Our Criminal Lawyers have discussed below the law relating to “Cognizance of Offenses” as it is applied by Punjab and Haryana High Court at Chandigarh.
Section 190 in The Code Of Criminal Procedure, 1973
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a 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.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
This section states that the Magistrates mentioned therein upon receiving a complaint, or upon a police report or on information received from a person other than a police officer, or upon his own knowledge, may take cognizance of an offence. However it is not exhaustive of the Courts which can take cognizance or of the materials on which cognizance can be taken.
Court cannot go beyond what is contained in Criminal P.C. wherein procedure is prescribed for taking cognizance of an offence in a particular manner. Deviation from that established procedure is not permissible. Rule of interpretation of statute also permits no any such liberty.
S. 190 has been inserted in public interest, so that if the officer in charge of a police station or the public authorities refuse to investigate the case under Ss. 154 and 156, then the magistrate is empowered to make an order for such an investigation once he is satisfied that a cognizable offence has been committed.
Whether or not the complaint is filed by the aggrieved party, Court can take cognizance of an offence after following the procedure established by law.
If the charge sheet is not submitted in a summons case within six months, no provision under Ch. XIV covering Ss. 190 to 199 debars the Magistrate from taking cognizance. If there are sufficient grounds for proceedings Magistrate takes cognizance in terms of S. 190 read with S.204.
Ordinarily where a Court has not yet become seised of a case pertaining to criminal transaction judicial proceedings with respect to an offence involved therein can be initiated only under this Section.
No matter whether the offence was committed within his jurisdiction or not, any magistrate of the first class has the power to take cognizance of any offence.
Only when the court takes cognizance of the offence alleged therein can a case be said to be instituted in a court.
This section is part of a group of sections under the heading “Conditions requisite for initiation of proceedings.” The language of the section is significantly different from that of other sections of the group under the same heading i.e. Sections 193, and 195 to 199. These latter sections are related to the regulation of the competence of the Court and bar its jurisdiction in certain cases except in compliance therewith.
In case offences of forgery and cheating under Ss. 465 and 419, I.P.C. are committed by a person not in this capacity a part to a proceeding, then Section 195 (1)(c) is no bar in taking cognizance of the offences on a private complaint.
In a way clauses (a), (b) and (c) of sub sec. (1) are conditions requisite for taking of cognizance.
It would be incorrect to say that cognizance on an invalid police report is prohibited and is, therefore, a nullity. Such a situation attracts S. 465 since cognizance so taken is only in the nature of an error in a proceeding antecedent to the trial.
Cognizance of complaint – Validity – In case there is a complaint disclosing offence under S. 494, Penal Code and the Magistrate takes cognizance of offence on basis of police report ignoring provisions under S. 198 , such action would be improper.
This section refers to cognizance of “any offence”. Its scope is not confined to cognizance of non-cognizable offences alone.
Where complaint prima facie shows that a cognizable offence has been committed but police takes it as a non-cognizable offence, complainant can approach the magistrate u/S. 190 instead of invoking writ jurisdiction of High Court, as a remedy.
Though the proceeding under S. 190 is a judicial proceeding yet it is not an enquiry within the meaning of 2(g) of Code.
The Code has no provision regarding holding any sort of enquiry on an application u/S. 190.
Section 22 of the W.B. Board of Secondary Education Act (5 of 1963) does not attempt to ouster jurisdiction of Courts under the Criminal P.C. to try cases involving offences under the Penal code.
Special Court is vested with the power to take cognizance of an offence punishable under S. 7 of the Essential Commodities Act on a police report as provided in S. 190(1)(b) and the complaint can be referred to the police for investigation under S. 156(3).
Where complaint was made under Central Excise and Salt Act 1944 as per Rule 207 of the Act, complaint should not be filed by an officer lower in rank than an Inspector. Complaint was maintainable if filed by Assistant Collector.
Section 61 of Excise Act undoubtedly vests a Magistrate with the power to take cognizance on the report of police. Chapter VIII of the Act confers powers of investigation and filing of charge sheet with the excise officials but not in exclusion of the powers of investigation vested in the police officer under the Code.
Proceedings within meaning of S. 10 (2)(c) of Passports Act are not instigated by Clause (a) of S. 190 Cr.P.C.
Section 309 (2) is applicable only after taking cognizance of an offence or commencement of the trial has proceeded. Thus the accused are entitled to be released on bail under provision (a) to S. 167(2) on any order of further remand without taking cognizance under S. 190.
The scope of S. 190 and S. 319 of Criminal P.C is completely distinct while S.190 of Code comes into picture while taking cognizance of offence. It is only after ad dicing evidence before Court of Session, that S. 319 of code may be resorted to.
Where the order taking cognizance has been passed under S. 190 but S. 319 has been mentioned in the order by the Magistrate erroneously, such an error will not vitiate the order.
