Legal Provisions of Section 190 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Cognizance of offences by Magistrates:
The term “taking cognizance” has not been defined in the Code but in general sense it means to take notice judicially. It is sine qua non for trial the Magistrate is said to have taken cognizance of an offence as soon as he applies his mind to the suspected commission of the offence with a view to decide whether to initiate judicial proceedings against the offender.
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Thus taking cognizance does not require any formal action or indeed action of any kind, but as soon as a Magistrate applies his judicial mind to the suspected commission of an offence, he is said to have taken cognizance of that offence.
Thus taking cognizance includes intention of initiating a judicial proceeding against an offender in respect of an offence or taking steps to see whether there is any basis for initiating judicial proceedings.
As to the meaning of the term ‘cognizance’, the Supreme Court in S.K. Sinha, Chief Enforcement Officer v. M/s. Videocon International Ltd. and others observed that it merely means ‘to become aware of and when used with reference to a Court or a Judge, it connotes ‘to take notice of judicially’.
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It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone ‘Taking recognizance’ does not involve any formal action of any kind.
It occurs as soon as Magistrate applies his mind to the suspected commission of an offence a cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine-qua non or condition precedent for holding a valid trial. Cognizance is taken of the offence and not of an offender.
Cognizance cannot be equated with issuance of process. Section 190, Cr. P.C. empowers a Magistrate to take cognizance of an offence in certain circumstances. The Court further clarified that initiation of proceedings dealt with in Chapter XIV is different from ‘commencement of Proceedings covered by Chapter XVI of the Code.
For commencement of proceedings, there must be initiation of proceedings by issuing process against accused under Chapter XIV while commencement of proceedings begins with after taking cognizance of offence under Chapter XVI.
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A Magistrate may take cognizance of an offence either on a complaint lodged before him by the complainant who considers that a wrong has been done to him or to the public or on a police report submitted to him under Section 173 (2) after the police has investigated the case on the basis of FIR.
When a complaint is filed before a Magistrate, it is not always necessary that he must take cognizance of the offence he may simply order investigation by the police. However, if the Magistrate applies his judicial mind to the Complaint for the purpose of proceeding with it under Sections 200 to 203, it is said that he has taken cognizance of the offence.
But where he has simply forwarded the case to the police ordering an investigation under Section 156 (3) or issuing a search warrant under Section 93 of the Code, he cannot be said to have taken cognizance of the offence.
A Magistrate can ask the investigators to investigate the matter under Section 156 (3) prior to taking cognizance and he can also issue warrants for production before taking cognizance. But if he wants any investigation after taking cognizance, it will be covered under Section 202 of Cr. P. C.
Where the Magistrate has taken cognizance of the offence in a complaint case, he will examine the complainant on oath under Section 200 of Cr.P.C. or instead of taking cognizance of the offence; he may order an investigation by police under Section 156 (3).
The police will then make investigation and submit a report i.e., chargesheet under Section 173(2) to the Magistrate. It is on receipt of such police report that the Magistrate may take cognizance of the offence under Section 190 (1) (b) and issue the process.
Even after the receipt of the police report, the Magistrate may decide not to issue process or drop the proceedings but take cognizance of the offence on the basis of original complaint submitted to him by the complainant and proceed to record his statement upon oath and the statements of the witnesses under Section 200 and thereafter make a decision whether to dismiss the complaint or to issue process.
The Supreme Court in H.S. Bains v. State, has held that the mere fact that the Magistrate had earlier ordered an investigation under Section 156(3) and received police report under Section 173 will not totally efface the complaint and the Magistrate will not be barred from proceeding under Sections 200, 203 and 204 of the Code.
When the Magistrate takes cognizance of an offence on a report submitted to him by the police under Section 173 (2), he must ensure that the report is complete in all respects and his power to take cognizance is not controlled by the investigating agency.
But the Magistrate is not bound to take cognizance of offences mentioned in police report. The proper stage for considering the question as to offences for which the accused is to be tried is stage of framing of charge.
