COGNIZANCE A BIRD'S EYE VIEW

by The Hon'ble Mr. J !"#$e R.Re% &'"h#( J )%e( H#%h Co r"( M')r'!. Though the word 'cognizance' (rooting from Old French "conoisance", based on Latin "cognoscere") or the words 'taking cognizance' have not been deci hered and defined in the rocedural law, the same derive definite connotation from lethora of recedents and gain erce tive e! lanation and incisive e!egesis from "udicial ronouncements# $hile lain and dictionar% meaning thereof is 'taking note of', 'taking account of', 'to know about', 'to gain knowledge about', 'awareness about certain things' etc# & and in Tamil "(transliteration'& "gavanikka ada vendi%a visha%am"# "gavanam"), in law, the common understanding of the term 'cognizance' is "taking "udicial notice b% a court of law, ossessing "urisdiction, on a cause or matter resented before it so as to decide whether there is an% basis for initiating roceedings and determination of the cause or matter '"udiciall%'"# Thus, legal sense of taking "udicial notice b% a court of law or a (agistrate is altogether different from the view and idea a la%man has for it) however, a broad and general com rehension is '"udicial notice b% a court of law on a crime which, according to such court, has been committed against the com lainant, to take further action if facts and circumstances so warrant' * in Tamil, (transliteration'& "+atta adi nadavadikkai edukka thakka kutram thodar ana vazhakkai koa il edu adhu kurithu aaraidhal")# ,n the language of the -on'ble . e! /ourt em lo%ed in its earliest decision (0ef' R.R.Ch'r# *. S"'"e o+ ,.-. AIR ./0. SC 123 ), "taking cognizance does not involve an% formal action or indeed action of an% kind but occurs as soon as a (agistrate as such a lies his mind to the sus ected commission of offence"# 0egarding the rocedure involved in taking cognizance, to start with, there must be a lication of "udicial mind to the materials, oral and documentar% as well as other information submitted and a rised of# The litmus test of taking cognizance, whether it be relating to an offence on a com laint, or on a olice re ort, or u on information of a erson other than a olice officer, is making a thorough assessment of the allegations b% coming into gri with the facts resented and bringing into focus the law on the sub"ect and

a l%ing the facts to the law and thereafter arriving at a conclusion b% a rocess of reasoning and evidencing that all relevant facts have been taken note of and ro erl% anal%sed in the light of the law a licable# .n abridged and formulaic re roduction of facts to the e!clusion of relevant as ects involved from the focus of mind would undoubtedl% result in decision without a lication of mind, for, informed reasoning is the heart of the matter# $hile e!ercising discretion, with the intelligible differentia and b% weighing the cause in "udicial scales having regard to the facts and circumstances eculiar to each single case, courts must carefull% decide and cautiousl% e!amine as to whether the com laint filed is an outcome of ersonal vendetta or outburst of animosit%1enmit% or originated from evil im act of fickle mind so as to wreak vengeance against the o onent, else, malicious rosecutions would be ram ant utting at eril the valuable rights and liberties of citizens through courts themselves# Therefore, if a litigant or a citizen knocks at the doors of "ustice with a grievance, a 2udicial Officer must a l% "udicial mind cou led with discretion and such e!ercise should not be arbitrar%, ca ricious, whimsical, fanciful and casual, because "ust and right decisions cannot be taken b% an ordinar% individual but b% a erson with legal acumen, e! erience, knowledge and intelligence on the a lication of law with reference to the facts of a given case# There ma% be variet% of grievances1cases and ever% grievance cannot be received as a matter of routine, and the 2udicial Officer must be able to classif% amongst the cases so as to decide whether a articular case is fit for taking cognizance or not# There are different "udicial forums in the countr% viz#, 3ebts 0ecover% Tribunal, ,ndustrial 3is utes Tribunal, /entral .dministrative Tribunal, (ilitar% Tribunal etc# and each forum can entertain onl% such cases which come under their e!clusive urview and "urisdiction# Taking cognizance of a case which ought not to have been taken cognizance of would amount to encroaching into the "urisdiction of the other forum and would defeat the ver% ur ose behind establishment of the forum concerned# .n offence being acts of commission1omission made unishable under the law for the time being, cognizance can be taken onl% if the allegations and dis utes attract the 4enal 4rovisions in the enactment# "Taking cognizance"of a case relating to an alleged offence is different from "cognizable case"# . 4olice Officer can register an F,0 onl% if a cognizable offence is made out and he cannot investigate into a non&cognizable offence without seeking ermission from the court# 5oth the terms seem to sound similar but the% stand for a meaning and conte!t different

