This article is written by Kishita Gupta, a Unitedworld School of Law, Karnavati University, Gandhinagar, graduate. The article discusses Section 190 of the Criminal Procedure Code, 1973.

It has been published by Rachit Garg.

Introduction

Have you ever wondered what would happen if the process of arrest had not been properly defined in the law books? Well, I believe it would only lead to chaos in the criminal justice system. Thus, in India, the Criminal Procedure Code defines all the procedures to be followed in cases of criminal justice. One of these procedures involves the magistrate having the authority to take cognizance of criminal cases under Section 190 of the Criminal Procedure Code, 1973. In this article, the author will be discussing Section 190 of the CrPC.

What is meant by taking cognizance

The CrPC and other Acts do not define or explain what is meant when a competent magistrate “taking cognizance” of an offence. However, through well-established legal declarations, the phrase has come to have a clear connotation.

When referring to a court or a judge, the phrase “taking cognizance” actually means “become aware of,” but it also means “to take notice of judicially.” The phrase has no esoteric meaning in criminal law. In actuality, “taking cognizance” refers to being informed of an offence in order to begin legal action under Section 190 of the Criminal Procedure Code.

The term “cognizance” refers to the moment the court first takes judicial notice of an offence by not only considering the information in the police report or complaint but also moving forward, as further described in Chapter XIV of the Criminal Procedure Code. Taking cognizance is either taking action to determine whether there is cause to start a legal process or having the magistrate start a legal process against an offender.

Taking cognizance happens when a magistrate examines the alleged commission of an offence with a critical eye in order to take further action under Sections 200, 202, or 204 of the CrPC toward an investigation and trial. However, the magistrate’s use of judgement in order to take any other action, such as ordering a police investigation or issuing a search warrant, cannot be interpreted as taking cognizance of the offence.

Simply put, taking judicial notice of the offence for an investigation or trial is known as “cognizance.” There is no formal activity involved in taking cognizance.

For a trial to be legitimate, taking cognizance is a requirement or condition prior. An offence is taken into cognizance, not an offender. So, according to Section 190 of the Criminal Procedure Code, the magistrate is considered to have “taken cognizance” whenever he becomes fully informed of the charges presented therein and decides to move forward with the investigation or trial of the offence.

What is Section 190 CrPC

Section 190 discusses the 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.

Who takes the arrest decision

In accordance with the Code of Criminal Procedure, 1973, there are two different types of arrests: those performed with an arrest warrant and those made without one. A warrant of arrest is a written document that a magistrate issues and signs. It is addressed to a police officer or another person specifically identified and instructs him to make an arrest of the individual mentioned therein, who is charged with a crime.

Thus, it will become clear that the Code’s proposed arrest judgments are made either by court officers or by others. Added Wayne R. LaFave:

In a criminal justice system, it is typically thought that judicial involvement in decision-making is desirable to ensure a fair balance between the interests of society and the individual. It is believed that a “disinterested determination” made by a “neutral and detached” judicial office will best serve this balancing of interests.

At the time of the arrest, it is frequently believed that the police should provide the evidence to the magistrate, who is not involved in the competitive process of locating criminals and ordering their arrest if there is no immediate need for action.

The law as it stands today does not allow a judicial magistrate to issue a warrant of arrest in situations where an immediate arrest is not required and there is sufficient time for the police to approach the judicial magistrate for a warrant of arrest, regardless of how proper and desirable it may be to have the arrest decision made by a judicial magistrate. Only after taking cognizance of an offence can the magistrate issue a process, such as a summons or an arrest warrant.

Only after receiving a complaint of the facts constituting an offence,  receiving a police report of those facts, receiving information from a source other than a police officer, and having knowledge of the offence himself are any of these grounds for taking cognizance of an offence.

Therefore, it is evident that a judicial judge is not permitted to issue an arrest warrant while conducting an investigation or prior to declaring an offence to have occurred.

The Law Commission of India’s opinion in its 37th Report, which was given in this regard, is quite relevant. The Commission made a note that, prior to issuing a warrant, an offence must be taken into cognizance. Contrary provisions, which are typically found in special statutes, may exist. However, in the absence of such unique provisions, the Code’s structure appears to envision cognizance as a step before the magistrate issues a warrant.

In one of its cases, the Court observed that it regretted that, with the utmost respect, it was unable to agree with the position that a magistrate could issue a warrant [for the arrest of the person who could be detained without a warrant under Section 41] without taking cognizance. It is aware that there is a ruling to the contrary [Ram Narain Singh v. A. Sen (1958)]. 

