Cognizance: Judicial Pronouncements

This article is a reflective note on the meaning of the term ‘Cognizance’ with reference to Vinubhai Haribhai Malviya v. State of Gujarat Judgment[1].

Meaning:

The expression “Cognizance of an offense” or “taking cognizance of an offense” has not been defined or specifically explained anywhere in the CrPC. But this expression is now very well settled by courts. Taking Cognizance does not involve any type of formal action or action of any kind rather taking Cognizance occurs as soon as Magistrate applies his mind to the suspected commission of an offense for the purpose of proceeding to take steps under (Section 200, 202, 204) towards inquiry and trial. Therefore the magistrate taking cognizance must and should reflect the application of his mind.

Supreme Court in D. Lakshminarayana Reddy and others v. V. Narayana Reddy and Others[2] it is held that ‘what is meant by ‘ taking cognizance of an offense’ by the magistrate within the contemplation of Section 190. This expression has not been define anywhere in the Code. Cut from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter 14 under which Section 190 to 199 occur, it is clear that case can be said to be instituted in a court only when the court takes Cognizance of the offenses alleged therein. The ways in such Cognizance can be take are set out in Clause a) b) c) of Section 190(1).’

Who can take Cognizance?

Any Magistrate of First Class may take cognizance of any offense as stated in Section 190 of the CrPC; secondly, any Magistrate of the second class, if especially so empowered by the Chief Judicial Magistrate, may take cognizance of the offenses which are within its competence to inquire or try into as stated in 190(2). A Court of Session can never take cognizance of any offense as a court of Original Jurisdiction unless the case has been commit to it by the Magistrate.

When can Cognizance be Taken by the Magistrate

A Magistrate can take cognizance of any offense:

1. Upon receiving a complaint of facts which constitute an offense.
2. Upon a police report.
3. Also Upon information received from any person other than the police officer; or upon his own knowledge (suo moto), that such offense has been committed.

How to Determine Whether Magistrate has Taken or not Taken the Cognizance of the Offence?

Whether Magistrate has taken or not taken the cognizance depends upon the circumstances of the particular case. Including the mode in which the case is to be institute. The nature of the preliminary action, if any, taken by the Magistrate. Therefore when the Police Report is file under Section 173. Then the Magistrate will look at the Charge-Sheet and material that are present along with Charge-Sheet. These materials are Statements under Section 161, Medical Reports, and Forensic Reports, etc.

After perusing the Charge-Sheet and other materials the Magistrate then applies his mind. Also issue an order under 204 for the Issue of Process then at this stage it has been that the Magistrate has take the cognizance. Similarly when Complaint has been file before the Magistrate. If the Magistrate is satisfy on the basis of the allegations in the complaint. Is satisfy that on the basis of the said allegations prima-facie case has. Then the Magistrate orders examination of the complainant and the witnesses under Section 200. Then at this stage it is that the Magistrate has take the Cognizance.

In the famous cases like RR Chari V State of U.P.[3] case it has been that when the court passes an order under Section 156(3) or issues a warrant then it is that the court has not take the Cognizance of the offense.

Cognizance in Reference with Vinubhai Judgment

The main issue which was revolving around the whole Vinubhai Judgment was:

ISSUE: ‘Whether, after a charge-sheet is filed by the police, the magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.’

1. The Hon’ble Supreme Court in the said judgment stated that the Code of Criminal Procedure, 1898. It did not contain the provision by which the police were empower to conduct. Further investigation in respect of offense after a police report has been file; under Section 173 and has been forward to the Magistrate. But with the introduction of Section 173(8) in the Code of Criminal Procedure. The police have been give the power to further investigate an offense. Even after the police report has been forward to the Magistrate. This power given to police continues until the trial commence.

