RESOURCE – TAKING COGNIZANCE – A BASIC UNDERSTANDING

THE COGNIZANCE

COGNIZANCE OF OFFENCES BY COURTS

Till the criminal Court takes cognizance of the offence there is no criminal proceedings pending[1].

COGNIZANCE IS NOT AN INQUIRY

Further, in the present case there is no question of referring to the provision of section 319 Cr.P.C. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under section 2(g) Cr.P.C nor the trial had started. He was exercising the jurisdiction under section 190 of taking cognizance of an offence and issuing process[2].

COGNIZANCE – COGNIZANCE HOW MANY TIMES CAN BE TAKEN?

It is well settled that cognizance of an offence can only be taken once[3]. Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officer’s report was received[4].

COGNIZANCE – COGNIZANCE ON OFFENCE

We are conscious of the legal position that ingredients of each of the provisions of IPC, which is sought to be foisted upon the respondents are to be ‘prima facie’ established before cognizance of the complaint is taken by the Judicial Magistrate[5].

Example: But, says the learned counsel for the appellant, the Magistrate cannot proceed with the triable of these other offences triable under Chapter XX because no cognizance has been taken of such other offences. He contends that only after a fresh complaint has been made in respect of these offences triable under Chapter XX that the Magistrate can take cognizance and then proceed to try them after following the procedure prescribed by law. This argument ignores the fact that when a Magistrate takes cognizance of offences under S. 190 (1) (b) Cr. P. C. he takes cognizance of all offences constituted by the facts reported by the police officer and not only of some of such offences. For example, if the facts mentioned in the police report constitute an offence under S. 379 I. P. C., as also one under S. 426 I. P. C. the Magistrate can take cognizance not only of the offence under S. 379 but also of the offence under S. 426. In the present case the police report stated facts which constituted an offence under S. 332 I. P. C., but these facts necessarily constitute also a minor offence under S. 323 I. P. C. The Magistrate when he took cognizance under S. 190(1)(b) Cr. P. C., of the offence under S. 332 I. P. C., cannot but have taken cognizance also of the minor offence under S.323 I. P. C. Consequently, even after the order of discharge was made in respect of the offence under S. 332 I. P. C., the minor offence under S. 323 of which he had also taken cognizance remained for trial as there was no indication to the contrary. That being an offence triable under Chapter XX Cr. P. C., the Magistrate rightly followed the procedure under Chapter XX[6].

COGNIZANCE – A JUDICIAL ORDER

The order passed by the Magistrate taking cognizance is a well written order[7]. However, as rightly pointed out by the learned senior counsel for the petitioners, the learned special judge failed to note what are all the offences alleged against each one of the accused and what are all the offences taken cognizance of against each one of the accused[8].

In this case, the learned Magistrate has not passed a detailed order as to how the report filed by the police has been accepted. If the learned Magistrate has passed an order by applying his mind in order to find out whether to accept or drop the proceedings and in the said process, the complainant is heard after intimation and the Magistrate records the reasons for doing so, then the said order can be termed to be judicial order, as held by the Hon’ble Supreme Court. Mere writing of orders endorsing as “lodges”, “filed” or “mistake of fact” will not amount to judicial order, as held by the Hon’ble Supreme Court and when such a judicial order is not passed, the complainant cannot be prevented from ventilating the grievance through the same Court by filing a second complaint and the same has been held in Chelliah vs. Yesuvadial [1998(2) LW (Crl) 566][9].

However, as rightly pointed out by the learned Senior Counsel for the petitioners, the learned Special Judge failed to note what are all the offences alleged against each one of the accused and what are all the offences taken cognizance of against each one of the accused[10].

It is well settled law that the Magistrate while taking cognizance and ordering issue of summons to the accused even on a police report, is required to apply his judicious mind to the contents of the charge sheet and form an opinion whether, it prima facie makes out a case for all or any of the offences alleged. Of course, at that stage, the learned Magistrate is not required to pass an elaborate order. However, the order though brief, should be capable of indicating the application of judicious mind to the materials placed before him. In the case on hand, the order does not pass the said test. The learned Magistrate even without finding out as to under which Act the offences are alleged has proceeded to take cognizance and has ordered issue of summons to the accused. Therefore, the order passed by the learned Magistrate taking cognizance and ordering issue of summons is not in accordance with law, therefore, is liable to be set aside. However, the Magistrate is required to be directed to apply his mind and pass appropriate orders there on in accordance with law[11].

COGNIZANCE – JUDICIAL ORDER – POCSO ACT

On 25.05.2016, when the accused appeared in response to the summons, the learned Judge framed charges against the accused on hearing both the parties. Thus at that stage, neither the accused nor his counsel raised any objection regarding the absence of written order taking cognizance of offence. 19. In this regard, we have to state that the order taking cognizance of offences on the police report, of course, is a judicial order. But, the expression “taking cognizance” has not been defined anywhere. The Hon’ble Supreme Court on many occasions, has declared that taking cognizance of offence means application of the judicial mind of the Judge with a view to take further action. If once he had applied his judicial mind and decided to proceed further, then the process of taking cognizance is complete. In this case, the learned Judge, though had not passed any written order taking cognizance, undoubtedly he had applied judicial mind into the entire police report and accordingly, had proceeded further to post the case for framing 18 charges against the accused. This would go to show that the learned Judge had applied his judicial mind with a view to proceed further and then only he posted the case for framing charges. Thus, though there was no written order passed by the learned Judge taking cognizance of the offence, in fact, he had taken cognizance of the offence, which is inferable from the above facts. Madras High Court after quoting State of Madhya Pradesh vs Bhooraji and others[12] has held that in the instant case, in our considered view, applying the same, we are fully convinced that though there was no formal written order, taking cognizance, the fact remains that there was in fact cognizance taken by the learned Judge and at any rate, there has been no failure of justice. In such view of the matter, the first ground raised by the learned counsel for the appellant is rejected[13].

COGNIZANCE – ACQUITTAL

The court should not pass an order of acquittal by resorting to a course of not taking cognizance, where prima facie case is made out by the Investigating Agency. More so, it is the duty of the court to safeguard the right and interests of the victim, who does not participate in discharge proceedings. At the stage of application of Section 227, the court has to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage, is not permissible[14].

COGNIZANCE – REFUSE TO TAKE

The Magistrate, in exercise of its power under Section 190 Cr.P.C., can refuse to take cognizance if the material on record warrants so. The Magistrate must, in such a case, be satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161 and 164 Cr.P.C., if any, do not make out any offence. At this stage, the Magistrate performs a judicial function. However, he cannot appreciate the evidence on record and reach a conclusion as to which evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is impermissible. The Magistrate is not competent to weigh the evidence and the balance of probability in the case[15].

COGNIZANCE – NO DISCHARGE

Thus, it is evident from the aforesaid judgment that when an offence is cognizable by the Sessions court, the Magistrate cannot probe into the matter and discharge the accused. It is not permissible for him to do so, even after considering the evidence on record, as he has no jurisdiction to probe or look into the matter at all. His concern should be to see what provisions of the Penal statute have been mentioned and in case an offence triable by the Sessions Court has been mentioned, he must commit the case to the Sessions Court and do nothing else[16].

COGNIZANCE – REASONED ORDER

Now coming to the second aspect as to the legality of the order of the learned Magistrate taking cognizance of the matter. The standard required by the Magistrate while taking cognizance is well settled by this court in catena of judgments. In Subramanian Swamy vs. Manmohan Singh & Another[17], this Court explained the meaning of the word ‘cognizance’ holding that “…In legal parlance cognizance is taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially”. We may note that the Magistrate while taking cognizance has to satisfy himself about the satisfactory grounds to proceed with the complaint and at this stage the consideration should not be whether there is sufficient ground for conviction. It may not be out of context to note that at the stage of taking cognizance, the Magistrate is also not required to record elaborate reasons but the order should reflect independent application of mind by the Magistrate to the material placed before him[18].

COGNIZANCE – NO DIRECTION TO MAGISTRATE

On a perusal of the order of the learned Magistrate taking cognizance, it is apparent that the learned Magistrate observes that the Sessions court has already made out a prima facie case. Such finding would be difficult to sustain as the revisional court only observed certain aspects in furtherance of remanding the matter. Such observations could not have been made by the Magistrate as he was expected to apply his independent mind while taking cognizance[19].

COGNIZANCE – COGNIZANCE ON UNKNOWN OFFENCES

Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards[20].

COGNIZANCE – IMPACT OF WRONG COGNIZANCE

It is well settled that the Magistrate can disagree with the negative final report filed by the Investigation Officer and take cognizance thereon, if there are materials to do so. But, before doing so, he must see whether there is any ground to proceed further. He must apply his judicial mind and then take decision. We have already stated that taking cognizance as against a person, has serious consequence. If it is not properly exercised, it will militate against Article – 21, Constitution of India. Any order as against law is an illegal order. An order by the learned Magistrate directing a person to face a criminal case without applying his judicial mind is an illegal order[21].

