the
accused may be sent to the jail or released on the bail, as there is pending of revert of opinion
from the higher court.

Section 396 of Criminal Procedure Code: – Disposal of case according to the decision of
the High Court
When the question has been so referred, the High court shall pass such an order that it thinks
fit and also can send a copy of such an order to the lower court which shall dispose off the
case comfortably to the said order. The high court may also direct the cost of such reference
which has to be paid.

What is revision under criminal procedure code?

Meaning of Revision under Criminal Procedure Code: – A revision or modification is a
rule that is to correct or change a decision already made. Both revision and appeal are under
the review procedures of Criminal Procedure Code. Superior Courts have the power to
suspend or execute the sentence. That is, a Court’s decision can be modified by Sessions
court or higher or Supreme Court. The main objective of both sides is to modify, change,
correct the decision already made by the trial court. The Revision power can be exercised by
Superior Court.

Usually the High Court has power to re-examine the case which has been dealt by the lower
courts; this power is not like appeal; High Court can determine whether to examine a case or
not. The purpose of a revision is to re-assure the legal procedures which were exercised by
the lower court is without any errors while delivering the verdict. Revision in Higher Court
falls under Revisional Jurisdiction.

Section 362 of the Criminal Procedure Code

Provides that no court has the authority to review or change its final judgment or order or
decision, which is signed. The only exception is to correct clerical, arithmetic or grammatical
errors. Therefore, the power to review may vest in the superior court but the power to revise
rests with the lower court. The power of review, reference and revision cannot be exercised in
the case in which the appeal is pending in the High Court.
Revision is defined under Chapter XXX, Sections (397–402) of the Criminal
Procedure Code
1. Section 397: – The court has the power to call for the record of the proceedings of
its court or any inferior courts.
2. Section 398: – Upon examining the record of proceedings, the judge has the right
to order an inquiry into the decision of a case.
3. Sections (399 – 400): – The Sessions Judge has the power to revise any decision
and may call additional Sessions Judges to revise the decision.
4. Section 401: – The High Court has the power to modify cases before it or before
the lower or inferior courts.
 5. Section 402: – The High Court is also empowered to transfer or withdraw the
revision cases.
Case laws under Reference and Revision
1. Chandrappa vs. the State of Karnataka
The appellate court laid down the guiding principles for appeals against acquittals (proven
innocent). The principles are as follows: –
i. Where the fact of the case is clearly wrong and warrants a miscarriage of justice. In this
instance, an acquittal can be appealed. This doctrine was established in Bhagirath, 35 Cr LJ
1367.
ii. In an instance where the trial court failed to make a clear distinction between an
indisputable conclusion from the facts of the case. Example, Routhula 40 Cr LJ 458.
iii. Where the trial court overlooked the material evidence in the decision of the case which
resulted in wrong judgment or miscarriage of justice. Example, Dharnadas, A 1960 SC 734.
2. Hari Shankar vs. Rao Ghari Chowdhury
A. In this case, the Supreme Court highlighted the difference between revision and appeal.
B. The court held that difference between revision and appeal is real. The right of appeal
comes with a right of re-hearing on laws as well as facts, unless the statute confers some
limitations on the right to appeal in some way.
C. The power of revision is generally given to supreme court so that it may satisfy itself that
the judgement given in the particular case is in accordance to the laws.

Conclusion
Reference and revision are different in terms of law but all serves the same purpose to ensure
that justice is served. Reference is for consulting the higher courts of law pertaining to the
pending cases. Revision is to review or to alter any error made after the deliverance of final
judgment. The Jurisdiction for revisional of the High Court is quiet extensive. It has inherent
powers to deal the cases of revision which is applicable for substantive as well as procedural
matters but it does not have power to re-examine any of the evidence.

