Jojy George Koduvath

Taken from: What is COGNIZANCE and Application of Mind by a Magistrate

Abstract

Introduction

In legal parlance ‘cognizance’ is “taking judicial notice of a matter, with a view to initiate legal action”.

Under Sec. 190, Criminal Procedure Code, 1973,  ‘cognizance’ of an offence is taken by a Magistrate in the following situations –

• (i) upon receiving a complaint,
• (ii) upon a police report,
• (iii) upon information received from any person other than a police officer, or
• (iv) upon his own knowledge.

It is important to note –

• The CrPC does not precisely specify – what is ‘cognizance’.
• Dictionary meaning of ‘cognizance’ is – ‘knowledge or awareness’, ‘taking notice of’ etc.

What is Cognizance, Deciphered

What is ‘cognizance’ can be deciphered from the following propositions of law –

• Cognizance is taken against an offence; and not against the offender.
• Cognizance can be taken by a court on a complaint, or on a police report.
• It can also be on facts presented before a court, or brought into its focus.
• It is application of judicial mind on the materials, oral and documentary.
• While taking cognizance, the court prima facie apply the facts to the concerned law analysing both.
• Taking cognizance is not the same thing as issuance of process; for, Cognizance is taken first, and process is issued subsequently.
• A Magistrate can order investigation (by Police) under Sec. 156(3) of Cr.P.C. before taking cognizance of the offence.

In short, Cognizance is the judicial process made by a court for arriving at a conclusion whether a legal action be initiated against an offence by a process of reasoning, analysing facts in the light of the law applicable.

In simple terms, it is a fact finding process at the beginning stage of proceedings – to see whether, prima facie, an offence has been committed.

Supreme Court Decisions on Cognizance

• Taking cognizance occurs as soon as a Magistrate applies his judicial mind to the suspected commission of offence.
  • R.R. Chari v. State of U.P. AIR 1951 SC 207;
  • Tula Ram v. Kishore Singh, AIR 1977 SC 2401.
• Taking cognizance does not involve any formal action or procedure.
  • R.R. Chari v. State of U.P. AIR 1951 SC 207;
  • Tula Ram v. Kishore Singh, AIR 1977 SC 2401.
• In broad and literal sense cognizance means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes.
• The word ‘cognizance’ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge.
  • State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684.
• But, when a Magistrate applies his mind for taking action of some other kind, such as directing an investigation under Section 156(3) of Cr.P.C. or issuing a search warrant or a warrant of arrest for the purpose of investigation, he cannot be said to have taken cognizance of the offence. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.
• The powers under Section 156(3) to direct a police investigation can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process.
  • Tula Ram v. Kishore Singh, AIR 1977 SC 2401;
  • Narayandas Bhagwandas Madhavdas v. West Bengal, AIR 1959 SC 1118;
  • D. Lakshminarayana v. V. Narayana,  AIR 1976 SC 1672
  • Suresh Chand Jain case, (2001) 2 SCC 628;
  • Dharmeshbhai Vasudevbhai case, (2009) 6 SCC 576;
  • Devarapalli Lakshminarayana Reddy case, (1976) 3 SCC 252;
  • Dilawar Singh v. State of Delhi, (2007) 12 SCC 641.
• Court of Session has no jurisdiction to take cognizance of an offence as a court of original jurisdiction.  But, on committal, Sessions Court gets jurisdiction, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record.  Hence on committal under S.209, Sessions Judge may summon, without recording evidence, the appellants not named in police report under S. 173 to stand trial along with those already named therein.
  • Kishun Sing v. State of Bihar, (1993) 2 SCC 16.
• At the time of taking cognizance of the offence, the Court considers only the averments made in the complaint or in the charge-sheet filed under Section 173. It is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter.
  • State of Bihar V. Rajendra Agarwall (1996 (8) SCC 164);  
  • Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
• It is open to the Court, before issuing the process, to record the evidence, and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters.
  • Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
• The complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a prima facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage.
  • Ponnal @ Kalaiyarasi v. Rajamanickam, 1998 (4) Crimes 543
• Taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage 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 other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.
  • State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728.
• To proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation.
  • Srinivas Gundluri v. SEPCO Electric Power Construction Corporation, (2010) 8 SCC 206,
  • Anju Chaudhary v. State of U.P., (2013) 6 SCC 384.
• Based on the allegations made in the complaint or the evidence led in support of the same, at the stage of issuing the process to the accused,the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused (and not whether there is sufficient ground for conviction; it is determined only at the trial). At this stage, the Magistrate is not required to record reasons. Though speaking or elaborate reasoned orders are not required at this stage, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. And the Magistrate is not to act as a post office in taking cognizance of the complaint.
  • Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420,
  • Birla Corporation Ltd. v. Adventz Investments and Holdings, (2019) 16 SCC 610.

‘Cognizable Offence’ and ‘Non-Cognizable Offence’

‘Cognizable offence’ is defined in Section 2 (c) of the CrPC as under:

• “Cognizable offence means an offence for which, and ‘cognizable case’ means a case in which a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant “.

Section 2(l) defines ‘non-cognizable offence’ as under:

• “Non-Cognizable offence means an offence for which and ‘non cognizbale case’ means a case in which a police officer has no authority to arrest without warrant.”

Cognizance of Offences By Magistrate

Section 190:

• Cognizance of offences by Magistrates: (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-
• (a) upon receiving a complaint of facts which constitute such offence;
• (b) upon a police report of such facts;
• (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
• (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.

Section 191:

• Transfer on application of the accused: When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

Section 192:

• Making over of cases to Magistrates: (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate subordinate to him.
  (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

Section 200

• Sec.  200. Examination of complainant: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;
• Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
• Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

It is clear that under Sec. 200, in case of a (private) complaint, cognizance is taken by a Magistrate when the Magistrate applies his mind to proceed and examine the complainant.

Subsequent proceedings after taking cognizance (Chapter XVI: Sections 204 to 208)

On getting police report, the Magistrate may resort to one of the following three steps:

• (i) accept the report and take cognizance of the offence and issue process;
• (ii) disagree with the report and drop the proceedings or
• (iii) direct further investigation under Section 156(3).

Where the report of the police states that no offence appears to have been committed, then the Magistrate may resort to one of the following three steps:

• (a) accept the (refer) report and drop the proceedings;
• (b) disagree with the report and take cognizance of the case and issue process or
• (c) direct further investigation to be made by the police under Section 156(3).

If the Magistrate decides not to take cognizance of offence or drop proceedings against some persons mentioned in F.I.R., he must give notice and hear first the informant. Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.

• Similarly, where the Magistrate decides not to take cognizance of the offence in spite of Report under sub-sec.(2) of S.173 and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant (not to the injured or to a relative of the deceased, unless such person is the informant) and provide him an opportunity to be heard at the time of consideration of the report. (However, such injured or to a relative of the deceased can appear before the Magistrate and make his submissions when the report is considered by the Magistrate.) Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.