COGNIZANCE – COGNIZANCE IS NOT AN INQUIRY

Further, in the present case there is no question of referring to the provision of section 319 Cr.P.C. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated u/s 2(g) Cr.P.C nor the trial had started. He was exercising his jurisdiction u/s 190 of taking cognizance of an offence and issuing process[22].

COGNIZANCE – MATERIAL TO IMPLICATE ACCUSED – 302 IPC SET ASIDE

It is well-settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused vide R.P. Kapur vs. State of Punjab (1960) 3 SCR 388, State of Haryana vs. Bhajan Lal (1992) Suppl (1) SCC 335, Janta Dal vs. H.S. Chowdhary (1992) 4 SCC 305, Raghubir Saran (Dr) vs. State of Bihar (1964) 2 SCR 336, State of Karnataka vs. M. Devendrappa (2002) 3 SCC 89 and Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haque (2005) 1 SCC 122. In the present case, there is not even an iota of material indicating the guilt of the accused persons. It is true that at the stage of taking cognizance adequacy of evidence will not be seen by the Court, but there has to be at least some material implicating the accused, and cognizance cannot be taken merely on the basis of suspicion as it appears to have been done in the present case. To take a contrary view would only lead to harassment of people”. From the above judgment, it is clear that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused and cognizance cannot be taken on pure conjectures and surmises. This Court is of the considered view that the Court below has taken cognizance of the Final Report and framed a charge under Section 302 of IPC against the petitioners without there being any material brought forth by the prosecution. Therefore, the petitioners cannot be made to undergo the ordeal of trial for an offence under Section 302 of IPC[23].

COGNIZANCE – PROCEDURE TO BE FOLLOWED AFTER CHARGE SHEET FILED – AN OVERVIEW

The scheme for inquiry/trial provided under Code of Criminal Procedure is quite clear. After investigation, report u/s. 173(2) Cr.P.C is to be submitted before the competent court i.e, the Magistrate having jurisdiction in the matter and the Magistrate may take cognizance u/s 190 Cr.P.C. However, it is still open to the Magistrate to direct further investigation under the provisions of section 173(8) Cr.P.C. If the case is triable by the Court of Session, the Magistrate would commit the case to the said court u/s 209 Cr.P.C. It is for the Court to examine whether there is sufficient material collected during investigation and filed along with the charge-sheet that a prima facie view can be taken to proceed against the accused and in view thereof, frame charges u/s 228 Cr.P.C. At this stage the remedy available to the accused is to ask for discharge u/s 227 Cr.P.C. In case charges are framed the accused has to face the trial, charges can be added/altered at any stage of the trial, before the pronouncement of the judgment to suit the evidence adduced before the court, under the provisions of section 216 Cr.P.C. The only legal requirement is that a witness has to be recalled as provided u/s 217 Cr.P.C when a charge is altered or added by the court[24].

This chapter deals with what is meant by cognizance, who can take cognizance of offence(s). Every defence counsel must aware of cognizance and every prosecutor must beware of cognizance. Cognizance is the very fundamental of the Criminal Procedure, if the court captures the grip of cognizance there is no looking behind and the grip continues till the court pronounce its judgment and cognizance continues even in appellate court.

COGNIZANCE – FURTHER FINAL REPORT

Where the police report forwarded to the Magistrate under section 173 (2) Cr.P.C states that a person has committed an offence, but after investigation the further report under section 173 (8) Cr.P.C, states that the person has not committed the offence, it is for the Magistrate to form an opinion whether the facts, set out in the two reports, make out an offence committed by the person[25]. Supreme Court quoting above decision and further held in Rupan Deol Bajaj vs. Kanwar Pal Singh Gill[26] that where the police in its report of investigation or further investigation recommends discharge of the accused, but the complainant seeks to satisfy the court that a case for taking cognizance was made out, the court must consider the objections of the complainant and if it overrules such objections, it is just and desirable that the reasons for overruling the objections of the complainant be recorded by the Court and this was necessary because the court while exercising power under section 190 Cr.P.C whether to take cognizance or not to take cognizance exercises judicial discretion[27].

COGNIZANCE – HOW TO TAKE?

It is fairly settled legal position that at the time of taking cognizance of the offence, the Court has to consider only the averments made in the complaint or in the charge-sheet filed u/s 173, as the case may be. It was held in State of Bihar Vs. Rajendra Agrawalla, , that 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. It is equally settled law that 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. If it is a charge-sheet filed u/s 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognisance would be taken by the court to proceed further in the matter. Thus it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not. The learned Judge, therefore, was clearly in error in attempting to sift the evidence with reference to the averments made by the respondent in the counter-affidavit to find out whether or not offence punishable u/s 406, IPC had been made out[28].

COGNIZANCE – DEFENCE MATERIALS

At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial[29].

SCOPE OF COGNIZANCE IN THE OLD CR.P.C (1898)

Under Sec. 190 of the Code of Criminal Procedure, a magistrate can take cognizance of an offence, either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he can under S. 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complain which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. Under Section 202, a magistrate, on receipt of a complaint, may postpone the issue of process and either inquire into the case himself or direct an inquiry to be made by a magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. Under Section 203, he may dismiss the complaint, if, after taking the statement of the complainant and his witnesses and the result of the investigation, if any, under Section 202, there is in his judgment “no sufficient ground for proceeding”[30]. Supreme Court considered the scheme of Sections 200 to 203 and held that the inquiry envisaged there is for ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. The section does not say that a regular trial of adjudging the truth or otherwise of the person complained against should take place at that stage, for such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial[31].

Section 190 Cr.P.C lays down the conditions which are requisite for the initiation of criminal proceedings. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the Investigating Officer and he is competent to exercise his discretion irrespective of the views expressed by the Police in its report and may prima facie find out whether an offence has been made out or not[32].

SCOPE OF COGNIZANCE UNDER NEW CR.P.C (1973)

PRE – COGNIZANCE STAGE

Before, we examine the cognizance. We may briefly refer to some of the provisions in Chapters XII, XIV, XV and XVI of the Code. Section 155 in Chapter XII pertains to information laid to the police regarding non-cognizable cases and sub-section (2) lays down that no police officer shall investigate a non-cognisable case without   the order of a Magistrate having power to try such case or commit the case for trial. Section 156(1) confers power on an officer in charge of a police station to investigate any cognizable case without the order of a Magistrate. Section 156(3) authorises a Magistrate, empowered under Section 190 to order the police to make an investigation as provided for in Section 156(1). The other provisions in the Chapter from Section 157 onwards set out the powers of investigation of the police and the procedure to be followed. Section 169 prescribes the procedure to be followed by an officer in charge of a police station if it appears to him upon investigation of a case that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 170 prescribes the procedure to be followed by the officer in charge of a police station if it appears to him upon investigation that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 173(1) enjoins a Police officer to complete the investigation without unnecessary delay. Section 173(2) lays down that as soon as the investigation is completed the officer in charge of a police station should forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub-section.

COGNIZANCE – STAGE

Chapter XIV deals with the conditions requisite for initiation of proceedings and as to the powers of cognizance of a Magistrate. Chapter XVI deals with “Commencement of proceedings before Magistrates” and Section 204 empowers a Magistrate to issue summons or a warrant as the case may be, to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.

POST – COGNIZANCE OR WHILE TAKING COGNIZANCE

Chapter XV which contains Sections 200 to 203 deals with “Complaints to Magistrates”. A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case, upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct 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. Section 203 empowers the Magistrate to dismiss the complaint, if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202; the Magistrate is of opinion that there is no sufficient ground for proceeding.

TAKING COGNIZANCE MEANS

“What is meant by ‘taking cognizance of an offence’ by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190 (1)(a). If instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigating, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence”[33].

WHAT IS NOT TAKING COGNIZANCE?

When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence[34].

THEORY OF COGNIZANCE

THEORY – 1

From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process straight way to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police there from. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued[35].

