Though the word 'cognizance' (rooting from Old French "conoisance", based on Latin

"cognoscere") or the words 'taking cognizance' have not been deciphered and defined in the
procedural law, the same derive definite connotation from plethora of precedents and gain
perceptive explanation and incisive exegesis from judicial pronouncements. While plain and
dictionary meaning thereof is 'taking note of', 'taking account of', 'to know about', 'to gain
knowledge about', 'awareness about certain things' etc. - in law, the common understanding of
the term 'cognizance' is "taking judicial notice by a court of law, possessing jurisdiction, on a
cause or matter presented before it so as to decide whether there is any basis for initiating
proceedings and determination of the cause or matter 'judicially'". Thus, legal sense of taking
judicial notice by a court of law or a Magistrate is altogether different from the view and idea
a layman has for it; however, a broad and general comprehension is 'judicial notice by a court
of law on a crime which, according to such court, has been committed against the
complainant, to take further action if facts and circumstances so warrant'.

In the language of the Hon'ble Apex Court employed in its earliest decision (Ref: R.R.Chari
v. State of U.P. AIR 1951 SC 207), "taking cognizance does not involve any formal action
or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to
the suspected commission of offence".Chapter XIV of the Code under the caption 'Conditions
requisite for initiation of
proceedings' employs the word 'cognizance' and the very first Section in the said Chapter
viz., Section 190, outlines as to how cognizance of offences will be taken by a magistrate of
an offence on a complaint, or on a police report or upon information of a person other than
a police officer. Section 191 empowers the Chief Judicial Magistrate for transfer of a case
taken on file suo motu by a Judicial Magistrate concerned since the Magistrate himself
being a complainant, there may be scope for alleging prejudice or malice. By virtue of
Section 192, a Chief Judicial Magistrate, who takes cognizance of an offence, by passing
administrative order, transfer the case concerned to the file of any other Magistrate
subordinate to him for inquiry or trial. Section 193 prohibits cognizance of any offence by a
court of Sessions stepping into the shoes of the court having original jurisdiction except in
cases where power is conferred by the statute while Section 194 empowers Sessions
Courts for transfer of cases to the file of Additional and Assistant Sessions Judges. Section
195 deals with prosecution for contempt of lawful authority of public servants for offences
against public justice and for offences relating to documents given in evidence; Section 196
pertains to offences against the State and for criminal conspiracy to commit the offence;
and Sections 197, 198, 198-A and 199 relates to prosecution of Judges & public servants,
prosecution for offences against marriage, offences under Section 498-A IPC and
defamation respectively.

