The Curial Act Of “Taking Cognizance Of An Offence” And Its Ramifications Under BNSS

C O N T E N T S

THE CURIAL ACT OF “TAKING COGNIZANCE OF AN OFFENCE” AND ITS RAMIFICATIONS

WHAT DO YOU MEAN BY THE WORD “OFFENCE” ?

Section 2 (1) (q) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short) corresponding to Section 2 (n) of Cr.P.C defines the expression “offence”, as under –

“offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871)”.

Section 3 (38) of the General Clauses Act, 1897 also gives the same definition for the word “offence” but does not cover the subject-matter of a “complaint” under the Cattle-trespass Act, 1871. The above definition in the Cr.P.C and the General Clauses Act was noted by the Supreme Court of India in para 30 of S. Khushboo v. Kanniammal AIR 2010 SC 3196 = (2010) 5 SCC 600 – 3 Judges – K. G. Balakrishnan CJI, Deepak Verma, Dr. B. S. Chauhan – JJ.

In para 15 of State of Rajasthan v. Bhagwan Das Agrawal (2013) 16 SCC 574 – C. K. Prasad, M. Yusuf Eqbal – JJ, without reference to the above statutory definitions, it has been observed that an “offence means any act or omission made punishable by law”.

Since Article 367 of the Constitution of India provides that the General Clauses Act, 1897 shall apply for the interpretation of the Constitution, the word “offence” in the several clauses of Article 20 must be understood to convey the same meaning to it as given in Section 3 (38) of the General Clauses Act. (Vide Jawala Ram v. State of Pepsu AIR 1962 SC 1246 = (1962) 2 Cri. L. J 303 – 5 Judges – P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, K. C. Das Gupta, N. Rajagopala Ayyangar – JJ – Maqbool Hussain v. State of Bombay AIR 1953 SC 325 relied on).

In the case of the Bharatiya Nyaya Sanhita, 2023 (“BNS” for short) which replaced the Indian Penal Code, 1860 (“IPC” for short). Section 2 (24) of BNS corresponding to Section 40 IPC defines the word “offence”. A comparative table showing Section 2 (24) of BNS and Section 40 IPC is given below –

In Kapur Chand Pokhraj v. State of Bombay AIR 1958 SC 993 = 1958 Cri. L. J 1558 – 3 Judges – B. P. Sinha, Syed Jafer Imam, K. Subba Rao – JJ, it was held that there is an essential distinction between an “offence” and “prosecution for an offence”. The former forms part of the “substantive law” and the latter of “procedural law”. An “offence” is an aggregate of acts or omissions punishable by law while “prosecution” signifies the procedure for obtaining an adjudication of Court in respect of such acts or omissions.

A “substantive law” defines and creates “rights”, “duties” and “obligations”. A “procedural law” outlines the process for enforcing those rights and duties. For example, the Bharatiya Nyaya Sanhita, 2023 (“BNS” for short) which replaced the Indian Penal Code (IPC) is a “substantive law” where the BNSS which replaced the Cr.P.C is a “procedural law”.

WHETHER IT IS A “COGNIZABLE OFFENCE” OR A “NON-COGNIZABLE OFFENCE”, TAKING COGNIZANCE OF THE OFFENCE BY THE COURT IS A MUST

2. Whatever be the sources by which the factum of the commission of an offence is brought to the notice of the Magistrate, taking cognizance of such offence, whether it be a “cognizable” or a “non-cognizable” offence, is a must.

WHAT IS MEANT BY “TAKING COGNIZANCE OF AN OFFENCE”

3. In Gopal v. Emperor AIR 1913 Patna 245 = 45 Cri. L. J. 177 which was noted with approval in para 8 of R. R. Chari v. State of U. P AIR 1951 SC 207 = 1951 (52) Cri. L. J 775 = 1951 KHC 241 – 3 Judges – M. H. Kania CJI, M. Patanjali Sastri, S. R. Das – JJ, it was observed as follows –

“The word “cognizance” is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings”.

In Ajit Kumar Palit v. State of W. B. AIR 1963 SC 765 = 1963 (1) CriLJ 797 – S. J. Imam, N. Rajagopala Ayyangar, J. R. Mudolkar – JJ – it was observed –

"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 of judicially.

It was stated in Gopal Marwari v. Emperor (AIR 1943 Pat 245 : ILR 22 Pat 433 (SB) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R.R. Chari v. State of U.P. ( 1951 SCR 312 : 1951 CriLJ 775) (SCR at p. 320) that the word, 'cognizance' was used in the Code to indicate the point when the magistrate or judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense.

As observed in Emperor v. Sourindra Mohan Chuckerbutty (ILR (1910) 37 Cal 412: 11 CriLJ 217 : 14 CWN 512) (ILR at p. 416)

“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 offence'. Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled.” (Vide para 19)

(See also para 8 of Darshan Singh Ram Kishan v. State of Maharashtra AIR 1971 SC 2372 = (1971) 2 SCC 654 – 3 Judges – J. M. Shelat, I. D. Dua, S. C. Roy – JJ; Paragraph 12 of Fakhruddin Ahmad v. State of Uttaranchal (2008) 17 SCC 157 = 2008 KHC 6776 – C. K. Thakker, D. K. Jain – JJ; Sharif Ahmed v. State of U. P AIR 2024 SC 2420 = 2024 Cri. L. J. 2322 = 2024 KHC 6251 – Sanjiv Khanna, S. V. N. Bhatti – JJ).

WHICH PROVISION OF LAW GIVES AUTHORITY TO THE MAGISTRATE TO TAKE COGNIZANCE OF AN OFFENCE

4. Section 210 of BNSS corresponding to Section 190 Cr.P.C is the provision dealing with “cognizance of offences by Magistrates”. Those two Sections are given below in a comparative table –

WHETHER A MAGISTRATE HAVING NO TERRITORIAL JURISDICTION TO TRY THE CASE, CAN TAKE COGNIZANCE OF THE OFFENCE ?

5. Going by the verdict of the Supreme Court, in Trisuns Chemical Industry v. Rajesh Agarwal - (1999) 8 SCC 686 = AIR 1999 SC 3499 – K. T. Thomas, M. B. Shah – JJ, a Magistrate taking cognizance of an offence need not necessarily have the jurisdiction to try the case as well. The Apex Court observed that the provisions of Sections 177 and 179 Cr.P.C. do not trammel the powers of the Court to take cognizance of the offence.

NOTES BY THE AUTHOR:

But the above decision overlooks Sections 156 (1), 157 (1), 162 (2), 169, 170, 173 (2) (i), 201 and 204 Cr.P.C.

1. S. 156 (1) Cr.P.C. – declares that the territorial jurisdiction of an SHO is co-extensive with that of the appropriate Court which is competent to try the offence. (Vide para 5 of T. P. Nandakumar v. State of Kerala 2007 (4) KLT 725 = 2008 Cri. L. J. 298 – V. Ramkumar – J ).

Chapter XIII of Cr.P.C. decides which Court shall conduct the “inquiry and trial” in respect of an offence. Ordinarily, it is the Court within whose territorial limits the offence was committed, has to try the same.

Supposing an offence has been committed within the territorial limits of Anand Vihar Police Station of East Delhi, the Magistrate who exercises jurisdiction co-extensive with that of the police station within the meaning of Section 175 (1) BNSS (S. 156(1) Cr.P.C) alone can conduct inquiries (including taking cognizance of the offence) and trial.

2. S. 157 (1) Cr.P.C. – mandates that the SHO, after registering an FIR in respect of a cognizable offence shall send a report of the same to “the Magistrate empowered to take cognizance of the offence”.

(The above provision shows that there is a Magistrate empowered to take cognizance of the offence).

3. S. 162 (2) Cr.P.C – Even when an accused person produced before the nearest Magistrate under Section 167 (1) Cr.P.C such Magistrate can only give the first remand under Section 167 (2) Cr.P.C. If the remand of such person is to be further extended or if such a person is to be granted bail, he has to be forwarded under Section 167 (2) Cr.P.C to “the Magistrate having the jurisdiction to try the accused or to commit him for trial”. In other words, a Magistrate who is competent to conduct an “inquiry” or “trial” alone has got the jurisdiction to “take cognizance of the offence”.

4. S. 169 Cr.P.C. – In a case where it appears to the SHO that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, then the SHO shall, if the accused is in custody, release him on his executing a bond to appear, when so required, before a Magistrate empowered to “take cognizance of the offence” AND “try” the accused or “commit him for trial”.

(The Magistrate contemplated here is the Magistrate empowered to take cognizance of the offence and try the accused or commit him for trial).

5. S. 170 (1) Cr.P.C. – In a case where there is sufficient evidence, or reasonable ground of suspicion, the SHO shall forward the accused under custody to a “Magistrate empowered to take cognizance of the offence AND try the accused or commit him for trial”.

(The Magistrate envisaged here is also the Magistrate empowered to take cognizance of the offence and try the accused or commit him for trial).

6. S. 173 (2) (i) Cr.P.C. – As soon as the investigation is completed, the SHO shall forward to a “Magistrate” empowered to take cognizance of the offence on a “police report”, a report in the form prescribed and incorporating the details enumerated in Section 173 (2) (i) Cr.P.C.

(Here also the final report is to be forwarded by the police to the Magistrate empowered to take cognizance of the offence. There is, therefore, a Magistrate empowered to take cognizance of the offence).

7. S. 201 Cr.P.C. – In the case of a private complaint also, Section 201 Cr.P.C. envisages a situation “where a complaint is made to a Magistrate who is not competent to take cognizance of the offence.” If the complaint is in writing, Section 201 (a) obliges the Magistrate to return the complaint for presentation to the proper Court. If the complaint is an oral complaint, Section 201 (b) obliges the Magistrate to direct the complainant to the proper Court.

(This Section also contemplates a situation where a complaint is wrongly made to a Magistrate who is not competent to take cognizance of the offence. This means that there has to be a Magistrate competent to take cognizance of an offence).

8. S. 204 (1) Cr.P.C. – It is the Magistrate taking cognizance of the offence and who is entitled to form an opinion that “there is sufficient ground for proceeding” who can issue summons or warrant, as the case may be, to the accused.

(Here also it is the Magistrate competent to take cognizance of the offence who can issue process to the accused. Going by Section 177 Cr.P.C every offence shall ordinarily be inquired into and tried by the Court within whose local jurisdiction, the offence was committed. Apart from Section 177 Cr.P.C, Sections 178 to 188 Cr.P.C also will have to be referred to for deciding the jurisdiction of the Court competent to conduct inquiry or trial).

So, it is only “a Magistrate who has the jurisdiction to conduct an “inquiry” or “trial” as provided under Chapter XIII Cr.P.C. who can take cognizance of the offence. The chapter corresponding to Chapter XIII of Cr.P.C is Chapter XIV of BNSS.

Fortunately the BNSS has now made the matter clear and beyond any controversy by inserting the expression “having jurisdiction” in the opening words of Section 223 (1) as follows –

“A Magistrate having jurisdiction while taking cognizance of an offence ……………………………”

If Trisuns Chemical Industry (Supra – AIR 1999 SC 3499) is to be followed, then a Magistrate of the first class in Cochin or Trivandrum in the State of Kerala can take cognizance of an offence committed in New Delhi. But the said verdict has overlooked the fact that such a Magistrate will not be the “Magistrate entitled to take cognizance of the offence and try the case or commit it for trial” within the meaning of the Sections referred to above.

With utmost respect, I am, therefore, of the considered opinion that Trisuns Chemical Industry (Supra – AIR 1999 SC 3499) requires re-consideration at the hands of a larger Bench of the Supreme Court of India.

SOURCES FOR TAKING COGNIZANCE

6. As per Section 210 BNSS (S.190 Cr.P.C), there are four sources available to a Magistrate for taking cognizance of an offence. They are –

a) upon receiving a complaint of facts constituting the offence”. (“complaint” is defined under Section 2 (1) (h) of BNSS (S.2 (d) Cr.P.C.)

b) upon receiving a “police report” of such facts. (“police-report” is defined under Section 2 (1) (t) of BNSS (S.2 (r) Cr.P.C). and filed before the Magistrate under Section 193 (2) BNSS (S.173 (2) Cr.P.C), after conclusion of investigation.)

c) upon

There are some verdicts which say that as per Section 190 (1) Cr.P.C there are only 3 sources for taking cognizance of an offence. But as shown above there are actually 4 sources.

In paras 14 and 17 of A. R. Antulay v. R. S. Nayak AIR 1984 SC 718 = (1984) 2 SCC 500 = 1984 KHC 642 – 5 Judges – D. A. Desai, R. S. Pathak, O. Chinnappa Reddy, A. P. Sen, V. Balakrishna Eradi - JJ, the Constitution Bench of the Supreme Court of India observed that Section 190 (1) Cr.P.C. (now S.210 BNSS) has prescribed 4 known methods for taking cognizance of an offence.

TAKING COGNIZANCE OF AN OFFENCE ON A “POLICE REPORT”

7. A Magistrate can be said to have taken cognizance of an offence on a “Police Report” when from the allegations in the “Police Report” and the materials produced along with it, the Magistrate after taking “judicial notice” of the offence, “takes the case on file and issues process” to all or any of the persons shown as the accused.