To the contra Madras high court held that every investigation by an investigation agency done u/chap XII of the Cr.P.C should culminate in a police final report being submitted to the jurisdiction Magistrate as provided in sec 173(2) of the Code of Criminal Procedure. If any such report is filed before the Magistrate, the learned Magistrate has got three options before him, more particularly, if the report is a negative report, not prosecuting any person, then, as held by the Hon’ble Supreme Court in Bhagwant Singh vs. Commissioner of Police[36], the Magistrate is bound to issue notice to the complainant. On such notice or even without such notice being served, the complainant is entitled to file a petition known as protest petition, disputing the said final report on any valid ground. After affording sufficient opportunity to the police as well as to the complainant or any other aggrieved person, it is for the Magistrate either to accept the said final report submitted by the police and to close the case or to take cognizance of offence if there are sufficient materials available on record and produced along with final report by the police or to issue a direction for further investigation in the event the Magistrate is not satisfied with the investigation, as provided in section 173(8) of the Cr.P.C. Either one of the above said courses will be available for the Magistrate only after filing of final report as provided in section 173(2) of the Cr.P.C[37].

THEORY – 2

The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognisance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognisance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognisance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also[38]. Supreme Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police, the Court observed that the Magistrate could take cognizance under Section ‘190(1)(c)'[39].

TAKING COGNIZANCE IN THE CODE WHAT IS?

In Ajith singh & others V. The State[40] it was held clearly what is the meaning of ‘cognizance’ and the scope?

Cognizance of offences – taking ‘cognizance’ – what amounts to? – Though expression “taking cognizance” has not been defined in Cr.P.C. it can be said that before any Magistrate takes cognizance of an offence he must have applied his mind for the purpose of proceeding in a particular way as indicated in the subsequent provisions.  Taking cognizance of offence does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. When a complaint is filed before the Magistrate that F.I.R has not been registered by police regarding a cognizable offence the Magistrate has discretion either to direct the police to investigate the case u/s. 156(3) Cr.P.C or to proceed to examine the complaint u/s 200. The discretion so exercised by the Magistrate cannot be interfered with only because other view is possible[41].

When a Magistrate applies his mind not for the purpose of proceeding under the subsequent sections but for taking action of some other kind eg ordering investigation u/s 156(3) or issuing a warrant for the purpose of such investigation, he cannot be said to have taken cognizance of the offence[42]. The context ‘may take cognizance’ means ‘must take cognizance’. The Magistrate has no discretion in the matter’ otherwise the section will be violating of Art-14[43]. But to the contra the Apex court in the subsequent years had changed its mind by promulgated that according to S. 190 Cr.P.C, that once a complaint is filed, a magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ‘may’ in S. 190 to mean ‘must’. The reason is obvious. A complaint disclosing cognizable offence may well justify a magistrate in sending the complaint u/s. 156(3) to the police for investigation[44]. Though the code defines “cognizable offence” and “non-cognizable offence”, the word ‘cognizance’ has not been defined in the code. But it is now settled law that the court takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report e.t.c… Cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence[45].

Taking cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. At the stage of taking of cognizance of offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offences are there on record[46].

Ss.200 & 202, 156(3), 190(1) (b) and 173 Cr.P.C- cognizance taken by Magistrate or merely direction for investigation given – Determination of. In Devarapalli Lakshminarayana Reddy [(1976) 3 SCC 252; 1976SCC (cri) 380;

.13….. It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance 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’ which in the context in which they occur cannot be equated with ‘must take cognizance’.

.14…. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding u/s. 200 and the succeeding sections in Chapter XV to the code of 1973, he is said to have taken cognizance of the offence within the meaning of S. 190(1) (a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police u/s. 156(3), he cannot be said to have taken cognizance of any offence[47]. Now after understand the above said ‘cognizance’ it is obvious that a question /doubt raises that if Magistrate takes cognizance and after he found some discrepancies about the alleged offence(s) against the accused, he has to clear that only by way of ‘investigation’. So in this portion whether the Magistrate can order the investigation or should continue the trial without the ‘investigation’ or doubt cleared. Here the answer is the Magistrate can order investigation u/s. 202.

The above principle purposely applies to the protest petition also. To make it clear, after receipt of protest petition filed by the complainant against the final report submitted by the police, the Magistrate could have taken cognizance on the basis of police report, if there was sufficient material available on the case diary, or could have accepted the final report, or could have treated the protest petition as a complaint case and should have proceeded in accordance with the procedure prescribed for the complaint case[48].

COGNIZANCE – COMPLAINT – PRIMA FACIE NECESSARY

“Taking cognizance of an offence” by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the CrPC such as ordering investigation under Section156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence[49].

It is clear from a perusal of the order made by the learned Magistrate that he has not done anything other than to comply with the provisions of section 202(1) proviso (b) of the Code of Criminal Procedure, that after examining the complainant and his witnesses, he found that it was necessary to further probe into the  matter and, therefore, directed investigation to be done by the police and after the investigation was done by the police and on report being filed by them, he heard the matter afresh and directed issue of summons. We find that the procedure adopted by the learned Magistrate is perfectly in order. Further Hon’ble Apex Court has held that as to when cognizance of an offence is taken will depend upon the facts and circumstances of each case and it is not possible to state the same with precision. Obviously, it is only when the Magistrate applies his mind for the purpose of proceeding u/s 200 Cr.P.C and subsequent sections that it can positively be stated that he has taken cognizance. To derive this inference, we rely upon the decision in Narayanadas Bhagwandas Madhavdas vs. The State of West Bengal[50] and Devarapalli Lakshminarayana Reddy and others vs. Narayana Reddy and others[51]. In the instance case, the learned Magistrate has called for an investigation before proceeding further even after examining the complainant and his witnesses on oath[52].

The learned counsel for the petitioner reiterated that when the petitioner examined himself as a witness before the trial court, it amounts to taking cognisance of the complaint and thereafter, the trial court is bound to follow the procedures contemplate under section 202 of Cr.P.C. Such a contention of the petitioner cannot be accepted. Mere examination of the petitioner will not amount to taking cognizance of the complaint. A complaint can be taken cognizance of only if a prima facie case is made out and upon satisfaction of existence of such prima facie case, summons could be used by the Magistrate to the accused for his or her attendance. When prima facie case has not been established by the complaint, it is well open to the Magistrate to refuse to take cognizance of the case. At this stage, the Magistrate is not bound to scrupulously examine whether such prima facie case has been made out or not against the accused. What is to be seen is whether there is existence of prima facie evidence to proceed against the accused or not, the evidence that is sufficient to establish a fact or to raise a presumption of existence of fact unless controverted. In the present case, as rightly pointed out by the court below, the complainant has not produced any documentary evidence to show the existence of a prima facie case and merely because a complaint was given, in the absence of a existence of prima facie case, the police officials cannot be directed to register a first information report against the person name in the complaint[53].

COGNIZANCE – TAKING COGNIZANCE – DEPEND UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE

“Taking cognizance of an offence” by the Court has to be distinguished from the filing of the complaint by the complainant. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed. Before it can be said that any Magistrate or Court has taken cognizance of an offence it must be shown, that he has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complainant. If the Magistrate or the Court is shown to have applied the mind not for the purpose of taking action upon the complaint but for taking some other kind of action contemplated under the Code of Criminal Procedure such as ordering investigation under Section 156(3) or issuing a search warrant, he cannot be said to have taken cognizance of the offence[54]. Taking cognizance means the point in time when a court or a Magistrate takes Judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. The expression ‘cognizance’ has not been defined in the Cr.P.C. But the word cognizance is of indefinite import. It has no esoteric or mystic significance in criminal law. It mere 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. Further Supreme Court has held that “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 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 said to have taken cognizance[55].

COGNIZANCE – PURPOSE

The whole purpose of taking cognizance of an offence under section 190(1)(b) Cr.P.C is to commence proceedings under chapter XVI of Cr.P.C by issuing process under section 204 Cr.P.C to the accused involved in the case. No doubt, it is not innocence but involvement that is material at this stage. Once the legal requirements to constitute the alleged offence qua one of the accused are lacking, there is no point in taking cognizance and proceeding further as against him[56].

COGNIZANCE – FINAL REPORT – COGNIZANCE POWERS OF MAGISTRATE / MAGISTRATE POWER

It is perfectly open to the court of construe a negative report, as a positive report and a positive report into a negative report, on the facts and in the circumstances of the case[57].

In Uma Shankar Singh v. State of Bihar (2010) 9 SCC 479), a two-Judge Bench was considering the issue pertaining to the power of the Magistrate under Section 190(1)(b) of CrPC. The Court, scanning the anatomy of the provision, opined that the Magistrate is not bound to accept the final report filed by the investigating agency under Section 173(2) of the Code and is entitled to issue process against an accused even though exonerated by the said authorities. Further Hon’ble Supreme Court has held that We have referred to the aforesaid authorities to reiterate the legal position that a Magistrate can disagree with the police report and take cognizance and issue process and summons to the accused. Thus, the Magistrate has the jurisdiction to ignore the opinion expressed by the investigating officer and independently apply his mind to the facts that have emerged from the investigation[58].

It is too well settled that when police after investigation files a final form u/s 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power u/s 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter u/s 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure u/s 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence[59].

