This article has been written by Srobona Sadhukhan pursuing a
, and has been edited by
.
Imagine a scenario where the process for searches and seizures during a criminal investigation is not clearly outlined. This would obviously lead to violations of rights and disruptions in society. But thankfully, the , deals with all such matters during an investigation and lays down a proper procedure for them. of the Code of Criminal Procedure is one such procedure that gives magistrates the power to take cognizance in criminal cases.
The word “cognizance” originated from the French term “connaissance”, which means “recognition, wisdom, knowledge, or familiarity” and from “conoistre” meaning “to know”. The definition of ‘cognizance’ is nowhere given in the Code of Criminal Procedure, 1973. But cognizance has gotten its meaning from a number of cases and judicial precedents. In layman’s terms, cognizance means ‘notice’ or ‘knowledge’ about the commission of an offence and refers to the time when a magistrate or a judge first takes judicial notice of an offence. Basically, it is not the initiation of proceedings. In , it was observed that cognizance means “taking notice of that offence.” The word “cognizance” implies the time when a magistrate or a judge first takes judicial notice of an offence; it is observed in the case of . The word “cognizance” though not statutorily defined, but the judicial pronouncements provide it a specific expression and meaning. Cognizance broadly speaks of taking judicial notice by an appropriate court about a matter mentioned before it so that it can be decided whether there is any essential element to initiate the proceedings for judicial determination, and it was observed in the case of .
Taking cognizance expresses the meaning of the judicial application of the mind of the magistrate to the facts mentioned in the complaint. In simpler words, the meaning of the words “taking cognizance” is that it means judicial application of the mind of the magistrate. The court has to confirm at the time of taking cognizance of the offence if there is any such prima facie reason so that the issues can be processed and whether the essential elements of the offence are there on record, as was observed in the case of . In the case of , the Supreme Court of India held that if there is adequate reason to proceed, then the magistrate is given the power for the issuance of process under of the Code of Criminal Procedure.
The courts have shed light on the meaning of the expression “taking cognizance” through various judicial pronouncements. It is clear that the initiation of proceedings against a person commences upon the magistrate’s taking cognizance of an offence. The magistrate can take cognizance of an offence under one of the three conditions provided under Section 190 of the Code of Criminal Procedure:
Simply put, it connotes the moment when a court or a magistrate takes judicial notice of an offence with the opinion of initiating proceedings in regard to the offence that is said to have been committed by someone. The Chief Judicial Magistrate may empower any magistrate of the second class to take cognizance under sub- section (1) of Section 190 of such offences as are within his competence to inquire into or try.
Cognizance will be said to have been taken only when there is a prima facie case, i.e. The examination at this stage will be whether the facts presented in the case are adequate enough to warrant further proceedings under the criminal procedural system.
If someone has committed a non-cognizable offence and needs to be arrested, a warrant must be issued. In this case, the police cannot make an arrest without a warrant. A judge or magistrate is given the power to issue an arrest warrant on behalf of the state. An arrest warrant gives the police the power to arrest a person. In the case of a cognizable offence, police can arrest someone without an arrest warrant. of the Criminal Procedure Code of 1973 speaks about the circumstances under which a person can be arrested without a warrant. Section 41(2) of the Cr.P.C., 1973, provides that in the case of a non-cognizable offence and a complaint, a person cannot be arrested without a warrant and an order of the magistrate. Sometimes arrests can also be made by private individuals or magistrates. In the system of criminal justice, if the judiciary is engaged in the making of decisions, it is adequate enough to secure a fair balance between the interests of an individual person and the interests of the society. A “disinterested determination” created by a “neutral and detached” judicial office will always best serve this balancing of interests. At present, the law doesn’t permit a magistrate to issue an arrest warrant in circumstances where immediate action is not needed. The magistrate issues a process, for example, a summons or a warrant, only after taking cognizance of an offence. When he accepts a complaint of the facts constituting the offence by receiving a police report upon such facts or by receiving information from any other source or having knowledge of the offence, he takes cognizance of that offence. Therefore, it is clear that a judicial officer is not given permission to issue an arrest warrant at the time of conducting an investigation or prior to declaring an offence to have happened.
The processes for taking cognizance are provided in Section 190(1)(a), (b), and (c) of the Cr.P.C. After receiving a complaint, when the magistrate takes cognizance, the complainant is examined to see if the claims mentioned in the complaint are true or sufficient, or whether further action has to be taken. Basically, the inquiry or investigation is allowed under of the Cr.P.C. to allow the magistrate to determine if the claims contained in the complaint are true or false. It is because of the decision about whether or not the process should be issued. This investigation or trial happens after the stage of cognizance.
