The expression ‘taking cognizance of an offence’ has nowhere been defined in the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C./Code”). The Courts, through various judicial pronouncements, have shed light on its meaning. It has been stated to mean that the initiation of proceedings against a person commences on taking cognizance of an offence by the Magistrate. The Magistrate can take cognizance of an offence under one of the three contingencies mentioned under Section 190 of Cr.P.C i.e. firstly, on a complaint of an aggrieved person; secondly, upon receiving a police report (as defined under Section 173(2) of Cr.P.C.) and lastly, upon receiving information from any person (other than a police officer), or when Magistrate himself takes notice of an offence. In simpler words, it indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of an offence that is said to have been committed by someone.
Section 190, Cr.P.C. reads as below:
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
Superintendent and Remembrance of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal 437 [Calcutta High Court, Division Bench]
This is one of the first cases where the Calcutta High Court was called upon to decide the ambit and scope of the words “taking cognizance”. The High Court held that the words “taking cognizance” has nowhere been defined in the Code, and that before it can be said that any Magistrate has taken cognizance of the offence, under Section 190(1)(a) of the Cr.P.C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceedings in a particular manner, as indicated in proceedings under Section 200 Cr.P.C, and thereafter sending for enquiry and report under Section 202 Cr.P.C. The Court further stated that if the Magistrate instead of proceeding under the said sections, orders an investigation under Section 156(3) of Cr.P.C. or orders for an issuance of a search warrant, then he cannot be said to have taken cognizance of the offence. The High Court further held that the Magistrate is not bound to take cognizance merely because a complaint has been filed before him.
The Supreme Court was hearing an appeal against dismissal of revision petition of the Appellant against the order of the Special Magistrate refusing to quash the proceedings on the ground that the prosecution of the Appellant under Section 161 and 165 of the Indian Penal Code, 1860, was illegal for want of jurisdiction as no sanction under Section 197 of the Criminal Procedure Code (erstwhile Code of 1898) and Section 6 of the Prevention of Corruption Act was not taken. It was argued on behalf of the Appellant that date of arrest is the date of cognizance by the Magistrate, and as no sanction was accorded as on that date, the prosecution was without jurisdiction.
The Supreme Court disallowed such contention stating that the assumption that the Magistrate could only issue a warrant only after taking cognizance of an offence is completely unsound. The Court further approved the passage as found in Gopal Marwari v. Emperor (AIR 1943 Pat 245) wherein it was held that the word ‘cognizance’ is used in the Code to indicate the point when the Magistrate first takes judicial notice of offence. It is a different thing than initiation of proceedings. Furthermore, it is a condition precedent to the initiation of proceedings by the Magistrate and that it was a word of indefinite import. The Supreme Court further approved the decision laid down in Superintendent and Remembrance of Legal Affairs, West Bengal v. Abani Kumar Banerjee (Supra).
Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors., (1976) 3 SCC 252 [Supreme Court of India, 3 Judge Bench]
The Magistrate, on the complaint of respondents inter alia alleging offences under Sections 147, 149, 307, 395 of the Penal Code, ordered for an investigation under Section 156(3) of the Code. The appellants, by means of petition under Section 482 of the Code, approached the High Court of Andhra Pradesh, which disallowed the same. Before the Supreme Court, on one hand, it was argued by the appellants that clause (a) of the first proviso to Section 202(1) of Cr.P.C. peremptorily prohibits the magistrate from directing any investigation of such a complaint to the police. On the other hand, the respondents argued that powers conferred on the magistrate under Section 156(3) of Cr.P.C. are independent of his power to send the case for investigation under Section 202; that the power under Section 156(3) can be invoked at a stage when the magistrate has not taken cognizance of the case, while Section 202 of the Code comes into operation when magistrate decides to proceed under Chapter XV of the Code. The incidental question that arose was as to the meaning of “taking cognizance of an offence”.
The Supreme Court, while disallowing the petition, held that the Magistrate is not bound to take cognizance, in every case, when the facts alleged in the complaint disclose the commission of an offence. If on a reading of the complaint, the Magistrate finds the commission of a cognizable offence, he can send the same to the police for investigation under Section 156(3), and will be justified in adopting such course instead of taking cognizance of the offence, himself.
The Supreme Court further held that the expression “taking cognizance of an offence” 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, it was clear that a case could be said to be instituted in a court only when the court takes cognizance of offence alleged therein. Whether the magistrate has taken cognizance or not, it depends on the circumstances of each case, including the mode in which it is sought to be instituted, and nature of the preliminary action, if any, taken by the magistrate.
The Supreme Court further held that when the Magistrate receives complaint under Section 200 and applies his mind for the purpose of proceeding under Section 200 of the Code and the succeeding sections of Chapter XV, then he is said to have taken cognizance of an offence within the meaning of Section 190(1)(a). But if he issues a search warrant or orders for an investigation under Section 156(3), then he is not said to have taken cognizance of the offence.
S.K.Sinha, Chief Enforcement Officer v. Videocon International Limited & Anr., (2008) 2 SCC 492 [Supreme Court of India, 2 Judge Bench]
The Supreme Court was called upon to decide whether issuance of process in a criminal case can be equated with taking cognizance by a criminal court. In this case, the Bombay High Court had quashed the proceedings against the respondents holding that the cognizance was taken when the process was issued, and since the process was issued by the Magistrate after the prescribed limitation, proceedings were time barred and liable to be quashed.
The Supreme Court held that the High Court committed an error when it equated the issuance of process with the process of taking cognizance by a criminal court. It stated that ‘the expression ”cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It merely means “become aware of” and when used with reference to a court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.’ [Paragraph 12]
The Supreme Court further 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. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down. [Paragraph 12]
The Supreme Court further held that “Initiation of Proceedings”, dealt with in Chapter XIV, is different from “Commencement of proceedings” covered in Chapter XVI of the Code and that High Court was wrong in equating the two. [Paragraph 15]
The Supreme Court was hearing an appeal against an order of the High Court of Karnataka wherein the High Court refused to interfere with the order of the Magistrate, who permitted the amendment in a criminal complaint on the premise that amendment was carried out before the cognizance of the offence was taken.
The Supreme Court agreed with the view of the Magistrate and held that mere presentation of the complaint, and receipt of the same in the court, does not imply that the cognizance of the offence has been taken. Merely because the complainant has been examined does not mean that cognizance has been taken. The object of such examination is to find out whether the complaint filed is justifiable or is vexatious. [Para 8-9]
The Supreme Court further held that a Magistrate takes cognizance of an offence when he decides to proceed against a person accused of having committed an offence and not at the time when the magistrate just informed either by the Complainant by filing the complaint or by the police report about the commission of an offence. Cognizance therefore has reference to application of judicial mind by magistrate in connection with commission of an offence and not merely to a magistrate learning that some offence has been committed. [Para 8-9]
The Supreme Court further held that the expression “cognizance of offence” means taking notice of the accusations and applying judicial mind to the contents of the complaint and the material filed therewith. Whether the magistrate has taken cognizance of the offence will depend upon the facts and circumstances of each case. [Para 11]
It was held by the Supreme Court that the magistrate takes cognizance of an offence and not of the offenders. Once he takes cognizance of the offence, it becomes his duty to find out who the offenders really are, and once he comes to the conclusion that apart from the persons sent up by the police some other persons are also involved, it is his duty to proceed against those persons.