At the stage of taking cognizance of an offence, the provisions of Section 210 (1) (b) BNSS (S. 190 (1) (b) Cr.P.C.) would be applicable. Section 210 (1) (b) BNSS (S.190 (1) (b) Cr.P.C.), provides that the Magistrate may take cognizance of any offence upon a “Police Report” of such facts which constitutes the offence. As per this provision the Magistrate takes cognizance of an “offence” and not the “offender”. After taking cognizance of the offence, the Magistrate under Section 227 BNSS (S.204 Cr. P. C.) is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also against persons not named therein. For that purpose, he is required to consider the F.I.R. and the statements recorded by the police officer and other documents tendered along with charge-sheet. (Vide paras 6 of SWIL Ltd. v. State of Delhi (2001) 6 SCC 670 = 2001 KHC 1008 – M. B. Shah, S. N. Phukan – JJ – Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 = 1967 Cri. L. J. 1081 = 1967 KHC 644 (SC) – 3 Judges – M. Hidayathullah, S. M. Sikri, C. A. Vaidialingam – JJ, relied on).

THE OPTIONS AVAILABLE TO THE “POLICE” IN A “COGNIZABLE OFFENCE”, “NON-COGNIZABLE OFFENCE”, “COGNIZABLE CASE”, “NON-COGNIZABLE CASE” ETC.

8. Depending on the question whether the offence alleged in the “information” received by the officer-in-charge of the Police Station (SHO) is a “cognizable offence” or a “non-cognizable offence” or a “cognizable case” or a “non-cognizable case”, the SHO has well defined approaches to be made before he can commence investigation.

Investigation of one or more “cognizable offences”

Where the information consists of one or more purely “cognizable offences” and there is no special condition precedent for the taking cognizance of the offence/offences – Here the Police can register FIR, conduct investigation and submit a “police report” before the Court concerned.

Where the offence is a “cognizable offence” but cognizance of the offence can only be on a “complaint” filed by a specified authority – Examples –

1. The offence of disobedience to an order lawfully promulgated by a “public servant” resulting in obstruction, annoyance or injury to persons, is punishable under Section 188 IPC (S.223 of BNS). In the case of Section 188 IPC (S.223 BNS), even though Column 4 of the First Schedule shows that the said offence is “cognizable”, Section 215 (1) (a) of BNSS (S.195 (1) (a) Cr.P.C.) mandates that cognizance of such an offence can be taken only on the written complaint of the “Public Servant” concerned or of some other public servant to whom he is administratively subordinate.

Since the offence is a “cognizable offence”, what it means is only that a Police Officer can arrest the offender without a warrant of arrest. But, such Police Officer cannot register an FIR or investigate the offence or file a Police Report before the Magistrate since the Magistrate can take cognizance of the offence only on a “complaint” by the authorised person, namely, the Public Servant or his official superior. In case the Police were to register an FIR, conduct investigation and submit a Police Report and the Court were to conduct a trial, the action of the Police and the subsequent trial will be wholly without jurisdiction. (Vide Paras 27 to 30 of C. Muniappan v. State of Tamil Nadu AIR 2010 SC 3718 = (2010) 9 SCC 567 = 2010 KHC 4621 (SC) – G.S. Singhvi, Dr. B.S. Chauhan – JJ. (See also State of U. P v. Mata Bhikh (1994) 4 SCC 95 S. Ratnavel Pandian, P. B. Sawant – JJ – Here in para 6, Daulat Ram v. State of Punjab AIR 1962 SC 1206 = 1962 Cri.L.J. 286 = 1962 KHC 566 (SC) – 3 Judges – J. L. Kapoor, M. Hidayatullah, Raghubar Dayal – JJ was followed to hold that in the absence of a “complaint” by the “public servant” concerned as required by Section 195 (1) (a) Cr.P.C, the trial of the offence under Section 188 IPC would be ab initio void. In paras 15 and 16, following Ajaib Singh v. Joginder Singh AIR 1968 SC 1422 it was further held that the expression “public servant concerned” in Section 195 (1) (a) Cr.P.C would include the successor-in-office of the “public servant” who promulgated the order and such successor-in-office also could file the “complaint”).

2. As in the case of Section 223 BNS (S.188 IPC) Section 217 BNS (S.182 IPC) is also an offence which by virtue of Section 215 (1) (a) BNSS (S.195 (1) (a) Cr.P.C) can be taken cognizance of by the Magistrate only on the “complaint” by the “public servant” concerned. In a case where the police registered an FIR and conducted investigation and submitted a charge-sheet for the offence of Section 182 IPC and the Magistrate after taking cognizance of the said offence, conducted trial and convicted and sentenced the accused, the Supreme Court held that cognizance taken on the police report instead of a “complaint” by the “public servant” concerned, vitiated the whole proceedings and the trial was ab initio, void. (Vide Daulat Ram v. State of Punjab AIR 1962 SC 1206 = 1962 Cri.L.J. 286 = 1962 KHC 566 (SC) – 3 Judges – J. L. Kapoor, M. Hidayatullah, Raghubar Dayal – JJ).

3. Another example is an offence of “money-laundering” under Section 3 of the PMLA Act, 2002 and punishable under Section 4 thereof. Section 45 of PMLA says that the offence shall be a “cognizable offence”. But, Section 44 (1) (b) says that the Special Court may take cognizance of an offence under Section 3 upon a complaint filed by the “authorised authority”. Here also, even though the Police can arrest the offender without a warrant of arrest, the Police cannot conduct investigation or charge-sheet the offender.

4. Under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, a police officer was also included among the officers authorised to file a “complaint”. But in one case, instead of filing a “complaint” the police officer filed a “police report”. Held that the Court could take cognizance of the offence under Section 24 of the said Act only on the “complaint” of the “authorised officer” which expression included a police officer also. (Vide Moosakoya v. State of Kerala 2008 (1) KHC 464 (Kerala) – J. B. Koshy, K. Hema – JJ).

5. Section 22 of the Transplantation of Human Organs and Tissues Act, 1994 (TOHO Act) says that the Court shall take cognizance of the offence under the Act only on a “complaint” by “the authorised officer”. In one case, even though the CBI satisfied the definition of “authorised officer” due to its empowerment under Section 13 (3) (iv) of the TOHO Act, what was filed before the Court by the CBI was a “police report”. The Supreme Court held that since no “police report” could be filed, Section 167 (2) Cr.P.C would not be attracted. (Vide Jeevan Kumar Raut v. CBI AIR 2009 SC 2763 = (2009) 7 SCC 526 = 2009 KHC 800 – S. B. Sinha, Asok Kumar Ganguly – JJ).

NOTES BY THE AUTHOR – With due respect, the above decision has overlooked the fact that Section 167 Cr.P.C is not confined to cases investigated by the police alone. The Bench lost sight of the verdict in Directorate of Enforcement v. Deepak Mahajan AIR 1994 SC 1775 = (1994) 3 SCC 440 – S. Ratnavel Pandian, K. Jayachandra Reddy – JJ. Moreover, if Section 167 (2) Cr.P.C had no application, then the arrested accused could not have been produced before the nearest Magistrate and the accused would not be entitled to the benefit of default bail under Section 167 (2) Cr.P.C.

6. In Institute of Chartered Accountants of India v. Vimal Kumar Surana (2011) 1 SCC 534 = 2010 KHC 4948 (SC) – G. S. Singhvi, A. K. Ganguly – JJ, the accused who had passed the examination of chartered accountants was not a member of the Institute of Chartered Accountants. For falsely representing the said institute before the tax authorities, on the basis of a power of attorney and documents using forged seals, the accused was prosecuted for offences punishable under Sections 24 and 26 of the Chartered Accountants Act, 1949 and certain IPC offences. Since the accused was prosecuted by means of a “police report” and not by means of a “complaint” as insisted by Section 28 of the Chartered Accountants Act, 1949, it was held that the prosecution was bad.

7. State (NCT of Delhi) v. Sanjay AIR 2015 SC 75 = (2014) 9 SCC 772 = 2014 KHC 4558 (SC) – M. Y. Iqbal, Pinaki Chandra Ghose – JJ. Here the matter arose under the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) and Section 379 IPC. The FIR was registered under Section 21 (4) of the MMDR Act (for contravention of Section 4 (1A) of the said Act) and Section 379 IPC. Section 22 of the MMDR Act provided that no Court shall take cognizance of an offence punishable under the Act except up on a “complaint” in writing by an “authorised person”. The Supreme Court held that cognizance of the offence under the IPC which is a distinct and separate offence, can be taken by the Magistrate on a “police report” and cognizance of an offence under Section 4 (1A) read with Section 21 of the MMDR Act could be taken only on a “complaint” by the “authorised officer” and that the police need not await the “complaint” for submitting the “police report”. (Vide para 72).

NOTES BY THE AUTHOR – It is respectfully submitted that this could have been treated as a “cognizable case” and the police could have registered the FIR for both the MMBR offence as well as IPC offence and conducted investigation as was held in State of Orissa v. Sharat Chandra Sahu AIR 1997 SC 1 = (1996) 6 SCC 435 = 1996 KHC 975 – Kuldip Singh, Saghir Ahmad – JJ.

8. Union of India v. Ashok Kumar Sharma AIR 2020 SC 5274 = (2021) 12 SCC 674 = 2020 KHC 6509 (SC) – Sanjay Kishan Kaul, K. M. Joseph – JJ. Here the offences alleged were those punishable under Section 18 (a) (i) and Section 27 of the Drugs and Cosmetics Act, 1940. The police registered an FIR for both the offences. The Apex Court held that a police officer cannot be approached with an allegation of an offence in Chapter IV of the Act and that police officers do not have the power of arrest under the Act and such power of arrest is given to the Drug Inspectors. The Bench finally concluded as follows –

“I. In regard to cognizable offences under Chapter IV of the Act, in view of S.32 of the Act and also the scheme of the Cr.P.C, the Police Officer cannot prosecute offenders in regard to such offences. Only the persons mentioned in S.32 are entitled to do the same.

II. There is no bar to the Police Officer, however, to investigate and prosecute the person where he has committed an offence, as stated under S.32(3) of the Act, i.e., if he has committed any cognizable offence under any other law.

III. Having regard to the scheme of the Cr.P.C and also the mandate of S.32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR under S.154 of the Cr.P.C, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Cr.P.C.

IV. Having regard to the provisions of S.22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D. K. Basu (supra) and to follow the provisions of Cr.P.C.

V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act. We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Art.142 of the Constitution of India in this regard.

VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment.

VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in S.58 of the Cr.P.C, but also immediately report the arrests to their superior Officers”.

NOTES BY THE AUTHOR – Just because Drug Inspectors have been invested with the power to arrest an offender under the Act, it cannot be said that a police officer cannot arrest an offender who commits a cognizable offence under the Act. Supposing such an offence is committed by a person in the very presence of a police officer, he is not to raise his arms in despair on the ground that he has no power to arrest. He can very well arrest the offender and hand over him to the officer authorised under the Act to conduct investigations. It cannot be assumed that the legislature when it used the expression “cognizable offence”, was unaware of its legal implications.

• Where, to begin with, the information alleges only a cognizable offence, but after investigation by the Police, what is disclosed is only a “non-cognizable offence” – Here, by virtue of the Explanation to Section 2 (1) (h) of BNSS (Explanation to Section 2 (1) (d) of Cr.P.C.) the report submitted by the Police Officer stating that what is disclosed is a “non-cognizable offence” only, should be treated as a “complaint” and the Police Officer who submitted the report should be treated as the complainant. Even though the offence discovered after investigation is only a “non-cognizable offence”, no order of the Magistrate under Section 174 (2) of BNSS (S.155 (2) Cr.P.C.) is necessary and the Magistrate can straightaway take cognizance of the “non-cognizable offence” revealed by the report which is to be treated as a “complaint”.

Supposing, the offence alleged in the “information” to the SHO was ab initio a “non-cognizable offence” and the Police Officer mistakenly conducted an investigation and submitted a report confirming the commission of the “non-cognizable offence”, he will not be entitled to the benefit of the Explanation to Section 2 (1) (h) BNSS. (S.2(1) (d) Cr.P.C.) (Vide Keshav Lal Thakur v. State of Bihar (1996) 11 SCC 557 – M. K. Mukherjee, S.P.Kurdukar – JJ.)

• Where the offence is a “cognizable offence” the Police can arrest the offender without a warrant, register FIR, conduct investigation and file a “Police Report” before the Court concerned. (Vide Para 19 of Salib alias Shalu alias Salim v. State of Uttar Pradesh (2023) 20 SCC 194 = 2023 LiveLaw (SC) 618 = 2023 KHC 6760 (SC) – B. R. Gavai, J. B. Pardiwala – JJ; Para 29 of State of Kerala v. Suni @ Sunil AIR 2025 SC 5258 = 2025 SCC OnLine SC 2295 = 2025 (7) KHC 45 (SC) – Sanjay Kumar, Alok Aradhe – JJ.)

NOTES BY THE AUTHOR: With utmost respect, it is submitted that this is a pernicious trend. “Cognizable offence” only means that a Police Officer can arrest the offender without a warrant of arrest. That doesn't mean that the Police Officer can, after arresting the offender, register an FIR, conduct investigation and charge-sheet the offender in all cases, particularly when the law says that cognizance of the offence can be taken only on the “complaint” of a specified authority. In such a case, all that the Police Officer can do is to arrest the offender and hand over him to the appropriate authority who can conduct the investigation. It is doubtful whether, after arresting the offender, the Police Officer can even produce him before the Magistrate in the absence of any FIR or entries in the case diary as mandated by Section 187 (1) of BNSS (S.167 (1) of Cr.P.C.). It will be for the authorised officer to conduct investigation and submit a complaint before the Court concerned.

