Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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KEY TAKEAWAYS

  • Section 190 of the Code of Criminal Procedure gives that any Magistrate of the First Class and any Magistrate of the Second Class who is exceptionally engaged to do as such, may take insight of an offense.
  • The term in lieu with courts and judges has a definitive meaning which is expanded as "to take notice of judicially", wherein under section 190, it means taking notice for initiation of proceedings.
  • It is inclusive of taking steps to witness whether there exists basis for initiating judicial proceedings against an offender by the magistrate.
  • The magistrate while taking cognizance is bound to be aware of the limitations put on him as per section 195 to 199 of the CrPC.

INTRODUCTION

Section 190 of the Criminal Procedure Code empowers the Magistrates to take cognizance of criminal cases. Taking cognizance means the application of judicial mind to a particular case. A Magistrate can take cognizance of a case on the receipt of complaint or a report by the police or information received from a person other than the police officer or upon his own knowledge.

What “taking cognizance” means

What is meant by 'taking cognizance' in regard to an offence by a competent Magistrate is not defined or described in the Code of Criminal Procedure, 1973 (CrPC) or any other act. However the term has acquired a definite connotation through well settled judicial pronouncements.

The term “taking cognizance” actually means "become aware of", but in reference to a Court or a Judge, it means "to take notice of judicially".  The term has no mystic significance in criminal law. In practice ‘taking cognizance’ means taking notice of an offence for initiation of proceedings under Section 190 of Cr.P.C.

`Cognizance’ refers to the point when the court first takes judicial notice of an offence by not only applying its mind to the contents of the complaint/police report, but also proceeding further as provided further in Chapter XIV of the CrPC.

Taking cognizance includes either taking steps to see whether there is basis for initiating a judicial proceeding or initiating a judicial proceeding against an offender by the Magistrate.

Who takes cognizance of offence?

Ordinarily, a citizen can initiate criminal proceedings against an offence by two means.  He may either lodge an FIR before the Police Officer (Station House Officer) if the offence is a cognizable one, or he may lodge a complaint before a competent Judicial Magistrate irrespective of whether the offence is cognizable or non-cognizable. Any Magistrate of the first class and the duly empowered second class Magistrate may take cognizance of any offence for further proceedings.

The Section 190 to 199 of CrPC describes the methods by which various criminal courts are authorised to take cognizance of offences. The Sections 195 to 199 put some limitation on filing complaint or taking cognizance, in regard to certain private offences.

As per Section 190(1) an empowered Magistrate may take cognizance of any offence-

  • Upon receiving a complaint of facts which constitute such an offence.
  • Upon a police report of such facts
  • Upon information received from any person other than a police officer, or upon his own knowledge, that such an offence has been committed.

Taking cognizance involves no formal action

Taking cognizance occurs when a Magistrate applies his critical mind to the suspected commission of an offence so as to take subsequent steps under Section 200, 202 or 204 of the CrPC towards inquiry and trial.

But application of mind by the Magistrate for the purpose of any other action such as ordering a police investigation, issuing a search order etc cannot be considered as taking cognizance of the offence.

In short, cognizance means to take judicial notice of the offence for inquiry or trial. Taking cognizance does not involve any formal action.

Taking cognizance a precondition for trial

Taking cognizance is a pre-requisite or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Thus, what Section 190 of CrPC contemplates is that the Magistrate is said to have taken "cognizance" once he makes himself fully conscious and aware of the allegations made therein and decides to proceed further for inquiry or trial of the offence.

Section 190 CrPC sets out the mode

The Section 190 (1) a, b and c of CrPC sets out the modes of taking cognizance.

On receiving a complaint under Section 190(1)(a) of  CrPC, when the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding Sections of the CrPC, then he has taken the cognizance of the offence.  

Similarly, when a Magistrate, on receipt of a complaint, examines the complainant in order to determine the veracity or sufficiency of the accusations made in the complaint or whether process need to be issued it can safely be assumed that the Magistrate has taken cognizance.