AIR (38) 1951 Supreme Court 207 R.R.Chari Vs. The State of Uttar Pradesh
Before it can be said that any Magistrate has taken cognizance of any offence under S.190
he must have applied his mind to the offence for the purpose of proceeding in a particular
way as indicated in the subsequent provisions of Chapter. Proceeding U/S. 200 &
thereafter sending it for inquiry & report U/S.202. When the Magistrate applies his mind not
for the purpose of proceeding under the subsequent sections of the Chapter but for taking
action of some other kind, e.g. ordering investigation u/S. 156(3), or issuing a search
warrant for the purpose of the investigation, he cannot be said to have taken cognizance of
the offence.
(ii) AIR 1959 Supreme Court 1118 (V 46 C 150) Narayandas Bhagwandas
Madhavdas Vs. West Bengal As to when cognizance is taken of an offence will depend
upon the facts and circumstances of each case and it is impossible to attempt to define
what is meant by taking cognizance. Issuing of a search warrant for the purpose of an
investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as
acts by which cognizance is taken of an offence. It is only when a Magistrate applies his
mind for the purpose of proceeding under S.200 and subsequent sections of Ch. XVI of the
code of Criminal Procedure or under S.204 of Ch. XVII of the Code that it can be positively
stated that he had applied his mind and therefore had taken cognizance.
(iii) AIR 1976 Supreme Court 1672 D. Lakshminarayana Vs. V. Narayana What is
meant by "taking cognizance of an offence" by the Magistrate within the contemplation of
Section 190? This expression has not been defined in the Code. But from the scheme of
the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV
under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in
a Court only when the Court takes cognizance of the offence alleged therein. The ways in
which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190
(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on
the circumstances of the particular case including the mode in which the case is sought to
be instituted, and the nature of the preliminary action, if any, taken by the Magistrate.
Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the
purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of
the Code of 1973, he is said to have taken cognizance of the offence within the meaning of
Section 190(1) (a). If, instead of proceeding under Chapter XV, he has in the judicial
exercise of his discretion, taken action of some other kind, such as issuing a search
warrant for the purpose of investigation, or ordering investigation by the police under
Section 156(3), he cannot be said to have taken cognizance of any offence.
The power to order police investigation under Section 156(3) is different from the power to
direct investigation conferred by Sec. 202 (1). The two operate in distinct spheres at
different stages. The first is exercisable at the pre-cognizance stage, the second at the
post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the
case of a complaint regarding the commission of a cognizable offence, the power under
Sec. 156(3) can be invoked by the Magistrate before he takes cognizance of the offence
under Section 190 (1)(a). But if he once takes such cognizance and embarks upon the
procedure embodied in Chapter XV, he is not competent to switch back to the precognizance
stage and avail of Section 156 (3). It may be noted further that an order made
under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation
to the police to exercise their plenary powers of investigation under Section 156 (1). Such
an investigation embraces the entire continuous process which begins with the collection of
evidence under Section 156 and ends with a report or charge sheet under Section 173. On
the other hand, Section 202 comes in at a stage when some evidence has been collected
by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to
take a decision as to the next step in the prescribed procedure. In such a situation, the
Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that
section, an investigation "for the purpose of deciding whether or not there is sufficient
ground for proceeding." Thus the object of an investigation under Section 202 is not to
initiate a fresh case on police report but to assist the Magistrate in completing proceedings
already instituted upon a complaint before him.
(iv) AIR 1985 Supreme Court 1285 Bhagwant Singh Vs. Commissioner of Police
and another Magistrate deciding not to take cognizance of offence or drop proceedings
against some persons mentioned in F.I.R. must give notice and hear first the informant.
In a case where the Magistrate to whom a report is forwarded under sub-sec.(2) of S.173
decided not to take cognizance of the offence and to drop the proceeding or takes the view
that there is no sufficient ground for proceeding against some of the persons mentioned in
the First Information Report, the Magistrate must give notice to the informant and provide
him an opportunity to be heard at the time of consideration of the report. However, either
from the provisions of the Criminal Procedure Code or from the principles of natural justice,
no obligation on the Magistrate to issue notice to the injured person or to a relative of the
deceased for providing such person an opportunity to be heard at the time of consideration
of the report can be spelt out, unless such person is the informant who has lodged the
F.I.R. But, even if such person is not entitled to notice from the Magistrate, he can appear
before the Magistrate and make his submissions when the report is considered by the
Magistrate for the purpose of deciding what action he should take on the report.
There can, therefore, be no doubt that when, on a consideration of the report made by the
officer in charge of a police station under sub-section (2)(i) of S.173, the Magistrate is not
inclined to take cognizance of the offence and issue process, the informant must be given
an opportunity of being heard so that he can make his submissions to persuade the
Magistrate to take cognizance of the offence and issue process.

Conclusion :

Unfortunately, the Magistrates, who have been repeatedly advised and guided by the
Hon'ble Apex Court to exercise great caution in that regard, have abruptly failed in adhering
to such guidance, as a result of which, the immersion of civil disputes with criminal charges
is immensely growing with each passing day as reflected in the statistics furnished before
this Court. Day in and day out, hundreds of such complaints have been entertained by
some of the Magistrates and cognizance is taken. Humanly, it is impossible if there is
proper application of mind. Obviously, such cognizance is taken by the Magistrates on the
mere request of the Bankers with an ulterior motive and in collusion and conspiracy with
them.
To conclude, as remarked by the Supreme Court, there is no special charm or any magical
formula in the expression 'taking cognizance' which merely means judicial application of the
mind of the Magistrate to the facts mentioned in the complaint with a view to take further
judicial action.

098765467890765467890-=98765678

. If we apply the dictionary meaning it simply refers to becoming aware or getting the
knowledge of any such offences. This was also enunciated by the apex court, in the
case of R.R.Chari v. State of U.P were it defined it as the application of judicial
mind. Section 190- 199 of the Code of Criminal Procedure, 1973 describe the
methods by which, and the limitations subject to which, various criminal courts are
entitled to take cognizance of offences. Section 190 (1) states about the powers and
conditions under which any magistrate of first and second class specifically
empowered in this behalf can take cognizance. However if a magistrate in good faith
erroneously take cognizance of offence, such proceeding would not become void per
se subject to the condition that it was done upon information received or upon his
own knowledge. Section 191 also gives the power to transfer the case. This has
been broadly given to the accused, Chief Judicial Magistrate and the magistrate. But
there are certain cases which are exclusively triable by Court of Session according to
S.26 read with the First Schedule. The Magistrate taking cognizance of such offence
is required to commit the case for trial to the Court of Session after completing
certain preliminary formality. And lastly section 195-199 puts the limitation on taking
cognizance by magistrate. Thus we conclude that this power has been delicately
balanced between the hands of judiciary and the common man.’