Investigation of a “cognizable case”

• “Cognizable case” is a case in which a Police Officer may arrest the offender without a warrant of arrest. (Vide Section 2 (1) (g) of BNSS (S.2 (1) (c) Cr.P.C.). The expression “cognizable case” is further elucidated by sub-section (4) of Section 174 BNSS (sub-section (4) of Section 155 Cr.P.C.) which reads as follows –

“Where a case relates to two or more offences of which at least one is a cognizable offence, the case shall be deemed to be a “cognizable case”, notwithstanding that the other offences are non-cognizable.”

The resultant position is that in a case if besides the non-cognizable offences, there is at least one cognizable offence, then it becomes a “cognizable case” dispensing with the requirement of an order of the Magistrate under Section 174 (2) BNSS (S.155 (2) Cr.P.C.) before the SHO can investigate the non-cognizable offences.

• Where the information relates to a “Cognizable offence” and a “non-cognizable offence” in which cognizance of one of the offences can be taken by the Court only on the complaint by a specified person.

For example – the offence under Section 82 BNS (S.494 IPC – the offence of marrying again during the life time of the husband or wife.) This is a non-cognizable offence. Since this offence attracts Section 219 BNSS (S.198 Cr.P.C.), the offender can be prosecuted only by means of a “complaint” made by some person aggrieved by the offence. Section 85 BNS (S.498 A IPC) is the offence of subjecting a married woman to cruelty by her husband or his relatives. This offence attracts Section 220 BNSS (S.198 A Cr.P.C.) as per which cognizance can be taken either on a “Police Report” or on a “complaint” by any one of the specified relatives. It is a “cognizable offence” if information relating to the commission of the offence is given to the SHO. In a case involving both the above offences, the question was whether it was open to the Police to investigate both the offences in the absence of a complaint by the aggrieved wife with regard to the offence punishable under Section 494 IPC. It was held that the case could be treated as a “cognizable case” within the meaning of Section 155 (4) Cr.P.C. and that it was permissible for the Police to register an FIR, conduct investigation and charge-sheet the accused for both the offences. (Vide State of Orissa v. Sharat Chandra Sahu AIR 1997 SC 1 = (1996) 6 SCC 435 = 1996 KHC 975 – Kuldip Singh, Saghir Ahmad – JJ.) The above verdict was followed by the Madras and Kerala High Courts. (Vide para 13 of Shammer Ahmed V. M. v. State by Inspector of Police 2019 Cri.L.J. 2751 = 2019 KHC 3680 (Mad.) – P. Rajamanickam – J; Sumesh v. State of Kerala 2023 (5) KHC 19 (Kerala) = 2023 (4) KLT 677 – A. Badharudeen – J.). In such a situation, it will be perfectly justifiable for the Court concerned to take cognizance of the offence on the “Police Report” (charge-sheet).

Investigation of a “non-cognizable offence”

• A “non-cognizable offence” is an offence in which a Police Officer does not have the authority to arrest the offender without a warrant of arrest. (Vide Section 2 (1) (o) BNSS = S.2 (l) Cr.P.C.). If “information” is received by the SHO regarding the commission of a “non-cognizable offence”, the SHO cannot straightaway register an FIR or conduct investigation. By virtue of Section 174 (1) BNSS (S.155 (1) Cr.P.C.) the SHO has to enter the substance of the information in a book prescribed by the State Government kept by such officer and refer the informant to the Magistrate. The Constitution Bench in A. R. Antulay v. R. S. Nayak AIR 1984 SC 718 = (1984) 2 SCC 500 = 1984 KHC 642 – 5 Judges – D. A. Desai, R. S. Pathak, O. Chinnappa Reddy, A. P. Sen, V. Balakrishna Eradi - JJ, has taken the view that the SHO may either refer the informant to the Magistrate or may himself obtain the orders of the Magistrate under Section 155 (2) Cr.P.C. In the light of the above verdict, some decisions which take the view that the only option available to the SHO, on receiving “information” regarding the commission of a “non-cognizable offence”, is to refer the informant to the Magistrate, may not be correct. We are living in a world of people-friendly police and instead of sending the informant to the Magistrate for an order under Section 174 (2) BNSS (S.155 (2) Cr.P.C.) it will be a more humane act on the part of the SHO to himself secure the order of the Magistrate and thereafter treat the case as a “cognizable case” as provided under Section 174 (3) BNSS (S.155 (3) Cr.P.C.) and register an FIR, commence investigation and submit a “police report” before the Magistrate concerned.

Investigation of a “non-cognizable case”

• A “non-cognizable case” will comprise of only non-cognizable offences and hence it will have to be treated in the same manner as a “non-cognizable offence” requiring the order of the Magistrate under Section 174 (2) BNSS (S.155 (2) Cr.P.C.) and thereafter treating the case as a “cognizable case” as provided under Section 174 (3) BNSS (S.155 (3) Cr.P.C.).

THE OPTIONS AVAILABLE TO THE “MAGISTRATE” ON RECEIVING A “POLICE REPORT”

9. In order to appreciate the options available to the Magistrate, the following Judicial pronouncements are to be borne in mind –

1. Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 = 1967 CriLJ 1081 = 1967 KHC 644 (SC) – 3 Judges - M. Hidayatullah, S. M. Sikri, C. A. Vaidialingam - JJ.

“In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in Praveen Chandra Mody 1965-1 SCR 269: (AIR 1965 SC 1185), the term "complaint" would include allegations made against persons unknown. If a Magistrate takes cognizance under S.190 (1) (a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, under S.190 (1) (b).” (Vide para 9)

2. Abhinandan Jha v. Dinesh Mishra AIR 1968 SC 117 = 1968 CriLJ 97 = 1967 KHC 39 (SC) – Hidaytullah, Vaidialingam - JJ.

“Now, the question as to what exactly is to be done by a Magistrate, on receiving a report, under S.173, will have to be considered. That report may be in respect of a case, coming under S.170. or one coming under S.169. We have already referred to S.190, which is the first section in the group of sections headed 'Conditions requisite for Initiation of Proceedings.' Sub-s. (1), of this section, will cover a report sent, under S.173. The use of the words 'may take cognizance of any offence', in sub-s. (1) of S.190 in our opinion imports the exercise of a 'judicial discretion', and the Magistrate, who receives the report, under S.173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this it follows that it is not as if that the Magistrate is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under S.190(1) (b) of the Code. This will be the position, when the report under S.173, is a charge sheet.

17. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under S.173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S.156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under S.156(3). The police, after such further investigation, may submit a charge sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence under S.190 (1) (c), notwithstanding the contrary opinion of the police, expressed in the final report.

18. In this connection, the provisions of S.169 of the Code, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, while releasing the accused, to take a bond from him to appear, if and when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police.” (Vide paras 16 to 18) (Emphasis supplied by me.)

3. Tulu Ram v. Kishore Singh AIR 1977 SC 2401 = 1978 CriLJ 8 = 1977 KHC 215 (SC) – Fasal Ali, Kailasam – JJ.

“We have already pointed out that Chap.12 and Chap.14 subserve two different purposes : One pre-cognizance action and the other post-cognizance action. That fact was recognised by a recent decision of this Court in the case of Devarpalli Lakshminarayana Reddy v. V. Narayana Reddy [ 1976 Supp SCR 524 : 1976 (3) SCC 252 : 1976 SCC (Cri) 380 ] where the Court observed as follows [SCC p. 258, SCC (CRI) p. 386, para 17] :

“The power to order police investigation under S.156(3) is different from the power to direct investigation conferred by S.202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under S.156(3) can be invoked by the Magistrate before he takes cognizance of the offence under S.190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chap.15, he is not competent to switch back to the precognizance stage and avail of S.156(3).” (Vide para 11)

(Emphasis supplied by me)

Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge :

1. That a Magistrate can order investigation under S.156(3) only at the pre-cognizance state, that is to say, before taking cognizance under S.190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chap.14 he is not entitled in law to order any investigation under S.156(3) though in cases not falling within the proviso to S.202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by S.202 of the Code.

2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives :

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of S.200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

3. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

4. Where a Magistrate orders investigation by the police before taking cognizance under S.156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under S.190 as described above. (Vide para 15)

4. H. S. Bains v. State (Union Territory of Chndigarh) AIR 1980 SC 1883 = (1980) 4 SCC 631 = 1980 KHC 803 (SC) - R. S. Sarkaria, O. Chinnappa Reddy - JJ.

“It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him.

• He may take cognizance of the offence and proceed to record and statements of the complainant and the witnesses present under S.200.
• Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under S.203.
• If in his opinion there is sufficient ground for proceeding he may issue process under S.204.
• However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
• He may then issue process if in his opinion there is sufficient ground for proceeding or
• dismiss the complaint if there is no sufficient ground for proceeding.
• On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under S.156 (3). The police will then conduct investigation and submit a report under S.173 (1).
• On receiving the police report the Magistrate may take cognizance of the offence under S.190 (1) (b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not.
• The police report under S.173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom.
• The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further.
• The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under S.200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under S.156 (3) and received a report under S.173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Secs. 200, 203 and 204.
• Thus a Magistrate who on receipt of a complaint, orders an investigation under S.156 (3) and receives a police report under S.173 (1), may, thereafter, do one of three things:

(1) he may decide that there is no sufficient ground for proceeding further and drop action:

(2) he may take cognizance of the offence under S.190 (1) (b) on the basis of the police report and issue process: this he may do without being bound in any manner by the conclusion arrived at by the police in their report :

(3) he may take cognizance of the offence under S.190 (1) (a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under S.200. If he adopts the third alternative, he may hold or direct an inquiry under S.202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.” (Vide Para 6)

5. Hareram Satpathy v. Tikaram Agarwala AIR 1978 SC 1568 = (1978) 4 SCC 58 = 1978 CriLJ 1687= 1978 KHC 606 (SC) - Jaswant Singh, P. S. Kailasam - JJ.

“3. Two main questions arise for determination in this case namely:

(1) Whether, after submission of the final report by the police stating therein that there was not sufficient evidence to justify the forwarding of the respondents to him, it was open to the Sub Divisional Magistrate, Balangir to add the respondents as accused in the case and issue process against them.

(2) Whether the High Court was justified in going into the merits of the case and interfering with the order of the Sub Divisional Magistrate impleading the respondents as accused and issuing process against them in exercise of its powers under S.482 of the Code of Criminal Procedure, 1973.

4. The first point is no longer res integra. It is squarely covered by the decision of this Court in Raghubans Dubey v. State of Bihar, 1967 (2) SCR 423 : ( AIR 1967 SC 1167 ) where it was held as follows (at p. 1169 of AIR):

"In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.''………………………………………………………………………………………..(Vide paras 3 and 4)

“8. In the instant case the Sub Divisional Magistrate took cognizance of the offence on the police report, and after taking cognizance of the offence and perusal of the record he appears to have satisfied himself that there were prima facie grounds for issuing process against the respondents. In so doing the Magistrate did not in our Judgment exceed the power vested in him under law.

9. The first point is accordingly decided in the affirmative. The second point does not present any difficulty. It is well settled that once the Magistrate has after satisfying himself prima facie that there is sufficient material for proceeding against the accused issued process against him, the High Court cannot go into the matter in exercise of its revisional jurisdiction which is very limited. The following observations made in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi (AIR 1976 SC 1947) (supra) are apposite in this connection (at p. 1951):

"It is true that in coming to a decision as to whether a process would be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complainant or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even this Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under S. 202 of the Code of Criminal Procedure.'' (Vide paras 8 and 9)

6. Bhagwant Singh v. Commissioner of Police AIR 1985 SC 1285 = (1985) 2 SCC 537 = 1985 KHC 610 (SC) – 3 Judges - P. N. Bhagwati, Amarendra Nath Sen, D. P. Madon - JJ.

“Now, when the report forwarded by the officer incharge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things :

(1) he may accept the report and take cognizance of the offence and issue process or

(2) he may disagree with the report and drop the proceeding or

(3) he may direct further investigation under sub-section (3) of S. 156 and require the police to make a further report.

The report may on the .other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses :

(1) he may accept the report and drop the proceeding or

(2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or

(3) he may direct further investigation to be made by the police under sub-section (3) of S.156.”

7. Dr. Mrs. Nupur Talwar v. CBI, Delhi and Another AIR 2012 SC 847 = (2012) 2 SCC 188 = 2012 CriLj 954 = 2012 KHC 4010 (SC) - A. K. Ganguly; J. S. Khehar - JJ.

“18. S.190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding.

19. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the Police in its report and may prima facie find out whether an offence has been made out or not.

20. The taking of cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed.

21. At the stage of taking of cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record.” (Vide paras 18 to 21)

8. See also Mukhtar Zaidi v. State of U.P. AIR 2024 SC 3863 = 2024 (3) KHC 503 – Vikram Nath, Satish Chandra – JJ;

9. See also Union of India v. Prakash P. Hinduja & Anr., 2003 (6) SCC 195 – S. Rajendra Babu, G. P. Mathur - JJ.

10. In Vikas Chandra v. State of Uttar Pradesh 2024 SCC OnLine SC 1534 = 2024 KHC 6252 (SC) - C. T. Ravikumar, Rajesh Bindal – JJ, the Apex Court observed as follows –

“8. There cannot be any doubt with respect to the power of the Magistrate to issue summons even after filing of a negative report by the police. In other words, the Magistrate is not duty bound to accept the Final Report filed under S.173 (2), CrPC. The power not to accept the Final Report and to issue summons to the accused is recognized by this Court in the decision in Union of India v. Prakash P. Hinduja & Anr., 2003 (6) SCC 195. In this context, it is to be noted that this Court in the decision in Bhagwant Singh v. Commissioner of Police & Anr., 1985 (2) SCC 537 held that when a Final Report under S.173 (2), CrPC, is filed before the Magistrate, which happens to be a negative report, usually called a "closure report", he gets the following four choices to be adopted, taking into account the position obtained in the case concerned:

(1) to accept the report and drop the Court proceedings

(2) to direct further investigation to be made by the police

(3) to investigate himself or refer for the investigation to be made by another Magistrate under S.159, CrPC,

(4) to take cognizance of the offence under S.200, CrPC, as a private complaint when the materials are sufficient in his opinion and if the complainant is prepared for that course.” (Vide para 8)

NOTES BY THE AUTHOR: The third alternative given above is not really one of the options available to the Magistrate on receiving a Closure Report under Section 173 (2) Cr.P.C. read with Section 169 Cr.P.C. The above third option is available to the Magistrate in a situation where after registering the FIR the SHO does not enter upon investigation.

TAKING COGNIZANCE OF AN OFFENCE ON A “PRIVATE COMPLAINT”

10. A magistrate is not bound to take cognizance of an offence merely because a complaint is filed before him. He is required to carefully apply his mind to the contents of the complaint before taking cognizance of any offence alleged therein. (Vide para 15 of Delhi Race Club (1940) Ltd. v. State of U. P AIR 2024 SC 4531 = (2024) 10 SCC 690 – J. B. Pardiwala, Manoj Misra – JJ). See also Kailash Vijayvarjiya v. Rajalakshmi Chandhuri (2023) 14 SCC 1 = 2023 KHC 6519 (SC) – M. R. Shah, Sanjiv Khanna - JJ.

The complaint must “disclose” the offence. The term “disclose” does not mean that the complaint merely alleges or reveals an offence. The Court must be satisfied that the offence is disclosed by the materials including the documents, circumstances etc. (Vide para 21 of Manoj Abraham IPS v. P. Chandrasekharan Nair 2017 (3) KHC 983 - P. Ubaid – J; Para 53 of Mathew A. Kuzhalnadan (Dr.) v. Pinarayi Vijayan 2025 KHC 382 – K. Babu - J )

JUDICIAL DEFINITION OF “TAKING COGNIZANCE OF AN OFFENCE ON A COMPLAINT”

11. A Magistrate can be said to have “taken cognizance of an offence” on a “private complaint” if after perusing the averments in the complaint and the materials, if any, produced along with it, the Magistrate applies his mind for the purpose of proceeding under Section 200 and the subsequent Sections in Chapter XV Cr.P.C. (Now under the BNSS it is Section 223 and Chapter XVI.) (Vide –

1. (See R.R.Chari Vs The State of U.P – AIR 1951 SC 207 (3 Judges – M. H. Kania – CJI, M. Patanjali Sastri, S. R. Das – JJ – Para 9)

(In para 8 it is observed as follows –

“In Gopal v. Emperor, AIR (30) 1913 Pat. 245 : (45 Cr. L. J. 177 S. B. it was observed that the word 'cognizance' is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Magistrate The Court noticed that the word 'cognizance' is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense.”

In para 9 Chief Justice Kania has bodily extracted and approved the observation made by Das Gupta – J in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerji, AIR 1950 Cal.437 as follows –

"What is taking cognizance has not been defined in the Cri. P. C. and I have no desire to attempt to define it. It seems to me clear' however that before it can be said that any Magistrate has taken cognizance of any offence under S.190 (1) (a), Cri. P. C, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap., proceeding under S.200 and thereafter sending it for inquiry and report under S.202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chap, but for taking action of some other kind e.g. ordering investigation under S.156 (3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence."

In our opinion that is the correct approach to the question before the Court.

(R. R. Chari approved in Sarah Mathew v. Institute of Cardiovascular Diseases (2014) 2 SCC 62 = AIR 2014 SC 448 – 5 Judges – P. Sathasivam – CJ, B. S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S. A. Bobde – JJ).

2. Narayandas Bhagwandas v. State of West Bengal - AIR 1959 SC 1118 – S. J. Imam, J. L. Kapur – JJ – Para 8 relies on the observations of Das Gupta - J in AIR 1950 Cal. 437 and also R. R. Chari (Supra – AIR 1951 SC 207) Also held that mere application of mind does not amount to taking cognizance of the offence unless the Magistrate does so for proceeding under Section 200 Cr.P.C.;

Concludes in para 8 as follows –

“Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under S.200 and subsequent sections of Ch. XV of the Code of Criminal Procedure or under S.204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.”

3. Gopal Das Sindhi v. State of Assam - AIR 1961 SC 986 = 1961 (2) Cri.L.J. 39 = 1961 KHC 606 (SC) (3 Judges – S. J. Imam, K. Subba Rao, Raghubar Dayal – JJ) – Para 7.

The Bench was interpreting the provisions of Chapere XVI of the 1898 Code corresponding to Chapter XV of the 1973 Code.;

“Numerous cases were cited before us in support of the submissions made on behalf of the appellants. Certain submissions were also made as to what is meant by "taking cognizance". It is unnecessary to refer to the cases cited. The following observations of Mr. Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal. 437 .

"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under S.190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding under S.200 and thereafter sending it for inquiry and report under S.202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e. g., ordering investigation under S.156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence"

were approved by this Court in R. R. Chari v. State of Uttar Pradesh, 1951 S C R 312 : (AIR 1951 S C 207). It would be clear from the observations of Mr. Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e. g., 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 any offence. The observations of Mr. Justice Das Gupta above referred to were also approved by this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal, 1960-1 S C R 93 : (AIR 1959 S C 1118).”

(Gopal Das Sindhi approved in Sarah Mathew (supra – AIR 2014 SC 448 – 5 Judges).

4. Jamuna Singh v. Bhadai Shah – AIR 1964 SC 1541 = 1964 (2) Cri.L.J. 468 = 1964 KHC 376 (SC) (3 Judges – B. P. Sinha – CJ, M. Hidayatullah, K. C. Das Gupta – J – Para 8 - Justice K. C. Das Gupta here is none other than the author of the Judgment in AIR 1950 Cal.437 which was relied on in R. R. Chari (Supra – AIR 1951 SC 207);

“It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chap.16 of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under S.156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R. R. Chari v. State of U.P. 1951 SCR 312 and again in Gopal Dass v. State of Assam AIR 1961 SC 986.” (Vide para 8)

Here, the Magistrate took cognizance of the offence and recorded the sworn statement of the complainant. He then ordered investigation under Section 202 (1) Cr.P.C. The SHO mistook the complaint as one forwarded under Section 156 (3) Cr.P.C. and registered an FIR and conducted investigation and filed a charge-sheet before the Magistrate under Section 173 (2) Cr.P.C. Held that although the report filed before the Magistrate was purportedly under Section 173 (2) Cr.P.C., it was really a report under Section 202 (1) Cr.P.C. (Vide paras 10 and 11)

“12. Relying on the provisions in S.190 of the Code that cognizance could be taken by the Magistrate on the report of the police officer the learned Counsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take cognizance only after receipt of the report of the police officer and that cognizance should be held to have been taken only after that report was actually received in the shape of a charge sheet under S.173 of the Code, after December 13, 1956. The insuperable difficulty in the way of this argument, however, is the fact that the Magistrate had already examined the complainant under S.200 of the Code of Criminal Procedure. The examination proceeded on the basis that he had taken cognizance and in the face of this action it is not possible to say that cognizance had not already been taken when he made the order "to Sub Inspector, Baikunthpur, for instituting a case and report by 12-12-56."

13. Cognizance having already been taken by the Magistrate before he made the order there was no scope of cognizance being taken afresh of the same offence after the police officer's report was received. There is thus no escape from the conclusion that the case was instituted en Bhadai Sah's complaint on November 22, 1956, and not on the police report submitted later by the Police Sub Inspector, Baikunthpur. The contention that the appeal did not lie under S.417(3) of the Code of Criminal Procedure must therefore be rejected.” (Vide paras 12 and 13)

(Jamuna Singh was later on approved in Sarah Mathew (supra – AIR 2014 SC 448 – 5 Judges).

5. Darshan Singh Ram Kishan v. State of Maharashtra AIR 1971 SC 2372 = (1971) 2 SCC 654 = 1971 KHC 598 – 3 Judges - J. M. Shelat, I. D. Dua, S. C. Roy – JJ – Para 8.

“As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance therefore, takes place at a point when a magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report.” (Vide para 8)

6. Mowu v. Supdt., Special jail (1971) 3 SCC 936 – 5 Judges – M. Hidayatullah- CJI, J. M. Shelat, G. K. Mitter, C. A. Vaidyalingam, A. N. Ray - JJ – (This verdict actually does not explain the expression “taking cognizance of an offence” In para 17 it is stated that Senior Advocate Mr. M. C. Chagla relying on R. R. Chari (Supra – AIR 1951 SC 207) argued that merely because a direction was given to register an FIR and conduct investigation that would not amount to taking cognizance of the offence. But, strangely, the Bench rejected the said argument by observing that the District Magistrate must be understood to have taken cognizance of the offence on production before him the FIR revealing that the accused had committed the offence.);

NOTES BY THE AUTHOR: With due respect, the Constitution Bench was strictly not right in observing that cognizance of the offence was taken on the FIR. It is impermissible to take cognizance of an offence on an FIR. Under Section 190 (1) (b) Cr.P.C., cognizance can be taken only on a “Police Report”. See also para 9 of State of Karnataka v. Pastor P. Raju AIR 2006 SC 2825 = (2006) 6 SCC 728 – G. P. Mathur, Dalveer Bhandari – JJ.

7. Nirmaljit Singh Hoon v. State of West Bengal - (1973) 3 SCC 753 = AIR 1972 SC 2639 - 3 Judges – J. M. Shelat, I. D. Dua, H. R. Khanna – JJ (H.R. Khanna – J, para 31 onwards concurring in one case and dissenting in another case).

(Para 22 (Majority) –

“Under S.190 of the Code of Criminal Procedure, a magistrate can take cognizance of an offence, either on receiving a complain or on a police report or on information otherwise received. Where a complaint is presented before him, he can under S.200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses.” (Vide para 22)

Para 35 justice H. R. Khanna relies on R. R. Chari (Supra – 1951 SC 207) and Jamuna Singh (Supra – AIR 1964 SC 1541) for the purpose of explaining what is taking cognizance of an offence on a “complaint”.

Para 51 (Justice H. R. Khanna holds that sufficient ground for proceeding is a common ground for inquiry under Section 202, dismissal under Section 203 and issue of process under Section 204 Cr.P.C.;

8. Devarapalli Lakshminarayana Reddy and Others v. Narayana Reddy - AIR 1976 SC 1672 (3 Judges – R. S. Sarkaria, P. N. Shinghal, Jaswant Singh - JJ ) – Para 14;

“14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of S.190 ? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of S.190 and the caption of Chapter XIV under which S.190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of S.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 instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under S.200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of S.190 (1) (a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under S.156(3), he cannot be said to have taken cognizance of any offence.

15. This position of law has been explained in several cases by this Court, the latest being Nirmaljit Singh Hoon v. State of West Bengal, 1973 (3) SCC 753 : ( AIR 1972 SC 2639 ).”

(Vide paras 14 and 15)

9. Tulu Ram v. Kishore Singh AIR 1977 SC 2401 = 1978 CriLJ 8 = 1977 KHC 215 (SC) – Fasal Ali, Kailasam – JJ - Para 13.

R.R. Chari (Supra – AIR 1951 SC 207); Narayandas Bhagwandas (Supra – AIR 1959 SC 1118); Gopal Das Sindhi (Supra _AIR 1961 SC 986); Jamuna Singh (Supra - AIR 1964 SC 1541); Devarapalli Lakshminarayana Reddy (Supra – AIR 1976 SC 1672) etc. relied on.

“It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chap.16 of the Code of Criminal Procedure, he must be held to have taken cognizance of the offence mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under S.156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence.”

(Vide para 13)

10. Kishun Singh v. State of Bihar (1993) 2 SCC 16 = 1993 Cri.L.J. 1700 - A. M. Ahmadi, N. P. Singh – JJ – Para 7 – Also held that mere application of mind does not amount to taking cognizance of the offence unless the Magistrate does so for proceeding under Section 200 Cr.P.C).

“In order to appreciate the contention urged before us, it is necessary to notice a few provisions. S.190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of an allegation disclosing commission of a crime with a view to setting the law in motion to bring the offender to book. Under this provision cognizance can be taken in three ways enumerated in clauses (a), (b) & (c) of the offence alleged to have been committed. The object is to ensure the safety of a citizen against the vagaries of the police by giving him the right to approach the Magistrate directly if the police does not take action or he has reason to believe that no such action will be taken by the police. Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the magistrate does so for proceeding under S.200/204 of the Code /See Jamuna Singh and Others v. Bhadai Sah, 1964 (5) SCR 37 at 40-41.” (Vide para 7)

11. Bhagat Ram v. Surinder Kumar (2004) 11 SCC 622 = 2004 KHC 1869 – 3 Judges – S. Rajendra Babu, B. N. Agrawal, G. P. Mathur – JJ.

“As to when cognizance of an offence is taken will depend upon the facts and circumstances of each case and it is not possible to state the same with precision. Obviously, it is only when the Magistrate applies his mind for the purpose of proceeding under S.200 CrPC and subsequent sections that it can positively be stated that he has taken cognizance. To derive this inference we rely upon the decision in Narayandas Bhagwandas Madhavdas v. State of W.B. ( AIR 1959 SC 1118 : 1959 CriLJ 1368 ) and Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy ( 1976 (3) SCC 252 : 1976 SCC (Cri) 380 : AIR 1976 SC 1672)”. (Vide para 4)

12. CREF Finance Ltd V. Shree Shanti Homes (P) Ltd- (2005) 7 SCC 467 – B. P. Singh, S. H. Kapadia – JJ - Para 10.

“Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the court may consider it appropriate to send the complaint to the police for investigation under S.156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority, etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry.” (Vide para 10)

13. Mohd. Yousuf v. Afaq Jahan (Smt.) and Another, AIR 2006 SC 705 = (2006) 1 SCC 627 = 2006 KHC 67 - Arijit Pasayat, S. H. Kapadia - JJ.

“A Magistrate need not order any investigation under Chapter XII of the Code if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chap.15 of the Code. A reading of S.202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in S.202(1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding". (Vide para 9)

10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.” (Vide para 10)

14. State of Karnataka V. Pastor P. Raju AIR 2006 SC 2825 = (2006) 6 SCC 728) – G. P. Mathur, Dalveer Bhandari – JJ – Para 9 – R. R. Chari (Supra – 1951 SC 207) relied on. Also held that the issue of process is at a subsequent stage after taking cognizance of the offence.

Para 10 – Also held that an order remanding an accused to Judicial custody does not amount to taking cognizance of an offence.

“9. Several provisions in Chap.XIV of the Code of Criminal Procedure use the word "cognizance". The very first Section in the said Chapter, viz., S.190 lays down how cognizance of offences will be taken by a Magistrate. However, the word "cognizance" has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word "cognizance" is - 'judicial hearing of a matter'. The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earliest decision of this Court on the point is R. R. Chari v. State of U.P. (AIR 1951 SC 207), wherein it was 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 offence."

In Darshan Singh Ram Kishan v. State of Maharashtra ( AIR 1971 SC 2372 ), while considering S.190 of the Code of 1908, it was observed that "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 offence. Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer." In Narayandas Bhagwandas Madhavdas v. The State of West Bengal ( AIR 1959 SC 1118 ) it was held that before it can be said that any Magistrate has taken cognizance of any offence under S.190(1)(a) Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter - proceeding under S.200 and thereafter sending it for inquiry and report under S.202. It was observed that there is no special charm or any magical formula in the expression "taking cognizance" which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. It was also observed that what S.190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. The Court then referred to the three situations enumerated in sub-s.(1) of S.190 upon which a Magistrate could take cognizance. Similar view was expressed in Kishun Singh and Others v. State of Bihar (1993 (2) SCC 16) that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence, decides to initiate judicial proceedings against the alleged offender, he is said to have taken cognizance of the offence. In State of West Bengal v. Mohd. Khalid and Others ( 1995 (1) SCC 684 ) the Court after taking note of the fact that the expression had not been defined in the Code held:-

" ......... In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence and taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."

It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out.” (Vide para 9)

15. Dilawar Singh v. State of Delhi AIR 2007 SC 3234 – Arijit Pasayat, D. K. Jain – JJ – Paras 19 to 21.

R.R. Chari (Supra – AIR 1951 SC 207), Narayandas Bhagwandas (Supra – AIR 1959 SC 1118), Gopal Das Sindhi (Supra – AIR 1961 SC 986) etc. relied on.

The observation made by Justice K. C. Das Gupta in AIR 1950 Cal. 437 as extracted in R. R. Chari (Supra – AIR 1951 SC 207) reproduced in paragraph 20.

16. S.K. Sinha, Chief Enforcement Officer v. Video Con International Limited - AIR 2008 SC 1213 = (2008) 2 SCC 492 – C. K. Thakker, P. P. Naolekar – JJ - Paras 12 and 13;

“12. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means become aware of' and when used with reference to a Court or a Judge, it connotes' to take notice of judicially. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. '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. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. Chapter XIV (Sections 190-199) of the Code deals with 'Conditions requisite for initiation of proceedings. S.190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) thereof is material and may be quoted in extenso. 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. (Vide para 12.)

17. Fakhruddin Ahmad v. State of Uttaranchal (2008) 17 SCC 157 = 2008 Cri.L.J. 4377 SC – C. K. Thakker, D. K. Jain – JJ – Paras 14 and 15;

“Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action.

15. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender.” (Vide paras 14 and 15)

18. Mona Panwar v. Hon'ble High Court of Judicature at Allahabad through its Registrar (2011) 3 SCC 496 = 2011 Cri. L. J. 1619 = 2011 KHC 4098 - J. M. Panchal, H. L. Gokhale – JJ – Para 9;

“The phrase 'taking cognizance of' means cognizance of offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence under S.190(1)(b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under S.200 and the provisions following that Section. However, when the Magistrate had applied his mind only for ordering an investigation under S.156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence. Taking cognizance is a different thing from initiation of the proceedings. One of the objects of examination of complainant and his witnesses as mentioned in S.200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further.” (Vide para 9)

19. Subramanian Swamy v. Manmohan Singh and Another (2012) 3 SCC 64 – G. S. Singhvi, A. K. Ganguly - J – Paras 22 and 42;

“(As per Justice G. S. Singhvi) In Pastor P. Raju's case, this Court referred to the provisions of Chapter XIV and S.190 and S.196 (1A) of the CrPC and observed:

"There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by S.173 CrPC. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of S.196(1A) CrPC and no illegality of any kind would be committed."

The Court then referred to some of the precedents including the judgment in Mohd. Khalid's case and observed:

"It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the Court decides to proceed against the offenders against whom a prima facie case is made out." (Vide para 22)

“(As per Justice A. K. Ganguly) The other contention of the learned Attorney General is that in taking cognizance under the PC Act the Court is guided by the provisions under S.190 of the Code and in support of that contention the learned Attorney General relied on several judgments. However, the aforesaid submissions were made without noticing the judgment of this Court in the case of Dilawar Singh v. Parvinder Singh alias Iqbal Singh and Another, 2005 KHC 2100 : 2005 (12) SCC 709 : 2005 (4) KLT 1029 : AIR 2006 SC 389 : 2006 CriLJ 145 : 2005 AIR SCW 6021 : 2005 (4) CRIMES 222 : 2006 SCC (Cri) 727 : 2005 (7) Supreme 524. Dealing with S.19 of P.C. Act and S.190 of the Code, this Court held in paragraph 8 at page 713 of the report as follows:

"......The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See - Godde Venkateswara Rao v. Govt. of A.P., State of Bihar v. Dr. Yogendra Singh and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth.) Therefore, the provisions of S.19 of the Act will have an overriding effect over the general provisions contained in S.190......" (Vide para 42)

20. Sarah Mathew v. Institute of Cardiovascular Diseases (2014) 2 SCC 62 = AIR 2014 SC 448 – 5 Judges – P. Sathasivam – CJ, B. S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S. A. Bobde – JJ – Paras 23 to 25 - R. R. Chari (Supra – AIR 1951 SC 207); Jamuna Singh (Supra – AIR 1964 SC 1541); Gopal Das Sindhi (Supra – AIR 1961 SC 986); S. K. Sinha (Supra – AIR 2008 SC 1213) approved;

“23. In Jamuna Singh and Others v. Bhadai Shah, 1964 KHC 376 : AIR 1964 SC 1541 : 1964 (1) KLR 194 : 1964 (5) SCR 37 : 1964 (2) CriLJ 468, relying on R. R. Chari and Gopal Das Sindhi and Others v. State of Assam and Another, 1961 KHC 606 : AIR 1961 SC 986 : 1961 (2) CriLJ 39, this Court held that it is well settled that when on a petition or complaint being filed before him, a Magistrate applies his mind for proceeding under the various provisions of Chapter 16 of the CrPC, he must be held to have taken cognizance of the offences mentioned in the complaint.

24. After referring to the provisions of the CrPC quoted by us hereinabove, in S. K. Sinha, Chief Enforcement Officer, this Court explained what is meant by the term 'taking cognizance'. The relevant observations of this Court could be quoted:

"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a Court or a Judge, it connotes "to take notice of judicially". It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

20. "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. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."

In several judgments, this view has been reiterated. It is not necessary to refer to all of them.

25. Thus, a Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term 'cognizance' and it has to be given the same meaning wherever it appears in Chapter 36. It bears repetition to state that taking cognizance is entirely an act of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's personal reasons.” (Vide paras 23 to 25)

21. Sunil Bharati Mittal v. CBI (2015) 4 SCC 609 = AIR 2015 SC 923 – 3 Judges – H. L. Dattu – CJ, Madan B. Lokur, A. K. Sikri – JJ – Paras 41 and 42;

“Under S.190 of the Code, any Magistrate of first class (and in those cases where Magistrate of the second class is specially empowered to do so) may take cognizance of any offence under the following three eventualities:

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts; and

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

42. This Section which is the starting section of Chapter XIV is subject to the provisions of the said Chapter. The expression "taking cognizance" has not been defined in the Code. However, when the Magistrate applies his mind for proceeding under S.200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in S. K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. & Others, 2008 KHC 4247 : 2008 (2) SCC 492 : 2008 (1) KLD 363 : 2008 (2) SCALE 23 : AIR 2008 SC 1213 : 2008 (2) KLT SN 78 : 2008 CriLJ 1636 : 2008 (1) SCC (Cri) 471 : 2008 (64) AIC 150 : 2008 (1) Guj LH 479 in the following words:

"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of: and when used with reference to a Court or a Judge, it connoted "to take notice of judicially". It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

20. "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...."

Sine Qua Non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not. “ (Vide paras 41 and 42)

22. Balveer Singh v. State of Rajasthan AIR 2016 SC 2266 = (2016) 6 SCC 680 – A. K. Sikri, R. K. Agrawal – JJ – Para 8;

“8. S.190 and S.193 of the Code are in Chapter XIV. This Chapter contains the title "Conditions requisite for initiation of proceedings". S.190 deals with cognizance of offence by Magistrates. It empowers any Magistrate of the First Class, and any Magistrate of the Second Class which are specially empowered to take cognizance "of any offence" under three circumstances mentioned therein. These three circumstances include taking of cognizance upon a Police report of such facts which may constitute an offence. It is trite law that even when Police report is filed stating that no offence is made out, the Magistrate can ignore the conclusion arrived at by the Investigating Officer and is competent to apply its independent mind to the facts emerging from the investigation and take cognizance of the case if it thinks that the facts emerging from the investigation do lead to prima facie view that commission of an offence is made out. In such a situation, the Magistrate is not bound to follow the procedure laid down in S.200 and S.202 of the Code for taking cognizance of the case under S.190(1)(a) though it is open for him to act under S.200 or S.202 as well (See Minu Kumari and Another v. State of Bihar and Others, 2006 KHC 584 : 2006 (4) SCC 359 : ILR 2006 (2) Ker. 479 : 2006 (2) KLT 588 : AIR 2006 SC 1937 : JT 2006 (4) SC 569 : 2006 (2) SCC (Cri) 310 : 2006 CriLJ 2468 : 2006 (3) Guj LR 2013). Thus, when a complaint is received by the Magistrate under S.190(1)(a) of the Act, the Magistrate is empowered to resort to procedure laid down in S.200 or 202 of the Code and then take cognizance. If Police report is filed, he would take cognizance upon such a report, as provided under S.190(1)(b) of the Code in the manner mentioned above as highlighted in the case of Minu Kumari.” (Vide para 8)

23. Birla Corporation Ltd. v. Adventz Investments and Holdings Ltd. AIR 2019 SC 2390 = 2019 Cri. L. J. 3196 = 2019 KHC 6559 (SC) – R. Banumathi, R. Subhash Reddy – JJ – Paras 26 and 27.

“Under S.200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under S.204 Cr.P.C. The purpose of the enquiry under S.202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused. (Vide para 26)

COMPARATIVE TABLE SHOWING SECTIONS 200 Cr.P.C.

AND 223 BNSS

12. A comparative table showing Section 200 Cr.P.C. and the corresponding Section 223 BNSS is given below –

(The highlighted portions are new)

“TAKING COGNIZANCE OF AN OFFENCE” PRECEDES “INITIATION OF PROCEEDINGS”

13. “Taking cognizance of an offence” by a Magistrate is the “condition precedent” to the “Initiation of proceedings” under Chapter XIV Cr.P.C. (Chapter XV BNSS). (Vide Gopal v. Emperor AIR 1913 Patna 245 = 45 Cri. L. J. 177 (Approved in para 8 of R. R. Chari (Supra – AIR 1951 SC 207); Para 41 of State of W. B. v. Mohd. Khalid AIR 1995 SC 785 = (1995) 1 SCC 684 – S. Mohan, M. K. Mukherjee – JJ; Bhushan Kumar v. State (NCT of Delhi) AIR 2012 SC 1747 = (2012) 5 SCC 424 – P. Sathasivam, J. Chelameswar - JJ).

In other words, “initiation of proceedings” is after the curial process of “taking cognizance of an offence”.