COGNIZANCE – COGNIZANCE AGAINST UNKNOWN OFFENDER

Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards[60].

COGNIZANCE – JURISDICTION

It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to jurisdiction of the criminal courts “in enquiries and trials.” That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that “every offence shall ordinarily be in­quired into and tried by a Court within whose local jurisdiction it was committed.” But Section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court “within whose local jurisdiction such thing has been done or such consequence has ensued”. It cannot be overlooked that the said provi­sions do not trammel the powers of any court to take cognizance of the offence. Section 193 imposes a restriction on the Court of Sessions to take cognizance of any offence as a Court of original jurisdiction. But “any” Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not. The only restriction contained in Section 190 is that the power to take cognizance is “subject to the provisions of this Chapter.” There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: “Except as hereinafter provided.” Those words are now replaced by “Subject to the provisions of this chapter.” Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence – of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non-obstante clauses. Any way that is a different matter. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the Court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cogni­zance stage and not earlier[61].

COGNIZANCE – RECALLING COGNIZANCE

Madras High Court after quoting Supreme Court judgment held that when a police report is filed u/s 173 (2) of the Code, the Magistrate is to take cognizance of the offence u/s 191 (b) of the Code. Once the report is accepted and the Magistrate has taken cognizance of the offence and issued process, there is no provision to recall such taking cognizance except to challenge the charges[62].

COGNIZANCE – MERE PRESENTATION OF COMPLAINT

Cognizance – Section 138 N.I Act: Mere presentation of the complaint in the court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint is found to be pre-mature, it can wait maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed[63].

Mere presentation of the complaint and receipt of the same in the court does not mean that the Magistrate has taken cognizance of the offence. Further Supreme Court held that “cognizance” therefore has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed. Only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not[64].

COGNIZANCE – PLEA OF ALIBI

It is a settled principle of criminal jurisprudence that a plea of alibi needs to be established by the accused. Thus, obviously such a plea could not have been considered by the learned Trial Court at the stage of taking cognizance[65].

COGNIZANCE – DROP PROCEEDINGS IN FINAL REPORT BY MAGISTRATES

While dealing with a situation arising out of the report being forwarded by an officer-in-charge of a police station to the Magistrate under section 173 (2) Cr.P.C stating that no offence appears to have been committed, opined that on receipt of such a report the Magistrate can adopt one of the three courses following:

He may accept the report and drop the proceedings, (or),
He may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process, (or),
He may direct further investigation to be made by the police under section 156(3) Cr.P.C,

Supreme Court dealing with the first option of dropping the proceedings went on to say that there can, therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under section 173(2), the Magistrate is not inclined to take cognizance of this offence and issue process, the informant must be given the opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded u/s. 173(2) Cr.P.C decides not to take cognizance of the offence 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 FIR, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report[66]. When the special judge refused to accept closure report, it was his statutory and legal duty to either pass a fresh order taking cognizance if he refused to dismiss the complaint and proceed with the enquiry U/S 200 Cr.P.C by examining the complainant after which he had examining the complainant after which he had to record reasons why he disagreed with the closure report[67].

COGNIZANCE – DROP REPORT – MAGISTRATE’S POWER

The law is well settled that even if the Investigation Agency is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance there upon in exercise of his power u/s 190(1)(b) Cr.P.C[68].

Even if the Investigation Agency is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers u/s 190(1)(b) Cr.P.C[69].

Acceptance of the final report to the extent that if no case was made out by the Magistrate; it would be violative of principles of natural justice of the complainant and therefore before the Magistrate drops the proceedings the informant must know what is the result of the investigation initiated on the basis of first FIR. He is the person interested in the result of the investigation. Thus, in case the Magistrate takes a view that there is no sufficient ground for proceeding further and drops the proceedings, the informant would certainly be prejudiced and therefore, he has a right to be heard[70].

Madras High Court held that if the police official is to file a report before the learned Judicial Magistrate giving all the reasons as to how he came to the conclusion that the matter should be referred as mistake of fact, such report should also be communicated to the complainant to enable him to file his protest. A blank reference as mistake of fact would not be sufficient for the complainant to put forth his protest without knowing the reasons as to why it is referred as mistake of fact. Madras high court they felt that when a matter is referred to the court or the concerned police official should also send a copy of that report to the complainant to enable him to go through the report and protest as how he differs with the report. Now if a complaint preferred on same details then it cannot be said that the informant is prohibited from filing a private complaint and that second complaint is maintainable[71].

But, before taking any action adverse to the defacto complainant, it is the duty of the Magistrate to send a notice to the defacto complainant inviting his objections, if any. This objection is also called protest petition, if he gives any objections in writing, the learned Magistrate has to proceed it as a complaint case[72].

COGNIZANCE – DROP REPORT – COGNIZANCE ON COMPLAINT

Whether a Magistrate after accepting a negative final report submitted by the Police can take action on the basis of the protest petition filed by the complainant/first informant?

The view expressed by this Court in Gopal Vijay Verma (supra) has been followed in Mahesh Chand vs. B.Janardhan Reddy & Anr[73] and also in a somewhat recent pronouncement in Kishore Kumar Gyanchandani vs. G.D.Mehrotra & Anr[74] The clear exposition of law in para 12 of Mahesh Chand (supra) which is extracted below would leave no manner of doubt that the answer to the question posed by the High Court is correct.

“There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised”[75].

COGNIZANCE – NOTICE TO DE-FACTO COMPLAINANT

On the part of the committal court, as I have already pointed out, the court had committed illegality in simply accepting the final report without applying the judicial mind and without issuing notice to the de fact complainant as directed by the Hon’ble Supreme Court in Bhagwant Sing vs. Commissioner of Police[76].

COGNIZANCE – SUMMONING/ADDING OF ACCUSED BEFORE COMMITTAL

Supreme Court opined that once cognizance has been taken by the Magistrate; he takes cognizance of an offence and not the offender; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the person sent up by the police some other persons are involved it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this court in Pravin Chandra Mody vs. State of A.P[77]. The term ‘complaint’ would include allegation made against persons unknown. If a Magistrate takes cognizance u/s190(1)(a) Cr.P.C on the basis of the complaint of facts he would take cognizance and a proceeding would be instituted, even though persons who had committed the offence were not known at that time. The same position prevails, in our view, u/s 190(1)(a)[78].

Under this section a Magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as accused-persons, if it appears from  the evidence collected by the police that they were prima facie guilty of offence alleged to have been committed. While dealing with the scope of section 190 Cr.P.C, the cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well[79]. Section 319 Cr.P.C would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate is holding inquiry as contemplated u/s 2(g) Cr.P.C nor the trial had started. He was exercising his jurisdiction u/s 190 Cr.P.C of taking cognizance of an offence and issuing process. There is no bar u/s 190 Cr.P.C that once the process is issued against some accused on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge sheet[80].

COGNIZANCE – REFUSE TO TAKE COGNIZANCE AND REJECT THE COMPLAINT

The cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to police for investigation u/s 156 (3) Cr.P.C. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority e.t.c… These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But, if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and preceded with the inquiry[81].

COGNIZANCE – SUPPLEMENTARY CHARGE SHEET

Merely because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file ‘supplementary charge-sheet’, it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge-sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the Investigating Agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate[82].

COGNIZANCE – PRIVATE COMPLAINT

This court is of the opinion that wherever a complainant filed before a learned Magistrate, two ways are open to the learned J.M concerned. One is to direct the Investigation Officer to investigate the matter u/s 156(3) of Cr.P.C, and the other is to take cognizance u/s 190(1)(a) Cr.P.C and after taking cognizance, the learned Magistrate is at liberty to proceed u/s 202 & 203 Cr.P.C. A perusal of the complaint discloses any offence to be investigated, it should be forwarded u/s 156(3) Cr.P.C, and it does not disclose any offence and it is of not a matter to be enquired either by an Investigation Officer or by the learned Judicial Magistrate that can be dismissed as no offence made out in the complaint[83].

The word ‘cognizance’ occurring in various sections in the Code is a word of wide imprt. It embraces within itself all powers and authority in exercise of jurisdiction and taking of authoritative notice of the allegations made in the complaint or a police report or any information received that an offence has been committed. In the context of sections 200, 202 and 203, the expression ‘taking cognizance’ has been used in the sense of taking notice of the complaint or the first information report or the information that an offence has been committed on application or judicial mind. It does not necessarily mean issuance of process[84].

The steps taken by the Magistrate under section 190(1)(a) cr.p.c followed by section 204 cr.p.c should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded would, prima facie, make the accused answerable before the court. The Code of Criminal Procedure requires speaking order to be passed under section 203 Cr.P.C when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under section 202 Cr.P.C, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under section 204 Cr.P.C, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under sections 190/204 Cr.P.C, the High Court under section 482 cr.p.c is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment[85].