The core purpose of criminal procedure is to provide the accused a full and fair trial
in accordance with the principles of natural justice. There are various steps which
should be followed in order to dispense justice and bring the guilty to the book.
These include pre-trial procedures such as information, arrests, search and seizures
etc; determining jurisdiction of police and courts regarding investigation and trial;
bail; trial procedure including cognizance of offences, initiation of proceedings etc;
review procedures and finally the execution of final decision.

Any Magistrate of the first class and any magistrate of the second class may take
cognizance of any offence. Section 190- 199 of the code describe the methods by
which, and the limitations subject to which, various criminal courts are entitled to take
cognizance of offences. Section 190(1) provides that, subject to the provisions of S.
195-199, any magistrate of the first class and any magistrate of the second class
especially empowered in this behalf, may take cognizance of any offences-

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 an offence has been committed.

Tula Ram v. Kishore Singh1: Taking cognizance does not involve any formal
action, or indeed action of any kind, but occurs as soon as a magistrate, as such
applies his mind to the suspected commission of an offence for the purpose of
proceeding to take subsequent steps towards injury or trial. Also, When a magistrate
applies his mind not for the purpose of proceeding as mentioned above, but for
taking action of some other kind, like ordering investigation under s.156(3) or issuing
a search warrant for the purpose of investigation he cannot be said to have taken
cognizance of the offence. And the word cognizance has been used in the Code to
indicate the point when the magistrate or a judge first takes judicial notice of an
offence.

] As observed earlier when a complaint is filed before a magistrate, the magistrate

may simply order investigation by the police. The police may then investigate the
case and submit the report to the magistrate. In such a situation, when the
magistrate then proceeds with the case, a question of some importance arises as to
whether the magistrate had taken cognizance of the offence on the complaint before
sending it for investigation or whether the case was sent to the police without taking
cognizance of the offence and the cognizance was taken only on the report

1
(1977) 4 SCC 459
submitted by the police. There are certain advantages to the complaint if cognizance
was taken on a complaint. For instance, in the event of an acquittal of the accused in
a complaint case, the complainant gets a right of appeal. It’s now well-settled that
when a petition of complaint is filed before a magistrate the question whether he can
be said to have taken cognizance of the offence alleged in the complaint under S.
190(1) depends upon the purpose for which he applies his mind to the complaint. If
the magistrate applies his mind to the complaint for the purpose of the proceeding
with the complaint, he must be held to have taken cognizance of the offences
mentioned in the complaint but on other hand if he applies his mind to the complaint
not for any such purpose but only for the purpose of ordering an investigation or for
issuing search warrant, he cannot be said to have taken cognizance of the offence.

-098765467890-=897656475765890-9

INTRODUCTION
Though the word 'cognizance' (rooting from Old French "conoisance", based on Latin
"cognoscere") or the words 'taking cognizance' have not been deciphered and defined in the
procedural law, the same derive definite connotation from plethora of precedents and gain
perceptive explanation and incisive exegesis from judicial pronouncements. While plain and
dictionary meaning thereof is 'taking note of', 'taking account of', 'to know about', 'to gain
knowledge about', 'awareness about certain things' etc.
In law, the common understanding of the term 'cognizance' is "taking judicial notice by a
court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide
whether there is any basis for initiating proceedings and determination of the cause or matter
'judicially'". Thus, legal sense of taking judicial notice by a court of law or a Magistrate is
altogether different from the view and idea a layman has for it; however, a broad and general
comprehension is 'judicial notice by a court of law on a crime which, according to such court,
has been committed against the complainant, to take further action if facts and circumstances
so warrant'
In the language of the Hon'ble Apex Court employed in its earliest decision (Ref: R.R.Chari
v. State of U.P. AIR 1951 SC 207), "taking cognizance does not involve any formal action or
indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the
suspected commission of offence".
Chapter XIV of the Code under the caption 'Conditions requisite for initiation of proceedings'
employs the word 'cognizance' and the very first Section in the said Chapter viz., Section 190,
outlines as to how cognizance of offences will be taken by a magistrate of an offence on a
complaint, or on a police report or upon information of a person other than a police officer.
Section 191 empowers the Chief Judicial Magistrate for transfer of a case taken on file suo
motu by a Judicial Magistrate concerned since the Magistrate himself being a complainant,
there may be scope for alleging prejudice or malice. By virtue of Section 192, a Chief
Judicial Magistrate, who takes cognizance of an offence, by passing administrative order,
transfer the case concerned to the file of any other Magistrate subordinate to him for inquiry
or trial. Section 193 prohibits cognizance of any offence by a court of Sessions stepping into
the shoes of the court having original jurisdiction except in cases where power is conferred
by the statute while Section 194 empowers Sessions Courts for transfer of cases to the file of
Additional and Assistant Sessions Judges. Section 195 deals with prosecution for contempt of
lawful authority of public servants for offences against public justice and for offences relating
to documents given in evidence; Section 196 pertains to offences against the State and for
criminal conspiracy to commit the offence; and Sections 197, 198, 198-A and 199 relates to
prosecution of Judges & public servants, prosecution for offences against marriage, offences
under Section 498-A IPC and defamation respectively. Chapter XV with the title 'Complaints
to Magistrates' contain four sections viz., 200 to 203 regarding examination of complainant,
procedure by Magistrate not competent to take cognizance of the case, postponement of issue
of process and dismissal of complaint. Sections 204 to 208 at Chapter XVI with the caption
'Commencement of proceedings before Magistrates' deal with the subsequent proceedings
that would follow after cognizance is taken. It must be taken note of, in cases where police
report is submitted for taking cognizance, the Magistrate may resort to one of the three
options: (i) he may accept the report and take congnizance of the offence and issue process;
(ii) he may disagree with the report and drop the proceedings or (iii) he may direct further
investigation under subsection (3) of Section 156 and require the police to make a further
report. In a case where the report on the other hand states that, in the opinion of the police, no
offence appears to have been committed, again, the Magistrate has three opinions viz., (a) he
may accept the report and drop the proceedings; (b) he may disagree with the report and by
holding that there is sufficient ground for proceeding further, take cognizance of the case and
issue process or (c)he may direct further investigation to be made by the police under
subsection 3 of Section 156.

