Subject: Code of Criminal Procedur-I

B.A.LL.B-VIIIth Sem
Subject Teacher: Dr. Md. Junaid
Teaching Material of Unit-IV-(A)
Topic: Cognizance by Court- Sections 190-199

Cognizance by Court- Sections 190-199

‘‘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. A court can take cognizance only once after that it becomes ‘functus officio’.

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. However, the meaning of the term is well defined by the Courts. Taking cognizance is
the first and foremost steps towards the trail. The judicial officer will have to take cognizance of
the offence before he could proceed to conduct or trail.
In the case of R.R Chari v. State of U.P(1962)., 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.”

In simple terms, cognizance can be interpreted as looking through a narrow keyhole and
evaluating whether or not an offence has been committed, and if it has been committed at all,
then whether certain parts of the IPC or any other special statute are attracted or not. The
underlying principle in law or aim of cognizance is to maintain a 'judicial check' on the police, as
a judicial officer by taking cognizance examines whether or not the crimes have actually been
committed. Thus, in the Code, the word cognizance is used to denote the points when the
Magistrate or Judge first takes legal notice of an offence. It is an infinite term of import, which
may not always be used in precisely the same context.

In P. Kunhumuhammed v. State of Kerala [1981] 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.

In Ajit Kumar Palit v. State of W.B.[1963] court held that 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’.

In Tula Ram v. Kishore Singh[1977] court held 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 offense 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 offense. 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
offense.
In Pitambar Buhan v. State of Orissa [1992] court held taking cognizance includes intention of
initiating a judicial proceeding against an offender in respect of an offense or taking steps to see
whether there is basis for initiating a judicial proceeding.

Cognizance of Offences By Magistrate

Any First class Magistrate and any Second Class Magistrate can acknowledge any offence.
Section 190-199 of the code defines the procedures by which various criminal courts are entitled
to take cognizance of offences, and the restrictions under which they are entitled.

(a) Section 190 of CrPC "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 subsection (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 subsection (1) of such offences as are within his competence to inquire into or
try.

(b) Section 191 of CrPC "Transfer on application of the accused"

When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section
190, 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, and if the accused or any of the accused, if
there be more than one, objects to further proceedings before the Magistrate taking cognizance,
the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial
Magistrate in this behalf.

(c) Section 192 of CrPC "Making over of cases to Magistrates"

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case
for enquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate
may, after taking cognizance of an offence, makeover the case for enquiry or trial to such other
competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify,
and thereupon such Magistrate may hold the inquiry or trial.

Cognizance Taken By A Magistrate Not Empowered

If any magistrate were not allowed to recognize an offence under Section 190(1)(a) and
190(1)(b), if an offence is wrongly accepted in good faith, the proceedings shall not be set aside
solely on the ground that it is not permitted to do so. On the other hand, if a magistrate who is
not empowered to take cognizance of an offence takes cognizance by information received or his
own knowledge pursuant to section 190(1)(c), his proceedings shall be null and void. In such a
case it is immaterial whether he was acting erroneously in good faith or otherwise.

Cognizance Of Offences By Court Of Session

According to Section 193, "Courts of Session are not permitted to take note of any crime (as a
court of original jurisdiction) unless the case is committed by a Magistrate." If it is specifically
established by this code or by any other statute, then only Courts of Session are permitted.

In Kishun Singh v State of Bihar, (1993) court held that a Court of Session to which a case is
committed for trial by Magistrate can, without itself recording evidence, summon a person not
named in Police Report under section 173 of CrPC (though named in FIR) to stand trial along
with those already named therein such power is under section 193 of the Code and not
under section 319 of the Code;

Section 194 Additional and Assistant Sessions Judges to try cases made over to them.

An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions
Judge of the division may, by general or special order, make over to him for trial or as the High
Court may, by special order, direct him to try.

Limitations On The Power To Take Cognizance

Prosecutions 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’.

In Sushil Kumar v State of Haryana, (1988) court held that as the document alleged to have been
forged was not produced in the Court the provisions of section 195(1)(b)(ii) have no application;

In Chandrapal Singh v Maharaj Singh, (1962) it was held that Section 195(3) provides a pre-
condition for taking cognizance of offence under section 193 of the Code.

In Barappa v State of Karnataka, (1997) it was held that clubbing of other cognizable offences
would not be permissible to evade the provisions of section 195 of the Code;

In MS Ahlawat v State of Haryana, (2000 )it was held that Section 340 of CrPC prescribes the
procedure as to how a complaint may be preferred under section 195 of CrPC while under
section 195 of CrPC it is open to the Court before which the offence was committed to prefer a
complaint for the prosecution of the offender Provisions under section 195 of CrPC are
mandatory and no Court can take cognizance of offences referred to therein;

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 prosecution 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”.

1. 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’.

2. Third-person who is authorised 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’.

3. 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 under 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’’.

Conclusively it can be said that Section 190 of the Code empowers the magistrate to take
cognizance of an offense 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 offense has been committed.

Probable Questions

1. Define cognizance and discuss the rules regarding cognizance by Magistrate

2. Explain in detail the limitations on taking cognizance of offence by Magistrate
3. Briefly explain the rule of Cognizance in following cases:
i. Prosecution for offences against public justice
ii. Prosecution for offences relating to documents given in evidence
iii. Prosecution for offences against the state
iv. Prosecution for the offence of criminal conspiracy
v. Prosecution for defamation