But the inquiry or investigation provided for under Section 202 CrPC  is exclusively to enable the Magistrate to find out the truth or otherwise of the allegation made in the complaint in order to determine whether the process should be served or not. That inquiry or trial takes place at the post cognizance stage.

If the Magistrate, on reading the complaint, finds that the allegations therein disclose a cognizable offence, he can straight away issue process. In case he is not straight away taking cognizance of the offence he can order investigation under Section 156(3) of CrPC. Such an action saves the Magistrate from wasting his valuable time in enquiring into a matter. Therefore ordering a police investigation is an alternate course of action a Magistrate can opt for, rather than taking cognizance of the offence.

If he orders for police investigation, he need not examine the complainant on oath. This is because he is not going to take cognizance of the offence therein. The Magistrate can very well take cognizance after the receipt of the police report which contains more material facts of the case. 

If he is ordering police investigation under Section 156(3) CrPC, then he cannot be considered to have taken cognizance of the offence. In such a situation taking cognizance will occur only after the Magistrate going through the police report. On receiving police report after the culmination of the investigation the magistrate may take cognizance of the offence under S. 190(1) (b) and straightaway issue process. A Magistrate, under Section 190 (1) (b), can issue process even if police report is a refer report – that means no case is made out in the report. He need not follow the procedure under Section 200 and 202 in such an event.

As per Section 190(1)(c), the magistrate can take cognizance of any offence upon receiving information from any person other than a police officer (even if the person is not personally aggrieved by the offence) or upon his own knowledge. This provision enables a Magistrate to proceed against the offence if he has knowledge of the offence, despite having no complaint or police report before him.

Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case. It includes the mode of instituting the case and the nature of preliminary action taken by the Magistrate.

Magistrate has option to take cognizance

When a Magistrate receives a complaint, he is not bound to take cognizance even if the facts alleged in the complaint disclose the commission of an offence. This is clear from the use of the words "may take cognizance". The word "may" gives enough discretion to the Magistrate in taking action in the matter.

Cognizance is taken when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any person regarding an offence.

The issuance of process by the court occurs at a subsequent stage duly after considering the materials placed before it. It happens when the Magistrate decides to proceed against the offender whom a prima facie case is clearly made out. Taking cognizance of an offence is not equivalent to issuance of process: issuance of process takes place only after taking cognizance of the offence. When a Magistrate applies his mind for issue of process, he must be held to have taken cognizance of the offences the complaint put forth.

For the purpose of enabling the police to start investigation the Magistrate can direct the police to register an FIR as law prescribes. Even if a Magistrate does not say the police to register an FIR, it is the duty of the Officer-in-charge of the police station to register the FIR, if the complaint discloses a cognizable offence. Registering an FIR enables the police officer to take further steps contemplated in Chapter XII of the Code.

Magistrate’s power when he receives a police report

The Magistrate, on receipt of a complaint or a police report, has power to

  1. Reject the police report and direct an inquiry under Section 202 of CrPC so as to take subsequent action under 203 of CrPC
  2. Take cognizance under Section 190 at once, if he disagrees with the police report
  3. Have inquiry under Section 200 of CrPC
  4. to take cognizance of the offence on the basis of the complaint submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present, under Section 200 of CrPC

In short, the Magistrate ordered an investigation and has received a police report does not bar him from taking actions under Section 200, 203 and 204 of CrPC based on the original complaint itself. A Magistrate’s power to take cognizance cannot be impaired by the sloppy police investigation or the report therein. A Magistrate can take cognizance if he is satisfied with the material facts before him in regard to the offence.

Application of mind while ordering police investigation

Ordering investigation by a Magistrate under Section 156(3) is not a mechanical process. The application of mind by the Magistrate should be reflected in the order even if he is not taking cognizance of the offence.