Case laws of the Hon'ble Apex Court wherein the scope and purview of the term
'cognizance' are vividly explained,
(i) AIR (38) 1951 Supreme Court 207 R.R.Chari Vs. The State of Uttar Pradesh
Before it can be said that any Magistrate has taken cognizance of any offence
under S.190 he must have applied his mind to the offence for the purpose of
proceeding in a particular way as indicated in the subsequent provisions of
Chapter. Proceeding U/S. 200 & thereafter sending it for inquiry & report
U/S.202. When the Magistrate applies his mind not for the purpose of proceeding
under the subsequent sections of the Chapter but for taking action of some other
kind, e.g. ordering investigation u/S. 156(3), or issuing a search warrant for the
purpose of the investigation, he cannot be said to have taken cognizance of the
offence.
(ii) AIR 1959 Supreme Court 1118 (V 46 C 150) Narayandas Bhagwandas
Madhavdas Vs. West Bengal As to when cognizance is taken of an offence will
depend upon the facts and circumstances of each case and it is impossible to
attempt to define what is meant by taking cognizance. Issuing of a search warrant
for the purpose of an investigation or of a warrant of arrest for that purpose cannot
by themselves be regarded as acts by which cognizance is taken of an offence. It is
only when a Magistrate applies his mind for the purpose of proceeding under
S.200 and subsequent sections of Ch. XVI of the code of Criminal Procedure or
under S.204 of Ch. XVII of the Code that it can be positively stated that he had
applied his mind and therefore had taken cognizance.
(iii) (1995) 1 Supreme Court Cases 684 State of W.B. and Another Vs. Mohd. Khalid
and Another Section 190 of the Code talks of cognizance of offences by
Magistrates. This expression has not been defined in the Code. In its broad and
literal sense, it means taking notice of an offence. This would include the intention
 of initiating judicial proceedings against the offender in respect of that offence or
taking steps to see whether there is any basis for initiating judicial proceedings or
for other purposes. The word 'cognizance' indicates the point when a Magistrate or
a Judge first takes judicial notice of an offence. It is entirely a different thing from
initiation of proceedings; rather it is the condition precedent to the initiation of
proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not
of persons. It has, thus, reference to the hearing and determination of the case in
connection with an offence.
(iv) 1997 Supreme Court Cases (Cri) 415 Rashmji Kumar (smt) Vs. Mahesh Kumar
Bhada It is fairly settled legal position that at the time of taking cognizance of the
offence, the Court has to consider only the averments made in the complaint or in
the charge-sheet filed under Section 173, as the case may be. It was held in State
of Bihar V. Rajendra Agarwall (1996 (8) SCC 164) that it is not open for the
Court to sift or appreciate the evidence at that stage with reference to the material
and come to the conclusion that no prima facie case is made out for proceeding
further in the matter. It is equally settled law that it is open to the Court, before
issuing the process, to record the evidence, and on consideration of the averments
made in the complaint and the evidence thus adduced, it is required to find out
whether an offence has been made out. On finding that such an offence has been
made out and after taking cognizance thereof, process would be issued to the
respondent to take further steps in the matters.
(v) 1998 (4) Crimes 543 Ponnal @ Kalaiyarasi Vs. Rajamanickam and 11 others No
doubt, it is true that the complaint filed by a private party can be dismissed by the
learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no
sufficient ground for proceeding. While exercising his discretionary powers, the
learned Magistrate should not allow himself to evaluate and appreciate the sworn
statements recorded by him under Section 202 Cr.P.C. All that he could do would
be, to consider as to whether there is a prima facie case for a criminal offence,
which, in his judgment, would be sufficient to call upon the alleged offender to
answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which
is required finally before finding the accused guilty or otherwise should not be
applied at the initial stage. This what exactly done by the learned Magistrate in the
instant case.

