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COGNIZANCE OF OFFENCE AND COMMENCEMENT OF JUDICIAL PROCEEDINGS
(Ss. 190 TO 199)
QUESTION BANK
Q.1. Discuss what is meant by taking cognizance of offence by Magistrate? Under what circumstances can a Magistrate take cognizance of an offence?
Q.2. Explain briefly the limitations imposed by the Code on the powers of Magistrates to take cognizance of offences.
SHORT NOTES
1) Dismissal of complaint:-
SYNOPSIS
- MEANING OF TAKING COGNIZANCE:-
- TAKING COGNIZANCE:-
- A) COGNIZANCE BY THE MAGISTRATE:-
- a) General (S. 190)-
(i) upon receiving a complaint of facts that constitute an offence;
(ii) upon a police report of such facts;
(iii) upon information received from any person other than a police officer; or
(iv) upon his own knowledge that such offence has been committed.
- b) Transfer of case:-
(i) At the instance of accused (S. 191):-
(ii) Power of Chief Judicial Magistrate of transfer (S. 192):-
- B) COGNIZANCE BY THE COURT OF SESSION (S. 194):-
III. LIMITATIONS ON TAKING COGNIZANCE:-
1) Prosecution for contempt of lawful authority of public servants:-
2) Prosecution for offences against public justice:-
3) Prosecution for offences relating to documents produced in court.
4) Prosecution for offences against the state:-
5) Prosecution for offences relating to religion.
6) Prosecution for offences relating to public mischief:-
7) Prosecution for offence of criminal conspiracy:-
8) Prosecution of judges and public servants:-
9) Prosecution of members of armed forces:-
10) Prosecution for offences against marriage:-
11) Prosecution of husband for rape:-
12) Prosecution for offence of cruelty:-
13) Prosecution for defamation:-
I. MEANING OF TAKING COGNIZANCE:-
This topic deals with “conditions requisite for initiation of proceedings”. A court can take cognizance of an offence only when conditions requisite for initiation of proceedings before it (as set out in this Chapter) are fulfilled; otherwise, the court does not have jurisdiction to try the offence. After completion of the first stage of ‘investigation’, the second stage of inquiry starts, i.e., the Magistrate takes cognizance of the offence on the basis of the charge -sheet. It is the foremost important step towards trial. Taking cognizance of an offence does not involve any formal action or, indeed, action of any kind. It does not have any special form. The expression ‘taking cognizance’ has not been defined in the Code; it is, however, used to indicate the point when a Magistrate takes judicial notice of an offence either with a view to initiate criminal proceedings against the offender in respect of an offence or to drop proceeding if the evidence on record is not sufficient to conduct trial against accused. In other words, “taking cognizance” means a Magistrate’s judicial application of mind to the suspected commission of an offence. Proceeding in a criminal case starts only after taking cognizance by the magistrate.
II. TAKING COGNIZANCE:-
A) COGNIZANCE BY THE MAGISTRATE:-
a) General (S. 190)-
Any magistrate of the first class or any magistrate of the second class (specially empowered by Chief Judicial Magistrate) may take cognizance of any offence-
(i) upon receiving a complaint of facts that constitute an offence;
Complaint means (S. 2 d)- 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).
However, a magistrate may, before taking cognizance, order a police investigation of the allegations made in the complaint (S. 156 (3). Once cognizance is taken, magistrate can order an investigation.
(ii) upon a police report of such facts;
‘Police report’ means (S. 2 r) – a report by a police officer to a magistrate under S. 173 (2), i.e., the final report forwarded by the police on the completion of the investigation of the offence’.
(iii) upon information received from any person other than a police officer; or
The magistrate can take cognizance of an offence when he receives information from ‘any person,’ i.e., where an aggrieved party does not come forward to make a formal complaint.
(iv) upon his own knowledge that such offence has been committed.
The magistrate can take cognizance of an offence upon his own knowledge. It includes the events (i) witnessed by him, (ii) and derived from other sources.
b) Transfer of case:-
(i) At the instance of the accused (S. 191):-
When a magistrate takes cognizance of an offence under clause (iii) (i.e., upon information received from any person other than a police officer) and (iv) (i.e., upon his own knowledge that such offence has been committed), he should inform accused (before any evidence is taken) that he is entitled to have the case inquired into or tried by another magistrate (i.e., other than the magistrate who took cognizance). If the accused or any of the accused (if there is more than one) objects to further proceedings before the magistrate taking cognizance, the case shall be transferred to such other magistrate as may be specified by the Chief Judicial Magistrate on this behalf.
(ii) Power of Chief Judicial Magistrate of transfer (S. 192):-
A Chief Judicial Magistrate may, after taking cognizance of an offence, transfer a case to any other competent magistrate subordinate to him. Similarly, a magistrate of the first class empowered by the Chief Judicial Magistrate may, in similar circumstances, transfer a case to any other magistrate competent to try a case as the Chief Judicial Magistrate may by general or special order specify.
B) COGNIZANCE BY THE COURT OF SESSIONS (S. 194):-
Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless a Magistrate has committed the case under this Code.
III. LIMITATIONS ON TAKING COGNIZANCE:-
The general principle of criminal jurisprudence is that anyone can set criminal law in motion. This means the complainant’s locus standi is not required. In other words, any person having knowledge of the commission of an offence may file a complaint of it to the police or magistrate even though he is not interested in or affected by the offence. It is because crime is against the whole society; therefore, the offender should not be left unpunished.
