Cognizance – explained: 10. It cannot be gainsaid that the cognizance is taken of an offence and not of the offender. As such the phrase “taking cognizance” has nowhere been defined in the Cr.P.C, however has been interpreted by this Court to mean “become aware of” or “to take notice of judicially”. In S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and Others [(2008) 2 SCC 492], this Court while explaining the scope of the enquiry under Section 202 Cr.P.C, observed as under:-
“19. The expression “cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. “Taking cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.
21. Chapter XIV (Sections 190-199) of the Code deals with “Conditions requisite for initiation of proceedings”. Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) thereof is material and may be quoted in extenso:
“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 sub-section (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.”
22. …….
23. Then comes Chapter XVI (Commencement of proceedings before Magistrates). This Chapter will apply only after cognizance of an offence has been taken by a Magistrate under Chapter XIV. Section 204, where under process can be issued, is another material provision which reads as under:
“204. Issue of process.—(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be—
(a) a summons case, he shall issue his summons for the attendance of the accused, or (b) a warrant case, he may issue a warrant, or, if he thinks fit, 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.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of Section 87.”
24. From the above scheme of the Code, in our judgment, it is clear that “Initiation of proceedings”, dealt with in Chapter XIV, is different from “Commencement of proceedings” covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI.”
11. In Ramdev Food Products Private Vs. State of Gujarat [(2015) 6 SCC 439] while drawing distinction between the provisions contained in Section 156(3) and Section 202(1) of Cr.PC, this Court examined the scheme of the said sections and after discussing various earlier decisions concluded as under:-
“38. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252: 1976 SCC (Cri) 380], National Bank of Oman v. Barakara Abdul Aziz [(2013) 2 SCC 488: (2013) 2 SCC (Cri) 731], Madhao v. State of Maharashtra [(2013) 5 SCC 615: (2013) 4 SCC (Cri) 141], Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185 : (2010) 2 SCC (Cri) 801] , the scheme of Sections 156(3) and 202 has been discussed. It was observed that power under Section 156(3) can be invoked by the Magistrate before taking cognizance and was in the nature of preemptory reminder or intimation to the police to exercise its plenary power of investigation beginning with Section 156 and ending with report or charge-sheet under Section 173. On the other hand, Section 202 applies at post cognizance stage and the direction for investigation was for the purpose of deciding whether there was sufficient ground to proceed.”
xxx
SECOND COMPLAINT ON THE SAME FACTS IS MAINTAINABLE: 14. As regards the submission made by learned Senior Counsel, Mr. Luthra that the second complaint at the instance of the respondent no. 2 on the same set of facts against the same accused was not maintainable, it may be noted that the law in this regard is quite well settled since 1962. In case of Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar[AIR 1962 SC 876], it was held with regard to filing of the second complaint that a fresh complaint could be entertained after the dismissal of previous complaint under Section 203 of the Criminal Procedure Code when there was manifest error or manifest miscarriage of justice or when fresh evidence was forthcoming. It was further held that an order of dismissal under Section 203 of the Criminal Procedure Code is no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances, e.g. that the previous order was passed on an incomplete record or on a misunderstanding of nature of complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings have been adduced. The precise observations made in para 48 thereof may be reproduced hereunder:
“48. Under the Code of Criminal Procedure the subject of “complaints to Magistrates” is dealt with in Chapter XVI of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are Sections 200, 202 and 203. Section 200 deals with examination of complainants and Sections 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of Sections 202 and 203 were laid down in Vadilal Panchal v. Dattatraya Dulaji Gha Digaonkar [Vadilal Panchal v. Dattatraya Dulaji Gha Digaonkar, AIR 1960 SC 1113 : 1960 Cri LJ 1499] . The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and Section 203 lays down what materials are to be considered for the purpose. Under Section 203 of the Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry, if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under Section 202 of the Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under Section 203 of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. Allah Ditta v. Karam Bakhsh [Allah Ditta v. Karam Bakhsh, 1930 SCC OnLine Lah 268 : AIR 1930 Lah 879] ; R.N. Choubey v. P. Jain [R.N. Choubey v. P. Jain, 1948 SCC OnLine Pat 85 : AIR 1949 Pat 256] ; Hansabai Sayaji Payagude v. Ananda Ganuji Payagude [Hansabai Sayaji Payagude v. Ananda Ganuji Payagude, 1949 SCC OnLine Bom 99 : AIR 1949 Bom 384] and Doraiswami Ayyar v. T. Subramania Ayyar [Doraiswami Ayyar v. T. Subramania Ayyar, 1917 SCC OnLine Mad 167 : AIR 1918 Mad 484] . In regard to the adducing of new facts for the bringing of a fresh complaint the Special Bench in the judgment under appeal did not accept the view of the Bombay High Court [Hansabai Sayaji Payagude v. Ananda Ganuji Payagude, 1949 SCC OnLine Bom 99 : AIR 1949 Bom 384] or the Patna High Court [R.N. Choubey v. P. Jain, 1948 SCC OnLine Pat 85 : AIR 1949 Pat 256] in the cases above quoted and adopted the opinion of Maclean, C.J. in Queen Empress v. Dolegobind Dass [Queen Empress v. Dolegobind Dass, 1900 SCC OnLine Cal 229 : ILR (1901) 28 Cal 211] affirmed by a Full Bench in Dwarka Nath Mondul v. Beni Madhab Banerjee [Dwarka Nath Mondul v. Beni Madhab Banerjee, 1901 SCC OnLine Cal 242 : ILR (1901) 28 Cal 652] . It held therefore that a fresh complaint can be entertained where there is manifest error, or manifest miscarriage of justice in the previous order or when fresh evidence is forthcoming.”
15. The said observations made in the Pramatha Nath Talukdar (supra) case were reiterated in various later decisions in case of Jatinder Singh and others Vs. Ranjit Kaur [(2001) 2 SCC 570], in case of Ranvir Singh Vs. State of Haryana and Another [(2009) 9 SCC 642], in case of Poonam Chand Jain and Another Vs. Fazru [(2010) 2 SCC 631], as also in the latest decision in case of Samta Naidu and Another Vs. State of Madhya Pradesh and Another [(2020) 5 SCC 378]. Thus, having regard to the said legal position, it could not be said that the trial court had committed any error in entertaining the complaints filed by the respondent complainant, when the previous complaint filed by him was pending before the other court, and more particularly when the said court had dismissed the said previous complaint for non prosecution, without taking cognizance of the alleged offences therein.
SUMMONING THE ACCUSED IN COMPLAINT CASES – PROCEDURE EXPLAINED: 18. No doubt, summoning of an accused is a serious matter and therefore the Magistrate before issuing the summons to the accused is obliged to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face any frivolous complaint, nonetheless one of the objects of Section 202 Cr.P.C. is also to enable the Magistrate to prosecute a person or persons against whom grave allegations are made. Just as it is necessary to curtail vexatious and frivolous complaints against innocent persons, it is equally essential to punish the guilty after conducting a fair trial. In the instant cases, all the three courts below have discussed in detail about the prima facie involvement of the appellant in the alleged offences, and therefore it is not necessary for this Court to reiterate the same. Suffice it to say that having carefully examined the record of the complaints in question, we do not find any illegality or infirmity in the orders passed by the trial court issuing summons against the appellant-Archbishop for the alleged offences.
PARTY: CARDINAL MAR GEORGE ALENCHERRY vs. STATE OF KERALA & ANR – CRIMINAL APPEAL NOS……………OF 2023 (@ SPECIAL LEAVE PETITION (CRL.) NOS. 2849-2854 OF 2022) -17.03.2023.
URL: https://main.sci.gov.in/supremecourt/2021/26982/26982_2021_5_1502_42818_Judgement_17-Mar-2023.pdf.
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