Lawwatch

Taking Cognizance under Section 190 CrPC means

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

  1. Reject the police report and direct an inquiry under Section 202 of
    CrPC so as to take subsequent action under 203 of CrPC

  2. Take cognizance under Section 190 at once, if he disagrees with the
    police report

  3. Have inquiry under Section 200 of CrPC

  4. 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.

Additional Reading

  1. Kelkar, R V: Criminal Procedure, 6^th^ ed. Lucknow, Eastern Book Co,
    2015

  2. Judgement in Ajit Kumar Palit v State of West Bengal: AIR 1963 SC
    765

  3. Judgement in Tula Ram v Kishore Singh: (1977) 4 SCC 459