Meaning of term - Cognizance of an offence by Magistrate


The author of his blog is Anubhav Maheshwari, 2nd year, B.A.L.LB (Hons.) student at Institute of Law Nirma University, Ahmedabad.





Introduction
Taking cognizance is the foremost step taken by a Magistrate for the beginning of a trial. The cognizance of an offence by Magistrate is different from a Cognizable and Non-cognizable offence. Section 2(c) of the code defines the cognizable offence as under which police have the powers to investigate and arrest a person without a warrant. In a non-cognizable offence, police need a prior order of the Magistrate to investigate an offence and they cannot arrest any person without a warrant[1]. Schedule I of the code provides whether an offence (mentioned under I.P.C.) is cognizable or not, and such distinction only curtails police’s power to make investigation and arrest. Cognizance by the magistrate is a prerequisite for every case (whether cognizable or non-cognizable), and only then such a case proceeds to trial.
  
What does taking Cognizance means
What is taking cognizance has not been defined in the Criminal Procedure Code; therefore, its meaning is entirely dependent upon circumstances of a case and mode of the institution of the case. It generally means ‘to become aware of’’, but when used concerning a Court or a Magistrate, it means to take ‘judicial notice of an offence’. In the case of Tula Ram[2] SC held that,” Taking cognizance means the judicial application of mind of the Magistrate to facts mentioned in the complaint with a view to taking a further application. Thus, section 190 contemplates that he is said to have taken cognizance once he makes him fully aware of all allegations made in the complaint and decides to examine or test the validity of such allegations.” After various landmark judgments, the meaning of term cognizance and the action of taking cognizance by a Magistrate has now been well settled.
Taking cognizance does not involve any formal action by the Magistrate. As soon as a Magistrate applies his mind to the suspected commission of an offence to take subsequent steps under this code, he is said to have taken cognizance. For example, summoning an accused on the basis of the information available for inquiry or trial[3], cognizance can be said to have been taken.
Cognizance can be understood in simple terms as looking through a narrow keyhole and examining whether an offence has been committed or not. If any offence is committed, then whether the proper section of the IPC or any other special enactment is attractive. During this stage, the Magistrate is aided with the evidence and additional relevant information while making such a decision. The underlying objective of taking cognizance is to ensure a ‘judicial check’ on the unlimited powers of police to investigate, as a judicial officer by taking cognizance examines whether the offences have been made out or not. Thus the word cognizance has been used in the code to indicate the points when the Magistrate for the first time takes judicial notice of an offence.
A case can be said to be instituted in a court only when it takes cognizance of the offence alleged therein. The Magistrate's power to take cognizance and various ways of making it are provided under section 190 of Cr.P.C.

“S. 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.”

Who is authorized to take Cognizance
       Any judicial magistrate of I class can take cognizance of any offence. [S. 190(1)]
       II class judicial magistrate when specially authorized by Chief Judicial Magistrate to take cognizance of any offence. [S. 190(2)]
       Except otherwise expressly provided under the code, Sessions Court is not empowered to take cognizance of any offence as a Court of original jurisdiction, unless a case has been committed by a Magistrate.
There are three ways provided under this section under which a magistrate can take cognizance, which includes – upon the complainant, upon police report, and upon the information.

When magistrate is said to have taken the cognizance
It depends on the circumstances of a case and the mode in which case is instituted, i.e., whether on a police report, complaint or information, and also on the nature of the preliminary action, if any, taken by the Magistrate.

1-      On complaint case- When on receiving the complaint [complaint mentioned herein means any allegation made orally or writing to a Magistrate, with a view to take further action, as defined under S. 2(d) of the code], the Magistrate applies his mind for the purposes of proceeding under S.200 and the following sections in Chap.15 of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of S.190(1)(a). Cognizance in such cases is said to have been taken when the court orders examination of complainant and witnesses (if present) under Section 200 of Cr.P.C...
2-      On police report Case- Cognizance in case of police report [as given under S. 2(r) of the code, police report means a report by a police officer to Magistrate under Section 173(2)], is said to have been taken when after considering the material present before it orders to issue summon or warrant for the accused, as provided under Section 204.
Even if the investigating agency after doing the investigation is satisfied that no case has been made against the accused, still the Magistrate can take cognizance of such offence and can direct police for further investigation or can proceed or depute any subordinate Magistrate for inquiry.[4]  
3-       On information cases Cognizance in case of information is said to have been taken when the court orders examination of witnesses (if any) or orders issue of process.
The powers of the Magistrate to take cognizance are very wide, it even includes to take cognizance of such person who has not been arrested or added in an array of parties given in the police report.[5]

When Cognizance not taken by Magistrate
If instead of proceeding under Chap.15, Magistrate in the judicial exercise of his discretion, take the action of some other kind, i.e., the court instead of passing an order for examination of complainant or issue of process, passes order such as issuing a search warrant for the purpose of investigating, or ordering an investigation by the police under S.156(3), he cannot be said to have taken cognizance of any offence.
Limitation on Magistrate’s power to take cognizance
       Time Limitation – Section 467 – 473 provides a time limit for taking cognizance of an offence by a Magistrate.
       Other Limitations – Section 195 – 199 provides another set of limitations on the wide power of the Magistrate to take cognizance. These sections provide an exception to the general rule empowering Magistrate to take cognizance of any offence as mentioned under S. 190 of the code.

Conclusion
Taking cognizance of an offence is the most important step for initiating a trial of an accused; no one except the Magistrate is empowered with the powers to take cognizance. Though power vested in him is very wide in ambit but still, there are some restrictions imposed by the code for free & fair trial and judicial check on investigative powers of police.



[1] Section 2(l) R/W Section 155 of Cr.P.C.
[2] Tula Ram v. Kishore Singh (1977) 4 SCC 459.
[3] The power of Magistrate to issue summons or warrants while taking cognizance is provided under S. 204 of Cr.P.C
[4] Dhrup Singh v. State of Bihar, (2013) 4 SCC 275.
[5] Dharam Pal v. State of Haryana, (2014) 3 SCC 306.

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