3. Explain the powers of the Magistrate for the removal of public nuisance.
A magistrate has been vested with wide powers under Section 144 of the Code of Criminal
Procedure, 1973. It grants certain powers to a magistrate which entails passing an order in
cases of nuisance or apprehended danger in society. In order to maintain public peace and
public tranquillity, preventive measures can be taken. Any order passed by the magistrate
should be in writing and consist of facts of the case.
Specific provisions regarding nuisance are mentioned in the Indian Penal Code 1860, Civil
Procedure Code 1908 and Criminal Procedure code, 1973.
Powers of magistrates in urgent cases of nuisance
Section 144 envisages the powers of a magistrate in urgent cases of nuisance. These powers
provide directions in dealing with situations that cause danger to human life, disturb public
tranquillity, result in riots or affray. These situations have the potential to create unrest or
danger to public peace and tranquillity in any area, due to any disputes.
In the case of Radhe Das v. Jairam Mahto, there was a dispute over a property in which
Magistrates passed the order and restricted the defendant from entering the property.
Petitioners applied for the restriction of defendants. Defendants also applied for the claim and
to restrict the petitioner from entering into it. It was subsequently granted by the Magistrate.
The defendants claim that this order is violating their right over the property. The court held
that the action should be taken to prevent public peace and tranquillity and the individual
rights of a person must be given away for the greater benefit.
1) The orders under Section 144 (1) can be issued by:
 District Magistrate;
 Sub-Divisional Magistrate; or
 Executive Magistrate specially empowered by the State Government.
A magistrate can start the proceedings if there is an immediate or speedy remedy is desirable
in the following situations mentioned under this clause:
 Danger to human life;
 Disturbance to public tranquillity;
 Riot; or
 Affray.
2) Ex-Parte decisions can be taken in cases of emergency under Section 144(2)
If there is an emergency or in any circumstances where notice cannot be served to that person
against whom the order has directed, be passed ex parte.
3) Orders passed by Magistrate have an expiry date under Section 144 (4)
Such orders expire within 2 months from the date the order has been made or issued.
But in the exceptional cases if the State Government considers it necessary by notifications, it
can direct that an order made by the magistrate which is to be enforced for 2 months will
continue for a period, not exceeding 6 months.
4) Alteration can be made under Section 144(5)
Any alteration can be made in the order under this section. It can be made by the magistrate
himself, or by a magistrate subordinate to him or by a predecessor in his office. Such
alteration will be made either on an application by the aggrieved person or even the
magistrate himself can do so.

Procedure
A Procedure needs to be followed by the Magistrate, when section 144 is imposed:
1) Against whom the order has been passed under Section 144(7)
The aggrieved person against whom the order has been passed if he approaches the court
under sub-section(5), he will be given the earliest opportunity of hearing.
On the other hand, if his application has been rejected wholly or in part either by the State
Government or by the Magistrate, the reasons are to be given the reason in writing.
Sub-section 7 provides that the proceedings should be judicial in nature and evidence would
be recorded in an open court before the alteration or a rescinding order is passed.
Certain restrictions can be imposed by a magistrate:
 Section 144 of CrPC restricts the assembly of five or more people in a public place
with a common object. As per the code, each person of that ‘unlawful assembly’
will be booked under Section 143 of IPC. Unlawful Assembly is defined
under Section 141 of the Indian Penal code. An assembly of five or more persons
with a common illegal object is said to be an unlawful assembly. And if the
common object of those 5 people composing that assembly is any of the five
objects declared illegal under Section 141 of IPC:
1. To overawe Government by criminal force;
2. To resist the execution of a law or legal process;
3. To compel any person to do illegal acts;
4. To commit an offence; or
5. Forcible possession or disposition of property.
 It restricts the handling of any kind of weapon in the area where Section 144 is
imposed. A magistrate can pass an order or by a public notice, declare restrictions
in carrying of arms in procession, or holding of, or taking in any mass drill or mass
training with arms in a public place. If he has a reason to believe that it is
necessary for:
1. Public safety;
 2. Preservation of public peace; or
3. Maintenance of public order.
It prohibits carrying dangerous weapons, including lathis, sharp-edged metallic objects which
covers a knife used in a kitchen. If any person violates the and is still engaged in the activity,
then he can be detained. Whereas this section doesn’t restrict police officials to carry guns.
Police and other security personnel are the only ones who are allowed to carry weapons in the
area where Section 144 is imposed.
 As per the Section 69A of the Information Technology Act, the government has
the right to shutdown the internet. Section 144 IPC gives power to a magistrate to
stop internet access in a region.