from each other# Though the word 'cognizance' is not defined in the /ode of /riminal 4rocedure (in short '/ode'), 'cognizable offence' is defined in +ection 6 (c) of the /ode, which reads as follows'& "/ongnizable offence means an offence for which, and 'cognizable case' means a case in which a olice officer ma%, in accordance with the First schedule or under an% other law for the time being in force, arrest without warrant ", and +ection 6(l) defines 'non&cognizable offence' as follows'& "7on&/ognizable offence means an offence for which and 'non cognizbale case' means a case in which a olice officer has no authorit% to arrest without warrant#" Therefore, one must be clear about the a lication of the /ode with reference to "taking cognizance" and distinction between "cognizable" and "non&cognizable" offences# Once cognizance is taken, rocess ma% have to be issued against the erson, who is alleged to have committed the offence and the rocedure adumbrated must necessaril% follow# For better anal%sis of the sco e of cognizance and the conse8uences arising therefrom, it is worthwhile to highlight the scheme of relevant rovisions in the /ode and the case laws touching the same# /ha ter 9,: of the /ode under the ca tion '/onditions re8uisite for initiation of roceedings' em lo%s the word 'cognizance' and the ver% first +ection in the said /ha ter viz#, +ection ;<=, outlines as to how cognizance of offences will be taken b% a magistrate of an offence on a com laint, or on a olice re ort or u on information of a erson other than a olice officer# +ection ;<; em owers the /hief 2udicial (agistrate for transfer of a case taken on file suo motu b% a 2udicial (agistrate concerned since the (agistrate himself being a com lainant, there ma% be sco e for alleging re"udice or malice# 5% virtue of +ection ;<6, a /hief 2udicial (agistrate, who takes cognizance of an offence, b% assing administrative order, transfer the case concerned to the file of an% other (agistrate subordinate to him for in8uir% or trial# +ection ;<> rohibits cognizance of an% offence b% a

court of +essions ste ing into the shoes of the court having original "urisdiction e!ce t in cases where ower is conferred b% the statute while +ection ;<? em owers +essions /ourts for transfer of cases to the file of .dditional and .ssistant +essions 2udges# +ection ;<@ deals with rosecution for contem t of lawful authorit% of ublic servants for offences against ublic "ustice and for offences relating to documents given in evidence) +ection ;<A ertains to offences against the +tate and for criminal cons irac% to commit the offence) and +ections ;<B, ;<C, ;<C&. and ;<< relates to rosecution of 2udges D ublic servants, rosecution for offences against marriage, offences under +ection ?<C&. ,4/ and defamation res ectivel%# /ha ter 9: with the title '/om laints to (agistrates' contain four sections viz#, 6== to 6=> regarding e!amination of com lainant, rocedure b% (agistrate not com etent to take cognizance of the case, ost onement of issue of rocess and dismissal of com laint# +ections 6=? to 6=C at /ha ter 9:, with the ca tion '/ommencement of roceedings before (agistrates' deal with the subse8uent roceedings that would follow after cognizance is taken# ,t must be taken note of, in cases where olice re ort is submitted for taking cognizance, the (agistrate ma% resort to one of the three o tions' (i) he ma% acce t the re ort and take congnizance of the offence and issue rocess) (ii) he ma% disagree with the re ort and dro the roceedings or (iii) he ma% direct further investigation under sub& section (>) of +ection ;@A and re8uire the olice to make a further re ort# ,n a case where the re ort on the other hand states that, in the o inion of the olice, no offence a ears to have been committed, again, the (agistrate has three o inions viz#, (a) he ma% acce t the re ort and dro the roceedings) (b) he ma% disagree with the re ort and b% holding that there is sufficient ground for roceeding further, take cognizance of the case and issue rocess or (c)he ma% direct further investigation to be made b% the olice under sub& section > of +ection ;@A# ,t is worthwhile to mention below certain case laws of the -on'ble . e! /ourt wherein the sco e and urview of the term 'cognizance' are vividl% e! lained, (i) AIR 4567 ./0. S &re8e Co r" 123 R.R.Ch'r# V!. The S"'"e o+ ,""'r -r')e!h 5efore it can be said that an% (agistrate has taken cognizance of an% offence under +#;<= he must have a lied his mind to the offence for the ur ose of roceeding in a articular