The learned Magistrate, after following the procedure as contemplated under section 202 Cr.P.C, took cognizance of the offence to which we shall advert to at a later stage[86].

Therefore, the curx of the matter rests into the existence of two different scenarios; the former involving only the complainant’s role and the latter introducing the accused. The former constitutes cognizance of the offence on complaint, satisfaction reached by the Magistrate that a prima facie case is made out and thereafter, issuance of process to the accused[87].

A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by complainant by filing the complaint or by the police report about the commission of an offence. “Cognizance” therefore has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed. Only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not. Under Section 200 Cr.P.C., when the complainant is examined, the Magistrate cannot be said to have ipso facto taken the cognizance, when the Magistrate was merely gathering the material on the basis of which he will decide whether a prima facie case is made out for taking cognizance of the offence or not. “Cognizance of offence” means taking notice of the accusations and applying the judicial mind to the contents of the complaint and the material filed therewith. It is neither practicable nor desirable to define as to what is meant by taking cognizance. Whether the Magistrate has taken cognizance of the offence or not will depend upon facts and circumstances of the particular case[88].

Quite contrary to the above Supreme Court while dealing with further investigation powers of Judicial Magistrate has held that the direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not[89].

In a simple private complaint case, the Magistrate may not have any materials dehors the sworn statement of the complainant to take cognizance of the offences alleged in the complaint. In such cases, it will be desirable, if the Magistrate passes an order giving reasons for taking cognizance of the offence and issuing process[90].

COGNIZANCE – TAKEN BY C.J.M

C.J.M takes cognizance and transferred the case to the J.M – whether valid? Yes.

A Magistrate who receives the case on transfer and takes cognizance would not become incompetent to do so merely because the sanction of transfer of the case to his file is not in accordance with law. The power to take cognizance has been conferred on a Magistrate by Section 190(1) of the Code, and he would not be denuded of this power because the case has come to his file pursuant to some illegal order of the Chief Judicial Magistrate. The former would be exercising his power of taking cognizance even in such a case, because of his having received a complaint constituting the offence. It would not be material, for this purpose, as to how he came to receive the complaint – directly or on transfer from the Chief Judicial Magistrate[91].

COGNIZANCE – COMPLAINT – QUALIFICATION FOR COMPLAINANT NOT NECESSARY

It is to be pertinently pointed out that the ingredients of Section 190 Cr.P.C. clearly permits any person to approach the Learned Magistrate to prefer a complaint. No qualification is prescribed for an eligible person to file a complaint. Any one can set the Criminal Law in Motion by filing a Complaint of facts constituting an offence before the Learned Judicial Magistrate concerned, who is empowered to take cognizance. After all, the concept of ‘Locus Standi’ is ALIEN to Criminal Jurisprudence. As a matter of fact, an explicit assertion as to the knowledge of ‘Power of Attorney Holder’ about the transaction in issue must be stated in the Complaint[92].

COGNIZANCE – CONTRADICTION OF WITNESSES

The Apex Court has opined that cognizance is always taken of an offence and not of the offender. Further, while taking cognizance, the learned trial court is not permitted to meticulously examine the evidence collected by the Investigating Agency. Even, if there were contradictions within the evidence so collected, the learned trial court cannot look into these contradictions. The scope and ambit of taking cognizance is limited only to seeing whether prima facie the offence is made out i.e. Whether the ingredients of the offence exist or not. The evidence which may be in favour of the accused, and the facts which may be marshalled out as part of his defence during full-fledged trial, such evidence and facts cannot be considered at the stage of taking cognizance. For at the initial satge of taking cognizance, the trial court is only concerned with the existence of prima facie case with regard to the commission of the offence[93].

COGNIZANCE – MANAGING DIRECTORS

In the case at hand as the complainant’s initial statement would reflect, the allegations are against the company, but the company has not been made arrayed as a party. Therefore, the allegations have to be restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the company. There is no specific allegation against the Managing Director. When a company has not been arrayed as party, no proceeding can be initiated against it even where vicarious liability is fastened on certain statutes. Supreme Court then quash the proceeding against the company and managing director[94].

COGNIZANCE – SESSIONS JUDGE DIRECTLY TAKING COGNIZANCE – IMPACT

This procedure alone has to be followed in this case, unless the Act is amended, empowering or conferring power upon the court of Sessions to take cognizance of the offence directly, as indicated by me comparing the provisions available in other Acts viz., the P.C Act, E.C Act, TNPID Act. If the above procedures are not followed and if the Sessions Court has taken cognizance then the Madras High Court further held that on this ground alone quashing of proceedings may not be possible, and, if at all a direction could be given to the court concerned, to send the complaint to the Judicial Magistrate concerned, having jurisdiction to commit the case, if offences are made out[95].

COGNIZANCE/PART COGNIZANCE – SESSIONS COURT

It is well settled that cognizance of an offence can only be taken once. In the event, the Magistrate takes cognizance of the offence and then commits the case to the court of session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of section 209 Cr.P.C will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the court of Session finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Court of Session[96].

COGNIZANCE – SESSIONS COURT POWER TO SUMMON ACCUSED

In that view of the matter, we have no hesitation in agreeing with the view expressed in Kishun Singh’s case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the person not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal u/s 209 Cr.P.C the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein[97].

COGNIZANCE – WRONG COGNIZANCE BY SPECIAL COURT & RETRIAL

On a plain reading of the section 193 Cr.P.C, it is clear as noon day that no Court of Session can take cognizance of any offence as a court of original jurisdiction except as otherwise expressly provided by the Code or any other law for the time being in force. The question whether the Special Court is Court of sessions; and whether there is any special provision in the Act (especially under the Act like SC & ST Act enabling the said court to take cognizance. Supreme Court reiterated the passage[98] from Gangula Ashok and another v. State of A.P[99]  [following A.R.Antulay v. Ramdas Sriniwas Nayak and another[100] and Directorate of Enforcement v. Deepak Mahajan and another[101]] in Vidyadharan v. state of Kerala[102] and Moly and another[103], held that the Special Judge under the Act cannot entertain a complaint filed before it and issue process after taking cognizance without the case being committed to it for trial by the competent Magistrate. After careful perusal of the aforesaid decisions, we have no scintilla of doubt that the view expressed which has a base of commonality is absolutely to dwell upon the same more so when there is no cavil or conflict in this regard can there has been no reference on the said score. Additionally, no doubt has been expressed relating to the exposition of the said view, and irrefragably correctly so. Now Supreme Court in State of M.P v. Bhooraji and others[104] after referring sections 462 and 465 of the Code of Criminal procedures and adverted to the concept of ‘a failure of justice’ and held that, but if a specified Sessions court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following said course. Supreme Court in the above said case further held that we repeatedly asked the learned counsel for the accused to tell us what advantage the accused would secure if the case is sent back to the Magistrate’s court merely for the purpose of retransmission of the records to the Sessions Court through a committal order. We did not get any satisfactory answer to the above query put to the counsel. After so stating, the court proceeded to deal with the stance whether the special judge as a court of session would remain incompetent to try the case until the case is committed and, after critical ratiocination, declined to accept the said stand and opined that the expression “a court of competent jurisdiction” as envisaged in section 465 of the Code of Criminal Procedure is to denote a validly constituted court conferred with the jurisdiction to try the offence or offences and such a court could not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-compliance with the procedural requirement. After adverting to the concept of failure of justice, it is obligatory to dwell upon the aspect whether there is or can be any failure of justice if a special judge directly takes cognizance of an offence under the Act. Supreme court in Rattiram v. State of M.P [3 judges bench][105] after discussed the above concluded that tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally in-apposite and inappropriate to hold that such non-compliance vitiates the trial. Supreme Court in the above said case[106] further observed about the victim of the offence that under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been ‘failure of justice’ or ‘prejudice’ has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regarded and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim’s right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice. With the above observation Supreme Court in Rattiram v. state of M.P[107] finally promulgated that the decisions rendered in Moly and another and vidyadharan v. state of kerala have not noted the decision in state of M.P v. Bhooraji and others, a binding precedent, and hence they are per incurium.

COGNIZANCE – ORDER OF REMAND

In one occasion the question whether passing of an order of remand would amount to taking of cognizance of the offence was raised before the Supreme Court in State of Karnataka v. Pastor P Raju[108], after discussing so many previous Supreme Court judgments, the Apex Court has held that, a limited role has to be performed by the Judicial Magistrate to whom the accused has been forwarded, viz, to authorize his detention. This is anterior to section 190 Cr.P.C, which confer power upon a Magistrate to take cognizance of an offence. Therefore, an order remanding an accused to jail custody does not amount to taking cognizance of an offence.

