OF THE JURISDICTION OF CRIMINAL COURTS OF INQUIRIES AND TRIALS Conditions requisite for initiation of proceedings Section 190: Cognizance

of offences by magistrate All magistrates of the first class or any other empowered, may take cognizance of any offence: o o o Upon receiving a complaint of facts which constitute such offence; Upon a report in writing of such facts made by any police officer; Upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the court of session for trial, and o A magistrate taking cognizance under sub section 1 of an offence triable exclusively by a court of session shall, without recoding any evidence, send the case to the court of session for trial. This section describes the conditions requisite for the initiation of proceedings. Under the scheme of the code two parallel agencies have been set up for taking criminal offence to the court. The police and the private aggrieved party are placed on a parallel footing. The object is to ensure the freedom and safety of the subject in that it gives him the right to come to court if he considers that a wrong has been done to him or to the state and be a check upon police vagaries. (AIR 1955 Mad 534) As a general rule any person having knowledge of the commission of an offence may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. Hence, there is nothing in the code allowing an intention to confine the prosecution to the person directly injured. Restrictions on taking cognizance:Section 195: No court shall take cognizance; a) Persecution for contempt of unlawful authority of public servants: of any offence punishable under sections 172 to 188 of the PPC, except on the complaint in writing of the public servant concerned, or of some other public servants to whom he is subordinate; b) Prosecution for certain offences against public justice: of any offence punishable under any of the following sections of the same code (PPC), namely section 193 to 211 and 228, when such offence is alleged to have been committed in, or in relation to any proceeding

in any court, except on the complaint in writing of such court or of some other court to which such court is subordinate; or c) Prosecution for certain offences relating to documents given in evidence: of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same code (PPC), when such offence is alleged to have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such court, or of some other court to which such court is subordinate. Provided that the above mentioned provisions and the offense mentioned therein apply also to criminal conspiracies to commit such offences and to the abetment of such offences and attempts to commit them. This section provides exception to the general rule that any person may set the criminal law in motion, for it forbids cognizance being taken of the offences referred to therein except where there is a complaint in writing by the court or by the public servant concerned. The offences referred to in clause (a) relates to contempt of the lawful authority of the public servant. The offences referred to in clause (b) relates to false evidence and offences against public justice. The offences referred to in clause (c) relates to forgery and counterfeit marked material. Section 196: Prosecution for offences against the state No court shall take cognizance of an offence punishable under; o o o o o o Chapter VI or IX-A[offense against state & offences relating to election] (except section 127); Section 108-A; [abetment in Pakistan of an offence committed outside its limits] Section 153-A; [prompting enmity b/w classes] Section 294-A; [lottery] Section 295-A; [outraging religious feelings] Section 505 [statements conducting to public mischief] of PPC

Unless upon complaint made by order of or under authority from, the federal government or the provincial government concerned, or some officer empowered in this behalf.

The offences described in this section are the offences against the state or public morals, and unless the government grants sanction no prosecution can be instituted.

The offences enumerated in this section are of a very exceptional nature and are all of them in the nature of offences against the state either in its international or in the external relations. The object of this section is to prevent the intrusion of unauthorized persons in state affairs by instituting state prosecutions and to secure that such prosecutions shall only be instituted under the authority of the government.

Procedure once the complaint is filed Section 200: Examination of complaint A magistrate taking cognizance of an offence shall; At once examine the complainant upon oath; and The substance of the examination shall be reduced to writing; and Shall be signed by the complainant, and also by the magistrate. Provided as follows: o o When the complaint is made in writing, it is not incumbent upon the magistrate to examine the complainant before transferring the case; When the complaint is made in writing, it is not mandatory to examine the complainant in case in which the complaint has been made by a court or by a public servant acting in discharge of his official duties; o When the complainant has already been examined before transferring the case, it shall not be incumbent upon the magistrate to whom the case is transferred to reexamine the complainant. The main object of section 200 is to protect the public against false, frivolous or vexatious complaints filed in criminal courts and the magistrates ought not to lightly accept written complaints and proceed to issue processes unless they have thoroughly sifted the allegations made against the accused and are satisfied that a prima facie case has been made out against those who are accused of criminal offences. The section applies exclusively to the cases when a magistrate takes cognizance of an offence on complaint under section 190, sub-section 1 (a). Section 202: Postponement of issue of processes Any court on receipt of a complaint may; Postpone the issue or process for compelling the attendance of the person complained against; and

Either inquire into the case itself or direct any inquiry or investigation to be made by any justice of peace or by a police officer or by such person as it thinks fit for the purpose of ascertaining the truth or falsehood of the complaint.

The above mentioned directions shall not be issued unless the complainant has been examined on oath. If an inquiry or investigation under this section is made by a person other than a magistrate, justice of peace or a police officer, such person shall exercise all the powers except arresting without warrant.

A preliminary inquiry is ordered only when the magistrate is not satisfied with the justification of issue of process. Thus, magistrate has to scrutinize carefully allegations made in complaint with a view to prevent a person named therein as accused being called upon to face an absolutely frivolous complaint. Another object behind this provision is to find out what material there is to support the allegations made in the complaint. Moreover, it is not necessary that the complainant should produce the entire evidence during preliminary inquiry. Section 203: Dismissal of complaints The court may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the results of the investigation or inquiry (if any) under section 202, no sufficient grounds are seen for proceeding. In such case, brief reasons shall be recorded for doing so.

The reasons for dismissal of a complaint are to be brief and not elaborate or detailed but there must be valid reasons and furthermore must show that the magistrate has applied his mind to the facts of the case and considered the evidence and the material produced in inquiry. Although high court will not ordinarily interfere in the discretion exercised by a magistrate in dismissing a complaint but if the dismissal is without giving reasons and merely on the version of the accused, the high court can set aside the order of the magistrate. Use of word shall in latter part of section 203 denotes that the provision is not permissive but imperative and recording of reasons is the condition precedent for dismissal of the complaint. Non-recording of reasons would make the order therefore a nullity, because dismissal of complaint requires a judicial order. A dismissal of a complaint under section 203 is a dismissal in limine. Such a dismissal does not mean that the allegations against the accused are false and for that the accused are entitled to a discharge or acquittal.