What “taking cognizance” means
What is meant by taking cognizance in regard to an offence by a competent Magistrate is not defined or described in the Code of Criminal Procedure, 1973 (CrPC) or any other act. However the term has acquired a definite connotation through well settled judicial pronouncements.
The term taking cognizance actually means become aware of, but in reference to a Court or a Judge, it means to take notice of judicially. The term has no mystic significance in criminal law. In practice taking cognizance means taking notice of an offence for initiation of proceedings under Section 190 of Cr.P.C.
Cognizance refers to the point when the court first takes judicial notice of an offence by not only applying its mind to the contents of the complaint/police report, but also proceeding further as provided further in Chapter XIV of the Cr.P.C.
Taking cognizance includes either taking steps to see whether there is basis for initiating a judicial proceeding or initiating a judicial proceeding against an offender by the Magistrate.
Who takes cognizance of offence?
Ordinarily, a citizen can initiate criminal proceedings against an offence by two means. He may either lodge an FIR before the Police Officer (Station House Officer) if the offence is a cognizable one, or he may lodge a complaint before a competent Judicial Magistrate irrespective of whether the offence is cognizable or non-cognizable. Any Magistrate of the first class and the duly empowered second class Magistrate may take cognizance of any offence for further proceedings.
The Section 190 to 199 of CrPC describes the methods by which various criminal courts are authorised to take cognizance of offences. The Sections 195 to 199 put some limitation on filing complaint or taking cognizance, in regard to certain private offences.
As per Section 190(1) an empowered Magistrate may take cognizance of any offence-
· Upon receiving a complaint of facts which constitute such an offence.
· Upon a police report of such facts
· Upon information received from any person other than a police officer, or upon his own knowledge, that such an offence has been committed.
Taking cognizance involves no formal action
Taking cognizance occurs when a Magistrate applies his critical mind to the suspected commission of an offence so as to take subsequent steps under Section 200, 202 or 204 of the CrPC towards inquiry and trial.
But application of mind by the Magistrate for the purpose of any other action such as ordering a police investigation, issuing a search order etc cannot be considered as taking cognizance of the offence.
In short, cognizance means to take judicial notice of the offence for inquiry or trial. Taking cognizance does not involve any formal action.
Taking cognizance a precondition for trial
Taking cognizance is a pre-requisite or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Thus, what Section 190 of CrPC contemplates is that the Magistrate is said to have taken “cognizance” once he makes himself fully conscious and aware of the allegations made therein and decides to proceed further for inquiry or trial of the offence.
Section 190 CrPC sets out the mode
The Section 190 (1) a, b and c of CrPC sets out the modes of taking cognizance.
On receiving a complaint under Section 190(1)(a) of CrPC, when the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding Sections of the CrPC, then he has taken the cognizance of the offence.
Similarly, when a Magistrate, on receipt of a complaint, examines the complainant in order to determine the veracity or sufficiency of the accusations made in the complaint or whether process need to be issued it can safely be assumed that the Magistrate has taken cognizance.
But the inquiry or investigation provided for under Section 202 CrPC is exclusively to enable the Magistrate to find out the truth or otherwise of the allegation made in the complaint in order to determine whether the process should be served or not. That inquiry or trial takes place at the post cognizance stage.
If the Magistrate, on reading the complaint, finds that the allegations therein disclose a cognizable offence, he can straight away issue process. In case he is not straight away taking cognizance of the offence he can order investigation under Section 156(3) of CrPC. Such an action saves the Magistrate from wasting his valuable time in enquiring into a matter. Therefore ordering a police investigation is an alternate course of action a Magistrate can opt for, rather than taking cognizance of the offence.
If he orders for police investigation, he need not examine the complainant on oath. This is because he is not going to take cognizance of the offence therein. The Magistrate can very well take cognizance after the receipt of the police report which contains more material facts of the case.
If he is ordering police investigation under Section 156(3) CrPC, then he cannot be considered to have taken cognizance of the offence. In such a situation taking cognizance will occur only after the Magistrate going through the police report. On receiving police report after the culmination of the investigation the magistrate may take cognizance of the offence under S. 190(1) (b) and straightaway issue process. A Magistrate, under Section 190 (1) (b), can issue process even if police report is a refer report – that means no case is made out in the report. He need not follow the procedure under Section 200 and 202 in such an event.
As per Section 190(1)(c), the magistrate can take cognizance of any offence upon receiving information from any person other than a police officer (even if the person is not personally aggrieved by the offence) or upon his own knowledge. This provision enables a Magistrate to proceed against the offence if he has knowledge of the offence, despite having no complaint or police report before him.
Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case. It includes the mode of instituting the case and the nature of preliminary action taken by the Magistrate.
Magistrate has option to take cognizance
When a Magistrate receives a complaint, he is not bound to take cognizance even if the facts alleged in the complaint disclose the commission of an offence. This is clear from the use of the words “may take cognizance”. The word “may” gives enough discretion to the Magistrate in taking action in the matter.