COGNIZANCE – INTERFERENCE HIGH COURTS

It is no doubt true that in a criminal matter also the High Court may exercise its extraordinary writ jurisdiction but interference with an order of Magistrate taking cognizance u/s. 190 Cr.P.C will stand somewhat on a different footing as an order taking cognizance can be the subject matter of a revisional jurisdiction as well as of an application invoking the inherent jurisdiction of the High Court. A writ of certiorari ordinarily would not be issued by a writ court u/A – 226 of the India Constitution against the Judicial officer[109]. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material should be sparingly interfered with[110].

Supreme Court categorically lay down that while exercising its jurisdiction under Article 226, the High Court can issue a writ of Certiorari only when an error apparent on the face of the record appears as such; the error should be self evident. Thus, an error according to this court needs to be established. As regards exercising the jurisdiction under Article – 227 of the Constitution of India it was held that the powers may be exercised in cases occasioning grave injustice or failure of justice such as when:

The court or tribunal has assumed a jurisdiction which it does not have, has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction[111].

After referring the above legal position Supreme Court has held that they referred to the above scope of jurisdiction u/Articles – 226 & 227 only to highlight that the High Courts should not ordinarily interfere with an order taking cognizance passed by a competent court of law except in a proper case.

At the stage of taking of cognizance of offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record. The corrections of the order whereby cognizance of the offence has been taken by the Magistrate unless it is perverse or based on no material should be sparingly interfered with. The Superior courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice[112].

COGNIZANCE – WRITTEN ORDER – ISSUANCE OF PROCESS

The order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons[113].

COGNIZANCE – WRITTEN ORDER NOT NECESSARY

In this regard, we have to state that the order taking cognizance of offences on the police report, of course, is a judicial order. But, the expression “taking cognizance” has not been defined anywhere. The Hon’ble Supreme Court on many occasions, has declared that taking cognizance of offence means application of the judicial mind of the Judge with a view to take further action. If once he had applied his judicial mind and decided to proceed further, then the process of taking cognizance is complete. In this case, the learned Judge, though had not passed any written order taking cognizance, undoubtedly he had applied judicial mind into the entire police report and accordingly, had proceeded further to post the case for framing and accordingly, had proceeded further to post the case for framing charges against the accused. This would go to show that the learned Judge had applied his judicial mind with a view to proceed further and then only he posted the case for framing charges. Thus, though there was no written order passed by the learned Judge taking cognizance of the offence, in fact, he had taken cognizance of the offence, which is inferable from the above facts[114].

COGNIZANCE – SECTION 194 Cr.P.C

The first part of the Section clearly provides that the Sessions Judge of the Division by general or special order is supposed to allot cases arising in a particular area or jurisdiction to be tried by Additional or Assistant Sessions Judge appointed in the division but the last part of this Section also authorises the High Court to allot the case to a particular Judge keeping in view the fact that in certain cases the Sessions Judge may not like to allot and may report to the High Court or either of the parties may move an application for transfer and under these circumstances it may become necessary for the High Court to allot a particular case to a particular Judge[115].

COGNIZANCE – PROTECTION AND SCOPE U/S. 195 Cr.P.C

The object of the section is to protect persons from being needlessly harassed by vexatious prosecutions in relation. It is check to protect innocent persons from Criminal Prosecution which may be actuated by malice or ill will. The object of the section is also stop private persons from obtaining sanctions as a means of wreaking vengeance and to give the court full discretion in deciding whether any prosecution is necessary or not. Sanction to prosecute cannot now be granted to private persons[116]. S.195 (b) (i) bars the court from taking cognizance of offences punishable u/s. 193-196, 199, 200, 205-211 & 228 of I.P.C when such offence to any proceeding in any court except on the complaint in writing of that court or of some other court to which that court is subordinate. Cognizance in relation to an offence punishable u/s.211 I.P.C when such offence is alleged to have been committed in or in relation to any proceeding in any court cannot be taken except on the complaint in writing of such court[117]. The provisions of this section are mandatory, the prosecution in respect of the offences mentioned in the section can be initiated only by the public servant, and private complaint does not be[118]. No court shall take cognizance of offences punishable u/Ss. 177& 182 I.P.C except on the complaint in writing of the Public Servant concerned[119]. Proceeding under Section 340 read with Section 195 Cr. P.C. could only be initiated if the forgery was committed during the time when the documents were custodia legis and not when the forgery was committed outside the Court i.e., before the document had been produced or given in evidence in a proceeding in any Court. He, therefore, urged that there could not be any initiation of proceedings under Section 340 Cr. P.C. much less for the offences under Section 195 Cr. P.C[120].

Madras High Court held that in a case it has no hesitation to hold that very filing of the complaint is not in accordance with law as the complaint was preferred only by the Head Clerk of the Court and not signed and presented by the Presiding Officer and further, the procedure contemplated under section 340 (3) (b) Cr.P.C was not at all followed[121].

COGNIZANCE – SECTION 195 – WHEN CAN BE INVOKED?

Wherein, the Supreme Court has held that the provisions of section 195 Cr.P.C can be invoked only when a document has been tampered with, while it is in the “custodia legis” of the Court and not otherwise[122].

COGNIZANCE – SECTION 196 Cr.P.C – SECTION 153 (A) IPC

This Court perused the order of the Judicial Magistrate dated 19.08.2009. As per the order, the Judicial Magistrate took cognizance of the offence under Section 153(A) of I.P.C. by taking the complaint dated 16.07.2007 on his file and ordered to issue summons to all the petitioners. However, the recitals of the complaint or the order of the Judicial Magistrate do not disclose about the existence of any prior sanction of either Central or of Statement Government as enshrined under Section 196(1) of Cr.P.C. As per the above section, for taking cognizance of the offence under Section 153(A) of I.P.C., previous sanction of the Central Government or of the State Government is a must. Absence of the requisite sanction is suffice to quash the proceedings in the above calender case as against the petitioners[123].

 

citations

[1] State of Bihar and Another Vs. P.P. Sharma, IAS and Another – AIR 1991 SC 1260.

[2] M/s Swil Ltd vs. State of Delhi & Anr – 2001(6) SCC 670=2001 Cr.L.J 4173(SC)=AIR 2001 SC 2747=2002(1) MLJ (Crl) 63 (SC)

[3] Dharam Pal & Others vs. State of Haryana – AIR 2013 SC 3018;

[4] Jamuna Singh and Ors vs. Bhadai Sah – AIR 1964 SC 1541 (3 Judge Bench)

[5] M/s Shree Mahavir Carbon Ltd vs. Om Prakash Jalan (Financier) & Anr – 2013(4) MLJ (Crl) 507(SC)

[6] Pramatha Nath Mukherjee VS State Of W. B – AIR 1960 SC 810.

[7] Jagdish Ram vs. State of Rajasthan – AIR 2004 SC 1734=2004(3) SCALE 49=(2004)4 SCC 432=(2004)2 SCR 846 follwed in J.Gnana Kumar vs. Joy Kanmani – Dt. 20.08.2013 (Mad) also see Madhu Limaye – AIR 1978 SC 47

[8] PMC. Mercantile Private Limited & Others vs. The State – 2014(2) LW (Crl) 482

[9] Dr.Jayaramakrishanan vs. Mookan Pattam Kettiyar – 2005(1) MWN(Crl) 47

[10] PMC, Mercantile Private Limited & Others vs. The State – CDJ 2014 MHC 4275 (it is pertinent to note that Hon’ble Supreme Court has held that cognizance can be taken only against the offence and not against offender).

[11] Shashi Kumar vs. The State of Karnataka – 2014 Cr.L.J 80 (Kar)

[12] 2001 (7) SCC 679

[13] Madavan Appellant Vs The State rep by The Inspector of Police, All Women Police Station, Ariyalur District (Crime No.8/2015) – Crl.A.No.22 of 2017 – dt: 03.03.2017=2017(1) TNLR (cri) 869 (mad-DB)=2017 (1) LW(Crl) 698(mad-db)=2017 (2) MLJ(Crl) 129(DB)

[14] P. Vijayan v. State of Kerala & Anr., AIR 2010 SC 663; and R.S. Mishra v. State of Orissa & Ors., AIR 2011 SC 1103 followed in Ajay Kumar Parmar Versus State of Rajasthan – AIR 2013 SC 633=2012 (12) SCC 40.

[15] Ajay Kumar Parmar Versus State of Rajasthan – AIR 2013 SC 633=2012 (12) SCC 40.

[16] Ajay Kumar Parmar Versus State of Rajasthan – AIR 2013 SC 633=2012 (12) SCC 40.