SCOPE OF COGNIZANCE OF OFFENCES BY MAGISTRATE

Any Magistrate of the first class and any magistrate of the second class may take cognizance
of any offence. Section 190- 199 of the code describe the methods by which, and the
limitations subject to which, various criminal courts are entitled to take cognizance of
offences. Section 190(1) provides that, subject to the provisions of S. 195-199, any magistrate
of the first class and any magistrate of the second class especially empowered in this behalf,
may take cognizance of any offences-

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 an offence has been committed.
S. 190(2) – The Chief Judicial Magistrate may specially empower any magistrate of the
second class as mentioned to take cognizance of such offences as are within his competence
to inquire into or try.

The term complaint has been defined in S. 2(d) as meaning: ‘any allegation made orally or in
writing to a magistrate, with a view to his taking action under this code that some person,
whether known or unknown, has committed an offence, but does not include a police report.’
It also explain that A report made by a police officer in a case which disclose, after
investigation, the commission of a non cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall be deemed to be the complaint. In
the case of P. Kunhu muhammed v. State of Kerala . it was said: the report of a police officer
following an investigation contrary to S. 155(2) could be treated as complaint under S. 2(d)
and S. 190(1)(a) if at the commencement of the investigation the police officer is led to
believe that the case involved the commission of a cognizable offence or if there is a doubt
about it and investigation establishes only commission of a non- cognizable offence. If at the
commencement of the investigation it is apparent that the case involved only commission of a
non-cognizable offence, the report followed by the investigation cannot be treated as a
complaint under S. 2(d) or 190(1)(a) of the Code. The expression ‘police report’ has been
defined by S. 2(r) as meaning “a report by a police officer to a magistrate under S. 173(2)”
i.e., the report forwarded by the police after the completion of investigation.

Ajit Kumar Palit v. State of W.B.: What is taking cognizance has not been defined in the
Code. The word ‘cognizance’ has no esoteric or mystic significance in Criminal Law or
procedure. It merely means ‘become aware of’ and when used with reference to a court or
judge. ‘to take notice judicially’.

Tula Ram v. Kishore Singh: Taking cognizance does not involve any formal action, or indeed
action of any kind, but occurs as soon as a magistrate, as such applies his mind to the
suspected commission of an offence for the purpose of proceeding to take subsequent steps
towards injury or trial. Also, When a magistrate applies his mind not for the purpose of
proceeding as mentioned above, but for taking action of some other kind, like ordering
investigation under s.156(3) or issuing a search warrant for the purpose of investigation he
cannot be said to have taken cognizance of the offence. And the word cognizance has been
used in the Code to indicate the point when the magistrate or a judge first takes judicial notice
of an offence.

Pitambar Buhan v. State of Orissa : Taking cognizance includes intention of initiating a

judicial proceeding against an offender in respect of an offence or taking steps to see whether
there is basis for initiating a judicial proceeding.

Ordinarily a private citizen intending to initiate criminal proceedings in respect of an offence

has two courses open to him. He may lodge an FIR before the police if the offence is
cognizable one; or he may lodge a complaint before a competent judicial magistrate
irrespective of whether the offence is cognizable or non-cognizable. The object of the Code is
to ensure the freedom and safety of the subject in that it gives him the right to come to court
if he considers that a wrong has been done to him or to the Republic and be a check upon
police vagaries. As observed earlier when a complaint is filed before a magistrate, the
magistrate may simply order investigation by the police. The police may then investigate the
case and submit the report to the magistrate. In such a situation, when the magistrate then
proceeds with the case, a question of some importance arises as to whether the magistrate had
taken cognizance of the offence on the complaint before sending it for investigation or
whether the case was sent to the police without taking cognizance of the offence and the
cognizance was taken only on the report submitted by the police. There are certain
advantages to the complaint if cognizance was taken on a complaint. For instance, in the
event of an acquittal of the accused in a complaint case, the complainant gets a right of
appeal. It’s now well-settled that when a petition of complaint is filed before a magistrate the
question whether he can be said to have taken cognizance of the offence alleged in the
complaint under S. 190(1) depends upon the purpose for which he applies his mind to the
complaint. If the magistrate applies his mind to the complaint for the purpose of the
proceeding with the complaint, he must be held to have taken cognizance of the offences
mentioned in the complaint but on other hand if he applies his mind to the complaint not for
any such purpose but only for the purpose of ordering an investigation or for issuing search
warrant, he cannot be said to have taken cognizance of the offence.