Where cognizance was taken by the Magistrate u/S. 190 for violating a prevailing provision, legal proceeding taken in respect of such offence will not affect any investigation.
Cognizance has to be taken under S. 190 of Criminal P.C. and not under S. 192(1). After the Magistrate has taken cognizance, he may make over case for enquiry or trial to any competent Magistrate subordinate to him in accordance with provisions of S. 192(1) of Code. Order of cognizance was quashed where cognizance was taken by Magistrate under S. 192(1).
Offence under Ss. 153A, 153B and 504 Penal Code committed at ‘M’ and cognizance taken by court at ‘J’ – If the said cognizance is challenged on ground that court at ‘J’ has no territorial jurisdiction to entertain complaint and take cognizance, order taking cognizance is proper since the power of Magistrate to take cognizance is not impaired by territorial restrictions.
Cognizance of offence – Offences under S. 3 of SC/ST (Prevention of Atrocities) Act – Magistrate having jurisdiction over area in which alleged offences committed is empowered to deal with cases up to pre-trial stages including exercise of power under S. 156. Thereafter the case shall be transferred by the Magistrate to Special Court situated within that jurisdiction.
The transmutation of Sessions court as a special Court under S.C and S.T: (Prevention of Atrocities) Act 1989 would lead to the Court exercising original jurisdiction in view of S. 14 of the Act and its power to take cognizance would be controlled by S. 190 of the code and not by S. 193.
Charge sheet filed by police in respect of offences under Ss. 341, 323/34 Penal code – The Magistrate taking cognizance also sets forth that there has been an offence under S. 3(1) (x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act on basis of complaint filed by complainant. If facts which in the opinion of Magistrate constituted offence under Act not mentioned, the order taking cognizance is liable to be set aside.
Ss. 3 and 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, provide trial by Special Court. It applies also in cases where accused is charged for offences under Penal code along with offences under Act, in such cases it is not within the jurisdiction of the Magistrate to take cognizance.
Court should take extra precaution while taking cognizance of offences about atrocities on weaker sex or weaker section, in police custody.
In case there are cross complaints regarding the same offence, the Magistrate is not barred from taking cognizance of the offence due to summoning of complainant in one of the cross – complaints.
The fact that the accused (a soldier) has been departmentally punished for his misdeed doesn’t bar his criminal prosecution.
The fact that a civil action is maintainable in respect of the matter is not an objection to proceedings.
Dispute is of civil nature – Agreement arrived at between the parties and executor not executing sale then for that purpose a suit for specific performance can be filed – Magistrate committed error in taking cognizance since a Magistrate need not to take cognizance of an offence which is of civil nature.
In case of a civil dispute, accused along with some other forcibly entered the house of the complainant and harassed the family members and broke the house, if the police doesn’t take any action on complaint, the complainant can resort to filing complaint u/S. 190 Cr.P.C.
The filing of a claim before the consumer forum does not make the dispute a civil dispute and the contention that dispute is essentially a civil dispute and therefore the order of cognizance ought to be quashed is not maintainable.
Criminal proceedings under this section can be initiated despite the pendency of civil proceeding concerning the matter involved.
Under S.190(1)(a) the Magistrate can take cognizance of an offence on receiving a complaint from a private citizen regardless of the fact whether the complaint is filed by the aggrieved party or not.
Magistrate, on receiving an application under S. 156 (3), can order investigation by police without passing an order taking cognizance of offence under S. 190.
Under S. 190 of Criminal P.C. the Magistrate takes cognizance of offence committed by named or unnamed accused persons whereas under forum of S. 156 he only engineers an investigation whereas under. The operation of these two is completely different. Therefore, it cannot be contended that a Court has no jurisdiction to take cognizance on a complaint since revision filed by complainant against order passed by Sessions Judge rejecting application under S. 156 (3) was pending before it.
Even if the investigation proceeding continued beyond 6 months without the permission of Magistrate as required by s. 167(5), he is not barred from taking cognizance of an offence on the basis of investigation.
A defect or illegality in investigation, however serious it might be, has no direct bearing on the competence of the procedure related to cognizance or trial.
In case the police fail to investigate an F.I.R. the complainant can lay complaint before Magistrate. A writ petition by complainant for direction to CBI to investigate is not tenable.
The modalities contained in Sec. 190 read with Sec. 200 of the Code are to be adopted and observed in case any person is aggrieved by the inaction of the police officials in registering the F.I.R.
If a person has been detained by police without authority, and information regarding such illegal detention is given to the Magistrate u/S. 190, the officer in charge of the police station can be asked by the Magistrate to investigate the same. Section 190 cannot be a substitute for the remedy of habeas corpus available to every citizen u/Art. 226 of the Constitution.
Unless cognizance is taken by the Court or summon is issued by the Court, the accused or the counsel of the accused has no right to address the Court.