[17] (2012) 3 SCC 64.

[18] Rajendra Rajoriya Versus Jagat Narain Thapak & Another – 2018 (2) LW(Crl) 291 (SC)=(2018) 2 MLJ (Crl) 654 (SC).

[19] Rajendra Rajoriya Versus Jagat Narain Thapak & Another – 2018 (2) LW(Crl) 291 (SC)=(2018) 2 MLJ (Crl) 654 (SC).

[20] Sunil Bharti Mittal vs. CBI – 2015 (1) MLJ (Crl) 231 (SC-3 Judge Bench)=AIR 2015 SC 923=2015 Cr.L.J 1130(SC)=

[21] S.Karunanidhi vs. Sivananda Rao – 2014(1) MLJ (Cri) 755

[22] M/s Swil Ltd vs. State of Delhi & Anr – 2001(6) SCC 670=2001 Cr.L.J 4173(SC)

[23] K. Jeevanantham & Others Versus State Rep. by the Inspector of Police, Salem & Another – 2018 (4) MLJ(Crl) 709=2018(3) MWN (crl) 357.

[24] Umesh Kumar vs. State of A.P & another – (2013)10 SCC 591=(2014)1 SCC (Cri) 338

[25] Abhinandan Jha vs. Dinesh Mishra – AIR 1968 SC 117=1968 Cr.L.J 97 (SC)

[26] AIR 1996 SC 309=1995 SCC (Cri) 1059

[27] Dharmatma Singh vs. Harminder Singh and others – (2011) 2 SCC (Cri) 834

[28] RASHMI KUMAR (SMT) — vs MAHESH KUMAR BHADA – (1996) 9 SCALE 388=(1997) 2 SCC 397=(1997) SCC(Cri) 415.

[29] Sonu Gupta vs. Deepak Gupta & Ors – dated 11.02.2015 – 2015 (1) MLJ(Crl) 598 (SC-3 Judge Bench)=2015 (1) MWN(Cr) 321 followed in Rakhi Mishra Vs. State of Bihar & Ors – Criminal Appeal No. 1499 of 2017 arising out of SLP (CRL.) No. 2185 of 2015 – August 24, 2017 – cited in RASHMI CHOPRA AND OTHERS vs THE STATE OF UTTAR PRADESH AND ANOTHER – Criminal Appeal No. 594 of 2019 (Arising Out of SLP(Crl.) No. 8103 of 2018).

[30] AIR 1972 SUPREME COURT 2639 “Nirmaljit Singh Hoon v. State of W.B.”[ Coram : 3 J. M. SHELAT, I. D. DUA AND H. R. KHANNA, JJ.]

[31] Vadilal Panchal v. Ghadigaonkar, (1961) 1 SCR 1 = (AIR 1960 SC 1113)

[32] (2012)1 SCALE 66 – Dr. Mrs. NUPUR TALWAR Vs. CBI, DELHI & ANR.

[33]D. Lakshminarayana Reddy v. V. Narayana Reddy, AIR 1976 SC 1672 : (1976 Cri LJ 1361) reiterated in AIR 2000 SUPREME COURT 2946 “Narsingh Das Tapadia v. Goverdhan Das Partani”= 2000 AIR SCW 3268

[34] R. R. Chari v. The State of Uttar Pradesh [1951] S.C.R. 312 followed in Dilwar Singh vs. State of Delhi – JT 2007 (10) SC 585

[35]AIR 1989 SUPREME COURT 885 “India Carat Pvt. Ltd., M/s. V. State of Karnataka”

[36] 1985(1) MLJ (Cri) 536 (SC)

[37] R.Sankarasubbu vs. The Commissioner of Police – 2013(1) CTC 1 (Mad-DB)

[38] AIR 1989 SUPREME COURT 885 “India Carat Pvt. Ltd., M/s. V. State of Karnataka”

[39] Abhinandan Jha v. Dinesh Mishra (1967) 3 SCR 668: (AIR 1968 SC 117) and H. S. Bains v. State (1981) 1 SCR 935 : (AIR 1980 SC 1883).

[40] 1970 Cr.L.J 1075

[41] 2011 Cr.L.J 1619(SC)

[42] AIR 1951 SC207.

[43] AIR 1951 SC207.

[44] R.V.Kelkar’s – Lectures on Criminal Procedure – fourth edition – page. 91

[45] 1996 Cr.L.J    408 (SC) K.Ramaswamy & B.C.Hansaria J.J

[46] Dr. Mrs. Nupur Talwar v. CBI – 2012 (1) Crimes 101 (SC)

[47] (2010)3 SCC (cri) 652; (2010)8j SCC 206; [P.sathasivam & Anil R Dave J.J]

[48] Meraj Beg & others vs. State of U.P & another 2011 Cr.L.J 2351 (All)

[49] Narsingh Das Tapadia vs. Goverdhan Das Partani & Anr – AIR 2000 SC 2946=2000(4) CTC 55 (SC)=2001-1-LW (Cri 36 (SC)=2000(6) SCALE 299=(2000)7 SCC 183=(2000)3 Supp SCR 171

[50] AIR 1959 SC 1118.

[51] AIR 1976 SC 1672.

[52] Bhagat Ram vs. Surinder Kumar and others – (2004)11 SCC 622 [3 judge bench].

[53] P.Ayyappan vs. Inspector of Police – Crl.R.C No: 360 of 2015 – 7.8.2015 – (2015)4 MLJ (crl) 401 (mad) following Narasingh Das Tapadia vs. Goverdhan Das Partani and another – AIR 2000 SC 2946.

[54] Narayandas Bhagwandas Madhavdas v. State of West Bengal, AIR 1959 SC 1118 : (1959 Cri LJ 1368); and Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986 : (1961 (2) Cri LJ 39) reiterated in AIR 2000 SUPREME COURT 2946 “Narsingh Das Tapadia v. Goverdhan Das Partani”= 2000 AIR SCW 3268

[55] (2008)2 SCC 492=2008 Crimes (1) 315 (SC)=2008-SCC-2-492– S.K.Sinha, Chief Enforcement Officer vs. Videocon reiterated in (2012)1 SCALE 66 – Dr. Mrs. NUPUR TALWAR Vs. CBI, DELHI & ANR.

[56] Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke – 2015-2-LW(crl) 564(SC)=2015(1) SCALE 457=2015 Cr.L.J 1259(SC)

[57] Ranganathan & 14 vs. State – 1996-1-L.W (cri) 48 S.N; DT. 6.12.95

[58] Chandra Babu @ Moses Versus State Through Inspector of Police & Others – 2015 CrLJ 4538 (SC).

[59] Kishore Kumar Gyanchandani vs. G.D. Mehrotra And Another –  AIR 2002 SC 483 (3 judge bench).

[60] Sunil Bharti Mittal vs. C.B.I – 2015(1) MLJ (Crl) 231 (SC – 3 Judge Bench)=AIR 2015 SC 923=2015 Cr.L.J 1130 (SC)

[61] Trisuns Chemical Industry Vs. Rajesh Agarwal – [1999] 5 Scale 609= [1999] 8 SCC 686= AIR  1999 SC 3499= 1999 Cr.L.J 4325 (SC)= (1999) 8 Supreme 53= 1999 AIR SCW 3492.

[62] R.Karunakaran v. Inspector of police – 2012 (3) MLJ (Cri) 221 (MAD) – His Lordship Mr. Justice G.M.Akbar Ali

[63]Narsingh Das Tapadia v. Goverdhan Das Partant & anr – S.L.P(Crl) – 1636 of 1999 – dt. 06.09.2000-2000 (7) SCC 183

[64] S.R.Sukumar vs. S.Sunaad Raghuram – 2015 AIAR (Crl) 757 (SC-R.Banumathi. J)

[65] Ram & Others vs. State of Rajasthan – 2013 Cr.L.J 3207 (Raj)

[66] Bhagwant Singh v. Commissioner of Police & Another – (1985) SCC 537 followed in U.P.S.C v. S.Papaiah & others – (1997)7 SCC 614 and (2011)3 MWN (Cri) 201.

[67] (2012)1 SCALE  355 – Vasathi Dubey vs. State of M.P

[68] Uma Shankar Singh vs. State of Bihar & Anr  -(2010) 9 SCC 479=(2010)3 SCC (Cri) 1397

[69] Uma Shankar Singh vs. State of Bihar & Anr  -(2010) 9 SCC 479=(2010)3 SCC (Cri) 1397; Motilal Songara   vs. Prem Prakash -(2013)9 SCC 199

[70] AIR 1985 SC 1285 – Bhagwant Singh v. Commissioner of Police followed in 2012 (1) Crimes 16 (SC) – Shiv Shankar Singh vs. State of Bihar

[71] Alagu Murugesam & Others vs. A.Thang Pandian – (2000) 1 MLJ 719 (Mad)

[72] P.Thangavelu vs. The Director General of Police – Crl.O.P (MD) No. 16904 of 2014; dt.03.11.2014; CDJ 2014 MHC 4552

[73] 2003 (1) SCC 734 (para 12).