“Taking cognizance of an offence” under Section 210 BNSS (S.190 Cr.P.C.) and “issuing process” under Section 227 BNSS (S.204 Cr.P.C.) are different and distinct. (Vide para 43 of Sunil Bharti Mittal v. CBI AIR 2015 SC 923 = (2015) 4 SCC 609 - 3 Judges - H. L. Dattu, CJI, Madan B. Lokur; A. K. Sikri – JJ; Para 14 of Vikas Chandra v. State of U. P 2024 SCC OnLine SC 1534 = 2024 KHC 6252 – C. T. Ravikumar, Rajesh Bindal – JJ).

EXAMINATION OF THE COMPLAINANT ON OATH IS AFTER “TAKING COGNIZANCE OF THE OFFENCE” AND THE OBJECT OF SUCH EXAMINATION

14. The proposition of law that “taking cognizance of an offence precedes initiation of proceedings” means that when a “complaint” is presented before a Magistrate, he first “takes cognizance of the offence”, if any, made out in the complaint. Examination of the complainant and his witnesses is made only thereafter. In para 7 of Gopal Dass Sindhi v. State of Assam AIR 1961 SC 986 = 1961 (2) Cri.L.J. 39 = 1961 KHC 606 (SC) – 3 Judges – S. J. Imam, K. Subba Rao, Raghubar Dayal – JJ, after examining the provisions of Chapter XVI of the 1898 Code (corresponding to Chapter XV of the 1973 Code which, in turn, is corresponding to Chapter XVI of BNSS), it is observed as follows –

“It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because S. 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint.”

(Vide para 7)

(Emphasis supplied by me)

In other words, the examination of the complainant and his witnesses under Section 200 Cr.P.C is conducted at the post-cognizance stage. The object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided, therefore, to find out whether there is or not “sufficient ground for proceeding”. (Vide para 22 of Nirmaljit Singh Hoon v. The State of W. B. AIR 1972 SC 2639 = (1973) 3 SCC 753 – 3 Judges - J. M. Shelat, I. D. Dua, H. R. Khanna – JJ; Para 9 of National Small Industries Corpn. Ltd. v. State (NCT of Delhi) AIR 2009 SC 1284 = (2009) 1 SCC 407 – R. V. Raveendran, Dalveer Bhandari – JJ.)

WHETHER THE ADDITION OF THE WORD “WHILE” IN SECTION 223 (1) OF BNSS, MAKES ANY DIFFERENCE

15. As against the words – “A Magistrate taking cognizance of an offence on complaint” occurring in Section 200 Cr.P.C., what we find in Section 223 (1) of BNSS are the words “A Magistrate having jurisdiction “while” taking cognizance of an offence on complaint”.

The words “having jurisdiction”, as already observed earlier, were indeed a welcome insertion since Trisuns Chemical Industry (Supra – AIR 1999 SC 3499) had given an impractical interpretation to the effect that any Magistrate wherever he is, can take cognizance of an offence. So, the framers of BNSS rightly clarified the position by adding the words “having jurisdiction” in the Section to show that a jurisdictional Magistrate alone can take cognizance of an offence. But the addition of the word “while” in Section 223 (1) of BNSS is an unnecessary surplusage which is even capable of creating some confusion in the age-old concept of “taking cognizance of an offence”. By inserting the above seemingly innocuous word, I do not think that any conscious effort has been made to deviate from the well-known concept of “taking cognizance of an offence” as judicially settled through a catena of verdicts rendered by the great Judges of yesteryears. By adding the word “while”, the framers of BNSS have, perhaps unintentionally injected some confusion since it has already been seen in paragraph 14 above that the examination of the complainant and his witnesses on oath, is a step resorted to by the Magistrate after taking cognizance of the offence. At any rate, it is not discernible from the scheme of BNSS that the framers of the Sanhita wanted a deviation of the well-settled concept that the curial process of “taking cognizance of an offence” takes place prior to the “initiation of proceedings” which is marked by the examination of the complainant and his witnesses on oath. The fact that in the case of a written complaint by a “Public Servant” acting in discharge of his official duties and in the case of a written complaint by a “Court”, after taking cognizance of the offence, the BNSS also (as in the case of Cr.P.C.) dispenses with the examination of the complainant and his witnesses, shows that this examination is not part of the process of taking cognizance of the offence. The word “while” has thus crept into the Section as an offspring of a semantic misconception and not for the purpose of any conscious deviation from the age-old concept of taking cognizance of an offence. From the presence of the word “while” in the Section one may be mislead into believing that examination of the complainant is part of the process of taking cognizance of the offence.

POWER TO TAKE COGNIZANCE ALSO INCLUDES POWER TO SUMMON THE OFFENDER

16. The power of a Court of original jurisdiction to take cognizance of an offence, also includes the “power to summon the person” whose complicity in the commission of the crime can, prima facie, be gathered from the materials available on record. (Vide para 16 of Kishun Singh v. State of Bihar (1993) 2 SCC 16 = 1993 Cri. L. J. 1700 = 1993 KHC 1192 (SC) – A. M. Ahmadi, N. P. Singh – JJ; Para 31 of Dharam Pal v. State of Haryana AIR 2013 SC 3018 = (2014) 3 SCC 306 – 5 Judges – Altamas Kabir CJI, S. S. Nijjar, Ranjan Gogoi, M. Y. Iqbal, Vikramajit Sen – JJ; SWIL Ltd. v. State of Delhi AIR 2001 SC 2747 = (2001) 6 SCC 670 – M. B. Shah, S. N. Phukan – JJ).

Dr. Mrs. Nupur Talwar v. CBI (2012) 2 SCC 188 = 2012 KHC 4010 (SC) – A. K. Ganguly, J. S. Khehar – JJ, the Bench observed as follows –

“At the stage of taking of cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record.” (Vide para 21)

See also S.K. Sinha, Chief Enforcement Officer v. Video Con International Limited - AIR 2008 SC 1213 = (2008) 2 SCC 492 – C. K. Thakker, P. P. Naolekar – JJ, referred to in para 22.”

Thus, even at the time of taking cognizance of the offence the Court has the power to issue process if adequate reasons are made out for issuing process. It is only in cases where, after taking cognizance of the offence, the Court entertains a doubt whether there is “sufficient ground for proceeding”, will the Court conduct an “inquiry” under Section 225 BNSS (S.202 Cr.P.C.) and such inquiry is also for the limited purpose of finding out whether there is “sufficient ground for proceeding”.

ONCE COGNIZANCE OF THE OFFENCE IS TAKEN, IT BECOMES THE COURT'S DUTY TO FIND OUT THE OFFENDER

17. The reason for stating that the power of the Court “taking cognizance of an offence” includes the power to issue process (summons) is because, once, cognizance of an offence is taken by the Court, it becomes the Court's duty to find out who the offenders are. (Vide para 9 of Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 = 1967 Cri. L. J. 1081 = 1967 KHC 644 (SC) – 3 Judges – M. Hidayathullah, S. M. Sikri, C. A. Vaidialingam – JJ; Para 4 of Hareram Satpathy v. Tikaram Agarwala AIR 1978 SC 1568 = (1978) 4 SCC 58 = 1978 KHC 606 – Jaswant Singh, P. S. Kailasam – JJ; Para 16 of Kishun Singh (supra – (1993) 2 SCC 16).

MAGISTRATE NEED NOT GIVE REASONS FOR ISSUING PROCESS

18. Upon taking cognizance of the offence, the Magistrate is not bound to give reasons for issuing process. (Vide para 9 of Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal AIR 2003 SC 1900 = (2003) 4 SCC 139 – S. Rajendra Babu, G. P. Mathur – JJ; Para 10 of Jagdish Ram v. State of Rajasthan AIR 2004 SC 1734 = (2004) 4 SCC 432 – Y. K. Sabharwal, Arijit Pasayat – JJ).

SUMMONING THE CULPRIT, IF NECESSARY, MAY BE EITHER SIMULTANEOUS OR DEFERRED

19. At the time of “taking cognizance of an offence” itself, if the Magistrate is of opinion that there is “sufficient ground for proceeding” against the offender, the Magistrate may simultaneously issue process/summons to the offender. This is because the Magistrate in such a case will be reasonably sure that he is issuing summons against the right person against whom the allegation of the offence has been clearly made out. In a case where the Magistrate after taking cognizance of the offence issues process to the accused, as already stated, he need not record the reasons as to whether there is sufficient ground for proceeding. (Vide para 9 of Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal AIR 2003 SC 1900 = (2003) 4 SCC 139 – S. Rajendra Babu, G. P. Mathur – JJ). But, where, after taking cognizance of the offence, the Magistrate is of the opinion that there is “no sufficient ground for proceeding” against the person shown as the accused, the Magistrate is not bound to simultaneously issue process against him. The Magistrate in such a contingency in a case instituted on a “police report”, will not issue process under Section 227 BNSS (S.204 Cr.P.C) without considering the FIR, the statements recorded by the Police Officer under Section 161 (3) Cr.P.C. and such other documents forwarded along with the charge-sheet. (Vide para 6 SWIL Ltd. v. State of Delhi (2001) 6 SCC 670 = 2001 KHC 1008 – M. B. Shah, S. N. Phukan – JJ. ). Where such a contingency arises in a “private complaint”, the Magistrate, however, has the discretion to postpone the issue of process and either to examine the complainant and his witnesses or to conduct an “inquiry” under Section 225 BNSS (S.202 Cr.P.C).

PURPOSE OF “INQUIRY” UNDER SECTION 225 BNSS

(S.202 Cr.P.C.)

(The provisions in the BNSS corresponding to Sections 200 to 204 Cr.P.C. are Sections 223 to 227 BNSS.)

20. The purpose of an inquiry under Section 225 BNSS (S.202 Cr.P.C.) is for finding out whether there is sufficient ground for proceeding further. In Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar AIR 1960 SC 1113 = 1960 CriLJ 1499 = 1960 KHC 730 (SC) – 3 Judges - S. K. Das, J. L. Kapur, M. Hidayatullah – JJ, the Apex Court observed as follows –

“The general scheme of the aforesaid Sections (Ss.200 to 204 Cr.P.C.) is quite clear. S.200 says, inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. S.202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. (Vide para 9)

(Emphasis supplied by me)

In S.K. Sinha, Chief Enforcement Officer v. Video Con International Limited - AIR 2008 SC 1213 = (2008) 2 SCC 492 – C. K. Thakker, P. P. Naolekar – JJ, it was observed as follows –

13. Chapter XV (Sections 200-203) relates to 'Complaints to Magistrates' and covers cases before actual commencement of proceedings in a Court or before a Magistrate. S.200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. S.202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry under S.202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under S.202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused.” (Vide para 13)

In Birla Corporation Ltd. v. Adventz Investments and Holdings Ltd. AIR 2019 SC 2390 = 2019 Cri. L. J. 3196 = 2019 KHC 6559 (SC) – R. Banumathi, R. Subhash Reddy – JJ, it was observed thus –

“The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under S.204 Cr.P.C. or whether the complaint should be dismissed by resorting to S.203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under S.202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused.” (Vide para 27)

In Venugopalan v. Prakasan 1985 KLT 615 = 1985 KHC 137 – S. Padmanabhan - J, it was held that during the inquiry under Section 202 Cr.P.C. the Magistrate does not have the authority to conduct an “identification parade” falling under Section 9 of the Evidence Act.

In State of West Bengal v. Mohammed Khalid AIR 1995 SC 785 = (1995) 1 SCC 684 = 1995 KHC 766 – S. Mohan, M.K. Mukherjee – JJ, it was held that the Court need not undertake an elaborate inquiry by sifting and weighing the material and that all that the Court has to consider is whether the evidentiary material on record, if generally accepted would reasonably connect the accused with the crime. The standard of test which is to be finally applied before finding the accused guilty or otherwise, is not the test to be applied at this stage.

THE SCOPE OF “INVESTIGATION” UNDER SECTION 175 (3) BNSS (S.156 (3) Cr.P.C.) AND Section 225 (1) BNSS (S.202 (1) Cr.P.C.)

21. While the “investigation” under Section 175 (3) BNSS (S.156 (3) Cr.P.C.) is at the pre-cognizance stage, the “investigation” under Section 225 (1) BNSS (S.202 (1) Cr.P.C.) is at the “post cognizance stage”. Again the “investigation” under Section 175 (3) BNSS (S.156 (3) Cr.P.C.) is a full fledged investigation culminating in a final report under Section 193 BNSS (S.173 Cr.P.C.). But, the “investigation” under Section 225 (1) BNSS (S.202 (1) Cr.P.C.) is of a limited nature the purpose of which is only to aid the Magistrate to form the opinion as to whether there is “sufficient ground for proceeding”. This latter investigation will not and should not culminate in a “police report” under Section 193 BNSS (S. 173 Cr.P.C.).

In Devarapalli Lakshminarayana Reddy and Others v. Narayana Reddy - AIR 1976 SC 1672 (3 Judges – R. S. Sarkaria, P. N. Shinghal, Jaswant Singh - JJ ), it was held as follows –

16. The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction to send a complaint disclosing a cognizable offence - whether or not triable exclusively by the Court of Session - to the Police for investigation under S.156 (3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under S.156 (3) and the one directed under S.202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to S.202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation.