Furthermore, although Section 41′s language, “Any police officer may arrest any person without an order from a magistrate and without a warrant,” suggests that a police officer has some discretion in deciding whether to make an arrest in cases covered by Section 41, this discretion is illusory when one considers Sections 23 and 29 of the Police Act of 1861.

It would be unreasonable to expect a police officer to approach a minister to acquire an arrest warrant prior to making an arrest for any of the offences listed in Section 41 in these circumstances. Therefore, it is recommended that the Code of Criminal Procedure be amended to include a clear provision allowing judicial magistrates to issue arrest warrants prior to taking cognizance of an offence and in circumstances covered by Section 41. As part of this clause, police officers should be instructed not to make an arrest without a warrant unless it is absolutely required due to the circumstances.

Analysis of the magistrate’s power under Section 190 CrPC

The modes of taking cognizance are outlined in Section 190(1) a, b, and c of the CrPC.

The Magistrate has taken cognizance of the offence upon receiving a complaint pursuant to Section 190(1)(a) of the CrPC when he applies his mind for the purposes of proceeding under Section 200 and the subsequent Sections of the CrPC.

Similarly to this, it is acceptable to presume that the Magistrate has taken cognizance when, after receiving a complaint, the complainant is examined to see whether the claims mentioned in the complaint are true or sufficient, or whether further action has to be taken.

However, the purpose of the inquiry or investigation allowed under Section 202 of the CrPC is solely to allow the magistrate to ascertain if the claim contained in the complaint is true or false in order to decide whether or not the process should be issued. This investigation or trial happens after the stage of cognizance. 

The Magistrate may immediately issue process if, after reading the complaint, he determines that the accusations therein show a cognizable offence. He may order an investigation under Section 156(3) of the CrPC if he does not immediately take note of the offence. By taking such a step, the Magistrate is spared from spending his valuable time by looking into a subject. A magistrate can therefore choose to order a police inquiry as an alternative to taking cognizance of the offence.

If he requests a police investigation, he is not required to have the complainant put under oath. This is due to the fact that he will not recognise the offence within. After receiving the police report, which contains further crucial case details, the magistrate may very well decide to take cognizance.

He cannot be regarded as having taken cognizance of the offence if he is directing a police investigation under Section 156(3) CrPC. In such a case, the magistrate will only take cognizance after reviewing the police report. The magistrate may use the forthwith issue process and take cognizance of the offence under Section 190(1)(b) upon receiving the police report following the conclusion of the inquiry. According to Section 190 (1)(b), a magistrate may issue a summons even if the police report is a refer report, which signifies that the report contains no evidence supporting the case. In this situation, he is not required to follow the process outlined in Sections 200 and 202.

According to Section 190(1)(c), the magistrate may declare any offence to have occurred upon learning of it from a source other than a police officer (even if that source is not personally affected by the offence) or from his own knowledge. This clause gives a magistrate the authority to prosecute an offence if he is aware of it, even if there is no complaint or police report in front of him.

Depending on the specifics of the case, the magistrate may or may not have taken cognizance of the offence. It comprises the method of starting the case and the type of initial steps the magistrate undertook.

Taking cognizance is optional

Even though the facts asserted in the complaint reveal the commission of an offence, a magistrate is not required to take cognizance when he receives the complaint. The phrase “may take cognizance” makes this obvious. The term “may” allows the magistrate considerable latitude to decide how to proceed.

When the magistrate applies his judicial judgement to the details in a complaint, a police report, or information obtained from any individual reporting an offence, cognizance is taken.

The court will then properly analyse the materials presented to it before issuing any necessary orders. It occurs when the magistrate decides to press charges against the criminal against whom a strong case has been produced in the first instance. The issuance of the process only occurs after taking notice of the offence; taking cognizance of an offence does not equate to the issuance of the process. A magistrate must be considered to have taken cognizance of the offences listed in the complaint when he exercises his discretion to issue a process.

The magistrate may order the police to register an FIR in accordance with the law in order to allow the police to begin an investigation. If the complaint reveals a cognizable offence, the officer in charge of the police station must nonetheless file the FIR, even if the magistrate does not direct them to. The police officer might take additional actions that are planned for in Chapter XII of the Code after filing an FIR.

Power on receiving a police report

Upon receiving a complaint or a police report, the magistrate has the authority to:

  1. Reject the police report and request an investigation under Section 202 of the CrPC before taking any further action under Section 203 of the CrPC.
  2. If he disagrees with the police report, immediately take cognizance under Section 190.
  3. Submit an enquiry as per Section 200 of the CrPC.
  4. To proceed with recording the statements made under oath by the complainant and the present witnesses in accordance with Section 200 of the CrPC and to take cognizance of the offence based on the complaint that was filed against him.

