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Supreme Court of India

Sheonandan Paswan vs State Of Bihar And Ors. on 20 December, 1986 (constitutional bench decision)

"It will be seen that the police has no absolute or unfettered discretion whether to prosecute an accused or not to prosecute him. In fact, in our constitutional scheme, conferment of such absolute and uncanalised discretion would be violative of the equality clause of the Constitution. The Magistrate is therefore given the power to structure and control the discretion of the police. If the Magistrate finds from the report made by the police either on initial investigation or on further investigation directed by the Magistrate, that prima facie an offence appears to have been committed, the Magistrate is empowered to take cognizance of the offence notwithstanding the contrary opinion of the police and equally if the Magistrate forms an opinion that on the facts set out in the report no offence prima facie appears to have been committed though the police might have come to a contrary conclusion, the Magistrate can decline to take cognizance of the offence. The discretion of the police to prosecute is thus 'cabined and confined' and, subject to appeal or revision, and the Magistrate is made the final arbiter on this question. The Legislature has in its wisdom taken the view that it would be safer not to vest absolute discretion to prosecute in the police which is an Executive arm of the Government but to subject it to the control of the judicial organ of the State."

Supreme Court of India

Dr Mrs Nupur Talwar vs Cbi Delhi And Anr on 6 January, 2012

Bench: Asok Kumar Ganguly, Jagdish Singh Khehar

S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and Ors. - (2008) 2 SCC 492, the relevant observations are set out:

"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes" to take notice of judicially". 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."

20. "Taking Cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. 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 an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. In the instant case, anyone reading the order of the Magistrate taking cognizance, will come to the conclusion that there has been due application of mind by the Magistrate and it is a well reasoned order. "

M/s. India Carat Private Ltd. Vs. State of Karnataka & Anr. (1989) 2 SCC 132.

Explaining the relevant principles in paragraphs 16, Justice Natarajan, speaking for the unanimous three Judge Bench, explained the position so succinctly that we would rather quote the observation: as under:-

"The position is, therefore, now well settled 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 is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to 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 can ignore the conclusion arrived at by the investigating officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused..."

Abhinandan Jha & Ors vs Dinesh Mishra(With Connected ... on 17 April, 1967

Equivalent citations: 1968 AIR 117, 1967 SCR (3) 668

section 190, which is the first section in the group of sections headed 'Conditions requisite for Initiation of Proceedings.' Sub-s. (1), of this section, will cover a report sent, under s. 173. The use of the words 'may take cognizance of any offence', in sub-s. (1) of s. 190 in our opinion imports the exercise of a 'judicial discretion', and the Magistrate, who receives the report, under s.. 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this it follows that it is not as if that the Magistrate is bound to accept ,,the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under s. 190(1)(b) of the Code. This will be the position, when the report under s. 173, is a charge-sheet. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under s. 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under s. 1 5 6 ( 3 ), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under s. 156(3). The police, after such further investigation, may submit a charge-sheet, or,, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under s. 190(1) (c), notwithstanding the contrary opinion of the police, expressed in the final report.

In this connection, the provisions of S. 169 of the Code, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, While releasing the accused,, to take a bond from him to appear, 'If and. when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police. We have to approach the, question, arising for consideration in this case, in the light of the circumstances pointed out above. We have, already referred to the scheme of Chapter XXIV, as well as the observations of this Court in Rishbud and Inder Singh's Case(1) that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under S. 190(1)(c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence.


Supreme Court of India

Shri A. C. Aggarwal ... vs Mst. Ram Kali, Etc on 16 August, 1967

Equivalent citations: 1968 AIR, 1 1968 SCR (1) 205

Under s.190(1)(b) of the Code of Criminal Procedure, the magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words "may take cognizance" in the context means "must take, cognizance". He has no discretion in the matter, otherwise that section will be violative of Art. 14.

Supreme Court of India

Ajay Kumar Parmar vs State Of Rajasthan on 27 September, 2012

The Magistrate, in exercise of its power under Section 190 Cr.P.C., can refuse to take cognizance if the material on record warrants so. The Magistrate must, in such a case, be satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161 and 164 Cr.P.C., if any, do not make out any offence. At this stage, the Magistrate performs a judicial function. However, he cannot appreciate the evidence on record and reach a conclusion as to which evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is impermissible. The Magistrate is not competent to weigh the evidence and the balance of probability in the case.

Supreme Court of India

Popular Muthiah vs State Represented By Inspector... on 4 July, 2006

Magistrate in the matter of issuance of process or taking of cognizance depends upon existence of conditions precedent therefor. The Magistrate has jurisdiction in the event a final report is filed (i) to accept the final report; (ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (iii) to take cognizance of the offences against a person, although a final report has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefor; and (iv) to direct further investigation into the matter.

