Cognizance.pptx

criminal law

1. “COGNIZANCE OF OFFENCES ”

2. POINT FOR DISCUSSION What is Cognizance. Taking of Cognizance. Cognizance is of offence not offender. Cognizance of offence by magistrate. Important points on Cognizance. Making over of cases to Magistrates. Cognizance of offence by Court of Sessions. Cognizance taken by a magistrate not empowered. Limitation on power to take Cognizance of offences. Limitation for taking Cognizance. Computing the period of limitation u/s 468 CrPC .

3. What is Cognizance: The word cognizance has its origin from the old French term ― connaissance , which means ― recognition, wisdom, knowledge, familiarity and also from the word conoistre which means ―to know. It is also derived from the Latin word ― cognosis where the “con” means to “with” and “gnosis” means ―to know. The word ‘Cognizance ‘ has not been defined in the criminal procedure code , but the meaning of cognizance is derived from the number of precedents and judicial pronouncements. The dictionary meaning of cognizance is ― taking account of, ― taking note of, ―to gain knowledge about, ―to have knowledge regarding something .

4. “Cognizance” in general means ‗ knowledge or notice and taking cognizance of offence‘ means taking notice, or becoming aware of the alleged commission of an offence. The court will have to take cognizance of the offence before it could proceed with the conduct of the trial. Taking cognizance does not involve any kind of formal action but occurs as soon a magistrate applies his mind to the suspected commission of an offence for the purpose of legal proceedings. So , taking cognizance is the application of judicial mind .

5. In Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC Apex Court has observed that though, the term `cognizance' has not been defined either in the 1988 Act or the Cr.P C , the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of law , possessing jurisdiction , on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially . State of Maharashtra v. Budhikota Subbarao , (1993) 3 SCC 33. : Chapter XIV from Sections 190 to 199, of Code of Criminal Procedure deals with Conditions requisite for Initiation of Proceedings.

6. Taking Cognizance of : The intention of starting a judicial proceeding with respect to an offence or taking steps to see whether there is a basis for starting the judicial proceeding by the court is taking cognizance. It is difficult that before taking cognizance that court should satisfy that ingredients of the offence charged are, there or not. Chapter XIV, Cr.P.C . deals with , ― taking the cognizance of offences. Section 190 and 193 talks about the mode for taking the cognizance by courts of magistrates and court of sessions whereas the power empowered is not absolute ; I t also puts certain restrictions given under Section 195 to 197 of the Code.

7. In R.R. Chari v. State of U.P., AIR 1951 SC 207 the Hon'ble Apex Court held that, "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of offence." It was further held that―Before it can be said that any Magistrate has taken cognizance of any offence under S.190 he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter. Taking cognizance of an offence is the first and foremost step towards trial . Cognizance literally means knowledge or notice, and taking cognizance of offence means taking notice, or becoming aware of the alleged commission of an offence. Obviously, the judicial officer will have to take cognizance of the offence before he could proceed to conduct a trial

8. SOME MORE JUDGMENTS ON TAKING COGNIZANCE: Darshan Singh Ram Kishan v. State of Maharashtra, (1971) 2 SCC 654, Kishun Singh & Ors. V. State of Bihar (1993) 2 SCC 16 Anil Saran v. State of Bihar, (1995) 6 SCC 142 “Where Apex Court define its opinion that, Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence for the purpose of proceeding to take subsequent steps towards inquiry and trial .

9. Not Taking of Cognizance : When the magistrate applies his mind, not for the purpose of proceeding under the subsequent sections of this chapter, but to take action of some other kind e.g., ordering investigation under Section 156(3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. It was held in R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207 , AND Tula Ram v. Kishore Singh, (1977) 4 SCC 459

10. COGNIZANCE IS OF OFFENCE AND NOT OF OFFENDER: On going through the schemes of Sec.190 and 204 Cr.P.C . one finds that Sec.190 speaks of cognizance of offence and Sec. 204 comes into force , if magistrate after taking the cognizance of offence finds sufficient ground for proceeding further by issuance of processes . In Sonu Gupta v. Deepak Gupta, (2015 ) 3 SCC 424 , Hon‘ble Supreme Court held, It is also well settled that cognizance is taken of the offence and not the offender . Hence at the stage of framing of charge an individual accused may seek discharge , if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused . But such exercise is required only at a later stage , as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case.

