MEANING OF COGNIZANCE AND ITS DEVELOPMENT

AUTHOR - RITUNJAY SHARMA

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What Does Cognizance Mean?

When, upon receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and sections in Chapter 15 of the Code of 1973, he is said to have taken Cognizance of the offence within the meaning of Section 190(1)(a) of CrPC.

Who Can Take Cognizance?

The power to take cognizance lies solely with the Magistrate. According to Section 190 of CrPC, a Magistrate can take Cognizance in the conditions given below:

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-

a. upon receiving a complaint of facts which constitute such offence;

b. upon a police report of such facts;

c. upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

2. The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-Section (1) of such offences as are within his competence to inquire into or try.

Cognizance can be understood in simple terms as looking through a narrow keyhole and examining whether an offence has been committed or not, and if at all it has been committed then whether proper sections of the IPC or any other special enactment are attracted or not. The underlying policy of law or objective of cognizance is to ensure a ‘judicial check’ on the police, as a judicial officer by taking cognizance examines whether the offences have been actually made out or not.

Laws Related to Cognizance

Section 190- 193 talks about taking cognizance, Section 195-199 deals with the limitation on taking cognizance and sections 467 to 469 also talks about the limitations.

Limitation on Taking Cognizance

It is well-established fact that the power vested on Magistrate to take the Cognizance of offence is not an absolute power and is subjected to the limitations which have been provided in the Chapter XXXVI (section 467 to 473) of the Act itself.

According to Section 468 of CrPC:

1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be –

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

There is no limitation prescribed for the offences exceeding the Imprisonment of 3 years.

And the Limitation period shall begin as prescribed under Section 469 of CrPC :

1. On the day when the offence was committed.

2. When the person aggrieved by the act had no knowledge regarding the commission the offence or the police officer; it begins on the day when it comes to the knowledge of the aggrieved party or police making an investigation into the case whichever is earlier.

3. When the person who has committed an act is unknown or not being identified, the first date on which the accused was known either to the aggrieved person or to the police officer making an investigation into the case whichever is earlier.

The court may also extend the limitation period in the following conditions:

1. When the court is satisfied with the facts and circumstances of the case that complainant was prevented by sufficient cause from not appearing before the Court within the prescribed period of limitation.

2. The cause of the delay is properly explained and the court is satisfied with it.

3. The court is of the opinion that it is necessary to extend the period in the interest of justice.

Also, section 197 of CrPC protects the Public servants from frivolous prosecution while exercising their official duty. No prosecution can be brought against a Public servant without the sanction of its department.

Development in The Term of Cognizance After Vinubhai Judgment

In the case of "Vinubhai Haribhai Malaviya and Ors. V The State of Gujarat and Anr.", an application was filed to the Magistrate to ‘conduct further investigation’ after the cognizance was already taken by the Magistrate and the accused appeared before the Magistrate. The Magistrate rejected the application on the ground that, ‘the facts sought to be placed by the applicants were in the nature of evidence of the defense that would be taken in the trial.’ A revision petition was filed in the sessions court, on which the sessions judge ordered to conduct further investigation on the grounds that, no effective investigation or discussions have been carried out in all these respect during in the course of the investigation of said offence and further.

However, the High court arrived to the conclusion that, “the Magistrate does not possess any power to order further investigation after a charge sheet is filed and cognizance is taken.”

The Appellant challenged the order of High Court in the Apex court and contended that, the High Court was wholly incorrect as a matter of law, in holding that post-cognizance a Magistrate would have no power to order further investigation into an offence.

Therefore, the question of law that therefore arises in this case is 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 ?

The court arrived on the following conclusions:

a. If the investigation agency found out any new evidence regarding a case for which they have already submitted a report under Section 173, “the competent police officer can examine such evidence and send a report to the magistrate. Copies concerning the fresh material must of course be furnished to the accused.”

b. While taking a reference to the case of "Kamlapati Trivedi v. State of West Bengal (1980) 2 SCC 91", the court came to a conclusion that, that in the circumstance that the Magistrate does not agree with the police report, he may order further investigation - which is done in his capacity as a supervisory authority in relation to investigation carried out by the police.

c. If the Magistrate has already taken cognizance of the offence, but has not proceeded with the inquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single inquiry or trial.

d. If the Magistrate has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case.

e. The Magistrate has the power to safeguard any kind of abuse of the police during the investigation and further investigation.

f. There is no explicit mention in the statute which barred the right of the Police to further investigate after the Cognizance has been taken.

g. further investigation is not altogether ruled but merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted.

h. At the stage when the Magistrate has taken cognizance, process has been issued and the accused has entered appearance in response thereto, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant can direct further investigation. Such a course would be open only on the request of the investigating agency.

“Therefore, the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant.”

About Author

Ritunjay Sharma is a IV Semester Student at Institute of Law Nirma University, Ahmedabad

email - ritunjay.kinshu@gmail.com