Supreme Court of India

R.R. Chari vs The State Of Uttar Pradesh on 19 March, 1951

Equivalent citations: 1951 AIR 207, 1951 SCR 312

What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter--proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

Notice to informant - On receipt of the final report from the police magistrate has to decided whether he will take cognizance , he is bound to give notice to the informant if he decides to take cognizance or not to take cognizance as regards to some of the accused.

Concept of Locus Standi in criminal jurisdiction - Prosecuting offenders is a social need therefore the conept of locus standii is foreign to criminal jurisprudence . (Manohar Lal v. Vinesh Ananda AIR 2001 SC 1820) Hence , barring exceptional circumstances the rule of locus standii will not have a universal application in criminal proceedings.

Section 191 and its nuances - if a magistrate takes the cognizance on his own knowledge and tries the case himself , it will be an incurable irregularity . Maxim Nemo Debet esse judex in propria cause ( no man can be a judge in his own cause).

Nemo potest esse simul actor et judex (no man can be at once a judge and a suitor)

193 CrPC - object of 193 is restraining sessions court from taking cognizance of any offence except in certain cases , unless the case has been committed to it by a magistrate. It serves the purpose of securing preliminary inquiry , however restricted , so that accused becomes acquainted with circumstances of the offence and gets some information about te case he is about to meet.

conflict between kishun singh v. state of bihar and ranjit singh v. state of punjab resolved by SC in a constitutional bench judgment of :

Supreme Court of India

Dharam Pal & Ors vs State Of Haryana & Anr on 18 July, 2013

The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh’s case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.

195 CrPC -

Sections 195- 199 are exceptions to the general rule that any person having knowledge of the commission of an offence , may set the law in motion by a complaint even though he is not personally interested or affected by the offence . Section 195 is to be read along with section 340 -352 of the Crpc.

another object is that courts are the best guards to preserve their own dignity, they cannot allow such complaints to become a sport of private passions .

Supreme Court of India

Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr on 11 March, 2005

"In Sachida Nand Singh after analysis of the relevant provisions and noticing a number of earlier decisions (but not Surjit Singh), the Court recorded its conclusions in paragraphs 11, 12 and 23 which are being reproduced below :

"11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.

12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records.

23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court."

In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis."

Provision of 195 are mandatory and no court has jurisdiction to take cognizance of any offence mentioned therein unless there is a complaint in writing as required under that section . Its a settled law that every incorrect or false statement does not make it incumbent upon court to order prosecution but requires the court to exercise judicial discretion to order prosecution only in larger interest of administration of justice.

Embargo is on taking cognizance not on investigation which starts in pursuant to an FIR filed in relation to an offence committed in court proceedings . However , unless the procedure prescribed by 195 is followed , the court cannot take cognizance of such offence. (State of Punjab v. Raj Singh , AIR 1998 SC 768)

Whether the bar applies to investigation into such offences?

State of Punjab v. Raj Singh, reported in [1998] 2 SCC 391. In this case it has been that as follows :

"2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467, and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(l)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) Cr. PC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceedings in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.PC. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalkrishna Menon v. Raja Reddy, [1983] 4 SCC 240 : [1983] SCC (Cri) 822 : AIR (1983) SC 1053 on which the High Court relied, has no manners of application to the facts of the instant case for there cognizance was taken on a private complaint even though the office of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 Cr.PC."

(PS:All of the notes are to be read with previous case laws i have so provided. Under title investigation lecture I have provided Vinubhai Haribhai Malaviya vs The State Of Gujarat on 16 October, 2019 . So , donot forget to include that judgment among these notes for clarification that now order under 156 (3) can be given even after cognizance upto the stage of trial . This judgment overruled Randhir Singh Rana v. State NCT Delhi (among other judgments which reiterated the same position), as i've told in my previous lecture which held the position of law so far. Before the Vinubhai judgment the position of law was , that 156 (3) can only be given upto the stage of cognizance and presence of accused in pursuance to summons , after which the magistrate will be deprived of his power of ordering further investigation. This position now stands changed by Vinubhai judgment (Supra) )

Supreme Court of India

Trisuns Chemical Industry vs Rajesh Agarwal And Others C on 17 September, 1999

Section 193 imposes a restriction on the court of sessions to take cognizance of any offence as a court of original jurisdiction. But any Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not. The only restriction contained in Section 190 is that the power to take cognizance is subject to the provisions of this Chapter. There are 9 Sections in Chapter XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: Except as hereinafter provided. Those words are now replaced by Subject to the provisions of this chapter. Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non-obstante clauses. Any way that is a different matter. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier.