POWER OF COGNIZANCE HAS BEEN MOSTLY USED IN POLICE COMPLAINTS

 

CRITICAL ANALYSIS OF THE POWER OF COGNIZANCE HAS BEEN MOSTLY USED IN POLICE COMPLAINTS

S KARTHICK PRAKASH

C.NO:6374938343

E MAIL: prksh1704@gmail.com

INTRODUCTION

The structure of the case set up by the pleaders rests on the following four pillars

1. The first pillar on which the pleaders have grounded their case is that the plaintiff had filed her complaint under Section 156 (3) of the Code of Criminal Procedure, 1973 (After now called'CrPC'). In discrepancy, Ld. Chief Judicial Magistrate has progressed in the matter as if it was a complaint filed under Section 190 CrPC.

2. The alternate pillar is that while acting under Section 156 (3) of CrPC, there was no power with the Chief Judicial Magistrate to record substantiation of the plaintiff and her substantiations, as similar, the substantiation so recorded, is without governance.

3. The third pillar, which bears the maximum cargo of the case of the pleaders, is that without indeed taking cognizance of the offence, Ld. Chief Judicial Magistrate, has summoned the indicted, and this wasn't admissible under Section 156 (3) of CrPC. It amounts to an abuse of the process of law.

4. The fourth pillar, which from the outside looks most robust, is that Ld. Magistrate had summoned the indicted, whereas he didn't pass any order reflecting taking off.

cognizance. Accordingly, there's no material to ascertain the operation of mind by Ld. Chief Judicial Magistrate.

Coming to the first contention, a bare perusal of the complaint (Annexure P-2), reveals that although the title of the complaint doesn't state provision of law under which the plaintiff had filed it, impliedly this complaint was under Section 190 (1) (a) of CrPC and not Section 156 (3) of CrPC. Thus, to dissect this fact, it shall be relative to bandy the compass of Section 156 (3) CrPC.

1. Whenever a cognizable offence comes to notice of an Officer-in-charge of a Police Station, also it's obligatory to register FIR under Section 154 CrPC. Law to this point is no more res Integra, given the accreditation of the Indigenous Bench of Supreme Court in Lalita Kumari, (2014) 2 SCC 1. Still, if the offence is non-cognizable, also in compliance with Section 155 (1) CrPC, the police mention this fact in the diurnal journal, and relate the snitch to the concerned Judicial Magistrate.

2. Where despite the offence being cognizable, the police refuses to register FIR, also the snitch may approach the Supervisor of Police (SP) having governance over similar Police Station, under Section 154 (3) CrPC, seeking directions to the Station House Officer (SHO) to register FIR.

3. Section 155 (2) CrPC authorizations that the police shall not probe-cognizable offence, without an order of.

the Magistrate having the power to try such a case or to commit such a case for trial. Section 156 CrPC specifies powers of the officer-in-charge of the Police Station, to probe any cognizable offence.

4. The contingency to Section 156 (3), to which petitioner is placing reliance, states that any Magistrate empowered under Section 190 CrPC, may also order a disquisition. Section 156 (3) CrPC primarily comes into operation only when SHO and SP fail to register an FIR, despite the allegations prima facie telling commission of a cognizable offence; or the Judicial Magistrate, not being satisfied with the disquisition, explicitly directs further disquisition. In the present complaint, there's no averment that the victim had approached the SHO or the SP, and upon their turndown, the plaintiff had approached the Magistrate under Section 156 (3) of CrPC.

5. A bare reading of Section 190Cr.P.C. will decide the matter

190 (1) Subject to the vittles of this Chapter, any Magistrate of the first class, and any Magistrate of the alternate class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

. (a) upon entering a complaint of data that constitute a similar offence; ( b) upon a police report or similar data;

(c) upon information entered from any person other than a police officer, or upon his own knowledge, that similar offence has been committed.1

FACT

156. Police officers’ power to probe cognizable cases. - (1) Any officer in charge of a police station may, without the order of a Magistrate, probe any cognizable case which a court having governance over the original area within the limits of a similar station would have the power to interrogate into or try under the vittles of Chapter XIII. ( 2) No proceeding of a police officer in any similar case shall at any stage be called in question on the ground that the case was one which a similar officer wasn't empowered under this section to probe. (3) Any Magistrate empowered under Section 190 may order such a disquisition as above- mentioned.2

Cognizance as follows, Cognizance (Judicial), knowledge upon which a judge is bound to act without having it proved in substantiation as the public bills of the realm, the ancient history of the realm, the order and course of proceedings in Parliament, the boons of the House of Commons, the actuality of war with a foreign State, the several seals of the King, the Supreme Court and its governance, and numerous other effects. A Judge isn't bound to take cognizance of current events, still notorious, nor of the law of other countries.3 Cognizance in the following terms, What's" taking cognizance" has not been defined in the Criminal Procedure Code, and I've no desire now to attempt to define it. It seems to be clear, still, that before it can be said that any Magistrate has taken cognizance of any offence under section 190 (1) (a), Criminal Procedure Code, 1973 he mustn't only have applied his mind to the contents of the solicitation, but he must have done so for the purpose of pacing in a particular way as indicated in the posterior vittles of this Chapter,- pacing under Section