Conclusion
To prevent the breach of the peace or public tranquillity, a magistrate should take preventive
measures and speedy remedy should be given to maintain peace in the society. If there is an
apprehension to danger or nuisance the immediate remedy is desirable under such
circumstances. Second of all, a magistrate should consider that the directions given by him
are effective and they prevent annoyance, injury to human life, and disturbance of public
tranquillity. Section 144 turns out to be an effective tool during emergencies; it is mainly
imposed by the administration to prevent riots and violence.

4. Explain First Information Report.

An First Information Report (FIR) is a very important document as it sets the process of
criminal justice in motion. It is only after the FIR is registered in the police station that the
police take up investigation of the case.

What is a FIR?
 First Information Report (FIR) is a written document prepared by the police
when they receive information about the commission of a cognizable offence.
 It is a report of information that reaches the police first in point of time and
that is why it is called the First Information Report.
 It is generally a complaint lodged with the police by the victim of a
cognizable offence or by someone on his/her behalf. Anyone can report the
commission of a cognizable offence either orally or in writing.
  The term FIR is not defined in the Indian Penal Code (IPC), Code of
Criminal Procedure (CrPC), 1973, or in any other law.
o However, in police regulations or rules, information recorded under
Section 154 of CrPC is known as First Information Report (FIR).
 There are three important elements of an FIR:
o The information must relate to the commission of a cognizable
offence,
o It should be given in writing or orally to the head of the police
station,
o It must be written down and signed by the informant, and its key
points should be recorded in a daily diary.
What happens after an FIR is filed?
 The police will investigate the case and will collect evidence in the form of
statements of witnesses or other scientific materials.
o They can arrest the alleged persons as per law.
 If there is sufficient evidence to corroborate the allegations of the complainant,
then a charge sheet will be filed. Or else, a Final Report mentioning that no
evidence was found will be filed in court.
 If it is found that no offence has been committed, a cancellation report will be
filed.
 If no trace of the accused persons is found, an ‘untraced’ report will be filed.
 However, if the court does not agree with the investigation report, it can order
further investigation.
What if the police refuse to register an FIR?
 Under Section 154(3) CrPC, if any person is aggrieved by the refusal on the
part of the officer in charge of a police station to register an FIR, she can send
the complaint to the Superintendent of Police/DCP concerned.
o Who, if satisfied that such information discloses the commission of
a cognizable offence, will either investigate the case, or direct an
investigation by a subordinate police officer.
 If no FIR is registered, the aggrieved persons can file a complaint under Section
156(3) CrPC before a concerned court which, if satisfied that a cognizable
 offence is made out from the complaint, will direct the police to register an FIR
and conduct an investigation.
What is a Zero FIR?
 When a police station receives a complaint regarding an alleged offence that has
been committed in the jurisdiction of another police station, it registers an
FIR, and then transfers it to the concerned police station for further
investigation.
o This is called a Zero FIR.
 No regular FIR number is given. After receiving the Zero FIR, the concerned
police station registers a fresh FIR and starts the investigation.
What is Cognizable Offence & Non-cognizable Offence?
 Cognizable Offence: A cognizable offence is one in which the police may
arrest a person without warrant.
o They are authorised to start investigation into a cognizable case on
their own and do not require any orders from the court to do so.
 Non-cognizable Offence: A non-cognizable offence is an offence in which a
police officer has no authority to arrest without warrant.
o The police cannot investigate such an offence without the court's
permission.
o In case of non-cognizable offences, an FIR under Section 155
CrPC is registered.
o The complainant will be asked to approach a court for an order.
The court may then direct the police to conduct an investigation on
the complaint.
Conclusion
The FIR is the first step of Criminal Procedure that leads to the trial and punishment of a
criminal. It is also the most important supportive evidence on which the entire structure of the
prosecution case is built-up. As rightly observed in the case of Mohan Lal v. State of Uttar
Pradesh, FIR is the Bible of the case initiated on the public report.
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