Cognizance is taken when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any person regarding an offence.
The issuance of process by the court occurs at a subsequent stage duly after considering the materials placed before it. It happens when the Magistrate decides to proceed against the offender whom a prima facie case is clearly made out. Taking cognizance of an offence is not equivalent to issuance of process: issuance of process takes place only after taking cognizance of the offence. When a Magistrate applies his mind for issue of process, he must be held to have taken cognizance of the offences the complaint put forth.
For the purpose of enabling the police to start investigation the Magistrate can direct the police to register an FIR as law prescribes. Even if a Magistrate does not say the police to register an FIR, it is the duty of the Officer-in-charge of the police station to register the FIR, if the complaint discloses a cognizable offence. Registering an FIR enables the police officer to take further steps contemplated in Chapter XII of the Code.
Magistrate’s power when he receives a police report
The Magistrate, on receipt of a complaint or a police report, has power to
Reject the police report and direct an inquiry under Section 202 of CrPC so as to take subsequent action under 203 of CrPC
Take cognizance under Section 190 at once, if he disagrees with the police report
Have inquiry under Section 200 of CrPC
to take cognizance of the offence on the basis of the complaint submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present, under Section 200 of CrPC
In short, the Magistrate ordered an investigation and has received a police report does not bar him from taking actions under Section 200, 203 and 204 of CrPC based on the original complaint itself. A Magistrate’s power to take cognizance cannot be impaired by the sloppy police investigation or the report therein. A Magistrate can take cognizance if he is satisfied with the material facts before him in regard to the offence.
Application of mind while ordering police investigation
Ordering investigation by a Magistrate under Section 156(3) is not a mechanical process. The application of mind by the Magistrate should be reflected in the order even if he is not taking cognizance of the offence.
The mere statement that he has gone through the complaint, documents and heard the complainant will not be sufficient. The order should invariably reflect what aspects in the complaint, the documents and the hearing prompted the Magistrate to order investigation under Section 156(3) of CrPC even though no detailed expression of it is necessary.
The application which seeks a police investigation is to be supported by an affidavit duly sworn by the applicant. This has been insisted as it has become a practice to file such applications in a routine manner irresponsibly by the applicant mainly to harass the accused. The Magistrate would verify the truth and the veracity of the allegations in the complain before proceeding. Such an affidavit can make the applicant more responsible as once an affidavit is found to be false, the applicant will be liable for prosecution.
Under Section 202 of CrPC, Magistrate can direct an investigation to be made either by a police officer or by any other person. This is done after taking cognizance. It is only for a limited purpose. Such investigation is merely for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This is quite evident from the words in Section 202(1) which states: “or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.”
Difference between investigation under chapter XII & XIV
The key difference between an investigation under Section 156 (3) and Section 202 of CrPC is that the former is at the pre-cognizance stage whereas the latter is at the post-cognizance stage.
The Chapter XII and the Chapter XIV of the CrPC serve two different purposes: the former is at the pre-cognizance stage while the latter is at the post-cognizance stage. The Chapter XII, so far as Magistrate is concerned, deals with pre-cognizance stage but Chapter XIV containing Section 190 deals with post-cognizance stage,.
Therefore once a Magistrate starts acting under Section 190 and the subsequent provisions of the code, he cannot order police investigation under Section 156(3). The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages.
In the case of a complaint, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he takes cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of the power under Section 156(3). An order made under Section 156 (3) is in the nature of intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation covers the process from collection of evidence under Section 156 to the filing of the report or charge sheet under Section 173 of CrPC.
On the other hand, the Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the evidence is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct an investigation “for the purpose of deciding whether or not here is sufficient ground for proceeding “.
Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing the proceedings already instituted upon a complaint before him. Both the investigations are different.
Power to take cognizance different from the power to try
The power to take cognizance is different from the power to inquire into or try a case. A Sessions Court may have power to try a case but not to take cognizance of the offence.
On the other hand a Magistrate has power to take cognizance of an offence but not to inquire into or try the case.
Some limitation on taking cognizance
The Magistrate, while taking cognizance, must be aware of the limitation put on his power to take cognizance under Section 195 to 199 of the CrPC.
The Sections take away the power of persons in filing complaint and the power of the Magistrate in taking cognizance in some cases. Offences against State, offences committed by a judge, offences committed by army personnel in discharge of his duty, offence against marriage, offences of defamation etc come under this category of offences where there are restraints in taking cognizance.
Kelkar, R V: Criminal Procedure, 6th ed. Lucknow, Eastern Book Co, 2015
Judgment in Ajit Kumar Palit v State of West Bengal: AIR 1963 SC 765
Judgment in Tula Ram v Kishore Singh: (1977) 4 SCC 459