Magistrate's Power to Take Cognizance of Offences

A court can take cognizance of an offence only when conditions requisite for initiating proceedings before it, as set out in Chapter XIV of the Criminal Procedure Code (Conditions Requisite For Initiation Of Proceedings), are fulfilled. Otherwise, the court does not obtain jurisdiction to try the offence.

The article explains the process of taking cognizance of an offence by Magistrates in the Indian legal system. It covers who can take cognizance, how it can be taken through complaints, police reports, information from individuals, and the Chief Judicial Magistrate’s empowerment. It also discusses the meaning of “may take cognizance,” relevant cases, and limitations on taking cognizance within prescribed time limits.

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Cognizance of Offence by Magistrates (Section 190 of CrPC)

In the Indian legal system, initiating criminal proceedings is known as “taking cognizance of an offence.”

Who can take cognizance of an offence?

  • Magistrates: The power to take cognizance of an offence lies with Magistrates.
  • Types of Magistrates: There are two classes of Magistrates – Magistrate of the first class and Magistrate of the second class.
  • Special Empowerment: A Magistrate of the second class can be specially empowered under sub-section (2) to exercise this power.

How can cognizance be taken?

(a) Upon receiving a complaint: If a complaint contains facts that constitute an offence, a Magistrate can take cognizance of the offence. The victim or anyone who knows the offence can file a complaint.

(b) Upon a police report: If the police submit a report containing facts about an offence, a Magistrate can take cognizance of the offence. It typically happens when the police have conducted an investigation and gathered evidence.

(c) Upon information from any person: If anyone other than a police officer provides information to the Magistrate about the commission of an offence, the Magistrate can take cognizance of the offence. The Magistrate can also take cognizance based on their own knowledge of the offence.

Empowerment by Chief Judicial Magistrate

The Chief Judicial Magistrate has the authority to empower a Magistrate of the second class. This empowerment allows the Magistrate of the second class to take cognizance of certain offences falling within their jurisdiction. The aim is to distribute the workload and ensure efficient handling of cases.

Meaning of “May Take Cognizance”

It was held by the Supreme Court in Sub-divisional Magistrate, Delhi vs Ramkali, AIR 1968 SC I, that here ‘may‘ means ‘must‘ and, therefore, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. Thus, where the Magistrate refuses to accept the police report but takes cognizance of a case after receiving affidavits of the complainant and his witnesses, it is not illegal. He has no discretion in the matter. Otherwise, section 190(1)(b) of CrPC will violate Article 14 of the Constitution.

It was held in Hastimal vs State of Rajasthan, 1994 Cr.L.J. 3384 (Bom.), that the order of Magistrate under section 190 of CrPC must be a speaking order, where police submit a final report after a thorough investigation, the order of Magistrate refusing to accept the same and taking cognizance of an offence without giving any reasons amounts to abuse of process of court and such an order is liable to be quashed.

It was held in CREF Finance Ltd. vs Shree Shantoli Homes Pvt. Ltd., 2005 Cr.L.J. (NOC) 145 (Raj.), that a court must be held to have taken cognizance of the offence when on perusal of the complaint, it is satisfied that the complaint discloses the commission of an offence and proceeds further. The words “cognizance was taken” need not be mentioned in the order.

In B. Jagdish vs State of A.P. and Another, (2009) 1 Cr.L.J. 828 (SC), the complaint related to medical negligence that the accused (doctor) gave wrong treatment leading to the death of the complainant’s daughter. Evidence of doctors produced by the complainant, prima facie, disclosed a case of criminal negligence. It was held that refusal to quash proceedings was not liable to be interfered with because evidence produced by the accused cannot be considered at the stage of quashing of order taking cognizance.

In Ashok Chaturvedi vs Shital H. Chanchan, 1998 Cr.L.J. 4091 (SC), the complaint was for the offence of forgery on the ground that shares of the complainant have been transferred on forged signatures. It was argued on behalf of the appellant that since a claim was filed before the consumer forum, the dispute was civil, and therefore, the order of cognizance passed by the magistrate should be quashed. It was held that a mere filing of a claim before the Consumer Forum could not make the dispute a civil dispute.

Taking Cognizance of Offence

Taking cognizance is “sine qua non” for trial. When the complaint was filed, the Magistrate had posted the case to the next day. On the subsequent date, the sworn statement of the complainant was recorded, and specific exhibits were marked, holding that the act of recording a sworn statement and issuing process indicated that the Magistrate had taken cognizance of the offence. The Magistrate is concerned with whether material exists to show the prima facie commission of an offence.

In the case of Smt. Mona Panwar v. Hon’ble High Court of Judicature at Allahabad through its Registrar, (2011) 2 Cr.L.J. 1619 (SC), it was established that taking cognizance refers to recognizing an offence, not the offender. It does not involve formal action but occurs when a Magistrate applies their mind to the suspected commission of a crime.

Cognizance takes place when the Magistrate first takes judicial notice of an offence. For a Magistrate to be deemed to have taken cognizance under section 190(1)(b) of the Criminal Procedure Code, they must not only have applied their mind to the complaint but also proceeded under section 200 and the subsequent provisions of the CrPC.

However, if the Magistrate only applies their mind to order an investigation under section 156(3) of CrPC or issues a warrant for investigation, it cannot be considered taking cognizance of the offence. Taking cognizance and initiating proceedings are distinct actions in this context.

Clause (a) of Section 190 of CrPC (Upon Receiving a Complaint of Facts Which Constitute Such Offence)

Complaints under clause (a) may be by word of mouth or in writing. As a general rule, any person knowing the commission of the offence may make a complaint even though he is not personally affected by the offence. Sections 195 and 199 of CrPC are exceptions to this rule. A complaint may be made even by post. A complaint also includes allegations against unknown persons.