wa% as indicated in the subse8uent rovisions of /ha ter# 4roceeding E1+# 6== D thereafter sending it for in8uir% D re ort E1+#6=6# $hen the (agistrate a lies his mind not for the ur ose of roceeding under the subse8uent sections of the /ha ter but for taking action of some other kind, e#g# ordering investigation u1+# ;@A(>), or issuing a search warrant for the ur ose of the investigation, he cannot be said to have taken cognizance of the offence# (ii) AIR ./0/ S &re8e Co r" ...6 4V 9: C .027 N'r'y'n)'! Bh'%;'n)'! M')h'*)'! V!. We!" Ben%'l A! to when cognizance is taken of an offence will de end u on the facts and circumstances of each case and it is im ossible to attem t to define what is meant b% taking cognizance# ,ssuing of a search warrant for the ur ose of an investigation or of a warrant of arrest for that ur ose cannot b% themselves be regarded as acts b% which cognizance is taken of an offence# ,t is onl% when a (agistrate a lies his mind for the ur ose of roceeding under +#6== and subse8uent sections of /h# 9:, of the code of /riminal 4rocedure or under +#6=? of /h# 9:,, of the /ode that it can be ositivel% stated that he had a lied his mind and therefore had taken cognizance# (iii) AIR ./3: S &re8e Co r" .:31 D. <'=!h8#n'r'y'n' V!. V. N'r'y'n' $hat is meant b% "taking cognizance of an offence" b% the (agistrate within the contem lation of +ection ;<=F This e! ression has not been defined in the /ode# 5ut from the scheme of the /ode, the content and marginal heading of +ection ;<= and the ca tion of /ha ter 9,: under which +ections ;<= to ;<< occur, it is clear that a case can be said to be instituted in a /ourt onl% when the /ourt takes cognizance of the offence alleged therein# The wa%s in which such cognizance can be taken are set out in clauses (a), (b) and (c) of +ection ;<= (;)# $hether the (agistrate has or has not taken cognizance of the offence will de end on the circumstances of the articular case including the mode in which the case is sought to be instituted, and the nature of the reliminar% action, if an%, taken b% the (agistrate# 5roadl% s eaking, when on receiving a com laint, the (agistrate a lies his mind for the ur oses of roceeding under +ection 6== and the succeeding sections in /ha ter 9: of the /ode of ;<B>, he is said to have taken cognizance of the offence within the meaning of +ection ;<=(;) (a)# ,f, instead of roceeding under /ha ter 9:, he has in the "udicial e!ercise of his discretion, taken action of some other kind, such as issuing a search warrant for the ur ose of investigation, or ordering investigation b% the olice under +ection ;@A(>), he cannot be said to have taken cognizance of an% offence#

The ower to order olice investigation under +ection ;@A(>) is different from the ower to direct investigation conferred b% +ec# 6=6 (;)# The two o erate in distinct s heres at different stages# The first is e!ercisable at the re&cognizance stage, the second at the ost&cognizance stage when the (agistrate is in seisin of the case# That is to sa% in the case of a com laint regarding the commission of a cognizable offence, the ower under +ec# ;@A(>) can be invoked b% the (agistrate before he takes cognizance of the offence under +ection ;<= (;)(a)# 5ut if he once takes such cognizance and embarks u on the rocedure embodied in /ha ter 9:, he is not com etent to switch back to the re& cognizance stage and avail of +ection ;@A (>)# ,t ma% be noted further that an order made under sub&section (>) of +ection ;@A, is in the nature of a erem tor% reminder or intimation to the olice to e!ercise their lenar% owers of investigation under +ection ;@A (;)# +uch an investigation embraces the entire continuous rocess which begins with the collection of evidence under +ection ;@A and ends with a re ort or charge sheet under +ection ;B># On the other hand, +ection 6=6 comes in at a stage when some evidence has been collected b% the (agistrate in roceedings under /ha ter 9:, but the same is deemed insufficient to take a decision as to the ne!t ste in the rescribed rocedure# ,n such a situation, the (agistrate is em owered under +ection 6=6 to direct, within the limits circumscribed b% that section, an investigation "for the ur ose of deciding whether or not there is sufficient ground for roceeding#" Thus the ob"ect of an investigation under +ection 6=6 is not to initiate a fresh case on olice re ort but to assist the (agistrate in com leting roceedings alread% instituted u on a com laint before him# (iv) AIR ./60 S &re8e Co r" .160 Bh'%;'n" S#n%h V!. Co88#!!#oner o+ -ol#$e and another (agistrate deciding not to take cognizance of offence or dro roceedings against some ersons mentioned in F#,#0# must give notice and hear first the informant# ,n a case where the (agistrate to whom a re ort is forwarded under sub&sec#(6) of +#;B> decided not to take cognizance of the offence and to dro the roceeding or takes the view that there is no sufficient ground for roceeding against some of the ersons mentioned in the First ,nformation 0e ort, the (agistrate must give notice to the informant and rovide him an o ortunit% to be heard at the time of consideration of the re ort# -owever, either from the rovisions of the /riminal 4rocedure /ode or from the rinci les of natural "ustice,