It has been explained that the magistrate while taking cognizance of an offence, is becoming
aware of the commission of that offence and that awareness continues. So a magistrate would
be entitled to take cognizance of a complaint case after having taken cognizance of the case
on police report. It has also been opined that even if this involved taking cognizance twice,
there is no harm as no provision in the Code prohibits it. However it is settled that a court can
take cognizance of offence only once and after that it becomes functus officio.

If cognizance is to be taken on a police report under S. 190(1)(b) the report must be one as
defined in S. 2(r). That is the report must be one forwarded by a police officer to a magistrate
under S. 173(2) and not any other report like preliminary report or an incomplete challan.
And it is for the magistrate to decide whether the police report is complete. His power cannot
be controlled by the investigating agency. On receiving police report the magistrate may take
cognizance of the offence under S. 190(1) (b) and straightaway issue process. This he may do
irrespective of the view expressed by the police in their report whether an offence has been
made out or not. The magistrate has not to proceed mechanically in agreeing with the opinion
formed by the police, but has to apply his mind and persue the papers placed before him. He
has to apply his mind to all the details embodied in the police report and to other documents
and papers submitted along with the report. It may be noted that the magistrate takes
cognizance of the offences and not the offender. The magistrate is not bound by the
conclusion drawn by the police and it is open to him to take cognizance of an offence under
S. 199(1)(b) on the basis of the police report even though the police might have
recommended in their report that there were was no sufficient ground for proceeding further
or that it was not a fit case where cognizance should be taken by the magistrate. It has been
ruled that the magistrate can take cognizance of an offence if he is satisfied about the
material.

According to S. 190(1)(c) the magistrate can take cognizance of any offence upon the
information received from any person other than a police officer or upon his knowledge. The
object is to enable magistrate to see that justice is vindicated notwithstanding that the persons
individually aggrieved are willing or unable to prosecute. Hence the proper use of the power
conferred by this provision is to proceed under it when the magistrate has reason to believe
the commission of a crime but is unable to proceed ordinary way owing to absence of any
complaint or police report about it. Therefore the word ‘knowledge’ as used in the clause (c)
should be interpreted rather liberally so as to subserve the real object of the provision. It has
been opined that if a magistrate takes action under S. 190(1)(c) without having jurisdiction
then such trial would be vitiated.
S. 190 provide that under the condition specified in the section certain magistrate ‘may’ take
cognizance of offences. There are varying opinions of the Courts on this point. Considering
the observation of the Supreme Court in this connection it may be fairly concluded that ‘a
magistrate has certain discretion but it must be judicial in nature, it is limited in scope’. And
taking cognizance does not depend upon the presence of the accused in the court. In fact he
does not have any role at this stage. There is no question of giving him a hearing when final
report of the police is considered. Nor does refusal to take cognizance of an offence leads to
discharge of the accused. It may be noted that a magistrate can take cognizance of any
offence only within the time-limits prescribed by law. Even after the period of limitation such
offences can be taken cognizance of by the court if the delay is condoned prior to taking
cognizance. The power to take cognizance of an offence may not be confused with the power
to inquire into or try a case.

COGNIZANCE TAKEN BY A MAGISTRATE NOT EMPOWERED

If any magistrate not empowered to take cognizance of an offence under S. 190(1)(a) and
190(1)(b), does erroneously in good faith take cognizance of an offence, his proceeding shall
not be set aside merely on the ground of his not being empowered.

Purshottam Jethanand v. State of Kutch : If a magistrate takes cognizance of an offence and

proceeds with a trial though he is not empowered in that behalf and convicts the accused, the
accused cannot avail himself of the defect and cannot demand that his conviction be set aside
merely on the ground of such irregularity, unless there is something on the record to show
that the magistrate had assumed the power, not erroneously and in good faith, but purposely
having knowledge that he did not have any such power. On the other hand if a magistrate
who is not empowered to take cognizance of an offence takes cognizance upon information
received or upon his own knowledge under S. 190(1)(c) his proceeding shall be void and of
no effect. In such a case it is immaterial whether he was acting erroneously in good faith or
otherwise.