11. State of W.B. and Another vs. Mohd . Khalid and Another (1995) 1 Supreme Court Cases 684 the Hon'ble Apex Court held that―Section 190 of the Code talks of cognizance of offences by Magistrates. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. It has, thus, reference to the hearing and determination of the case in connection with an offence.

12. Cognizance of Offences by Magistrate: Code provides taking of cognizance by any Magistrate of the first class and any magistrate of the second class specially empowered in this behalf vide sec. 190. Sec.190(1) says; 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 Upon receiving a complaint of facts which constitute such 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 offence has been committed. (R/W: SECTION 191)

13. Clause (a)- 'UPON RECEIVING A COMPLAINT: The term complaint has been defined in S.2(d) as meaning: ‗Any allegation made orally or in writing to a magistrate, with a view to his taking action under this code that some person, whether known or unknown, has committed an offence, but does not include a police report. For taking Cognizance on Complaints the court is to act in accordance with the procedure laid down in Chapter XV which deals with ‗Complaints to Magistrates‘. It is from Section 200 to 203 which are dealing with; Examination of complainant followed. SECTION 200 Procedure by Magistrate not competent to take cognizance of the case. SECTION 201 Postponement of issue of process. SECTION 202 Dismissal of complaint SECTION 203 The procedure laid down in this chapter is to be meticulously

14. Sec 204 deals with ‗Issue of Processes. Sec.204(1) says - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a summons-case , he shall issue his summons for the attendance of the accused, or a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

15. In Mehmood Ul Rehman v. Khazir Mohammad Tunda , (2015) 12 SCC 420 AND Birla Corporation Limited v. Adventz Investments and Holdings Limited & Others, AIR 2019 SC 2390 , Hon‘ble Supreme Court held as under: ―The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint , when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course.

16. Clause (b) Upon Police Report; The expression ‗police report‘ has been defined by section 2(r) as meaning ―a report by a police officer to a magistrate under section 173(2)‖ i.e., the report forwarded by the police after the completion of investigation. it is for the magistrate to decide whether the police report is complete. His power cannot be controlled by the investigating agency. On receiving police report magistrate may take cognizance of the offense under section 190(1)(b) and straightaway issue process.

17. Uma Shankar Singh vs. State of Bihar & Anr . (2010) 9 SCC 479. The magistrate has not to proceed mechanically in agreeing with the opinion formed by the police, but has to apply his mind and pursue the papers placed before him. The law is well-settled that even if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers under Section 190(1)(b) Cr.P.C . the magistrate is not bound by the conclusion drawn by the police. He can take cognizance of an offense under section 190(1)(b) on the basis of the police report despite they might have recommended that there was not sufficient ground to proceed further.

18. C. Upon information received from any person other than a police officer, or upon his own knowledge : The expression ―the information received from any person other than a police officer‖ clearly means only such information as does not constitute a complaint or a police report. It applies only to cases where the private individual who is injured or aggrieved or someone on his part does not come forward to make a formal complaint. It is a provision of law enabling a public official to take care that justice may be vindicated notwithstanding that the persons individually aggrieved are unwilling and unable to prosecute.