The mere statement that he has gone through the complaint, documents and heard the complainant will not be sufficient. The order should invariably reflect what aspects in the complaint, the documents and the hearing prompted the Magistrate to order investigation under Section 156(3) of CrPC even though no detailed expression of it is necessary.

The application which seeks a police investigation is to be supported by an affidavit duly sworn by the applicant. This has been insisted as it has become a practice to file such applications in a routine manner irresponsibly by the applicant mainly to harass the accused. The Magistrate would verify the truth and the veracity of the allegations in the complain before proceeding. Such an affidavit can make the applicant more responsible as once an affidavit is found to be false, the applicant will be liable for prosecution.

Under Section 202 of CrPC, Magistrate can direct an investigation to be made either by a police officer or by any other person. This is done after taking cognizance. It is only for a limited purpose. Such investigation is merely for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This is quite evident from the words in Section 202(1) which states: "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding."

Difference between investigation under chapter XII & XIV

The key difference between an investigation under Section 156 (3) and Section 202 of CrPC is that the former is at the pre-cognizance stage whereas the latter is at the post-cognizance stage.

The Chapter XII and the Chapter XIV of the CrPC serve two different purposes: the former is at the pre-cognizance stage while the latter is at the post-cognizance stage. The Chapter XII, so far as Magistrate is concerned, deals with pre-cognizance stage but Chapter XIV containing Section 190 deals with post-cognizance stage,.

Therefore once a Magistrate starts acting under Section 190 and the subsequent provisions of the code, he cannot order police investigation under Section 156(3). The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages.  

In the case of a complaint, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a).  But if he takes cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of the power under Section 156(3).  An order made under Section 156 (3) is in the nature of intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation covers the process from collection of evidence under Section 156 to the filing of the report or charge sheet under Section 173 of CrPC.

On the other hand, the Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the evidence is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct an investigation "for the purpose of deciding whether or not here is sufficient ground for proceeding ".

Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing the proceedings already instituted upon a complaint before him. Both the investigations are different.

Power to take cognizance different from the power to try

The power to take cognizance is different from the power to inquire into or try a case. A Sessions Court may have power to try a case but not to take cognizance of the offence.

On the other hand a Magistrate has power to take cognizance of an offence but not to inquire into or try the case.

Limitations on taking Cognizance:

The Criminal Procedure Code, vide Section 195 to Section 199, prescribes the limitations on taking cognizance. 

Section 195(1)(a) prohibits the Court from taking cognizance of offences punishable under Section 172 to Section 188 of the Indian Penal Code (offences relating to contempt of public servant) unless a written complain has been lodged in this regard by such public servant.

Section 195(1)(b)(i) prohibits the court from taking cognizance in case of an attempt, conspiracy, abetment of offences against public justice.

Section 195(1)(b)(ii) prohibits the court from taking cognizance in case of an attempt, conspiracy, abetment of offences relating to documents given in evidence, i.e., offences 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.

Further, according to Section 195(2) of the Code, ‘‘Court will not further proceed with the trial when the order of withdrawal is given by a superior officer of a public servant (who has complained).’’ Provided that if trial in the court has been concluded then no such withdrawal shall be ordered.

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.” Section 153A of IPC deals with harmony, 295A deals with the offence of statements which result in infringements of religious belief and Section 505 deals with an offence related to public mischief.

Section 196(2) provides the procedure for prosecution of conspiracy that aims to commit offence against the state. According to this Section, no court has the authority to take up any offence which falls under Section 120 B of the IPC until and unless the State government or District Magistrate has given the consent for the same in writing.

Under Section 197 of CrPC, a prior sanction from a competent officer is required to prosecute a government or public servant for any alleged criminal act done in an attempt to discharge of his official duty. 

Section 198 of the CrPC prescribes exception to the general rule that a complaint can be filed by anybody even if not connected to the victim. It says that only aggrieved person or person specified under the section can file a complaint relating to offenses relating to marriage. Vide this Section, a Magistrate is prevented from inquiring into cases of marriage on his own motion, unless the husband or other authorized person complains so, but once a case has been placed before him, a Magistrate is free to proceed against any person implicated. 