 LIMITATION ON THE POWER TO TAKE COGNIZANCE

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. The general rule is 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 in, or affected by the offence. To this general rule,
Sections 195 to 199 of Cr. P.C. provide exceptions, for they forbid cognizance being taken of
the offences referred to therein except where there is a complaint by the Court or the public
servant concerned. The provisions of these sections are mandatory and a Court has no
jurisdiction to take cognizance of any of the offences mentioned therein unless there is a
complaint in writing as required by the section concerned. 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
absence of complaint as required by the section is fatal to the prosecution and it is an
illegality which vitiates the trial and conviction.
The Supreme Court, in Bashir-ul-Haq v. State, held that Section 195 of Cr.P.C. requires that
without a written complaint of the public servant concerned no prosecution for an offence
under Section 182, IPC can be launched 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 offence under Section 190,
therefore, at the stage of taking cognizance of an offence, 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. Any person may set the criminal law in
motion by filing a complaint even if he is not personally affected by the offence committed.
However, certain restrictions or limitations have been imposed on the wider powers of the
magistrate’s power to take cognizance under S. 190 of the code and these restrictions have
been placed under S. 195-199 of CrPC. Sub-section 1(a) of Section 195 provides that no
Court shall take cognizance of any offence punishable under Sections 172 to 188, IPC or of
abetment or attempt or criminal conspiracy to commit such offence. Sections 172-188, IPC
relate to offence of contempt of lawful authority of public servants, for example absconding
to avoid service of summons, preventing service of summons, not producing a document
when so required by a public servant, knowingly furnishing false information, refusing to
take oath etc.

The provision of Section 195(1)(a) being mandatory, any private prosecution in respect of the
said offences is totally barred. Only the concerned public servants can make a complaint and
initiate proceedings in respect of these offences. The power to make the complaint can be
exercised only by the public servant who is for the time being holding the office or is a
successor-in-office of the public servant whose order is disobeyed or lawful authority
disregarded and thus an offence under Sections 172 to 188, IPC has been committed. The bar
or limitation imposed by sub-section 1(a) of Section 195 equally extends to both cognizable
as well as non-cognizable offences. It may be noted that all the offences covered by Sections
172 to 188 of IPC except the one under Section 188, are non-cognizable offences. It may be
noted that Section 195 being mandatory taking cognizance of any offence referred to therein
without a proper complaint by the concerned public servant would be an illegality which
cannot be cured by Section 465 of Cr.P.C. Clause (b) of Section 195(1) relates to prosecution
for offences against public justice. No Court shall take cognizance of any such offence or of
attempt or abetment or of any criminal conspiracy to commit any such offence, when such
offence is alleged to have been committed in, or relation to, any proceeding in any Court,
except on a complaint in writing of that Court or of some other Court to which that Court is
subordinate.

In the case of Mahesh Chand Sharma v. State of U.P., the appellant filed a complaint
alleging that the respondents (accused persons) had fraudulently mutated their names in the
land record. The land in question was purchased by the appellant under a registered sale deed.
The accused persons had colluded with the Area Lekhpal and acted behind the back of the
appellant. Held, the offence committed did not relate to Court proceedings which is the
essential requirement for applicability of Section 195(1)(b) (ii). The appellant had lodged the
complaint as soon as he came to know about the evil designs of accused persons. The Apex
Court ruled that the impugned order quashing taking of cognizance against accused by
wrongly applying provision of Section 195 and resorting to Section 340 (which relates to
procedure in cases mentioned in Section 195) was not proper.
As provided in sub-section (3); term ‘Court’ for this purpose means a civil, revenue or
criminal Court and includes a tribunal constituted by Central or State Act. But it does not
include a commission appointed under the Commission of Inquiry Act, 1952.

The Supreme Court, in Santosh Singh v. Izhar Hussain, observed that every incorrect or
false statement does not make it incumbent upon the Court to order prosecution. The Court
should exercise judicial discretion taking into consideration all the relevant facts and
circumstances. It should order prosecution in the larger interest of justice and not gratify the
feelings of personal revenge or vindictiveness or serve the ends of a private party.