Therefore, direction given to Magistrate to consider the plea of enforcement that materials collected by Investigating Officer and contained in case diary makes case triable by Sessions Court was held to be not proper.
The Magistrate may take cognizance of the offence under Section 190 (2) (b) on receipt of police report and issue process. The order of the Magistrate taking cognizance of the offence should clearly reflect that he has applied his judicial mind in taking this decision.
Where a Magistrate not otherwise empowered to take cognizance of an offence under clauses (a) and (b) of Section 190 (1) does so erroneously in good faith, his proceedings shall not be set aside merely on the ground of being beyond his power and it shall not be a valid ground for setting aside the conviction of the accused. But if the Magistrate proceeds with the case knowing it well that he is not empowered to try it, then in that case the whole trial would be vitiated.
Elaborating the law relating to Magistrate taking cognizance of offence exclusively triable by the Court of Session, the High Court of Patna in Ashok Yadav v. State of Bihar, held that upon receipt of a police report under Section 173 (2), a Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) of the Code even if the police report had made out no offence against the accused.
Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused.
The Magistrate could ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts of the case, if he thinks fit, in exercise of his powers under Section 190 (1) (b) and direct the issue of process against the accused.
The Supreme Court in Masarf Hussain Khan v. Bhageeratha Engineering Ltd. held that High Court should not ordinarily interfere with an order taking cognizance passed by a competent Court of law except in a proper case.
Furthermore, only the High Court within whose jurisdiction the order of subordinate Court has been passed would have the jurisdiction to entertain an application under Article 227 of the Constitution of India unless it is established that the earlier cause of action arose within the jurisdiction thereof.
In Ganga Ram v. State of U.P., the Magistrate did not follow the procedure of complaint case. He had passed order without recording any statement of the complainant under Sections 200/202 of the Code. The case diary was before the Magistrate and he had formed his opinion independently.
Material before the Magistrate was sufficient to summon the accused. Cognizance could be said to have been taken under Section 190 (1) (b) and not under Section 190 (1) (a) of the Code. Merely mentioning recital of affidavits filed by the complainant in the order was not sufficient to come to the conclusion that Magistrate had taken cognizance under Section 190 (1) (a) of the Code of Criminal Procedure.
In Hare Ram Singh v. State of Bihar, the validity of taking cognizance of offence of murder by the Magistrate was in question. In this case, F.I.R. was lodged against unknown person. Police after investigation had submitted charge-sheet against one accused.
The Magistrate after taking into consideration the material in police case diary and statements of witnesses examined under Section 164, Cr. P.C. who had not been examined at the instance of Investigating Officer differed with conclusion of Investigating Officer and took cognizance against the said witness. Held it was not proper.
But where a Magistrate who is not empowered to take cognizance of an offence takes cognizance upon information received from someone or upon his own knowledge under clause (c) of Section 190 (1), his proceedings shall be void as per Section 461 (it) irrespective of the fact whether he was acting erroneously in good faith or deliberately.
As provided in clause (c) of Section 190 (1) where the Magistrate takes cognizance of an offence upon his own knowledge or his own information, he must make it clear to the accused before taking any evidence, that he is entitled to get his case transferred and tried by another Court and if the accused so chooses, the case shall be transferred to such other Magistrate as the Chief Judicial Magistrate may specify in this behalf.
Where the Magistrate after taking cognizance of the offence, discharges the accused, it is not incumbent upon him to give an hearing to the complainant.
It must be stated that under this section, the Magistrate takes cognizance of the offence and not of the accused which means he applies his mind to find out whether there exists some material to show prima facie commission of an offence. If in course of trial he finds that in reality it is a matter for a civil case rather than a criminal offence, he can interfere and drop the proceedings.
When the Magistrate takes cognizance of an offence on a private complaint, he only ascertains on the basis of the sworn statements of the complainant and his witnesses whether there exists a prima facie case to proceed against the accused and at this stage he need not go into the details to find out whether those allegations are sufficient enough to lead to conviction of the accused person. In other words, a close scrutiny of evidence is not required at this stage.