However, to prevent improper or reckless prosecutions by private persons and to protect innocent persons from being unnecessarily harassed by false, frivolous, and vexatious prosecution, exceptions are provided to the above general rule in the Code. In other words, the locus standi[1] of the complainant is material in such circumstances. These exception circumstances are as follows-
1) Prosecution for contempt of the lawful authority of public servants[2]:-
No court can take cognizance of any offence of contempt of the lawful authority of a public servant (punishable under Ss. 172 to 182 of the Indian Penal Code), or its abatement, attempt, or criminal conspiracy to commit it except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
A witness or any other person may file a complaint in relation to an offence under S. 195 A of the I.P.C.
2) Prosecution for offences against public justice:-
No court can take cognizance of an offence against public justice punishable under Ss. 193 to196, 199, 200, 205 to 211, and 228 of the I.P.C alleged to have been committed to, or in relation to, any proceeding in any court, or of any criminal conspiracy to commit, or attempt to commit, or abetment of any such offence, except on the complaint in writing of that court, or any officer authorised by that court, or of such other court to which that court is subordinate[3].
3) Prosecution for offences relating to documents produced in court.
No court can take cognizance of any offence described in S. 463 or punishable under S. 471, 465, or 476 of the I.P.C alleged to have been committed in respect of a document provided or given in evidence in a proceeding in any court or of any conspiracy or attempt or abetment of any such offence, except on the complaint in writing of that court, or an officer authorised by that court or by of such other court to which that court is subordinate[4].
4) Prosecution for offences against the state:-
No court shall take cognizance of any offence against the State punishable under Chapter VI or under Ss. 153-A, 153-B, 295-A, 505 of I.P.C or a criminal conspiracy to commit such offences or any abetment to commit such offence except with the previous sanction of the Central Government or the State Government[5].
5) Prosecution for offences relating to religion.
No court can take cognizance of any offence relating to religion punishable under S. 153A, or S. 195 A of the I.P.C., or criminal conspiracy to commit such offences or any abetment thereof as prescribed in S. 108 A of the I.P.C except with the previous sanction of the Central or the State Government.[6].
6) Prosecution for offences relating to public mischief:-
No court can take cognizance of any offence relating to public mischief punishable under S. 505 (1) of the I.P.C or a criminal conspiracy to commit such offence or any abetment thereof except with the previous sanction of the Central or the State Government[7].
7) Prosecution for offence of criminal conspiracy:-
No court can take cognizance of an offence of criminal conspiracy punishable under S. 120-B of the IPC other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or above except the state Government or the District Magistrate has consented in writing to initiation of the proceedings.[8].
8) Prosecution of judges and public servants:-
No court can take cognizance of any offence alleged to have been committed by a person who is or was a judge, magistrate or public servant except with the previous sanction of the appropriate State or Central Government.[9].
9) Prosecution of members of armed forces:-
No court can take cognizance of any offence alleged to have been committed by any member of the Armed force of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government[10].
10) Prosecution for offences against marriage:-
No court can take cognizance of any offence against marriage punishable under Chapter- XX of the IPC or abetment or attempt to commit such offence except upon a complaint made by an aggrieved person.[11].
11) Prosecution of husband for rape:-
No court can take cognizance of an offence under S. 376 of the IPC, i.e., rape, where such offence consists of sexual intercourse by a man with his own wife, the wife being under 18[12] years of age if more than one year has elapsed from the date of the commission of the offence[13].
12) Prosecution for the offence of cruelty:-
No court can take cognizance of an offence of cruelty to a woman by her husband or other relatives punishable under S. 498 A of the IPC, except upon a police report consisting of such offence or upon a complaint made by the wife or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or by any other person related to by blood, marriage or adoption with the leave of the court.
12) Prosecution for defamation[14]:-
No court can take cognizance of an offence of defamation punishable under Chapter 21 (Ss. 499-502) of the IPC except upon a complaint made by an aggrieved person.
Notes-
A] Dismissal of complaint:-
Ss. 200 to 203 of the Code lays down the procedure to deal with complaints made by private persons.
1) Examination of complainant S. 200:-
A Magistrate taking cognizance of an offence on the complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing. It shall be signed by the complainant and the witnesses and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate (under Section 192): Provided further that if the Magistrate makes over the case to another Magistrate under S.192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
2) Postponement of issue of the process (S. 202):-
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under S.192, may, if he thinks fit, postpone the issue of process against an accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, to decide whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made-
(a) where it appears to the Magistrate that the offence complained of is tribal exclusively by the Court of Session or
(b) where the complaint has not been made by a court unless the complainant and the witnesses present (if any) have been examined on oath under S. 200.
3) Dismissal of complaint (S. 203):-
If, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the inquiry or investigation (if any) (under S.202), the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. In every such case, he shall briefly record his reasons for doing so.
In other words, a Magistrate may dismiss a complaint under this section mainly in three cases-
1) if he finds that no offence has been committed,
2) if he distrusts the statement made by the complaint and
3) if he distrusts the complainant’s statement but is not so strong as to warrant him to act upon it, he may direct further inquiry as provided by S. 200.
The dismissal of a complaint under this section does not constitute an acquittal.
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[1] Right to file suit of complaint only if he is affected by it.
[2] (S. 195 (1)).
[3] (S. 195 (1)) (b) (i), (iii).
[4] (S. 195 (1)) (b) (ii), (iii).
[5] (S. 196 (1))
[6] S. 196 (1).
[7] S. 196 (1)
[8] S. 196 (2)
[9] S. 197 (1)
[10] S. 197 (2).
[11] S. 198 (1).
[12] Inserted by the Code of Criminal Procedure (Amendment) Act, 2008.
[13] S. 198 (6).
[14] S. 199 (1).