Cognizance of Offences
Chapter Thirty-Four
Syllabus topic 1.11, "Cognizance of Offences and Commencement of Judicial Proceedings - Sections 190 to 210"
Pages 226 to 230 of 699
In one line
Taking cognizance is the moment a Magistrate first applies his mind to a suspected offence for the purpose of proceeding against somebody, and everything from the framing of a charge to the judgment depends on that moment having happened lawfully.
In exam wording: section 210 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides that any Magistrate of the first class, and any Magistrate of the second class specially empowered, may take cognizance of an offence upon a complaint of facts constituting the offence, 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 the offence has been committed.
Why the law has this at all
Because a court cannot try what it has not taken up.
An investigation is the police's business. A court's business begins when a Magistrate looks at the material and decides that it discloses an offence he should proceed on. That decision is what starts the judicial phase, and the Code needs to name it because so much turns on it: the bars in the next chapter operate on cognizance, limitation under Chapter XXXVIII runs against cognizance, and sanction under section 218 is a condition of cognizance.
Some words this chapter uses
Cognizance is not defined in the Sanhita. R.R. Chari supplies the meaning.
A complaint is defined in section 2(1)(h): an allegation to a Magistrate, orally or in writing, with a view to his taking action, and it excludes a police report.
A police report is defined in section 2(1)(t): a report forwarded to a Magistrate under section 193(3).
To make over a case is to transfer it to another Magistrate for inquiry or trial.
Section 210(1): the three ways
Any Magistrate of the first class, and any Magistrate of the second class specially empowered under sub-section (2), may take cognizance of any offence:
(a) upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence;
(b) upon a police report (submitted in any mode including electronic mode) 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.
Two things in that section are new. Clause (a) expressly includes a complaint filed by a person authorised under any special law, which settles a recurring argument about complaints by statutory authorities. And clause (b)'s parenthesis puts the electronic charge sheet beyond dispute.
Sub-section (2). The Chief Judicial Magistrate may empower a Magistrate of the second class to take cognizance of such offences as are within his competence to inquire into or try.
Cognizance of Offences
What cognizance actually is
The Sanhita uses the word throughout and defines it nowhere, which is why the leading case is a case about the meaning of a word.
R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207.
Facts. A Deputy Superintendent of Police applied to a Magistrate for a warrant of arrest against the accused, an officer of an ordnance depot, during an investigation into offences under the Penal Code and the Prevention of Corruption Act. The warrant was issued. The question was whether, by issuing it, the Magistrate had taken cognizance of the offence, because the sanction to prosecute had not then been obtained.
Held. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence for the purpose of proceeding under the Code, which begins with the steps for issuing process. A Magistrate who applies his mind for some other purpose, for example ordering an investigation under what is now section 175(3), or issuing a search warrant, is not taking cognizance.
Why it matters. It gives the test, and the test is about purpose. What the Magistrate did matters less than what he did it for. Issuing a warrant to help an investigation is not cognizance; issuing process to bring the accused before the court to answer the charge is.
Section 211: the accused's right to another Magistrate
Where a Magistrate takes cognizance under clause (c), that is on information from a person other than a police officer or on his own knowledge, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate. If the accused, or any of several accused, objects to further proceedings before that Magistrate, the case shall be transferred to such other Magistrate as the Chief Judicial Magistrate specifies.
The reason is obvious once stated. A Magistrate who has taken cognizance on his own knowledge is in an uncomfortable position: he is close to being a witness. Section 211 lets the accused move the case away, and it makes the offer a duty rather than a favour.
Sections 212 to 214: distributing the case
Section 212(1). Any Chief Judicial Magistrate may, after taking cognizance, make over the case for inquiry or trial to any competent Magistrate subordinate to him.
Section 212(2). Any Magistrate of the first class empowered by the Chief Judicial Magistrate may, after taking cognizance, make over the case to such other competent Magistrate as the Chief Judicial Magistrate specifies by general or special order, and that Magistrate may then hold the inquiry or trial.
Cognizance of Offences
Section 213, the Court of Session. Except as otherwise expressly provided by the Sanhita or any other law, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate.
That is one of the most important sentences in Module I. A Sessions Court does not take up a murder case because it is a murder case. A Magistrate takes cognizance and commits the case under section 232, and only then does the Sessions Court have it. The exceptions are those expressly provided, for example the direct cognizance a Court of Session may take in the cases named in Chapter XXVIII.
Section 214. An Additional Sessions Judge shall try such cases as the Sessions Judge of the division makes over to him by general or special order, or as the High Court by special order directs him to try.
A worked example
A charge sheet in a theft case is filed electronically before a Judicial Magistrate of the first class at Andheri.
Which limb? Section 210(1)(b), a police report, and the parenthesis makes clear that electronic submission is enough.
When does he take cognizance? When he applies his mind to the suspected commission of the offence for the purpose of proceeding under the Sanhita. On R.R. Chari, no formal order is needed and none is decisive.
