Meaning Of Term 'Cognizance' With Respect To Vinubhai Malaviya Judgment

The term cognizance has not been defined in the Code of Criminal Procedure, 1973. The term is often used but remains undefined in criminal jurisprudence. There exists no statutory definition of what the term means. The Black's Law Dictionary defines cognizance as the exercise of jurisdiction; judicial examination of a matter, or power and authority to make it. In layman terms, cognizance literally means knowledge or notice.

In the case of R.R. Chari vs. State of Uttar Pradesh^[1], the Supreme Court has held that cognizance does not involve any formal action. It occurs as soon as the Magistrate applies his mind to the suspected commission of offence. At this stage, the purpose is solely to determine whether there is a sufficient ground for taking judicial notice of an offence, with a view to initiate further proceedings. In Tula Ram vs. Kishore^[2], it was held that taking cognizance means the judicial application of the mind of the Magistrate, to the facts mentioned in the complaint, with a view to take further action (passing subsequent orders).

Chapter XIV of the Code titled 'Conditions Requisite for Initiation of Proceedings' encompasses Section 190, wherein the power of cognizance of offences by Magistrates is laid down. The provision empowers any Magistrate of the first class and any Magistrate of the second class specially empowered by the Chief Judicial Magistrate, to take cognizance of such offences which are within his competence to inquire into or try.

The cognizance can be taken in the following ways:

1. Upon receiving a complaint of facts which constitute the offence
2. Upon a police report of such facts
3. Suo moto cognizance based on own knowledge or upon information received from any other person other than a police officer

There are two stages of cognizance:

1. Pre-cognizance
2. Post-cognizance

The question as to whether cognizance has been taken or not would depend on the facts and circumstances of the given case.^[3] It is also an established fact that the court can take cognizance only after it becomes functus officio.^[4] Taking cognizance is a condition precedent for conducting a fair trial. Cognizance is taken of an offence and not of an offender.

The Magisterial powers to take cognizance is very wide in nature. It even includes the power to take cognizance of such persons who have not been apprehended by the police as accused, if it appears from the evidence that they are prima facie guilty of the alleged offence.^[5] The cognizance of an investigation can be taken even after lapse of several years of the commission of the offence.^[6] It has also been opined that there is no bar of taking cognizance after examination of the witnesses.^[7] It was held in India Carat Pvt. Ltd. vs. State of Karnataka ^[8] that the Magistrate is entitled to take cognizance of an offence under S.190(1)(b) of the Code even if the police report points out that no case is made out against the accused.

When is cognizance said to have been taken?

In cases instituted on police report, the Magistrate decides whether there is a 'prima facie' case and then accordingly issues a summons under Section 204 of the Code. Then he is said to have taken cognizance.

In cases instituted on otherwise than police report, particularly – in the cases of complaint, the Magistrate passes an order under Section 200 of the Code for the examination of the complainant and witnesses, then he is said to have taken cognizance.

The Magistrate has 'incidental powers' to exercise power under Section 156(3) for proper investigation.

Is the magistrate bound to take cognizance?

The Magistrate is not bound to take cognizance. The use of the term 'may' in Section 190 of the Code offers discretionary powers to the Magistrate.

There are three options as per the Devarapally Judgment:

1. Exercise powers under Section 156(3) of the Code, which is available at the pre-cognizance stage.
2. Exercise powers under Section 202 of the Code, which is available at the post-cognizance stage, i.e. after examination under Section 200 of the Code.
3. Dismissal

Cognizance in terms of the Vinubhai Malaviya Judgment

The case of Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat & Anr. passed by a three-judge bench of the Supreme Court in 2019 has created ripples in the field of criminal law.

In the case of Vinay Tyagi vs. Irshad Ali^[9], the Court held that Magistrates indeed have the power to order further investigation under Section 173(8) of the CrPC, after a police report was filed and even after cognizance was taken on the basis of the police report. The bench in the Malaviya judgment upheld this and said that this power is available right up to the stage of charge-framing.

The Court held in Sakiri Vasu vs. State of UP ^[10] that any Judicial Magistrate before taking cognizance of the offence can order an investigation under Section 156(3) of the Code. Further, if he does so, he cannot examine the complainant on oath because he was not taking cognizance of the offence therein.

In Devarapalli Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy & Ors.^[11] the Court observed that an order under S. 156(3) is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1).

The Bench also observed that the finding in Devarapalli Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy, that the power under Section 156(3) can only be exercised at the pre-cognizance stage is erroneous. The Court held that investigation within the meaning of Section 2(h) would include all proceedings, which extends to Section 173(8) as well. The Bench refused to follow the precedent since it did not take into consideration the holistic definition of the term 'investigation' under Section 2(h).

It is crucial to understand that Section 156(3) and Section 173(8) operate at different stages of an investigation. The former commences an investigation and the latter applies after the completion of an investigation. It can be inferred from this that Section 156(3) is undoubtedly pre-cognizance and Section 173(8) is post cognizance as its intention is to supplement a completed investigation. The Bench's finding in the Malaviya judgment in Paragraph 26 is highly erroneous as it does not give due regard to the law.

The Bench in the Malaviya judgment decided to set aside the judgment of the High Court stating that post-cognizance, the Magistrate is denuded of power to order further investigation. It held that the power under Section 173(8) of the Code can be exercised by the Magistrate at any time after the Police Report is filed, up until the stage of charge-framing by the Magistrate. Further, the Court expressly overruled the decisions of the Supreme Court which interpreted Section 173(8) in a restricted manner.

Criticism

Although empowering the Magistrates to direct further investigation even at a post-cognizance stage may lead to a reduction in the multiplicity of the FIRs, but there is conflict here between the Vinubhai Judgment and the Devarapally Judgment. The constitution of both the benches is equal, i.e. a three-judge bench. This clash can create problems for the future cases.

It was held in Atma Ram vs. State of Punjab^[12] that it is necessary to refer certain subjects to a larger Bench, otherwise the sub-ordinate Courts will be placed under the embarrassment of preferring one precedent to another – both equally binding upon them. An increase in the frequency of conflicting judgments in the superior judiciary would create confusions at the grassroot level. Consistency functions as the cornerstone of the administration of justice.

Conclusion

The concept of cognizance has evolved over a period of time through several judgments. Although there is no strict definition of the term, it is generally regarded as taking judicial notice of an offence and then passing subsequent orders. In the case of Vinubhai Malaviya, the Court has erred by unnecessarily overruling the judgment in Devarapally Reddy. Cognizance of an offence is an important stage in the administration of a fair trial. Therefore, all judgments which promulgate this are welcome, provided that they do not clash with existing judgments.