In other words, the Magistrate’s ability to take proceedings under Sections 200, 203, and 204 of the CrPC based on the initial complaint itself is unaffected by the fact that he ordered an inquiry and received a police report. The poor police investigation or the report therefrom cannot impede a magistrate’s ability to take cognizance. If a magistrate is satisfied with the pertinent evidence presented before him regarding the offence, he may take cognizance.

Various judicial pronouncements on Section 190 CrPC

Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015)

In this case, the Supreme Court observed that the magistrate benefits from a police report under Section 190(1)(b) of the Criminal Procedure Code, and he has knowledge of the commission of an offence under Section 190(1)(c). However, he simply has a complaint before him per Section 190(1)(a) of the CrPC. As a result, the Code states that the magistrate may exercise his or her authority to take cognizance after receiving “a complaint of circumstances which constitute such offence.” Therefore, the Magistrate shall not take cognizance under Section 190(1)(a) of the Cr.P.C. if the complaint does not appear to indicate the commission of any offence. The complaint should be flatly dismissed.

State of Manipur v. Miss Ranjana Manohermayum (2022)

It was observed by the Manipur High Court in the case of State of Manipur v. Miss Ranjana Manohermayum (2022) that according to Section 190 of the Criminal Procedure Code, a magistrate may take cognizance of any offence either after receiving a complaint describing the facts that constitute the offence, after receiving a police report of those facts, after receiving information from a source other than a police officer, or after having knowledge that the offence has been committed. The “police report” mentioned in this clause is the “final report” that the police would produce following their investigation in accordance with Section 173(2) of the Cr.P.C.

Nahar Singh v. State of Uttar Pradesh (2022)

With regard to Section 190(1)(b) CrPC, in the case of Nahar Singh v. State of Uttar Pradesh (2022), the issue before the Supreme Court was whether a magistrate has the authority to take cognizance of an offence based on a police report and then summon someone who is not named as an accused in the FIR or police report. The Supreme Court ruled that Section 190 of the Code of Criminal Procedure, 1973 (CrPC) gives a magistrate the authority to issue summonses against individuals who have not been named as suspects in the chargesheet or charged in the First Information Report (FIR).

It just grants the magistrate the power to take cognizance of the offence, and then it gives the magistrate the power to look for and summon any more accused parties than the ones specified in the FIR and chargesheet.

The Court also observed that upon taking cognizance of an offence, the Magistrate must review the evidence at his disposal to determine whether any more parties to the offence, in addition to those sent up by the police, need to be summoned. These details don’t have to be limited to the F.I.R., charge sheet, or police record. A statement made in accordance with Section 164 of the Code might also be taken into account.

V. Lakshmi v. The Government of Tamil Nadu (2011)

In this case, the Madras High Court observed that when a report is submitted to a qualified criminal court by the investigating authority in a case involving a police investigation, which is a legal executive duty, the investigation process is complete. Once the criminal complaint investigation is finished and a complaint, information, or report is filed with the magistrate, the court, in accordance with Section 190 of the Code of Criminal Procedure, 1973, takes cognizance of the offence based on a preliminary finding that an offence has been committed. Process is then issued to the accused, followed by the beginning of the procedures before the magistrate, the framing of the court’s accusations, and the start of the trial, which eventually results in the decision.

Conclusion

The term “taking cognizance” is not defined under the CrPC. In reality, taking cognizance does not require any formal action on the part of the court or magistrate because cognizance can be deemed to have been taken as soon as a magistrate applies his thoughts to the alleged conduct of an offence for the purpose of taking further action under CrPC. Under Sections 195 to 199 of the CrPC, the magistrate’s authority to take cognizance has been subject to some restrictions. He has the authority to declare an offence committed, but he cannot look into or try the matter. Therefore, the phase of taking cognizance is crucial to the rule of law and serves as a key ‘judicial check’ on the authority of the police.

Frequently Asked Question (FAQs)

What is the difference between Section 190 and Section 200 of CrPC?

In the grand scheme of things under the Cr.P.C., while the right to take cognizance falls under Section 190 of the Cr.P.C., the power to question the complainant under oath (and, if applicable, additional witnesses) for the purpose of verifying the complaint is spelled forth in Section 200 of the Cr.P.C. Therefore, both of these parts are related for the purposes of a complaint case. They outline various phases or steps for a complaint case. As a result, Sections 190 and 200 of the CrPC are both pertinent in the context of a complaint matter.


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