Justice is an inalienable part of human life and extricating it from the basic intends of a man would be, therefore, a sum of the cabal to the irenic human being. Justice can be served in two ways; firstly, when the person himself seeks for it and secondly; when the institution of justice takes part itself in the initiative to devolve justice on mankind. This principle of justice raises some questions in any sound mind that how the purpose of serving or taking justice is apprehended; what procedures or steps are there to fulfil the purpose. Hence, in this piece of writing, we will be talking about some of those procedures or steps knowing which can be helpful to derive subtle substances of manoeuvre in our Indian justice system.
What is the meaning of the said expression ‘Taking Cognizance’?
The full version of the term is ‘taking cognizance of an offence’. Although it is not defined distinctly in the Code of Criminal Procedure, 1973 (Cr.P.C.), we find the said expression in various provisions in Cr.P.C. such as sections 169, 170, 173, 186, 190 to 193, 195 to 198, 198-A, 198-B, 199 to 202, 204, 237, 265-A, 306, 309, 343, 460, 461, 468, etc. The actual expression of the term ‘Cognizance’ can be understood as ‘the power, authority, and ability of a judge to determine a particular legal matter within the scope of his or her jurisdiction’.1 A judge decides to take a note of or deal with a cause and to initiate the further proceedings in the offence which prima facie has been found committed and needs further inquiry and trial to get the final decision of the cause either as conviction or acquittal. Hence, ‘taking cognizance of an offence’ simply expresses the process of the curial act of using the principle of taking cognizance.
Offences in which the process of ‘taking cognizance of the offence’ can be performed
There are two types of offences in Cr.P.C. Cognizable and Non-Cognizable. The former is defined as “an offence for which, a police officer may, following the first schedule or under any other law for the time being in force, arrest without warrant”2 and the latter is defined as “an offence for which, a police officer has no authority to arrest without warrant”3. In a more simple way of understanding if the offence is punishable with imprisonment for 3 years and above it is cognizable and if less than 3 years, it is non-cognizable.
Regardless of the question as to whether the offence is “cognizable” or “non-cognizable”, the process of “taking cognizance of the offence” by the Magistrate is a must for both cognizable and non-cognizable offences, if the Court were to proceed further either on a “complaint” or on a “police report”.4
Sources of Taking Cognizance of an Offence
The circumstances and provisions in which a magistrate is empowered to take cognizance of an offence are substantially enumerated in section 190(1) Cr.P.C. they are:-
(a) Upon receiving a complaint of facts which constitutes such offences (private complaint);
(b) Upon 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.
Although, ‘private complaint’ and ‘police report’ both are considered the main sources of taking cognizance in actual practice.
Taking cognizance of a ‘private complaint’ can be said only when the magistrate after receiving such a complaint which enumerates happening of an offence applies his mind to proceed under chapter XV of Cr.P.C. Otherwise, if the magistrate takes an action on his discretion for some other kind such as issuing a search warrant or ordering an investigation by the police, he cannot be said to have taken cognizance of any offence. Chapter XV of Cr.P.C. deals with the procedure of taking cognizance of an offence on a ‘private complaint’.
The rejection of a complaint under section 203 Cr.P.C. can be held only at the post-cognizance stage but at the same time, there is no bar on the right of the magistrate to dismiss a complaint on pre-cognizance stage if such complaint is not made out with an offence ex-facie. If the magistrate proceeds with the complaint which specifically does not disclose the offence then it would be an exercise in futility. Thus, it reserves the right of the magistrate to terminate a complaint on pre-cognizance stage.5
If the magistrate is not satisfied with the material of complaint then he can initiate the process of inquiry under section 202(1) Cr.P.C. either by himself or by the police. Furthermore, when the magistrate gets to know about the material facts or comprehension of an offense in the complaint he can either constitute the further process of taking cognizance or termination of the complaint after briefly recording his reasons for doing so. It may be noted that the initiation of an inquiry under section 202(1) Cr.P.C. cannot be said that cognizance has been taken. The constitution of an inquiry is neither compulsory nor must in each case except in two situations: firstly, where the accused is residing at a place beyond the local jurisdiction of the magistrate (vide Section 202(1)) and secondly, where the offence alleged is exclusively triable by a Court of Session (vide clause (a) to the proviso to section 202 (2)).
A police report is an investigation report by the police officer submitted to the magistrate under section 173(2) of Cr.P.C. There should not be a misconception between a first investigation report (FIR) and a police report. An FIR is a document written by the officer-in-charge of the police station when a complaint has been lodged before him alleging the commission of an offence. If the alleged offence is cognizable then he has the jurisdiction to register a crime and commence an investigation under section 154 read with section 156 Cr.P.C. and if the alleged offence is non-cognizable then the officer-in-charge of the police station cannot register a crime or commence investigation without the order of the magistrate concerned under Section 155 (2) Cr.P.C. furthermore, when the officer-in-charge of police submit a report to the magistrate under Section 173(2) after conducting sufficient investigation of the crime on the ground of FIR than such report is called a police report under section 2(r) Cr.P.C. Cognizance can be taken only on the “police report” and not on the FIR.6
There should be a distinction between the complaint lodged before the officer-in-charge of the police station and the personal complaint. The former is merely given information to the officer-in-charge of police station regarding the happenings of some facts related to an offence whereas the letter is to be considered as a personal complaint rose before the magistrate enumerated in Section 190(1) (a) Cr.P.C.