• Therefore the court on relying upon State of Bihar v. J.A.C Saldanha & Ors.[4] and Sakiri Vasu v. State of U.P.[5], the Hon’ble Supreme Court state that Magistrate power under 156(3) of the CrPC is very much wide. That is in order to ensure that “proper investigation” takes place in the sense of the just and fair investigation by the police. Therefore Article 21 of the Constitution of India makes it mandatory that all the powers, necessary. Which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which; without doubt, would include the order of further investigation after the report is received by him under section 173(2); and which power would continue to ensure in such Magistrate at all stages of the criminal proceedings; until the trial itself commences. Therefore basically the crux of this argument is that a Magistrate is empower to order further investigation. Even at the post-cognizance stage that is even after the Magistrate has taken Cognizance of an offense. He can order the police under Section 173(8) to further investigate into the matter.

• The second thing which the court stated that even textually. The word “investigation” refer to in Section 156(1) of the Code of Criminal Procedure would. As per the definition of “investigation” under Section 2(h). It will include all the proceedings for the collection of evidence conducted by the police officer; which would also undoubtedly include proceedings by way of further investigation under section 173(8) of the Code of Criminal Procedure.

• However, in Lakshminarayana Reddy and others v. V. Narayana Reddy, it was that the power to order the police for investigation; under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). These two are exercisable in two different stages. The first one is exercisable at the ‘pre-cognizance’ and the later is exercisable at the ‘post-cognizance stage’. But the Supreme Court did not rely upon this judgment and said that the above judgment did not pay attention to the Section 2(h) which resulted in the erroneous finding in the law that the power of the Magistrate to order for investigation under 156(3) can only be exercised at the pre-cognizance stage.

• The two main arguments that were stated in the entire judgment are:
  • If it has been said that the Magistrate is having the power to give order of proper investigation, then why further investigation cannot come under this ambit.
  • Secondly if the power of the Magistrate is incidental then why limit this power to only Pre-Cognizance stage why this power cannot be given in the Post-Cognizance stage.

• The Supreme Court after referring to Bikash Ranjan Rani V. State through the Secretary (Home), Government of NCT of Delhi and various other cases state that there is no presence of any good reason by the court in the above-mention cases like D. Narayan Reddy Case as to why a Magistrate power to order further investigation would cease upon the process being issued, while concomitantly, the power of the police to further investigate the offense continues right till the stage the trial commences. The court thus states that this view is not with the accordance of cases like Sakiri Vasu, Vinay Tyagi, and Hardeep Singh Case. As Hardeep Singh Case has clearly; that a criminal trial does not begin after cognizance is take, but only after charges are frame.

• The court said that Article 21 demands a fair and just investigation. And to say that fair and just investigation would lead to the conclusion that the police retain the power, subject to the Magistrate nod under section 173(8) to further investigate an offense till charges are fram. But that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that the innocent person is not wrongly arraigned as an accused or that prima facie guilty person is not so left out.

Conclusion

The stage of taking cognizance by the Magistrate is one of the most important aspects of the rule of law. This stage keeps a check on the powers of the police. This stage of taking Cognizance helps in ensuring that none of the innocent people unnecessarily faces a judicial trial and go through that traumatic process. Because many times police officers wrongly frame charges against a person because of various reasons like pressure from powerful people like politicians or bureaucrats etc. or sometimes they charge a person for taking personal revenge from that person. Therefore this stage proves a very important tool in restricting the misuse of power by the police and helps in upholding the ‘Rule of Law’.

Secondly from the above judgment it can be understood that the stage of F.I.R., Investigation, and Filing of Chargesheet comes under the purview of the Pre-Cognizance stage. Also Issue of Process, Committal of the Case and Hearing of Charge Framing comes under the purview of Post-Cognizance stage. As here, in this case, the whole issue was regarding whether the power of Magistrate to direct the police for further investigation even after filing of charge sheet is available with or not itself shows that till filing of Charge sheet pre-cognizance stage is there and just at the time of application of mind by the Magistrate and issue of process Post-cognizance stage starts.

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References:

[1] 16 October, 2019

[2] 1976 AIR 1672

[3] 1963 SCR (1) 121

[4] 1980 AIR 326

[5] Appeal (crl.)  1685 of 2007