We Droit Penale: ILJCC have taken an initiative of starting our blog "Droit Penale NewsLetter" this shall be maintained by few members of our organisation.
This blog shall have the latest updates regarding legal facets of the societies at large. We invite bloggers to connect with us and share views or submit articles which can be posted and shared through this blog.
The author of this blog is Shivanshi Gupta 3 rd B.Com LL.B Year student of Institute of Law, Nirma University.
The meaning of the term cognizance is not defined anywhere, it
is interpreted by various judicial pronouncements. One of the earliest
definitions of term cognizance was given in the case of Tularam vs. Kishore 1977
where the court held that taking cognizance means the judicial application of
mine of the magistrate to the facts and circumstances of the case present
before him and make himself fully aware of the allegations made and decide to test
the validity of such allegations. If this makes a prima facie case, the
magistrate passes, and orders. This stage is known as cognizance. Section
190 CrPC mentions the cognizance of offenses by the magistrate. It can only be
taken by the judicial magistrate. There are three modes to take cognizance are
mentioned in section 190 under clauses – By a complaint, clause b- Via a Police The report, and clause c- Based on the information received from a person other
than police respectively.
To decide whether a magistrate shall take cognizance or not
depends on the circumstances of the case, mode, and nature of preliminary
action by the magistrate. If a magistrate takes alternative actions like
issuing a search warrant, ordering investigation under S 156(3) is not called
as taking cognizance. Sub-section (3) of Section 156 empowers the magistrate
u/s 190 to order an investigation. Cognizance is not said to be taken under
section 156(3) but it is taken under S.190. Section 156(3) just empowers the
magistrate to order for investigation.
It is an established principle that cognizance is taken of the offence
and the offender,
the magistrate takes cognizance before the commencement of the trial. The
magistrate can take cognizance on receiving of the complaint u/s 190(1) (a) if
he applies his mind to proceed u/s 200 to 203 he is said to have taken
cognizance but if magistrate proceeds u/s 156(3) he has not taken cognizance.
The magistrate may also take cognizance u/s 190(1) (b) on receiving the police
report, if he says that it’s a prima facie case, he may issue a process. The
power of the magistrate also extends to people who have not been arrayed by the
police but there should be sufficient evidence against them. In a case where
the magistrate was not empowered to take cognizance but he did under clause a
and b of section 190, shall not be considered as bad. But if cognizance taken
under clause c, where the magistrate was not empowered the proceedings shall
not be considered and be deemed as void.
With time, the scope of taking cognizance has widened by various
judgments and the most historic and recent judgment in the light of widening
the scope of cognizance is the case of Vinubhai Haribhai
Malaviya vs. The state of Gujarat 2019. This case is a
landmark judgment by a three-judge bench of Justices R.F Nariman, Surya
Kant, and V. Ramasubramanium. The Supreme Court held that the judicial
magistrate can under section 156(3) direct further investigation at the
post-cognizance stage before the commencement of the trial.
The facts of the case were that an FIR was registered against
the appellants, the investigation took place and a charge-sheet was submitted
to Judicial Magistrate (First class). Magistrate took cognizance and issued the
summons. The application was filed by the accused u/s 173(8) for further
investigation. The magistrate dismissed it, Revision applications were filed
before the court of sessions, and again the criminal revision petition was
filed before the High Court where it held that the magistrate does not have the
power to order a further investigation after the filing of charge-sheet and
post-cognizance. The Supreme Court set aside this judgment.
Earlier, the power of the magistrate to direct further the investigation was restricted until the stage of pre-cognizance. In the interest
of justice for fair and proper investigation, the scope of taking cognizance
was increased until the post-cognizance stage before the commencement of the trial.
In the case of Sakiri Vasu v. state of UPThe court said that to ensure proper
investigation the A.21 of Indian constitution has mandated that all the powers
which are necessary for proper investigation, may be implied or incidental are
available with the magistrate and this power continues at all the stages of the
criminal proceedings until the trial commences.
Even when we refer to the provisions textually of the definition
of the term ‘investigation’ under section 2(h) it mentions that all the
proceedings for collection of evidence conducted by a police officer. This
definition also includes the proceedings by way of further investigation under
section 173(8) CrPC. The case of Devarapalli Lakshiminarayan Reddy v. V
Narayana Reddy was
not relied upon by the court as the court held, in this case, that
investigation u/s 1563) is exercisable only at the pre-cognizable stage and u/s
202(1) investigation is exercisable at the post-cognizance stage. The court
referred to the case of Bikash Ranjan Rout v. State, Government of
NCT of Delhi which
said that if the power of magistrate ceases midway through the pre-trial
proceedings would amount to travesty of justice. The court also relied upon the judgment of Kamlapati Trivedi v state of West Bengal
where it was said that if the magistrate does not agree with the police report,
he may order further investigation.
Court held that the power of magistrate under section 156(3) is
very wide to ensure there is a proper investigation. A. 21 says that all the
powers which are necessary for proper investigation may be implied or
incidental is available with the magistrate which also includes further
investigation in its ambit. S.173 (2) also ensures that the magistrate has
power at all stages until the commencement of the trial. Section 2(h) mentions
the definition of investigation which says “all proceedings for collection of
evidence”, which means that it also includes a further investigation. Thus s.
156 (3) read with S.156 (1), section 2(h) and S.173(8) CrPC empowers the
magistrate to order further investigation even at the post–cognizance stage.
This judgment is a way forward to ensure a fair investigation and it shall
prove to be fundamental to guarantee the protection of A.21 to the citizens of