BY: HIMJA GAUTAM SINGH (19FLUCDDN01005), LL.

B 1ST YEAR

What is the procedure of taking the cognizance by a magistrate of an offence on complaint?

‘‘Cognizance’’ in general meaning is said to be ‘knowledge’ or ‘notice’, and taking ‘cognizance

of offences’ means taking notice, or becoming aware of the alleged commission of an offence.
The dictionary meaning of the word ‘cognizance’ is ‘judicial hearing of a matter’. The judicial
officer will have to take cognizance of the offence before he could proceed with the conduct of
the trial. Taking cognizance does not involve any kind of formal action but occurs as soon as a
magistrate as such applies his mind to the suspected commission of an offence for the purpose of
legal proceedings. So, taking cognizance is also said to be the application of judicial mind.

It includes the intention of starting a judicial proceeding with respect to an offence or taking
steps to see whether there is a basis for starting the judicial proceeding. It is trite that before
taking cognizance that court should satisfy that ingredients of the offence charged are there or
not. If a magistrate involves his mind not for reason of proceeding as mentioned above, but for
taking action of some other kind, example ordering investigation under Section 156(3) or issuing
the search warrant for the purpose of the investigation, he cannot be said to have taken
cognizance of offence.

The term ‘Cognizance of offence’ has not been defined in the Criminal Procedure Code. Section
190, 191, 192, 193, 194, 195, 196, 197, 198, and 199 deals with methods by which and the
limitations subject to which various criminal courts are established to take cognizance of
offences.

In the case of R.R Chari v. State of U.P., it was held by the Apex Court that: “Taking cognizance
does not mean any formal action or expected action of any kind but occurs as soon as a
magistrate as such involves his mind to the suspected commission of an offence.”

Cognizance of offences by Magistrate

In Section 190, Any Magistrate of the first class and the second class may take cognizance of any
offence- Upon receiving a complaint of facts related to offences.

1. Upon police reports of facts.

2. Upon information received from a person (other than a police officer), or upon his own
knowledge.

In Section 190(2), it is given that Second class magistrate can be empowered by Chief Judicial
Magistrate to take cognizance under Section 190(1).

Transfer on the application of the accused: Section 191 deals with ‘Transfer on the application
of the accused. When a Magistrate takes cognizance by another person other than a police
officer, or upon his own knowledge, then accused is entitled to have the case inquired into or
tried by another judicial magistrate. If accused or any of accused object to further proceedings
before the magistrate taking cognizance, the case shall be transferred to such other magistrate
specified by the Chief Judicial Magistrate. In simple words, when a Magistrate takes cognizance
by another person other than a police officer, or upon his own knowledge, then accused can
change Judicial Magistrate according to his desire before taking any evidence.

Making over of cases to Magistrates

Section 192 deals with ‘Making over of cases to Magistrates’. Any Chief Judicial Magistrate can
make over the case for inquiry or trial to any competent Magistrate subordinate to him. The
Chief Judicial Magistrate can give general or specific order to any first-class magistrate to make
over the case for inquiry or trial to another competent Judicial magistrate.

Cognizance of offences by Courts of Session

According to Section 193, “Courts of Session are not allowed to take cognizance of any offence
(as a court of original jurisdiction) unless the case has been committed to it by a Magistrate.”
When it is expressly provided by this code or by any other law, then only Courts of Session are
allowed.

Limitations on the power to take cognizance

Prosecution for contempt of the lawful authority of public servants. According to Section 195(1)
(a),“Court will not take cognizance to those cases which punishable under Section 172 to Section
188 of Indian Penal Code unless a written complaint is made by a public servant.” Section 172 to
188 of IPC deals with offences related to contempt of public servant. The court will not take
cognizance in case of an attempt, conspiracy, abetment of offence given in Section 172 to 188 of
IPC. According to Section 195(2), ‘‘Court will not further proceed with the trial when the order
of withdrawal is given by a superior officer of a public servant (who has complained).’’ Provided
that if trial in the court has been concluded then no such withdrawal shall be ordered.

Prosecution for offences against public justice

According to Section 195(1)(b)(i), ‘‘Court will not take cognizance to those cases which are
offensive under Section 193 to 196, 199, 200, 205 to 211 and 228 of Indian Penal Code unless a
written complaint is made by that court or by some other court to which that Court is
subordinate.” Above mentioned sections of IPC deals with offences against public justice. The
court will not take cognizance in case of an attempt, conspiracy, abetment of offences against
public justice.

Prosecution for offences relating to documents given in evidence: According to Section

195(1)(b)(ii), ‘‘Court will not take cognizance to those cases which offensive under Section 463,
or punishable under Section 471, 475 or 476 of the IPC unless a written complaint is made by
that court or by some other court to which that Court is subordinate.” Above mentioned sections
of the IPC deals with offences related to documents given in evidence. The court will not take
cognizance in case of an attempt, conspiracy, abetment of offences relating to documents given
in evidence.

Section 195(3) deals with the meaning of ‘court’ in Section195 (1)(b). ‘Court’ means a Civil,
Revenue or Criminal Court, and included a tribunal constituted by or under a Central, Provincial
or State Act if that Act has declared as Court for the purpose of this section.

Section 195(4) deals with the concept of the superior court and subordinate court discussed in
Section 195(1)(b). When Court ‘A’ has appeal jurisdiction of the decision given by Court ‘B’,
then we will say that Court ‘B’ is subordinate to Court ‘A’.