After reading the complaint, if he determines that the complaint is about the commission of a cognizable offence, the magistrate may instantly issue the process. If he does not directly take note of the offence, he may order an investigation under of the Cr.P.C. After that, he can prefer to direct a police inquiry as a substitute action for taking cognizance of the offence.
When the magistrate is directing a police investigation under Section , he is able to take cognizance only after reviewing the police report. After that, he may issue the process and take cognizance of the offence under Section 190(1)(b) on the basis of receiving the police report following the conclusion of the inquiry. In accordance with the provision of Section 190 (1)(b), a magistrate may issue a summons even though the police report is a refer report, which means that the report includes no evidence to confirm the case. At this time, it is not important for him to follow the procedure mentioned in Sections and .
In accordance with the provision of Section 190(1)(c), the magistrate may determine any offence to have happened on the basis of getting the information from a source other than a police officer (even though the source is not hampered in person by the offence) or because of his own knowledge. This empowers a magistrate with the authority to complain of an offence if he has knowledge about the commission of an offence, even if there is no complaint or police report.
Even if a magistrate receives a complaint that clearly denotes the commission of an offence, he or she is not required to take cognizance; it is completely up to their discretion.
In this , the issue was whether a magistrate can take cognizance of an offence on the basis of a police report and summon someone who is not named as an accused in the F.I.R. or the police report. The Supreme Court of India stated that under Section 190 of the Act, the magistrate may summon a person who is not a suspect in the police report or F.I.R. The Court further stated that the magistrate, after taking cognizance, must check the evidence carefully upon discharge of the person to determine whether any more persons not mentioned in the report are needed to be summoned or not.
Section 190 of the Code of Criminal Procedure plays an important role in the administration of the criminal justice system in our country. Under Section 190, a magistrate may take cognizance of offences, which paves the way for fair judicial rulings. It ensures that the process of initiating criminal cases is clear and well-defined and that a magistrate is provided with adequate information before taking any legal action. It provides a clear framework through which criminal cases can be dealt with efficiently without any biassed ruling.
The post appeared first on .
Introduction
Imagine a scenario where the process for searches and seizures during a criminal investigation is not clearly outlined. This would obviously lead to violations of rights and disruptions in society. But thankfully, the , deals with all such matters during an investigation and lays down a proper procedure for them. of the Code of Criminal Procedure is one such procedure that gives magistrates the power to take cognizance in criminal cases.
What is meant by cognizance
The word “cognizance” originated from the French term “connaissance”, which means “recognition, wisdom, knowledge, or familiarity” and from “conoistre” meaning “to know”. The definition of ‘cognizance’ is nowhere given in the Code of Criminal Procedure, 1973. But cognizance has gotten its meaning from a number of cases and judicial precedents. In layman’s terms, cognizance means ‘notice’ or ‘knowledge’ about the commission of an offence and refers to the time when a magistrate or a judge first takes judicial notice of an offence. Basically, it is not the initiation of proceedings. In , it was observed that cognizance means “taking notice of that offence.” The word “cognizance” implies the time when a magistrate or a judge first takes judicial notice of an offence; it is observed in the case of . The word “cognizance” though not statutorily defined, but the judicial pronouncements provide it a specific expression and meaning. Cognizance broadly speaks of taking judicial notice by an appropriate court about a matter mentioned before it so that it can be decided whether there is any essential element to initiate the proceedings for judicial determination, and it was observed in the case of .
Taking cognizance expresses the meaning of the judicial application of the mind of the magistrate to the facts mentioned in the complaint. In simpler words, the meaning of the words “taking cognizance” is that it means judicial application of the mind of the magistrate. The court has to confirm at the time of taking cognizance of the offence if there is any such prima facie reason so that the issues can be processed and whether the essential elements of the offence are there on record, as was observed in the case of . In the case of , the Supreme Court of India held that if there is adequate reason to proceed, then the magistrate is given the power for the issuance of process under of the Code of Criminal Procedure.
The courts have shed light on the meaning of the expression “taking cognizance” through various judicial pronouncements. It is clear that the initiation of proceedings against a person commences upon the magistrate’s taking cognizance of an offence. The magistrate can take cognizance of an offence under one of the three conditions provided under Section 190 of the Code of Criminal Procedure:
- on a complaint of an aggrieved person; or
- upon receiving a police report (as defined under Section of Cr.P.C.); or
- upon receiving information from any person (except a police officer), or in the case where the magistrate himself takes notice of an offence.
Simply put, it connotes the moment when a court or a magistrate takes judicial notice of an offence with the opinion of initiating proceedings in regard to the offence that is said to have been committed by someone. The Chief Judicial Magistrate may empower any magistrate of the second class to take cognizance under sub- section (1) of Section 190 of such offences as are within his competence to inquire into or try.
