Student Assignment Feature 01 | by Zaina Asif

Question Posed : Write in brief about the the law of cognizance and complaint as if explaining it to a layman.

Author : Zaina Asif

The expression "cognizance" has not been defined in the Code. It merely means "become aware of". Cognizance is taken of an offence and not the offender. The underlying principle in law or aim of cognizance is to maintain a 'judicial check' on the police, as a judicial officer by taking cognizance examines whether or not the crimes have actually been committed. Any First class Magistrate and any Second Class Magistrate can take cognizance of any offence ( if specially empowered by Chief Judicial magistrate in this behalf) . Section 190-199 of the code defines the procedures by which various criminal courts are entitled to take cognizance of offences, and the restrictions under which they are entitled.

In (Supreme Court of India, Shri A. C. Aggarwal vs Mst. Ram Kali, Etc on 16 August, 1967 by a constitution bench of supreme court) Under s.190(1)(b), 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 (if material on record shows sufficient material for taking cognizace), otherwise that section will be violative of Art. 14.

In section 191, when a Magistrate takes cognizance on information by another person , or upon his own knowledge, and proceeds with the trial without informing the accused of his right to get his case tried by another magistrate then this is an incurable irregularity and it cannot be cured by the virtue of section 465.

Section 192 deals with ‘Making over of cases to Magistrates’. Any Chief Judicial Magistrate can make over the case for inquiry or trial to any competent Magistrate subordinate to him. The Chief Judicial Magistrate can give general or specific order to any first-class magistrate to make over the case for inquiry or trial to another competent Judicial magistrate.

In (Supreme Court of India, Dharam Pal & Ors vs State Of Haryana & Anr on 18 July, 2013) under Section 193, Courts of Session are not permitted to take note of any crime (as a court of original jurisdiction) unless the case is committed by a Magistrate. If it is specifically established by this code or by any other statute, then only Courts of Session are permitted.

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 .

There is absolute bar against the Court taking cognizance of the case under Section 182 of IPC except in the manner provided in Section 195 of Cr.P.C. Where the complaint is not in conformity with the provisions of this section, the Court has no power even to examine the complainant on oath because such examination could be made only where the Court has taken cognizance of the case.(The Supreme Court, in Bashir-ul-Haq v. State) held that Section 195 of CrPC requires that without a written complaint of the public servant concerned no prosecution for an offense under Section 182, IPC can be lodged nor any cognizance of the case taken by the Court. Since Section 195 and the succeeding four sections i.e., Sections 196, 197, 198 & 199 impose restrictions on the power of Magistrate to take cognizance of offense under Section 190, therefore, at the stage of taking cognizance of an offense, the Magistrate should make sure whether his power of taking cognizance of the offence has or has not been taken away by any of the clauses of Sections 195-199 of the Code.

Section 200 of the Code of Criminal Procedure deals with the examination of the complainant. The magistrate after taking cognizance of an offence has to examine the complainant and witnesses present. This examination has to be done upon oath. The magistrate also has the duty to note down the relevant information found in such examination. The substance of such examination should be given in writing and that has to be signed by the complainant and the witnesses. The magistrate need not conduct this examination when:

If the complaint is made by a public servant who is acting or purporting to act in the discharge of his official duties or a Court; If the Magistrate makes over the case for enquiry or trial to another Magistrate under Section 192.

Section 202 of the act provides further scrutiny of the complainant. The issuance of the process can be postponed if the Magistrate feels there is a need for further investigation. The Magistrate will decide whether there is a proper ground for conducting the proceeding. The scope of enquiry under this section is restricted to the ascertainment of truth or falsehood made out in the complaint.

Section 203 provides power to the Magistrate to dismiss a complaint. The Magistrate can dismiss the complaint if he is of the opinion that there are no sufficient grounds for conducting the proceedings. The Magistrate comes to this conclusion after conducting an appropriate inquiry or investigation under Section 202.

In (Chinmanlal vs Datar Singh) it was said that the dismissal of a complaint is not proper if the Magistrate has failed to examine material witness under Section 202. The Magistrate can dismiss the complaint or can refuse the issue of the process when: The Magistrate finds out no offence has been committed after the complaint is reduced to writing according to Section 200; If the Magistrate distrusts the statements made by the complainant; If the Magistrate feels that there is a need to conduct further investigation, then he can delay the issue of process. The Magistrate can also dismiss the complaint if the processing fee is not paid properly and this ground of dismissal is mentioned in Section 204.

In ( Santokh Singh vs Geetanjali woollen pvt. Ltd.) the court held that if the complaint has been rejected by the Magistrate under Section 203 then it doesn't mean a second complaint cannot be entertained on the same facts and same grounds. But, however, it is to be entertained only in special circumstances.

In conclusion, cognizance is meant to safeguard the interests of the victims while keeping a check on the unfettered powers of the police. The clause is divided in three exclusive parts which empower the magistrate to take cognizance upon receiving a complaint of facts or upon a police report of such facts or upon information received from any person other than a police officer, or upon his own knowledge, that such offense has been committed. The Courts have supported the prospect that the Magistrate should not reject a complaint without listening to a witness who are present in the court and the accused should be given a chance ascertaining the facts of his accusations by having testimony examined by the court.