Change the facts. A private person files a complaint before the Magistrate. That is section 210(1)(a), and the Magistrate then proceeds under Chapter XVI, which is [Complaints to Magistrates].
Change them again. The Magistrate, walking past a shop, himself sees an offence being committed, and takes cognizance on his own knowledge under clause (c). Before any evidence is taken he must inform the accused that he is entitled to have the case tried by another Magistrate. If the accused objects, the case shall be transferred to the Magistrate the Chief Judicial Magistrate specifies, section 211.
The offence is one triable exclusively by the Court of Session. The Magistrate still takes cognizance; he cannot try it, so he commits it. Section 213 forbids the Sessions Court taking cognizance as a court of original jurisdiction unless the case has been committed to it.
The Sessions Judge is overloaded. He may, by general or special order, make over the case to an Additional Sessions Judge, section 214.
During the investigation the police had asked the Magistrate for a search warrant and he granted it. That was not cognizance, on R.R. Chari, because he applied his mind for a different purpose.
Distinctions
| Section 210(1)(a) | Section 210(1)(b) | Section 210(1)(c) | |
|---|---|---|---|
| Source | A complaint of facts, including one by a person authorised under a special law | A police report, in any mode including electronic | Information from a person other than a police officer, or the Magistrate's own knowledge |
| What follows | Chapter XVI, examination of the complainant | Chapter XVII, issue of process and supply of documents | The accused's right under section 211 to another Magistrate |
Cognizance of Offences
| Taking cognizance | Not taking cognizance | |
|---|---|---|
| Applying the mind to proceed under the Sanhita | Yes | |
| Ordering an investigation under section 175(3) | No | |
| Issuing a search warrant | No | |
| Issuing a warrant of arrest to aid an investigation | No, R.R. Chari |
| Magistrate | Court of Session | |
|---|---|---|
| May take cognizance | Yes, in the three ways in section 210(1) | No, as a court of original jurisdiction, unless the case is committed to it, section 213 |
| Exception | Where the Sanhita or another law expressly provides |
What this does NOT mean
Cognizance is not the same as issuing process. It precedes it, and R.R. Chari says no formal action of any kind is involved.
Cognizance is not taken of an offender. It is taken of the offence. That is why a Magistrate who takes cognizance may proceed against a person not named in the report.
Section 213 does not stop a Sessions Court trying a case. It stops it taking cognizance as a court of original jurisdiction without a committal.
And section 211 is not a general right to choose a judge. It arises only where cognizance was taken under clause (c).
Quick revision
- Section 210(1): a first class Magistrate, or a specially empowered second class Magistrate, may take cognizance on (a) a complaint of facts, including one by a person authorised under a special law; (b) a police report, in any mode including electronic; or (c) information from a person other than a police officer, or his own knowledge.
- 210(2): the Chief Judicial Magistrate empowers a second class Magistrate.
- R.R. Chari: cognizance involves no formal action of any kind; it is applying the mind to the suspected commission of an offence for the purpose of proceeding under the Code; applying the mind for another purpose, such as ordering investigation or issuing a search warrant, is not cognizance.
- Section 211: on cognizance under clause (c), the accused must be informed before any evidence is taken of his right to another Magistrate, and on his objection the case shall be transferred to the Magistrate the Chief Judicial Magistrate specifies.
- Section 212: a Chief Judicial Magistrate, and an empowered first class Magistrate, may make over a case after taking cognizance.
- Section 213: no Court of Session may take cognizance as a court of original jurisdiction unless the case has been committed to it, except as expressly provided.
- Section 214: an Additional Sessions Judge tries cases made over by the Sessions Judge or directed by the High Court.
Cognizance of Offences
Test yourself
1. Define taking cognizance. It involves no formal action of any kind; it occurs as soon as a Magistrate applies his mind to the suspected commission of an offence for the purpose of proceeding under the Sanhita, R.R. Chari v. State of Uttar Pradesh.
2. Does a Magistrate take cognizance when he orders an investigation or issues a search warrant? No. Where he applies his mind for some purpose other than proceeding under the Code, he is not taking cognizance.
3. In what three ways may a Magistrate take cognizance? On a complaint of facts constituting the offence, including a complaint by a person authorised under a special law; on a police report of such facts, submitted in any mode including electronic mode; and on information received from any person other than a police officer, or on his own knowledge.
4. What must a Magistrate who takes cognizance on his own knowledge tell the accused? Before any evidence is taken, that he is entitled to have the case inquired into or tried by another Magistrate; and on his objection the case shall be transferred, section 211.
5. May a Court of Session take cognizance of a murder directly? No, unless expressly provided by the Sanhita or another law. Section 213 requires the case to have been committed to it by a Magistrate.
6. Who may empower a second class Magistrate to take cognizance? The Chief Judicial Magistrate, for offences within that Magistrate's competence to inquire into or try, section 210(2).
7. Is cognizance taken of the offence or of the offender? Of the offence.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.