[74] 2011 (15) SCC 513.

[75] Rakesh & Another Versus State of U.P. & Another – 2014 AIR SCW 4679=2014 (4) MLJ (Crl) 113 (SC)=2014 (9) SCJ 159=2014 Cr.L.J 4195(SC)=2014 (13) SCC 133=2015 (1) LW(Crl) 229 (SC)=2014 (4) Crimes 183 (SC)

[76] (1985)1 MLJ (Crl) 536 (SC) followed in S.Siva vs. The State – 2014(4) MLJ (Crl) 445

[77](1965)1 SCR 269

[78]Radhubans Dubey vs. State of Bihar –  AIR 1967 SC 1167=1967 Cr.L.J 1081 (SC)=(1967)2 SCR 423

[79] AIR 1967 SC 1167=1967 Cr.L.J 1081 (SC)=(1967)2 SCR 423 – Raghubans Dubey v. State of Bihar followed in AIR 2001 SC 3524 – Rajinder Prasad v. Bashir and others

[80]  M/s. SWIL Ltd v. State of Delhi – 2001 AIR SCW 3017 para.7 followed in AIR 2001 SC 3524 – Rajinder Prasad v. Bashir and others

[81] AIR 2005 SC 4284=2005 CR.L.J 4524 (SC)=2005 (4) CTC 684 (SC)=2005 (3) CRIMES 256 (SC)=2005 AIR SCW 5162=2005 SCC (CRI) 1697=2005 (7) SCC 467=2005 (6) SUPREME 76=2005 (7) SCALE 53=(2006)1 MLJ 96 (CRI) RELIED IN NELLAIAPPAN VS. SAMUVEL – CRL.O.P NOS 8863/2005 AND 8865/2005

[82] State of Maharashtra vs. Sharad Chandra Vinayak Dongre – (1995)1 SCC 42

[83] Pushparaj vs. Mareen & ors – 2009(3) MWN (Cri) 53 (Mad)

[84] Manharibhai Mljibhai Kakadia and Anr vs. Shaileshbhai Mohanbhai Patel and Ors – (2012) 10 SCC 517

[85] Mehmood Ul Rehman vs. Khazir Mohammad Tunda and Others – (2016)1 SCC (Cri) 124=(2015)12 SCC 420

[86] Mehmood Ul Rehman vs. Khazir Mohammad Tunda and Others – (2016)1 SCC (Cri) 124=(2015)12 SCC 420

[87] Iris Computers Ltd vs. Askari Infotech (P) Ltd – (2016)2 SCC (Cri) 389

[88] S.R.Sukumar vs. S.Sunaad Raghuram – 2015 (3) Crimes 230(SC)= 2015 CrLJ 3829(SC)=2015 (6) JT 72=2015 (3) MLJ(Crl) 758 (SC)= 2015 (5) Supreme 404=2015 (3) MWN(Cri) 269 (SC)=2015 (2) LW(Crl) 657 (SC)=2015 (9) SCC 609 [Author’s Note: In my opinion after many other Hon’ble Apex Court Judgments cited in this Book in respect of the term ‘cogniance’, with due respect to the Judges of this Judgment I would say that the Hon’ble Supreme Court may review this judgment with regard to their views regarding ‘cognizance’. Further this view is contrary to the three bench of the Supreme Court where one of the Judge was same (Ramdev Food Products Pvt. Ltd vs. State of Gujarat – 2015 (2) MWN (Crl) 272 (SC – 3 Judge bench)Banumathi J) whereas in ramdev Judgment it was held that Cognizance is taken by a Magistrate Under Section 190 (in Chapter XIV) either on “receiving a complaint”, on “a police report” or “information received” from any person other than a police officer or upon his own knowledge].

[89] Amrutbhai Shambhubhai Patel Versus Sumanbhai Kantibhai Patel & Others – 2017 (2) Scale 198=2017(1) MWN (Crl) 403

[90] M/s P.R.P Granite Exports vs. Directorate of Enforcement – Crl.O.P (M.D) No: 11941 of 2019 – dt: 09.02.2021.

[91] ANIL SARAN vs STATE OF BIHAR AND ANOTHER –  (1995) 5 SCALE 216=(1995) 6 SCC 142=(1995) SCC(Cri) 1051

[92] M/s. Pandiyan Finance, Power Agent/Manager, P. Selvaraj, Erode Versus K. Periyasamy – 2017 (1) LW(Crl) 769=2017 (2) MLJ(Crl) 598=2017(1) TNLR 833 (MAD).

[93] Ram & Others vs. State of Rajasthan – 2013 Cr.L.J 3207 (Raj)

[94] Sharad Kumar Sanghi vs. Sangita Rane – 2015(2) MWN (Crl) 39 (SC)

[95] Dr.S.Sourubarani and Dr.S.Akila vs. C.Selvi – 2005-1-LW (Cri) 139 (Mad)

[96] Dharam Pal & Others vs. State of Haryana – AIR 2013 SC 3018=2013(9) SCALE 207=2013 Cr.L.J 3900 (SC)=2013(2) LW (Cri) 417 (SC)=2013 MLJ (Cri) 444 (SC)

[97] Dharam Pal & Others vs. State of Haryana – AIR 2013 SC 3018=2013(9) SCALE 207=2013 Cr.L.J 3900 (SC)=2013(2) LW (Cri) 417 (SC)=2013 MLJ (Cri) 444 (SC)

[98] Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid down before the Special Court.

[99]  AIR 2000 SC 740=(2000) SCC (Cri) 488

[100] AIR 1984 SC 718= (1984) SCC (Cri) 277

[101] AIR 1994 SC 1775=(1994) SCC 440=(1994) SCC (Cri) 785

[102] AIR 2004 SC 536

[103] AIR 2004 SC 1890

[104]AIR 2001 SC 3372=(2001) SCC (Cri) 1373

[105] (2012) 2 MLJ (Cri) 627 (SC)

[106] Rattiram v. State of M.P [3 judges bench] – (2012) 2 MLJ (Cri) 627 (SC)

[107](2012) 2 MLJ (Cri) 627 (SC)

[108] AIR 2006 SC 2825=2006 AIR SCW 3916

[109] Naresh Shridhar Mirajkar and Others v. State of Maharashtra and another – AIR 1967 SC 1=(1966)3 SCR 744

[110] (2012)1 SCALE 66 – Dr. Mrs. NUPUR TALWAR Vs. CBI, DELHI & ANR.

[111] AIR 2006 SC 1288=2006 AIR SCW 1137 – Musaraf Hossain Khan v. Bhagheeratha Engg Ltd following Surya Dev Rai v. Ram Chander Rai and another – 2003 AIR SCW 3872=AIR 2003 SC 2044.

[112]Nupur Talwar v. CBI (Delhi) & anr – (2012) 1 SCC (Cr) 711=(2012) 2 SCC 188

[113] Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal & Ors. (2003) 4 SCC 139 followed in Jagdish Ram vs. State of Rajasthan – AIR 2004 SC 1734=2004(4) SCC 432=2004 SCC (Cri) 1294=(2004)2 Crimes 296 (SC).

[114] MADAVAN vs STATE – (2017) 1 LW(Cri) 698=(2017) 2 MLJ(Cri) 129.

[115] Kehar Singh & Others Versus State (Delhi Administration) – 1989 Cr.L.J 1 (SC – 3 Judges)as

[116] 2011 (1) MWN (Crl) 105- I.V,Savitha Devi vs. Dr.S.Kalaikumar

[117] Harish Chandra Pathak vs. Anil vats & anr – 2008 Cr.L.J 2965

[118] State of U.P vs. Mata Bhikha & ors – 1994 (4) SCC 95..

[119] 2011-1-L.W (Crl) 257[G.M.Akbar Ali]

[120] Iqbal Singh Marwah and Anr. V. Meenakshi Marwah and Anr. [2005 (4) SCC 370]

[121] (2011)4 MLJ (Cri)( 805 (Mad) – V.Lawrence and another vs. State

[122] Iqbal Singh Marwah and another vs. Meenakshi Maswal – (2005)4 SCC 370

[123] A.T. Jacob & Others Versus State of Tamil Nadu rep. by the Sub Inspector of Police, District Crime Branch, Nagercoil & Another – 2017 (1) LW(Crl) 521

COMPILED AND WRITTEN BY: Thiru. RAMPRAKASH RAJAGOPAL Advocate, Nanganallur.