The magistrate is bound to take cognizance of the police report submitted to him under Section 173(2) provided that the police report should contain sufficient material for the magistrate to take cognizance of the offence. Even a magistrate who does not have territorial jurisdiction to deal with the case can take cognizance of it. The provisions of Sections 177 and 179 Cr.P.C. do not state impediment to the powers of the Court to take cognizance of the offence.7
Commencement of Proceedings
When the Magistrate has taken the cognizance it is only after that he proceeds to the next step to the “commencement of proceedings” issuing the process under Section 204 Cr.P.C.
If the magistrate taking cognizance of an offence considers that there is sufficient ground for proceedings, then if the case appears to be – (a) a summons case, he shall issue his summons for the attendance, or (b) a warrant-case, he may issue a warrant or a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.8
The Magistrate cannot refuse to issue the process merely because he thinks that the proceedings are unlikely to result in a conviction. He cannot look into the evidence of the accused nor can look into the credibility of witnesses at this stage.9 However, no summons or warrant can be issued against the accused, until a list of a prosecution witness has been filled.10 When the Magistrate gets both cases for the same case either by complaint or police report, he shall try the case as if both the cases were instituted on a police report following Section 210 of Cr.P.C.
Framing of Charge
A charge is an important step in a criminal proceeding because it separates the state of inquiry from a trial. Section 2(b) of Cr.P.C. lays down the definition of a charge as including any head of the charge when the charge contains more heads than one. This ambiguous definition is failed to give a clear insight into how the charge should be comprehended. However, in law, a charge may be defined as a precise formulation of a specific accusation made against a person of an offence alleged to have been committed by him.11
The essence of the framing a charge is to enable the defence to make it concentrate on the case that it has to deal with in a very concrete and tangible state of knowledge. Thus Section 211 of Cr.P.C. enumerates the essential requirements of a valid charge such as that it has to mention the name and definition of the offence, required sections of the code and it must be in the appropriate language of the Court. When the charge has been made it should be understood that it is equivalent to a statement that every legal condition required by law to constitute the particular offence was fulfilled in that particular case.12
Furthermore, there should be some criteria for framing a charge against the accused under Section 228 Cr.P.C. We can derive some outlines from the judicial outcomes:
a. Charges can be framed if there is prima facie case.13
b. Charges can be framed only if there is a grave or strong suspicion that the accused had committed the offence.14
c. Even if the Court thinks that the accused might have committed the offence, the Court has the power to frame a charge.15 Possibility against certainty is sufficient for framing a charge.
d. Even the imperfection in the charge is curable provided that it is in no prejudice which has resulted on account of it.16
The Court has a very responsible duty while deciding to discharge the accused or framing charge against him. Any mistake, error or omission at this stage can bring about the failure of justice.17
Discharging the accused
The Court must find out whether or not a prima facie case against the accused has been made out. If the police report or any other complaint does not stipulate the prima facie case against the accused instead put groundless charges then the obligation devolves on the Court to discharge the accused under Section 227 of Cr.P.C. and to save the process from becoming the failure of justice. If there is some evidence that gives rise to some suspicion, the Court may discharge the accused holding the strong justification that mere suspicion cannot be the ground for framing charge.18 However, the Court is required to pass a reasoned order if the Court discharges the accused under Section 227 Cr.P.C.
- West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
- Section 2(c) Cr.P.C.
- Section 2(I) Cr.P.C.
- Justice V Ramkumar, https://www.livelaw.in/know-the-law/criminal-trial-from-taking-cognizance-to-framing-of-charge-160186
- Biju Purushothaman v. State of Kerala 2008 (3) KLT 85 = 2008 Cri.L.J. 4488)
- State of Karnataka v. Pastor P. Rajan (2006) 6 SCC 728
- Trisuns Chemical Industry v. Rajesh Agarwal – (1999) 8 SCC 686 = 1999 Crl.L.J. 4325 (SC).
- Section 204 (1) Cr.P.C., 1973
- Kamta Prasad v State, 1993 CrLJ 2002 (All)
- Section 204 (2) Cr.P.C., 1973
- Birich Bhuiyan AIR 1963 SC 1120
- Section 211 (5) Cr.PC., 1973
- Union of India v. Prafulla Kumar Samal and Another (1979) 3 SCC 4 = AIR 1979 SC 366
- Para 17 of Rumi Dhar v. State of West Bengal and Another (2009) 6 SCC 364 = AIR 2009 SC 2195)
- State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 = AIR 1996 SC 1744
- B.N.Srikantiah v. State of Mysore AIR 1958 SC 672; Mohd. Ankoos v. High Court of AP (2010) 1 SCC 94
- Justice V Ramkumar, https://www.livelaw.in/know-the-law/criminal-trial-from-taking-cognizance-to-framing-of-charge-160186
- Yogesh @ Sachin jagdish Joshi v. State of Maharastra (2008) 10 SCC 394 = AIR 2008 SC 2991