The Supreme Court has held in the case of Bhagwant Singh v. Commissioner of Police, that where a Magistrate decides not to take cognizance of an offence or to drop the proceedings against the person mentioned in the FIR, he must give a notice and hear the first informant, Failure to do would vitiate the action.
A Magistrate may take cognizance of an offence on information under clause (c) of Section 190(1) or he may do so on a complaint by the complainant under clause (a). The essential difference between two is that on information Magistrate acts of his own accord and initiative but on a complaint, he acts because the complainant has requested him to act.
It is for this reason that on case of acting on information, or of his own accord, the Magistrate is obliged to inform the accused that he may choose to be tried by another Court, if he so desires.
The Supreme Court explaining the term ‘cognizance of an offence’ with reference to Section 190 observed in CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., that where the Court on perusal of the complaint, is satisfied that the complaint disclosed commission of an offence and proceeds further, he could be said to have taken ‘cognizance of the offence’. It is not necessary that words “cognizance taken” should be specifically mentioned in the order.
In N. Dilip Reddy v. State of Orissa, there was allegation of forming unlawful assembly and murder against the petitioners. The petitioner’s name did not find place in charge-sheet submitted by the police.
The case was exclusively triable by Court of Session. The High Court of Orissa held that the scope of interference by cognizance taking Magistrate in a case triable by Court of Session was limited to the extent that he was to go by charge-sheet. Therefore, order of cognizance taken against the petitioner in the instant case was liable to be quashed.
In Suresh v. Mahadevappa Shivappa Danannava the validity of cognizance of offence was in challenge before the Supreme Court. In this case, complaint was lodged alleging offence of cheating against accused (vendor) for non-executing the sale deed and not accepting the balance of consideration. Complaint was filed after seven and half years of alleged agreement.
The accused had filed reply denying agreement and acceptance of advance consideration. Complainant after receiving reply had remained silent for three years and then filed a private complaint before the Magistrate.
Allegations in the complaint had made out a civil dispute and it was also time-barred. Under these circumstances taking cognizance of the complaint by the Magistrate clearly showed non- application of his mind. Moreover, when the Police Report-had also given a clear chit to the accused, the order of taking cognizance and issuance of process was not at all justified, hence it was set aside.
In Rajender Saini v. State of Delhi, the charge-sheet was filed for offence of murder against three persons. Magistrate on perusal of records found that inquest and investigation by two police officers had been carried out in such manner as to make evidence to disappear. Magistrate suo motu had summoned the concerned police officers for offence under Section 201, I.P.C. after three months of the acts complained of.
The Delhi High Court held that Magistrate had the jurisdiction to take cognizance against police officers even though they had not been named as accused and case was triable by Sessions Court. Action of police officers was not only under colour of duty but in fact directly in discharge of official duty. But the order summoning police officers was not sustainable due to bar of limitation under Section 140 of Delhi Police Act, and want of sanction under Section 197 of Delhi Police Act, 1978.
In Hiralal v. State of U. P., a complaint against alleged execution of forged will was filed under Sections 420, 462, 467, 468 and 471, IPC which was rejected by the Magistrate. Subsequent application under Section 156 (3), Cr. P. C. had made similar allegations without disclosing any exceptional case and no fresh facts were brought to the notice of the Court. Held, that the Magistrate should not have taken cognizance of offence or issued summons on the basis of the said application.
In M. D. Sonalika International Tractors Ltd. v. Dinesh Sharma, the complaint was filed against appellant-manufacturer and dealer of tractors alleging falsely representing about the power of tractor. The complaint contained no specific allegation against the manufacturer.
Evidence recorded also did not attribute any specific role of manufacturer. Therefore, the Supreme Court allowed the appeal and held that complaint proceeding could not be maintainable against the appellant manufacturer.