no obligation on the (agistrate to issue notice to the in"ured erson or to a relative of the deceased for roviding such erson an o ortunit% to be heard at the time of consideration of the re ort can be s elt out, unless such erson is the informant who has lodged the F#,#0# 5ut, even if such erson is not entitled to notice from the (agistrate, he can a ear before the (agistrate and make his submissions when the re ort is considered b% the (agistrate for the ur ose of deciding what action he should take on the re ort# There can, therefore, be no doubt that when, on a consideration of the re ort made b% the officer in charge of a olice station under sub&section (6)(i) of +#;B>, the (agistrate is not inclined to take cognizance of the offence and issue rocess, the informant must be given an o ortunit% of being heard so that he can make his submissions to ersuade the (agistrate to take cognizance of the offence and issue rocess# (v) 4.//57 1 S &re8e Co r" C'!e! .: >#!h n S#n% 'n) o"her! V! S"'"e o+ B#h'r +essions /ourt has "urisdiction, on committal of a case to it, to take cognizance of offence of ersons not named as offenders, whose com licit% in the crime comes to light from the material available on record * -ence on committal under +#6=<, +essions 2udge "ustified in summoning, without recording evidence, the a ellants not named in olice re ort under +# ;B> to stand trial along with those alread% named therein# +essions /ourt having "urisdiction under +#;<>, mere e!ercise of ower under a wrong rovision (+#>;<) would not render its order invalid# On committal, the restriction on the /ourt of +ession to take cognizance of an offence as a court of original "urisdiction gets lifted# "The ob"ect of +ection ;<= is to ensure the safet% of a citizen against the vagaries of the olice b% giving him the right to a roach the (agistrate directl% if the olice does not take action or he has reason to believe that no such action will be taken b% the olice# Gven though the e! ression 'take cognizance' is not defined, it is well settled b% a catena of decisions of this /ourt that when the (agistrate takes notice of the accusations and a lies his mind to the allegations made in the com laint or olice re ort or information and on being satisfied that the allegations, if roved, would constitute an offence decides to initiate "udicial roceedings against the alleged offender he is said to have taken cognizance of the offence# /ognizance is in regard to the offence, not the offender#

(vi 7 4.//07 . S &re8e Co r" C'!e! :69 S"'"e o+ W.B. 'n) Ano"her V!. Moh). >h'l#) and .nother +ection ;<= of the /ode talks of cognizance of offences b% (agistrates# This e! ression has not been defined in the /ode# ,n its broad and literal sense, it means taking notice of an offence# This would include the intention of initiating "udicial roceedings against the offender in res ect of that offence or taking ste s to see whether there is an% basis for initiating "udicial roceedings or for other ur oses# The word 'cognizance' indicates the oint when a (agistrate or a 2udge first takes "udicial notice of an offence# ,t is entirel% a different thing from initiation of roceedings) rather it is the condition recedent to the initiation of roceedings b% the (agistrate or the 2udge# /ognizance is taken of cases and not of ersons# ,t has, thus, reference to the hearing and determination of the case in connection with an offence# (vii) .//3 S &re8e Co r" C'!e! 4Cr#7 9.0 R'!h8?# > 8'r 4!8"7 V!. M'he!h > 8'r Bh')' ,t is fairl% settled legal osition that at the time of taking cognizance of the offence, the /ourt has to consider onl% the averments made in the com laint or in the charge&sheet filed under +ection ;B>, as the case ma% be# ,t was held in +tate of 5ihar :# 0a"endra .garwall (;<<A (C) +// ;A?) that it is not o en for the /ourt to sift or a reciate the evidence at that stage with reference to the material and come to the conclusion that no rima facie case is made out for roceeding further in the matter# ,t is e8uall% settled law that it is o en to the /ourt, before issuing the rocess, to record the evidence, and on consideration of the averments made in the com laint and the evidence thus adduced, it is re8uired 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, rocess would be issued to the res ondent to take further ste s in the matters# (viii) .//6 497 Cr#8e! 095 -onn'l @ >'l'#y'r'!# V!. R'?'8'n#$='8 'n) .. o"her! 7o doubt, it is true that the com laint filed b% a rivate art% can be dismissed b% the learned (agistrate under +ection 6=> /r#4#/#, if he thinks that there is no sufficient ground for roceeding# $hile e!ercising his discretionar% owers, the learned (agistrate should not allow himself to evaluate and a reciate the sworn statements recorded b% him under +ection 6=6 /r#4#/# .ll that he could do would be, to consider as to whether there is a rima facie case for a criminal offence, which, in his "udgment, would be sufficient to call

