The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-III]

Q.11 What is meant by “taking cognizance of an offence” ?

Ans. Every case instituted before a Criminal Court alleging a “cognizable offence” or a “non-cognizable offence” will have to be scrutinized by the Court and the alleged offence will have to be taken cognizance of under Section 190 Cr.P.C. Taking cognizance of an offence broadly means “taking judicial notice by a competent court of a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings for judicial determination.” (Vide para 34 of Subramanian Swamy v. Manmohan Singh AIR 2012 SC 1185 = (2012) 3 SCC 64 – G. S. Singhvi, A. K. Ganguly – JJ.) The process of “taking cognizance of an offence” is a complex process involving careful application of the mind by the “presiding officer” of the Court concerned. The Magistrate or the Judge has to be satisfied that the “Police Report” or the “complaint” filed before him makes out the ingredients of the offence alleged. It is only after “taking cognizance of the offence”, can the Court issue process to the accused. Upon service of process and the appearance of the accused before Court, he will be supplied with the prosecution records. Then, depending on the mode of trial, either the “substance of accusation” (in a “summons case”) or the framing of a “charge” (in a “warrant case”) will be stated by the Court.

Q.12 Is there a Court empowered under the Cr.P.C. to take cognizance of an offence ?

Ans. Yes. Taking cognizance of an offence is a judicial act performed by a Court during the stage of “inquiry”. Section 26 read with Column 6 of the First Schedule to the Cr.P.C. decides whether it is a “Magistrate” or a “Court of Session” or a “Special Court” which has to try the offence. Supposing an offence is to be tried by a Magistrate, the further question is “which Magistrate” ? Chapter XIII of Cr.P.C. (Sections 177 to 189) decides which Magistrate or Court has the jurisdiction to conduct “inquiries” and “trial”. The primary rule under Section 177 Cr.P.C. is that the offence has to be “inquired into” and “tried” by that Court within whose “local jurisdiction” (territorial limits) the offence was committed. Going by the definition of “local jurisdiction” as contained in Section 2 (j) Cr.P.C., the local area of a “Court” or “Magistrate” can even include the whole or any part of the State, as the State Government may, by notification specify. But, the local jurisdiction of Magistrates is fixed under Section 14 by the Chief Judicial Magistrate concerned, subject to the control of the appropriate High Court. Certain police stations are allotted to certain Magistrate Courts. By virtue of the fiction in Section 156 (1) Cr.P.C. read with Chapter XIII of Cr.P.C. the jurisdiction of the police station and that of the Magistrate are co-extensive.

In the case of Sessions Courts, they are established for the purpose of exercising jurisdiction in a Sessions Division which is usually the “revenue district”.

In paras 11 and 14 of Trisuns Chemical Industry v. Rajesh Aggarwal AIR 1999 SC 3499 = (1999) 8 SCC 686 – K. T. Thomas, M. B. Shah – JJ, it has been observed that a Magistrate “taking cognizance of an offence” need not have “territorial jurisdiction” to conduct “inquiry or trial”. Going by the above verdict, a Magistrate at Kochi can take cognizance of an offence committed in Delhi or Punjab. With due respect, the above proposition of law is open to doubt in view of Sections 157 (1), 169, 170 (1), 173 (2) (i), 201, 204 (1) etc. all of which refer to a Magistrate empowered to take cognizance of the offence and try. As per the scheme under the Cr.P.C., it is only a Magistrate who can “try” the offence can conduct an “inquiry” and it is the said Magistrate who can “take cognizance of an offence”.

Q.13 What are the different sources available to a Magistrate for taking cognizance of an offence ?

The usual modes by which Magistrates take cognizance of offences are by means of cases instituted on a “police report” and by means of cases instituted on a “complaint” (i.e. otherwise than on a police report).

Q.14 If cognizance of the offence has been taken by a Magistrate under any of the two sources of clause (c) of Section 190 (1) Cr.P.C., is there any further duty on the Magistrate taking cognizance of the offence ?

Ans. Yes. The Magistrate has to comply with Section 191 Cr.P.C. by giving the accused an option to have the case tried by another Magistrate. This is because the Magistrate who has suo motu taken cognizance of the offence is in the position of a “complainant” or an “aggrieved person”. No person shall be a Judge in his own cause. (Nemo judex in causa sua; nemo in propria causa judex, esse debet). This is a rule against bias.

Q.15 Is cognizance of an offence whether on a “Police Report” or on a “complaint”, mandatory for proceeding further both in the case of a “cognizable offence” and a “non-cognizable offence” ?

Ans. Yes. Cognizance of the offence alleged in the “police report” or the “complaint” as the case may be, is a must for the Magistrate to proceed further no matter whether the offence alleged is a “cognizable offence” or a “non-cognizable offence”.

There is a misconception that a “non-cognizable offence” does not have to be taken cognizance of by a Court. It is wrong. Every offence whether it be a cognizable offence or non-cognizable offence, has to be taken cognizance of.

Q.16 How does a Magistrate take cognizance of an offence on a “Police Report” under Section 190 (1) (b) Cr.P.C.?

Ans. If after applying his mind to the “Police Report” and the documents produced along with it, the Magistrate takes the case on file against all or any of the accused persons for all or any of the offences made out against them, he can be said to have taken cognizance of the offence on a “Police Report” under Section 190 (1) (b) Cr.P.C.

Q.17 How does a Magistrate take cognizance of an offence on a “complaint” under Section 190 (1) (a) Cr.P.C.?

Ans. If after perusing the averments in the complaint and after considering the statements on oath, if any, of the complainant and his witnesses, if any, the Magistrate applies his mind for the purpose of proceeding under Chapter XV Cr.P.C. starting with Section 200 onwards, the Magistrate can legitimately be said to have taken cognizance of the offence. (Vide –

• R. R. Chari Vs The State of U.P – AIR 1951 SC 207 - 3 Judges – M. H. Kania – CJI, M. Patanjali Sastri, S. R. Das – JJ;
• Gopal Das Sindhi v. State of Assam - AIR 1961 SC 986 - 3 Judges – S. J. Imam, K. Subba Rao, Raghubar Dayal – JJ;
• Jamuna Singh v. Bhadai Shah – AIR 1964 SC 1541 - 3 Judges – B. P. Sinha – CJ, M. Hidayatullah, K. C. Das Gupta – JJ;
• State of Karnataka V. Pastor P. Raju (2006) 6 SCC 728 – G. P. Mathur, Dalveer Bhandari – JJ;
• Para 35 of Dr. Subramanian Swamy v. Dr. Manmohan Singh and Another (2012) 3 SCC 64 – G. S. Singhvi, A. K. Ganguly – JJ.)

Q.18 How does a “Court of Session” take cognizance of an offence ?

Ans. Section 193 Cr.P.C. provides that except otherwise provided by the Cr.P.C. or by any other law, no Court of Session can take cognizance of an offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate.

Therefore, a Court of Session cannot directly entertain a “Police Report” or a “complaint” alleging the commission of an offence triable exclusively by a Court of Session. Such a “Police Report” or a “complaint” will have to be filed before the Magistrate having jurisdiction and such Magistrate will have to commit the case to the Court of Session under Section 209 Cr.P.C.

Part 1: The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-I]

Part 2: The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-II]