COGNIZANCE U/S 190 OF Cr.P.C- RELEVANT CASE LAWS:

1.      R.R Chari v. State of U.P. - “Taking cognizance does not mean any formal action or expected action of any kind but occurs as soon as a magistrate as such involves his mind to the suspected commission of an offence.”

2.    P. Kunhumuhammed v. State of Kerala- the report of a police officer following an investigation contrary to S. 155(2)[3] could be treated as complaint under S. 2(d) and S. 190(1)(a) if at the commencement of the investigation the police officer is led to believe that the case involved the commission of a cognizable offence or if there is a doubt about it and investigation establishes only commission of a non- cognizable offence.

3.    Tula Ram v. Kishore Singh- Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a magistrate, as such applies his mind to the suspected commission of an offense for the purpose of proceeding to take subsequent steps towards injury or trial. Also, When a Magistrate applies his mind not for the purpose of proceeding as mentioned above, but for taking action of some other kind, like ordering investigation under s.156(3) or issuing a search warrant for the purpose of investigation he cannot be said to have taken cognizance of the offense. And the word cognizance has been used in the Code to indicate the point when the magistrate or a judge first takes judicial notice of an offense.

4.    Pitambar Buhan v. State of Orissa- Taking cognizance includes intention of initiating a judicial proceeding against an offender in respect of an offense or taking steps to see whether there is basis for initiating a judicial proceeding.

5.    Purshottam Jethanand v. State of Kutch- If a magistrate takes cognizance of an offense and proceeds with a trial though he is not empowered in that behalf and convicts the accused, the accused cannot avail himself of the defect and cannot demand that his conviction be set aside merely on the ground of such irregularity, unless there is something on the record to show that the magistrate had assumed the power, not erroneously and in good faith, but purposely having knowledge that he did not have any such power. On the other hand, if a magistrate who is not empowered to take cognizance of an offense takes cognizance upon information received or upon his own knowledge under S. 190(1)(c) his proceeding shall be void and of no effect. In such a case it is immaterial whether he was acting erroneously in good faith or otherwise.

6.    Bashir-ul-Haq v. State- Section 195 of Cr.P.C. requires that without a written complaint of the public servant concerned no prosecution for an offense under Section 182, IPC can be launched nor any cognizance of the case taken by the Court.

7.     Santosh Singh v. Izhar Hussain- Every incorrect or false statement does not make it incumbent upon the Court to order prosecution. The Court should exercise judicial discretion taking into consideration all the relevant facts and circumstances. It should order prosecution in the larger interest of justice and not gratify the feelings of personal revenge or vindictiveness or serve the ends of a private party.
 

Additional Reading

  1. Kelkar, R V: Criminal Procedure, 6th ed.  Lucknow, Eastern Book Co, 2015
  2. Judgement in Ajit Kumar Palit v State of West Bengal: AIR 1963 SC 765
  3. Judgement in Tula Ram v Kishore Singh: (1977) 4 SCC 459

CONCLUSION

Even though the term ‘taking cognizance’ has not been defined in the Code of Criminal Procedure, 1973 or any other act, the terms has acquired definite connotation through judicial pronouncements. 

Taking cognizance actually thus does not involve any formal action by the judge or magistrate, because as soon as a magistrate applies his mind to the suspected commission of an offence for the purpose of taking subsequent steps under CrPC, cognizance can be said to have been taken.

Some limitation has been put on Magistrate’s power to take cognizance under Section 195 to 199 of the CrPC. He has power to take cognizance of an offence but cannot inquire into or try the case. 
Therefore, the stage of taking cognizance is an important ‘judicial check’ on the powers of the police and is essential to the rule of law.
 

NB: The author, an Advocate at Thrissur Bar, can also be contacted at email: rajankila@hotmail.com


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