17. S.156 (3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while S.202 is in Chapter XV which bears the heading "Of complaints to Magistrate". The power to order police investigation under S.156(3) is different from the power to direct investigation conferred by S.202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage, the second at the post-cognizance stage when the magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under S.156(3) can be invoked by the Magistrate before he takes cognizance of the offence under S.190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of S.156(3). It may be noted further that an order made under sub-section (3) of S.156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under S.156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under S.156 and ends with a report or charge-sheet under S.173. On the other hand, S.202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under S.202 to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding." Thus the object of an investigation under S.202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.” (Vide paras 16 and 17)

In Bhagat Ram v. Surinder Kumar (2004) 11 SCC 622 = 2004 KHC 1869 – 3 Judges – S. Rajendra Babu, B. N. Agrawal, G. P. Mathur – JJ, the Bench observed thus –

“Chap.12 of the Code contains provisions relating to "information to the police and their powers to investigate", whereas Chap.15, which contains S.202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of any offence on a complaint. Provisions of the above two chapters deal with two different facets altogether though there could be a common factor i.e., complaint filed by a person. S.156, falling within Chap.12, deals with powers of the police officers to investigate cognizable offences. True, S.202 which falls under Chap.15, also refers to the power of a Magistrate to "direct an investigation by a police officer". But the investigation envisaged in S.202 is different from the investigation contemplated in S.156 of the Code. S.156 of the Code reads thus:

"156. Police officer's power to investigate cognizable cases.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chap.13.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.

(3) Any Magistrate empowered under S.190 may order such an investigation as above mentioned".

8. The investigation referred to therein, is the same investigation and the various steps to be adopted for it have been elaborated in Chap.12 of the Code. Such investigation would start with making the entry in a book to be kept by the officer-in-charge of a police station, of the substance of the information relating to the commission of a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in S.173 of the Code. The investigation contemplated in that Chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation under S.156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in S.173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chap.12 he does so before he takes cognizance of the offence.” (Vide paras 7 and 8)

In Mohd. Yousuf v. Afaq Jahan (Smt.) and Another, AIR 2006 SC 705 = (2006) 1 SCC 627 = 2006 KHC 67 - Arijit Pasayat, S. H. Kapadia – JJ, what was held was as follows –

“ A reading of S.202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in S.202(1) i.e. "or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding". (Vide para 9)

10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.” (Vide para 10)

THE CONSEQUENCE OF “INQUIRY” UNDER SECTION 225 BNSS (S.202 Cr.P.C.)

22. After the “inquiry” under Section 225 BNSS (S.202 Cr.P.C.) if the Magistrate is of opinion that there is “sufficient ground for proceeding”, he may issue process under Section 227 BNSS (S.204 Cr.P.C). If after such “inquiry” the Magistrate is of opinion that there is “no sufficient ground for proceeding”, he has to dismiss the “complaint” under Section 226 BNSS (S.203 Cr.P.C). Thus, what is to be borne in mind is that the “inquiry” under Section 225 BNSS (S. 202 Cr.P.C) has nothing to do with the curial act of “taking cognizance of the offence”. This “inquiry” conducted at the post-cognizance stage is only to aid the Magistrate to decide “whether there is sufficient ground to proceed further in the matter”.

The phrase “sufficient ground for proceeding” is a common parameter to be found in Sections 202, 203 and 204 of Cr.P.C. (corresponding to Sections 225, 226 and 227 BNSS). (Vide Justice H. R. Khanna at para 51 of Nirmaljit Singh Hoon v. State of W. B. AIR 1972 SC 2639 - 3 Judges – J. M. Shelat, I. D. Dua, H. R. Khanna – JJ.)

WHETHER ANY OPTION IS AVAILABLE TO THE MAGISTRATE TO DISMISS THE COMPLAINT AND REFUSE TO ISSUE PROCESS IF THE RESULT OF INQUIRY REVEALS A “COMPLETE DEFENCE” TO THE ACCUSED

23. In Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar AIR 1960 SC 1113 = 1960 Cri.L.J. 1499 – 3 Judges – S. K. Das, J. L. Kapur, M. Hidayatullah – JJ, the question was whether the Magistrate, after inquiry under Section 202 (1) Cr.P.C., was justified in holding that there was no “sufficient ground for proceeding”, if the result of such inquiry revealed a “complete defence” available to the accused who was complained against. The above question was answered in the affirmative by the 3 Judges Bench which, inter alia, observed as follows –

“6. The short question before us is - Was the High Court right in its view that when a Magistrate directs an enquiry under S.202 Cr. P. C., for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officer supporting a plea of self defence made by the person complained against, it is not open to him to hold that the plea is correct on the basis of the report and the statements of witnesses recorded by the enquiring officer? Must he, as a matter of law, issue process in such a case and leave the person complained against to establish his plea of self defence at the trial? It may be pointed out here that the High Court itself recognized that it would not be correct to lay down a proposition in absolute terms that whenever a defence under any of the exceptions in the Indian Penal Code is pleaded by the persons complained against, the Magistrate would not be justified in dismissing the complaint and must issue process. Said the High Court.

"As we have already observed, if there is a complaint, which itself discloses a complete defence under any of the exceptions, it might be a case where a Magistrate would be justified in dismissing such a complaint finding that there was no sufficient ground to proceed with the case."

7. We are of the view that the High Court was in error in holding in this case that as a matter of law, it was not open to the learned Presidency Magistrate to come to the conclusion that on the materials before him no offence had been made out and there was no sufficient ground for proceeding further on the complaint.

9. The general scheme of the aforesaid sections is quite clear. S.200 says, inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. S.202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trail. S.203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. S.204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process.

10. Now, in the case before us it is not contended that the learned Presidency Magistrate failed to consider the materials which he had to consider, before passing his order under S.203, Criminal Procedure Code. As a matter of fact the learned Magistrate fully, fairly and impartially considered these materials. What is contended on behalf of the respondent - complainant is that as a matter of law it was not open to the learned Magistrate to accept the plea of right of self defence at a stage when all that he had to determine was whether a process should issue or not against the appellant. We are unable to accept this contention as correct. It is manifestly clear from the provisions of S.203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. The section itself makes that clear, and it is not necessary to refer to authorities in support thereof. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an enquiry under S.202 and has applied his mind judicially to the materials before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other witnesses -- all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions.

(Paras 11 and 12 dealt with the case law cited before the Bench)

13. Our attention has also been drawn to a decision of the Lahore High Court where the facts were somewhat similar: Gulab Khan v. Gulam Muhammad, AIR 1927 Lah. 30 . In that case also the person complained against took the plea of self defence, which was accepted. In the High Court an objection was taken to the procedure adopted and it was argued that the order of discharge should be set aside. In dealing with that argument Broadway, J. said:

"Now a Magistrate is empowered to hold an enquiry into a complaint of an offence in order to ascertain whether there is sufficient foundation for it to issue process against the person or persons complained against. In the present case the Magistrate clearly acted in the exercise of these powers under S.202, Criminal Procedure Code. He allowed the complainant to produce such evidence in support of his complaint as he wished to produce, and after a consideration of that evidence came to the conclusion that that evidence was so wholly worthy of credence as to warrant his taking no further action in the matter".

14. Therefore, none of the aforesaid decisions lay down as an absolute proposition that a plea of self defence can in no event be considered by the Magistrate in dealing with a complaint under the provisions of S.200, 202 and 203, Criminal Procedure Code.

15. On the facts, there is very little to be said. Learned counsel for the State of Bombay supported the order of the learned Magistrate and pointed out that even on the narrow view taken by the High Court, a view to which he did not, however, subscribe, the learned Magistrate rightly held that there was no sufficient ground for proceeding; because the earlier version of some of the witnesses for the complainant itself showed that there was a riotous mob on the road which attacked cars, burnt a public bus, pelted stones etc, which was quite inconsistent with their later version that Sitaram and his companions were quietly crossing the road and a shot was fired from a passing or moving car. There was overwhelming material to show that K. K. Shah's car was surrounded by the mob and some of the rioters tried to drag out and attack the appellant K. K. Shah was one of the witnesses mentioned by the complainant and so also two of the Inspectors of Police. Their evidence clearly supported, the plea of the appellant and in any case, showed that the witnesses examined on behalf of the respondent were totally unworthy of credence as to the circumstances in which the shots were fired. We cannot therefore say that the learned Magistrate was wrong in his judgment that there was no sufficient ground for proceeding further on the complaint.” (Vide paras 6,7,9,10,13 to 15)

THE DIFFERENCE IN THE MODE OF TAKING COGNIZANCE OF AN OFFENCE IN A CASE WHERE THE COMPLAINANT IS A “PUBLIC SERVANT”

24. If the person making a “complaint” in writing before the Magistrate is a “Public Servant”, the Magistrate need not examine the “Public Servant” provided the Public Servant was acting or purporting to act in the discharge of his official duties. (Vide clause (a) of the “First Proviso” to Section 223 (1) BNSS (S.200 Cr.P.C.) In National Small Industries Corporation Ltd. v. State (NCT of Delhi) AIR 2009 SC 1284 = (2009) 1 SCC 407 = 2008 KHC 6997 (SC) – R. V. Raveendran, Dalveer Bandari – JJ, it was observed as follows –

“Where the complainant is a public servant or Court, clause (a) of proviso to S.200 of the Code raises an implied statutory presumption that the complaint has been made responsibly and bona fide and not falsely or vexatiously. On account of such implied presumption, where the complainant is a public servant, the statute exempts examination of the complainant and the witnesses, before issuing process.” (Vide para 9)

If an “Executive Magistrate” while conducting an “inquiry” under Section 156 BNSS (S.137 Cr.P.C.), is assaulted by one of the contestants, he can prefer a written “complaint” before the Judicial Magistrate concerned and on receipt of such complaint, the Magistrate need not examine on oath the complainant/Executive Magistrate under Section 223 (1) BNSS (S.200 Cr.P.C.). Since it is a “complaint” preferred by the Executive Magistrate, a “Public Servant”, in the discharge of his official duties, he is exempted from examination on oath. After straightaway “taking cognizance of the offence” and without examining the “Public Servant” on oath, the Magistrate can issue process to the accused. But, if the Magistrate, after “taking cognizance of the offence” and without issuing process to the accused, were to direct an investigation by the Police under sub-section (1) of Section 225 BNSS (S.202 (1) Cr.P.C.), the Magistrate will have to record the sworn statement of the “Public Servant” and his witnesses under Section 223 (1) BNSS (S.200 Cr.P.C.) in view of “clause (b)” of the “First Proviso” to Section 223 (1) BNSS (S.200 Cr.P.C.).

The position may be different, if the Executive Magistrate is assaulted by his neighbour out of a long standing enmity in a private dispute between them. In such a case, if the Executive Magistrate were to prefer a complaint before the Judicial Magistrate concerned, he will not be entitled to the exemption from examination on oath. This is because, it cannot be said that the Executive Magistrate was acting or purporting to act in the discharge of his official duties.

Where a Public Prosecutor files a complaint before the Court of Session with regard to the offence of “defamation” committed against a “Public Servant” including any of the Constitutional dignitaries mentioned in Section 222 (2) of BNSS (S.199 (2) of Cr.P.C.), the Public Prosecutor is exempted from examination on oath since he is acting in discharge of his official duty.

The object of exemption from examination given to a “Court” and to a “Public servant”

25. The main purpose of exemption from examination of a Judge or Magistrate or other Public Servant figuring as the complainant in a written complaint filed in the discharge of his official duties, is to do away with the inconvenience of their presence before the Magistrate. (Vide para 10 of Ranjit Singh v. State of Punjab AIR 1959 SC 843 = 1959 Cri.L.J. 1124 – S. J. Imam, J. L. Kapur – JJ.)

THE DIFFERENCE IN THE MODE OF “TAKING COGNIZANCE OF AN OFFENCE” IN A CASE WHERE THE COMPLAINANT IS A “COURT”

26. As in the case of a “Public Servant” acting or purporting to act in the discharge of his official duties, if a “Court” were to make a “complaint” before a Judicial Magistrate, by virtue of the “first proviso” to Section 223 (1) BNSS (S.200 Cr.P.C.) the Court is also exempted from examination under the above provision. The Magistrate will straightaway “take cognizance of the offence” and without examining the Court (Magistrate or Judge or Officer of the Court) issue process to the accused. Here, if the Magistrate, after “taking cognizance of the offence” were to direct an investigation by the Police under Section 225 (1) BNSS (S.202 (1) Cr.P.C.), unlike in the case of a “public servant”, the Magistrate need not examine on oath the “complainant” since clause (b) of the Proviso to Section 225 (1) BNSS (S.202 (1) Cr.P.C.) does not apply to a “Court”. Even without examining the complainant, the Magistrate can order investigation by the Police.

The usual situations when a Court figures as the complainant is in prosecutions for the offences falling under Section 215 (1) (b) BNSS (S.195 (1) (b) Cr.P.C.) committed in relation to any proceedings in Court. When such complaints are filed either by the presiding officer of the Court concerned or by an authorised officer of the Court, the complainant and his witnesses are exempted from examination under Section 223 (1) BNSS (S.200 Cr.P.C.) by virtue of the second proviso to Section 223 (1) BNSS (First Proviso to S.200 Cr.P.C.).

THE LONG AND SHORT OF THE SCHEME UNDER CHAPTER XV Cr.P.C.