When can cognizance be taken
Cognizance will be said to have been taken only when there is a prima facie case, i.e. The examination at this stage will be whether the facts presented in the case are adequate enough to warrant further proceedings under the criminal procedural system.
If someone has committed a non-cognizable offence and needs to be arrested, a warrant must be issued. In this case, the police cannot make an arrest without a warrant. A judge or magistrate is given the power to issue an arrest warrant on behalf of the state. An arrest warrant gives the police the power to arrest a person. In the case of a cognizable offence, police can arrest someone without an arrest warrant. of the Criminal Procedure Code of 1973 speaks about the circumstances under which a person can be arrested without a warrant. Section 41(2) of the Cr.P.C., 1973, provides that in the case of a non-cognizable offence and a complaint, a person cannot be arrested without a warrant and an order of the magistrate. Sometimes arrests can also be made by private individuals or magistrates. In the system of criminal justice, if the judiciary is engaged in the making of decisions, it is adequate enough to secure a fair balance between the interests of an individual person and the interests of the society. A “disinterested determination” created by a “neutral and detached” judicial office will always best serve this balancing of interests. At present, the law doesn’t permit a magistrate to issue an arrest warrant in circumstances where immediate action is not needed. The magistrate issues a process, for example, a summons or a warrant, only after taking cognizance of an offence. When he accepts a complaint of the facts constituting the offence by receiving a police report upon such facts or by receiving information from any other source or having knowledge of the offence, he takes cognizance of that offence. Therefore, it is clear that a judicial officer is not given permission to issue an arrest warrant at the time of conducting an investigation or prior to declaring an offence to have happened.
Process for taking cognizance
The processes for taking cognizance are provided in Section 190(1)(a), (b), and (c) of the Cr.P.C. After receiving a complaint, when the magistrate takes cognizance, the complainant is examined to see if the claims mentioned in the complaint are true or sufficient, or whether further action has to be taken. Basically, the inquiry or investigation is allowed under of the Cr.P.C. to allow the magistrate to determine if the claims contained in the complaint are true or false. It is because of the decision about whether or not the process should be issued. This investigation or trial happens after the stage of cognizance.
Power of the magistrate after receiving a complaint
After reading the complaint, if he determines that the complaint is about the commission of a cognizable offence, the magistrate may instantly issue the process. If he does not directly take note of the offence, he may order an investigation under of the Cr.P.C. After that, he can prefer to direct a police inquiry as a substitute action for taking cognizance of the offence.
When the magistrate is directing a police investigation under Section , he is able to take cognizance only after reviewing the police report. After that, he may issue the process and take cognizance of the offence under Section 190(1)(b) on the basis of receiving the police report following the conclusion of the inquiry. In accordance with the provision of Section 190 (1)(b), a magistrate may issue a summons even though the police report is a refer report, which means that the report includes no evidence to confirm the case. At this time, it is not important for him to follow the procedure mentioned in Sections and .
In accordance with the provision of Section 190(1)(c), the magistrate may determine any offence to have happened on the basis of getting the information from a source other than a police officer (even though the source is not hampered in person by the offence) or because of his own knowledge. This empowers a magistrate with the authority to complain of an offence if he has knowledge about the commission of an offence, even if there is no complaint or police report.
Even if a magistrate receives a complaint that clearly denotes the commission of an offence, he or she is not required to take cognizance; it is completely up to their discretion.
Difference between Section 200 and Section 190 of the Code of Criminal Procedure
| Section 200 | Section 190 |
| Section 200 of the Code of Criminal Procedure outlines the power of the magistrate to question both the complainant and the witness after taking cognizance. | Section 190 of the Code of Criminal Procedure outlines the power of the magistrate to take cognizance of any offence. |
Recent judicial precedent
Nahar Singh v. State of Uttar Pradesh (2022)
In this , the issue was whether a magistrate can take cognizance of an offence on the basis of a police report and summon someone who is not named as an accused in the F.I.R. or the police report. The Supreme Court of India stated that under Section 190 of the Act, the magistrate may summon a person who is not a suspect in the police report or F.I.R. The Court further stated that the magistrate, after taking cognizance, must check the evidence carefully upon discharge of the person to determine whether any more persons not mentioned in the report are needed to be summoned or not.
Conclusion
Section 190 of the Code of Criminal Procedure plays an important role in the administration of the criminal justice system in our country. Under Section 190, a magistrate may take cognizance of offences, which paves the way for fair judicial rulings. It ensures that the process of initiating criminal cases is clear and well-defined and that a magistrate is provided with adequate information before taking any legal action. It provides a clear framework through which criminal cases can be dealt with efficiently without any biassed ruling.
References
The post appeared first on .