The term complaint is defined in section 2(d) of CrPC. It can be made orally or in writing to a Magistrate with the intention that he will act. The complainant must set out in the complaint that any known or unknown person has committed an offence. The section clarifies that a complaint does not include a police report. Still, its explanation says that if a police officer submits a report after investigation, which discloses only the commission of a non-cognizable offence, it shall be deemed a complaint and the maker of the report to be the complainant.

Anyone can complain even though he is not personally injured or affected by the offence. The mere fact of filing a previous complaint cannot be a bar to filing another complaint to take it to its logical conclusion when the earlier complaint had been dismissed without trial.

Relevant Material for Taking Cognizance

The Supreme Court, in the case of Ajay Mehra vs Durgesh Babu (2002) 9 SCC 709, made it clear that where the statement made in the complaint and statements made under section 202 of CrPC taken on face value made out the offence, taking of cognizance would be justified. The High Court could not consider other material to quash the cognizance at this stage.

Clause (b) of Section 190 of CrPC (Upon a Police Report of Such Facts)

Clause (b) of section 190 of CrPC is confined to the cognizance of a police report of a cognizable and non-cognizable offence.

Police report is defined in section 2(r) of CrPC and means a report under section 173(2) of CrPC. The police report must state the facts that constitute the offence. It is a requisite of fundamental importance.

The magistrate is not bound to accept the opinion of the police. If the Magistrate concludes that apart from the persons named by the police, some others are also involved in the offence, he must proceed against those persons also. Therefore, when the Magistrate takes cognizance under section 190 (1)(b) of CrPC upon a report made by a police officer, his power to issue the process is not restricted only to the persons challenged by the police.

It was held in Union of India vs Prakash P. Hinduja, (2003) Cri. L.J. 3117 (SC), that when after completion of the investigation of an offence, a final (closer) report is submitted by the police before the Magistrate under section 173(2) of CrPC, he may not accept the report and can take cognizance of the offence if he feels that the evidence so collected during the investigation justifies the prosecution of the accused. He may summon the accused to exercise powers conferred by section 190 of CrPC.

It was held in Motilal Songara vs Prem Prakash alias Pappu and another, (2013) 3 Cri. L.J. 2977 (SC), that the Magistrate is not bound to accept the final report filed by the investigating agency. The magistrate can take cognizance and issue a process against the person, though acquitted by the investigating agency.

Clause (c) of Section 190 of CrPC (Upon Information Received From Any Person Other Than a Police Officer, or Upon His Own Knowledge, That Such Offence Has Been Committed)

Under clause (c) of section 190 of CrPC, cognizance may be taken on information received from sources other than a police officer. It applies to cases where the private individual who is aggrieved or someone on his behalf does not come forward to make a complaint. If the Magistrate believes that the facts set out in the final report constitute an offence, he can take cognizance of the offence under clause (c) of section 190 (1) of CrPC.

Information under this clause is distinct from a complaint under clause (a) of CrPC. The essential difference between a complaint and information is that a Magistrate acts on a complaint because the complainant has asked him to act. Still, in the case of information, a Magistrate acts of his own accord and initiative. For this reason, in the latter case, section 191 of CrPC requires that he inform the accused that another court may try him.

In Dharmatma Singh vs Harminder Singh and others, (2011) 3 Cri. L.J. 3591 (SC), police reports after the initial investigation and the report under section 173(8) of CrPC after further investigation gave a diverse opinion about the guilt of the accused. The Supreme Court held that this could not be grounds for the High Court to quash criminal proceedings in exercising inherent powers. It is for the Magistrate to form an opinion whether facts set out in two reports make out an offence committed by a person.

The phrase “upon his own knowledge” signifies that a Magistrate can take cognizance of an offence without any complaint only when it has come to his knowledge that such offence has been committed. A gratuitous suspicion or a belief founded on private information in an anonymous petition is not knowledge.

Application of Judicial Mind

In Bhusan Kumar and another vs N.C.T. Of (Delhi) and another, (2012) 2 Cri. L.J. 2286 (SC), it was held that under section 190 of CrPC, the application of judicial mind to the averments in the complaint constitutes cognizance. The Magistrate must be satisfied with sufficient ground for conviction at this stage. Whether the evidence is adequate to support the sentence can be determined only at the trial. If sufficient ground exists for proceeding, the Magistrate is empowered to issue a process under section 204 of the CrPC.

Limitation on Taking Cognizance

A magistrate is empowered to take cognizance of an offence within the prescribed time limits. Sections 467 to 473 of CrPC deal with the limitation provisions for taking cognizance of specific categories of offences. Suppose cognizance of offence has been taken within the prescribed period of limitation. In that case, it does not become by the process under section 202 of CrPC being taken out after the expiration of such period.

Jailok Thakur vs the State of Bihar, AIR 1980 Pat 126 (FB): In this case, the court said that even after the period of limitation, such offences can be taken cognizance of by the court if the delay is condoned before taking cognizance.

S.M. Vikas vs A.M. Chopra, (1978) 2 SCC 403: The Court can condone the delay even without a proper explanation in the interest of justice.

Arun Vyas vs Anita Vyas, (1999) 4 SCC 690The court held that the delay should not be condoned without notice to the accused and without recording any reasons for it.

Conclusion

The process of taking cognizance of offences by Magistrates involves the initiation of criminal proceedings. The Magistrates, based on the provisions outlined, can take cognizance upon receiving a complaint, a police report, information from any person, or their own knowledge. The Chief Judicial Magistrate has the power to empower Magistrates of the second class for this purpose. These provisions aim to ensure a fair and efficient justice system in India.

Dinesh Verma
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