u on the alleged offender to answer# .t the stage of +ection 6=6 /r#4#/# en8uir%, the standard of roof which is re8uired finall% before finding the accused guilt% or otherwise should not be a lied at the initial stage# This what e!actl% done b% the learned (agistrate in the instant case# (i!) AIR 1222 S &re8e Co r" 309 G. S'%'r S r# 'n) 'no"her V!. S"'"e o+ ,.. criminal com laint under +# ;>C of the 7egotiable ,nstruments .ct was alread% ending against the a ellants and other accused# The% would suffer the conse8uences if offence under +#;>C is roved against them# ,n an% case there would be no occasion for the com lainant to rosecute the a ellants accused under +s# ?=A1?6= ,4/ and in his doing so it would be clearl% an abuse of the rocess of law and rosecution against the a ellants for those offences would be liable to be 8uashed# (!) 4122:7 : S &re8e Co r" C'!e! 316 S"'"e o+ >'rn'"'=' 'n) Ano"her V!. -'!"or -. R'? +everal rovisions in /ha ter 9,: of the /riminal 4rocedure /ode use the word "cognizance"# -owever, the word "cognizance" has not been defined in the /riminal 4rocedure /ode# The dictionar% meaning of the word "cognizance" is * ""udicial hearing of a matter"# Taking cognizance of an offence is not the same thing as issuance of rocess# /ognizance is taken at the initial stage when the (agistrate a lies his "udicial mind to the facts mentioned in a com laint or to a olice re ort or u on information received from an% other erson that an offence has been committed# The issuance of rocess is at a subse8uent stage when after considering the material laced before it the court decides to roceed against the offenders against whom a rima facie case is made out#" (!i) 4122/7 . M<J 4Crl7 501 -. A!ho= > 8'r V!. In!&e$"or o+ -ol#$e ,n the resent matters, it is e! facie a arent that, in s ite of having weighed the nature of allegations in "udicial scales and thereb% knowing full% well that legall% are not su osed to refer the civil dis utes for olice investigation or take cognizance b% themselves, the 2udicial Officers concerned, with ulterior motives and to oblige the demand of the 5ankers, illegall% im uted criminal flavour to civil dis utes, which action is not onl% ina ro riate, and as such legall% untenable, but elicits their unwanted intention in aiding one art% to intimidate the other art%# The basic remise is, once a matter is found to be urel% civil nature, the sco e and e!tent of issues covering the same cannot take on a criminal character, for, both the civil and criminal dis utes are mutuall% e!clusive# Obviousl%, the reasons for these

5ankers1Financial ,nstitutions tres assing into the area of criminal law remed% is that civil law remedies are time consuming) further, b% obtaining orders for olice investigation, the% can e!ert ressure u on the borrowers through olice to a considerable e!tent b% imbibing the fear of arrest or being sub"ected to ignomin% at the hands of olice and ultimatel%, with ease, the% could collect the rinci le amount lus e!orbitant rate of interest# ,n the com laints taken on file, such break&u figures of rinci al and interest are not mentioned# Enfortunatel%, the (agistrates, who have been re eatedl% advised and guided b% the -on'ble . e! /ourt to e!ercise great caution in that regard, have abru tl% failed in adhering to such guidance, as a result of which, the immersion of civil dis utes with criminal charges is immensel% growing with each assing da% as reflected in the statistics furnished before this /ourt# 3a% in and da% out, hundreds of such com laints have been entertained b% some of the (agistrates and cognizance is taken# -umanl%, it is im ossible if there is ro er a lication of mind# Obviousl%, such cognizance is taken b% the (agistrates on the mere re8uest of the 5ankers with an ulterior motive and in collusion and cons irac% with them# To conclude, as remarked b% the +u reme /ourt, there is no s ecial charm or an% magical formula in the e! ression 'taking cognizance' which merel% means "udicial a lication of the mind of the (agistrate to the facts mentioned in the com laint with a view to take further "udicial action#