In the case of R. Ruthinam v. Kamla Vaiduriam, a minor girl was in the custody of a person
who was asked to produce the girl before the Madras High Court. The person produced a
substitute girl identifying her and asserting her to the same girl. Therefore, the High Court
was justified in lodging a complaint against that person for giving false evidence and
misleading the Court. Where a forged agreement of sale was filed before the Deputy
Registrar Cooperative Societies (Housing) at Hyderabad, a private complaint for an offence
under Section 467, IPC was held to be maintainable, as the cooperative Registrar is not a
Court within the meaning of Section 195 of the Code. In a case where the accused were
alleged to have forged certain documents and filed a civil suit on the basis of those forged
documents, it was held that procedure contemplated in Section 195 (2)(b) must necessarily be
followed because offences under Sections 474 and 474-A of IPC are integral parts of the
offences covered by Section 195 of the Code and form the same transaction.

A document is said to be ‘produced in Court’ when it is placed before the Court for the
purposes of being tendered in evidence or for some other purpose. Prosecution of a person for
giving false statements, by and large, depends upon the gravity of the false statement and the
circumstances under which such statement was made, also the object of making it and the
impact it has on administration of justice. It has been held that a person cannot be prosecuted
for the offence of perjury unless he has stated on oath, facts on which his first statement was
based and then denied those facts on oath subsequently. There cannot be a prosecution for
alleged forgery under Section 195 (1)(b)(ii) where a document alleged to be forged was not
itself produced in Court but a copy only of such document was produced.

The Supreme Court in Sachidanand Singh v. State of Bihar, has clarified that a prosecution
for the offence of forgery would be possible under Section 195 (1) (b) (ii) only where the
forgery was committed while the document was in custody of Court, i.e., custodia legis, but
mere production of the document would not attract the bar of this section and in that case
prosecution may be launched by any person.

Section 195 (4) deals with the subordination of Courts. It is different from the subordination
of Courts generally for the purpose of Cr.P.C. which is dealt with in Sections 15 and 23 of the
Code. Under this section, the Court to which appeal ordinarily lies from the appealable
decrees or sentences of the Court, is the Court to which such Court is subordinate and in case
of Civil Court from whose decrees no appeal lies, it is subordinate to the principal Court
having ordinarily original Civil jurisdiction, within whose local jurisdiction such Civil Court
is situate. It has been held that the Court of single Judge of the High Court is subordinate to
the Division Bench of the High Court which hears appeals from such Court in certain cases.

The two provisos to sub-section (4) deal with (1) subordination of Court whose appeal to
more than one Court lies; and (2) subordination when there is dual jurisdiction i.e. where
appeals from a Court may in certain cases go to a Civil Court and in other cases to revenue
Court. In such cases the subordination must be decided according to the nature of the case in
connection with which the offence is alleged to have been committed.

These restrictions have been placed on sound policy considerations and have been
considered important for faster disposal of cases. S. 198 lays down an exception to the
general rule that a complaint can be filed by anybody even if not connected to the victim
and modifies this by saying that only aggrieved person or person specified under the
section can file a complaint relating to offences relating to marriage. The object of this
section is to prevent a Magistrate of his own motion inquiring into cases of marriage,
unless the husband or other authorized person complains so, but once a case has been
placed before him, a Magistrate is free to proceed against any person implicated. It
must be understood that this section neither confer any power of cognizance on the
court nor a right to complain on the aggrieved person.

CONCLUSION

Section 190 of the Code empowers the magistrate to take cognizance of an offence in cases
where the victim does not lodge an FIR in the police station due to any reason or in cases
where the police refuse to admit FIR reported by any victim. Thus, this provision 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 offence has been committed.

The real distinction between sub-clause (c) and sub-clauses (a) and (b) of section 190(1) is
that, in the two latter cases an application is made to the Magistrate to take cognizance of the
offence either by a complaint or by the police, while in the former case the Magistrate takes
cognizance suo motu either on his own knowledge or on information received from some
person who will not take the responsibility of setting the law in motion. In this case, the law
partly out of regard for the susceptibilities of the accused and partly to inspire confidence in
the administration of justice allows the accused right to claim to be tried before another
Magistrate.

And that these restrictions under S. 195-199 of CrPC, were put in place so as to maintain the
dignity of affected families and also to solve the matters within the family members. Had
everyone been allowed to file a complaint, then it would have resulted in chaos in the
families and loads of cases would have been registered which might be out of spite to show
that family in bad repute. Though magistrate can take cognizance of the complaint filed by
the persons as mentioned under this section, he can also grant other person’s leave to file a
complaint. By these sections, only the most affected persons are given right to file a
complaint as they are considered to be aggrieved at most. Though the thinking of legislature
was noble while enacting the legislation, there seems to be some gaping holes in the code,
mostly with regard to remedies asserted to women, by which many husbands have been set
free. It is to be understood that the object of CrPC is not let an accused go but to punish him
for his deeds. So the government must introduce some amendment so as to make these
provisions effective.