Prosecution for offences against the state

According to Section 196(1), ‘‘Court will not take cognizance to those cases which punishable
under Chapter VI (Of Offences against the State) or under Section 153A, Section 153B, Section
295A or Section 505 of Indian Penal Code except with the consent of the Central Government or
of the State Government.”

Above mentioned sections of IPC deal with offences against the state. Chapter VI of IPC deals
with the offence against the state. Section 153A of IPC deals with harmony, 295A deals with the
offence of statements which result in infringements of religious belief. Section 505 deals with an
offence related to public mischief.

Prosecution for the offence of criminal conspiracy

According to Section 196(2), “Court will not take cognizance to offences of any criminal
conspiracy under Section 120B of Indian Penal Code (other than a criminal conspiracy to
commit a cognizable offence punishable with death, imprisonment for life or rigorous
imprisonment for two a term of two years or upwards) unless consent in writing is given by the
State Government or the District Magistrate to initiation of the proceedings.”

Where Criminal Conspiracy under Section 195 applies, no such consent shall be necessary.

According to Section 196(3), “A preliminary investigation by a police officer (not below the
rank of inspector) is necessary before giving consent by Central Government, State Government
or District Magistrate.”

Prosecution of Judges and Public Servants

According to Section 197(1), “Court will not take cognizance to offences done by Judges,
Magistrates or any Public Servants during the course of employment unless consent in writing is
given by the State Government (when offender is under course of employment of state
government) or the Central Government(when offender is under course of employment of central
government) to initiation of the proceedings.” In the case of State emergency in any state, only
Central Government will give consent for such proceedings. There is no consent requires for
cognizance when Judges, Magistrate or Public Servants has done offence which is punishable
under Section 161A, 161B, 354A to 354D, 370, 376, 376A, 376B, 376C and 509 of Indian Penal
Code.

Prosecution of members of Armed Forces

According to Section 197(2), “Court will not take cognizance to offences done by any member
of the Armed Forces of the Union during the course of employment unless consent given by the
Central Government.”

According to Section 197(3), “Section 197(2) will also apply to such class or category of the
members of Forces charged with the maintenance of public order.”

According to Section 197(4), “The Central Government and the State Government may
determine the person who will prosecute of such Judge, Magistrate or public servant.”

Prosecution for offences against marriage

According to Section 198(1), “Court will not take cognizance to offences punishable under
Chapter XX (Of Offences related to Marriage) of Indian Penal Code unless complaint made by
the victim”. With the consent of Court, the third person can also make a complaint on behalf of a
victim who is idiot, lunatic, minor, sick, women(who can’t appear in public). According to
Section 198(3), ‘Initially, guardian of the victim has reasonable opportunities to be heard’.

Third-person who is authorized by husband (serving in the armed forces of union and unable to
get leave) can make a complaint on his behalf. According to Section 198(4), ‘Authorization
given by husband shall be in writing, signed or attested by husband, countersigned by his
Commanding officer and shall be accomplished by a certificate signed by that officer’.
According to Section 198(5), ‘Any Certificate and signed document which is discussed in
Section 198(4) is not presumed genuine and received in evidence unless the contrary is proved’.

Father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister of
the wife who is the victim under Section 494 of Indian Penal Code can make the complaint on
behalf of the wife. According to Section 198(2), “Court will not take cognizance to offences
punishable under Section 497 or Section 498 (where the victim is husband) of the IPC unless the
husband makes a complaint. Provided that in case of absence of the husband, some person who
had care of the women on his behalf can make a complaint on behalf of the husband.

Prosecution of the husband for rape

A husband can also rape his own wife when the wife is less than fifteen years of age. According
to Section 198(6), “Court will not take cognizance to offences punishable under Section 376 of
Indian Penal Code if more than one year has elapsed from the date of commission’. According to
Section 198(7), Section198 also applies on abetment or attempt to commit an offence under
chapter XX of IPC”.

Prosecution for defamation

According to Section 199(1), “Court will not take cognizance to offences which are punishable
under Chapter XXI (Of Defamation) of the IPC unless the complaint is made by the victim’’.
Provided, that the third party can also make a complaint on behalf of the victim, with the
permission of the Court when the victim is not able to make a complaint.

According to Section 199(2), “Court of sessions will take cognizance to offences which are
punishable under Chapter XXI of the IPC, alleged to have been committed against the President
of India, the Vice President of India, the Governor of a state, the Administrator of a Union
territory or a Minister of the Union or of a state or of a union territory, or any other public
servant employed under state or union. The complaint in writing made by the Public Prosecutor”.
Section 199(2) is an exception to Section 193.

Section 199(3) deals with ‘Contents of Complaint’. It includes information about facts of the
offence, the nature of that offence and information about every sufficient point in a complaint
through which sufficient notice is given to accused who have done offence of defamation.

According to Section 199(4), ‘‘Court will not take cognizance to offences which are punishable
under Chapter XXI of the IPC, alleged to have been committed against Governor, Public servant
and Minister of State unless the complaint is made by the Public prosecutor with the consent of
State Government’’ and if the same is alleged to have been committed against the President, the
Vice President, Public Servant employed under Union, then also Court will not take cognizance
unless the complaint is made by the Public prosecutor with the consent of the Central
Government.

According to Section 199(5), ‘‘It is mandatory to the complaint by the public prosecutor in the
above section within 6 months of the commission of the offence’’.

According to Section 199(6), ‘‘Public Servant can also make complaint himself in Magistrate
Court’’.