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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