19. In the same way, a Magistrate can also take cognizance of an offence without any complaint only when it has come to his knowledge that such offence has been committed. Magistrate can proceed under this Clause if he has reason to believe the commission of crime, but is unable to proceed in the ordinary way owing to the absence of any complaint or police report about it. Important Points on Cognizance: To sum up following points can be culled out from above discussion. It does not involve any formal action of any kind; It occurs as soon as the Magistrate applies his mind to the suspected commission of an offence; It is before the commencement of criminal proceedings;

20. It is necessary step for holding a valid trial; Cognizance is of an offence and not an offender; Whether the Magistrate has taken cognizance of an offence or not depends on the facts and circumstances of each case, as no particular form is necessary. It implies judicious application of mind to the averments in the complaints under sec. 190 ; It requires consideration as whether there is sufficient ground for proceeding further in a direction for taking action under subsequent provisions or Chapter XV ; If there is sufficient ground for proceedings, then the Magistrate can issue the process under Sec. 204 Cr.P.C .

21. A report of police that no case is made out can be rejected and magistrate can take cognizance or order further investigation under Sec 173 (8) Cr.P.C . COGNIZANCE TAKEN BY A MAGISTRATE NOT EMPOWERED If any magistrate not empowered to take cognizance of an offense under S. 190(1)(a) and 190(1)(b) , does erroneously in good faith take cognizance of an offense, his proceeding shall not be set aside merely on the ground of his not being empowered.

22. Purshottam Jethanand v. State of Kutch, AIR 1954 SC 700 the Hon‘ble Apex Court held that “ If a magistrate takes cognizance of an offense under S. 190(1)(a) and 190(1)(b) and proceeds with a trial though he is not empowered in that behalf and convicts the accused, the accused cannot avail himself of the defect and cannot demand that his conviction be set aside merely on the ground of such irregularity, unless there is something on the record to show that the magistrate had assumed the power, not erroneously and in good faith, but purposely having knowledge that he did not have any such power. On the other hand, if a magistrate who is not empowered to take cognizance of an offense takes cognizance upon information received or upon his own knowledge under S.190(1)(c) his proceeding shall be void and of no effect. In such a case it is immaterial whether he was acting erroneously in good faith or otherwise.

23. Limitations on Power to take Cognizance of Offences: In Vishwa Mitter vs. O.P. Poddar AIR 1984 SC 5, The Hon‘ble Apex Court held that ―As a rule, any person can set a criminal court in motion. Any person having knowledge of the commission of an offence may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. The exceptions to this rule are contained in sec 195-199 . Section 195-199 are exception to the general rule contained in section 190 regarding taking cognizance of an offence. In these cases the cognizance can be taken by the court in which the institution is there in accordance with section 190 of Cr.P.C subject to fulfillment of the conditions mentioned in these sections.

24. Limitation for taking Cognizance: In Assistant Collector Bombay vs. L.R. Melwani , AIR 1970 SC 962 , Hon‘ble Supreme Court has held that the question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint. However, on basis of the recommendations of 42 nd Law Commission of India CHAPTER XXXVI was added in Cr.P.C . in 1973 under the head limitation for taking cognizance for certain offences consisting of sections 467-473. This limitation has been provided only for the offences which are punishable with imprisonment upto three years whereas no limitation has been provided for any other offence.

25. Section 468 : Bar to taking cognizance after lapse of period of limitation provide that: Limitation for taking cognizance 6 months- ----- fine only Limitation for taking cognizance 1 year- --------punishment not exceeding 1 year Limitation for taking cognizance 3 year -------- punishment exceeding 1 year but not exceeding 3 years. Note: Exception of Section 468 is Section 473: Extension of period of limitation in certain cases .

26. Computing the period of limitation u/s 468 There was a lot of controversy as to from which date the period of limitation is to be computed i.e. whether from the institution of complaint/prosecution or the date on which the magistrate takes cognizance of the offence. But as of now the same has been set at rest by the Constitutional Bench of Hon‘ble Supreme Court in Mrs. Sarah Mathew vs. Institute of Cardio Vascular Diseases by its Director, 2014(2) SCC 62 . Accordingly, for the purpose of computing the period of limitation u/s 468 Cr.P.C the relevant date is the date of filing of the complaint or institution of prosecution , and not the date on which the Magistrate takes cognizance.