1 Pooja Kumari & Another vs Kamal Nain Kaur on 19 November, 2019

2 Suresh Chand Jain v. State of M.P.& Anr (2001) 2 SCC 628

3 Wharton’s law lexicon (14th edition)

200, and later transferring it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of pacing under the posterior sections of this Chapter, but for taking action of some other kind. e.g., ordering disquisition under Section 156 (3), or issuing a hunt leave for the purpose of the disquisition, he can not be said to have taken cognizance of the offence4. The Law doesn't contain any description of the words" institution of a case". It's clearly still and indeed not disputed that a case can be said to be introduced in a Court only when the Court takes cognizance of the offence contended therein. Section 190 (1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Adjudicators. It provides for three ways in which similar cognizance can be taken. The first is on entering a complaint of data that constitute a similar offence; the alternate is on a report in jotting of similar data-that is, data constituting the offence- made by any police officer; the third is upon information entered from any person other than a police officer or upon the Magistrate's own knowledge or dubitation that similar offence has been committed. Section 193 provides for cognizance of offences being taken by Courts of Sessions on the commitment to it by a Magistrate properly empowered in that behalf. Section 194 provides for cognizance being taken by the High Court of offences upon a commitment made to it in the manner handed in the Law. An examination of these vittles makes it clear that when a Magistrate takes cognizance of an offence upon entering a complaint of data that constitute a similar offence a case is introduced in the Magistrate's Court and such a case is one introduced on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in jotting of similar data made by any police officer it's a case introduced in the Magistrate's Court on a police report.5 This raises the incidental question What's meant by" taking cognizance of an offence" by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Law. But from the scheme of the Code, the content and borderline title of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 do, it's clear that a case can be said to be introduced in a Court only when the Court takes cognizance of the offence contended therein. The ways in which similar cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190 (1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be introduced, and the nature of the primary action, if any, taken by the Magistrate. Astronomically speaking, when on entering a complaint, the Magistrate applies his mind for the purposes of pacing under Section 200 and the succeeding sections in Chapter XV of the Law of 1973, he's said to have taken cognizance of the offence within the meaning of Section 190 (1) (a). Still, rather of pacing under Chapter XV, he, If.have taken cognizance of any offence6

It's now necessary to see what the words taking cognizance' mean. A cognizance is an act of the court. The term cognizance has not been defined in the Cr.P.C. To understand what this term means we will have to have a look at certain vittles of the Cr.P.C. Chapter XIV of the Code deals with Conditions needful for the inauguration of proceedings'. Section 190 thereof empowers a Magistrate to take cognizance upon (a) entering a complaint of data which constitute the similar offence; (b) upon a police report or similar data; (c) upon

4 Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR1950 Cal 437

5 Jamuna Singh v. Bhadai Shah,AIR 1964 SC 1541

6 Narayana Reddy, (1976) 3 SCC 252

information entered from any person other than a police officer, or upon his own knowledge, that similar offence has been committed.

Chapter XV relates to Complaints to Adjudicators'. Section 200 thereof provides for examination of the plaintiff and the substantiations on the pledge. Section 201 provides for the procedure which a Magistrate who isn't competent to take cognizance has to follow. Section 202 provides for a holdback of the issue of process. He may, if he thinks fit, and shall in a case where the indicted is abiding at a place beyond the area in which he exercises his governance, defer the issue of process against the indicted and either interrogate into the case himself or direct a disquisition to be made by a police officer for the purpose of deciding whether there's sufficient ground for proceeding. Chapter XVI relates to the inception of proceedings before the Magistrate. Section 204 provides for the issue of process. Under this section, if the Magistrate is of the opinion that there's sufficient ground for proceeding and the case appears to be a process case, he shall issue a process for the attendance of the indicted. In a leave case, he may issue a leave. Therefore, after the inauguration of proceedings detailed in Chapter XIV, comes the stage of inception of proceedings covered by Chapter XVI.7 It's also salutary to note that the judicial process shouldn't be an instrument of oppression or needles importunity. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers.

There lies responsibility and duty on the Magistracy to find whether the concerned indicted should be fairly responsible for the offence against the juristic person or the persons impleaded also only process would be issued. At that stage, the court would be wary and judicious in exercising discretion and should take all the applicable data and circumstances into consideration before issuing the process lest it would be an instrument in the hands of the private complaint as vendetta to kill the persons needlessly. Exculpation of the majesty of justice and conservation of law and order in the society is the high object of felonious justice but it would not be the means to inflict particular revenge. Considered from any angle we find that the replier had abused the process and laid complaints against all the petitioners without any prima facie case of killing them for vendetta.8

7 Sarah Mathew v. Institute Cardio Vascular Diseases by it’s director (2014) 2 SCC 62

8 In Punjab National Bank and Others v. Surendra Prasad Sinha . 1993 Supp (1) SCC 499

CONCLUSION

The procedural law provides a medium for the enforcement of substantial felonious law. The order- a distance of the Magistrate, summoning the indicted, in a case filed on a complaint else than on a police report, i.e. filed under Section 190 (1) (a) of CrPC, must show that she has applied her mind to the allegations. Still, the Magistrate need not pass moreover a detailed and elaborative order or write the words,' Cognizance Taken'. The legal process shouldn't be an instrument of oppression and importunity. So the stage of taking cognizance is critical and Magistrate must apply her mind in the pursuit of substantial justice. The below analysis, conversations, and logic lead to the irrefragable conclusion that the Ld. Chief Judicial Magistrate didn't commit any illegality or irregularity while pacing in the matter. Resultantly the solicitation is dismissed, all operations closed.