27. The scheme which was in vogue under the now repealed Cr.P.C. as judicially settled, was as follows--

If a "complaint" filed before a Magistrate discloses an offence, then the Magistrate would apply his mind for the purpose of proceeding under Chapter XV Cr.P.C. This was judicially understood to be the curial act of “taking cognizance of the offence” which process is undoubtedly a complex one. If the “complaint” does not clearly make out the offence alleged, the Magistrate can “reject” the “complaint” at the threshold since dismissal of the complaint can be done only at the post-cognizance stage. (Vide Biju Purushothaman v. State of Kerala 2008 (3) KLT 85 = 2008 (3) KHC 24 – V. Ramkumar – J; Mehmood Ul Rehman v. Khazir Mohmmad Tunda AIR 2015 SC 2195 = (2015) 12 SCC 420 – Kurian Joseph, A. K. Goel – JJ; Para 32 of Shailaja P. v. Vigilance and Anti Corruption Bureau 2021 (2) KLT 294 = 2021 (2) KHC 11 – R. Narayana Pisharadi – J; Para 23 of Dr. Mathew A. Kuzhalnadan v. Pinarayi Vijayan 2025 KHC 382 – K. Babu – J; Para 20 of Manimeghala v. State of Kerala 2024 (1) KLT 781 = 2024 (2) KHC 37 – K. Babu - J). Alternatively, the Magistrate, instead of taking cognizance of the offence may order investigation by the police under Section 156 (3) Cr.P.C. In such an event, the police are bound to treat the “complaint” as the FIR and then register a case and conduct investigation. (Vide Madhubala v. Sureshkumar AIR 1997 SC 3104 = (1997) 2 SCC 476 – M. K. Mukherjee, S. Saghir Ahmad – JJ) In case the “police report” filed by the police under Section 173 (2) Cr.P.C, does not charge-sheet the accused, it is open to the Magistrate to examine the materials accompanying the “police report” and take cognizance of the offence, if any, made out by such materials. In the absence of such material failing to make out any offence, it is open to the Magistrate to fall back upon the original “complaint” and take cognizance of the offence, if any, made out therein. (Vide para 14 of Union of India v. Prakash P Hinduja AIR 2003 SC 2612 = (2003) 6 SCC 195 – S. Rajendra Babu, G. P. Mathur – JJ; para 11 of Minu Kumari v. State of Bihar AIR 2006 SC 1937 = (2006) 4 SCC 359 – Arijit Pasayat, S. H. Kapadia - JJ; paras 9 and 10 of Fakhruddin Ahmad v. State of Uttaranchal (2008) 17 SCC 157 = 2008 Cri.L. J. 4377 SC – C. K. Thakker, D. K. Jain – JJ; para 11 of Zunaid v. State of U. P AIR 2023 SC 4550 = 2023 KHC 6810 – Bela M. Trivedi, Dipankar Datta – JJ). But “taking cognizance of the offence” by itself would not be enough in all cases. The Magistrate will have to be further satisfied that there is “sufficient ground for proceeding”. In the majority of cases, upon taking cognizance of the offence the Magistrate could simultaneously arrive at the satisfaction that “sufficient ground for proceeding” exists and will accordingly issue process for securing the presence of the accused. But in some cases at least, after taking cognizance of the offence, the Magistrate might entertain some doubt as to whether there is "sufficient ground for proceeding". It is in such cases that the Magistrate would conduct an “inquiry” under Section 202 Cr.P.C. (For the time being l am ignoring the additional ground inserted w.e.f 23.06.2006 for conducting 202 inquiry if the accused is residing beyond the territorial limits of the Magistrate). If after such "inquiry" the Magistrate is satisfied that there is “sufficient ground for proceeding”, he will issue process to the accused under Section 204 (1) Cr.P.C. If on the contrary, the Magistrate is not satisfied about the existence of "sufficient ground for proceeding", then, instead of issuing process for the attendance of the accused the Magistrate would dismiss the complaint under Section 203 Cr.P.C.

AT THE “PRE-PROCESS STAGE” ACCUSED HAS NO RIGHT TO PARTICIPATE IN THE “INQUIRY”

28. As per the above scheme under the Cr.P.C, the consistent view taken by the Supreme Court of India was that during the pre-process stage of "inquiry" under Sections 200 and 202 Cr.P.C., the accused has no right to participate in the proceedings before the Magistrate and that even if he happened to be present before the Magistrate, he could only watch the ongoing proceedings and his right to address the Court or participate in the proceedings before the Magistrate would arise only after he is summoned to the Court by Issuing process for his attendance. (Vide –

• Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar AIR 1960 SC 1113 = 1960 Cri.L.J. 1499 – 3 Judges – S. K. Das, J. L. Kapur, M. Hidayatullah – JJ;
• Chandra Deo Singh v. Prakash Chandra Bose (1964) 1 SCR 639 – Syed Jaffer Imam, Raghubhar Dayal, J R Mudholkar – JJ;
• Nagawwa v. Veeranna Sivalingappa Konjalgi (1976) 3 SCC 736 = AIR 1976 SC 1947 – A C Gupta, S. Murtaza Fazl Ali – JJ;
• Sashi Jena v. Khadal Swain (2004) 4 SCC 236 = AIR 2004 SC 1492 – Y K Sabharwal, B.N. Agrawal – J;
• Para 53 of Manharibhai Muljibhai Kakkadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517 – 3 Judges – R. M. Lodha, C K Prasad, S J Mukhopadhaya – JJ ).

AS PER THE SCHEME UNDER THE Cr.P.C., ACCUSED WAS NOT TO BE CALLED UPON TO SHOW CAUSE AGAINST THE PROPOSED COGNIZANCE OF THE OFFENCE

29. Interpreting the statutory scheme which was in vogue under the Cr.P.C. the Supreme Court of India had in unmistakable terms, observed as follows –

“There is no gainsaying that a Magistrate while taking cognizance of an offence under S.200, whether such cognizance is on the basis of the statement of the complainant and the witnesses present or on the basis of an inquiry or investigation in terms of S.202, is not required to notify the accused to show cause why cognizance should not be taken and process issued against him or to provide an opportunity to him to cross - examine the complainant or his witnesses at that stage”. (Vide para 9 of Sunil Mehta v. State of Gujarat 2013 KHC 4149 = (2013) 9 SCC 209 (SC) - T. S. Thakur, S. J. Mukhopadhaya – JJ).

WHETHER THE DEVIATION MADE BY INSERTING THE “FIRST PROVISO” IN SECTION 223 (1) OF BNSS IS DESIRABLE OR WARRANTED

30. The reason for not giving the accused an opportunity of being heard during the inquiry was because the accused was yet to be summoned to the Court at the time of taking cognizance of the offence and hence the question of hearing the accused before taking cognizance of the offence, was foreign to the scope of the inquiry in that behalf.

What is to be noticed here is that the above scheme under Sections 202, 204 and 203 of Cr.P.C. is kept intact in Sections 225, 227 and 226 respectively of BNSS as well. In other words, after taking cognizance of the offence by deciding to proceed under Section 223 (1) of BNSS, process under Section 227 of BNSS will be issued to the accused only if the Magistrate is satisfied that “there is sufficient ground for proceeding”. Hence, appearance of the accused before the Magistrate prior to the issue of process is evidently not contemplated by the BNSS as well. But, the deviation made in the first proviso to Section 223 (1) of BNSS is that before the Magistrate takes cognizance of the offence the accused is to be given “an opportunity of being heard”. This means that the presence of accused before the Magistrate is to be first secured in order to give him an “opportunity of being heard” so that he can persuade the Magistrate not to take cognizance of the offence. For that, the Magistrate will have to necessarily issue a “notice” to the accused. Nobody knows when that notice will be served on the accused. A few doubts at this juncture will naturally arise.

• Can the accused appear through Counsel at that stage ?
• Can the accused claim a right to adduce evidence at that stage so as to persuade the Magistrate not to take cognizance of the offence ?

While the summons to the accused in Form No.2, by virtue of Section 227 (3) BNSS, should be accompanied by a copy of the "complaint", there is no Form of Notice prescribed for complying with the first proviso to Section 223 (1) BNSS, much less a permission to the accused to appear through an Advocate unlike in the case of the subsequent summons in Form No.2 of the Second Schedule. Moreover, the first proviso to Section 223 (1) of BNSS does not insist that the accused shall be given a copy of the complaint. Without a copy of the complaint how is it possible for the accused to persuade the Magistrate not to take cognizance of the offence ? What is the use of an “opportunity of being heard” without serving the accused a copy of the "complaint" and without allowing him the services of an Advocate to represent him although no provision has been made in that behalf ? If the Magistrate were to deny the accused a copy of the “complaint” or disallow representation by an Advocate, will not the accused approach a superior forum and argue that the right conferred by the first proviso to Section 223 (1) BNSS is frustrated by such denial and will he not try to get a stay of the proceedings before the Magistrate ?

After giving such opportunity (which process itself is preposterous and entails delay) if the Magistrate finally decides to take cognizance of the offence and is also satisfied that there is “sufficient ground for proceeding”, should he or should he not issue under Section 227 (1) of BNSS “process” to the accused who is already before the Magistrate pursuant to the “notice” under the first proviso to Section 220(3)(1) Cr.P.C?. Supposing the Magistrate, in spite of objection by the accused, takes cognizance of the offence, but is of opinion that "there is no sufficient ground for proceeding" and accordingly decides to conduct an "inquiry" under Section 225 of BNSS. Is it not open to the accused (who argued that no cognizance is to be taken and who failed in that attempt) to challenge the "inquiry" by approaching a superior Court and get the "inquiry" under Section 225 of BNSS stalled ? A question may also arise as to whether the accused who is already before Court, can participate in the inquiry under Section 225 BNSS. (S. 202 Cr.P.C). Can it be argued that the opportunity of being heard given to the accused under the first proviso to Section 223 (1) of BNSS is only at the stage of taking cognizance of the offence and once the Magistrate takes cognizance of the offence after hearing the accused, the right given to the accused under the first proviso is over ?. But the accused is already before the Magistrate. Will he not on the strength of Harinarayan G. Bajaj v. State of Maharashtra (2010) 11 SCC 520 = 2010 KHC 169 and Ajoy Kumar Ghose v. State of Jharkhand AIR 2009 SC 2282, claim a right of cross-examination of the witnesses examined during such inquiry ?. By such process, are we not bringing back the “Magisterial inquiry” under the 1898 Code which was dispensed with under the 1973 Code ? As per the proviso to Section 225 (2) of BNSS (S. 202 (2) Cr.P.C) the Magistrate has to call upon the complainant to produce all his witnesses and examine them in a case triable exclusively by a Court of Session. Since the accused is already before Court, can the Magistrate refuse cross-examination by the accused of the witnesses examined during such inquiry ?

31. Take yet another situation. If after hearing the accused and considering his opposition to the proposed cognizance of the offence, the Magistrate refuses to take cognizance of the offence. Then, the Magistrate cannot dismiss the complaint under Section 226 of BNSS (S.203 Cr.P.C.) since dismissal of the complaint under Section 226 of BNSS (S. 203 Cr.P.C.) can be done only at the post-cognizance stage. Hence, the Magistrate will have to “reject” the complaint at the threshold. (Vide paras 7 and 9 of Biju Purushothaman v. State of Kerala 2008 Cri.L.J. 4488 = 2008 (3) KLT 85 = 2008 (3) KHC 24 - V. Ramkumar – J; Para 22 of Mehmood Ul Rehman v. Khazir Mohammad Tunda AIR 2015 SC 2195 = (2015) 12 SCC 420 – Kurian Joseph, A K Goel – JJ; Para 32 of Shailaja P. v. Vigilance and Anti Corruption Bureau 2021 (2) KLT 294 = 2021 (2) KHC 11 – R. Narayana Pisharadi – J; Para 23 of Dr. Mathew A. Kuzhalnadan v. Pinarayi Vijayan 2025 KHC 382 – K. Babu – J; Para 20 of Manimeghala v. State of Kerala 2024 (1) KLT 781 = 2024 (2) KHC 37 – K. Babu - J). In such a contingency where the Magistrate “rejects” the complaint, the aggrieved complainant will approach a higher forum and assail the order rejecting his complaint. Before the higher forum the accused will have to be necessarily made a party and given an opportunity of being heard. If the complainant ultimately succeeds, the matter will have to again go back to the Magistrate for deciding whether cognizance of the offence should be taken or not. Thus, the very process of taking cognizance of an offence may linger before the Magistrate for months or even years. In my humble opinion, by giving a right of hearing to the accused at the stage of taking cognizance of the offence, the framers of BNSS have really opened the Pandora's Box thereby slackening, if not hampering or impeding the course of justice.

32. There is yet another important aspect behind the unwarranted insertion of the first proviso to Section 223 (1) of BNSS. When Section 210 (1) of BNSS treats alike a “complaint” and a “police report” which are the two main sources of taking cognizance of an offence, in a case instituted on a “complaint” alone, a change is brought about by way of a departure in the procedure by incorporating the first proviso to Section 223 (1) of BNSS. This is rank discrimination within the meaning of Articles 14 and 21 of the Constitution of India, apart from dislocating the statutory scheme which has been in vogue for more than 2 centuries.

33. The above are the issues which may inevitably crop up if a Magistrate were to follow the deviated procedure under Section 223 BNSS. As I had once predicted, such departures from the “time tested” procedure will definitely give rise to several rounds of litigation which may even go upto the Apex Court for a final resolution. Until then, cases pending before various Courts will get stayed to the disappointment and chagrin of the accused or the victims or both. The same is going to be the fate of a case if the Magistrate were to follow sub-section (2) of Section 223 of BNSS before taking cognizance of an “offence committed by a public servant”.

34. Is the deviated procedure going to shorten the judicial process? No certainly not. Far from shortening the prosecution it will only pave the way for prolonging the prosecution resulting in persecution. Even otherwise, there is a long standing complaint that “delayed justice is denied justice”.

Are we promoting the Constitutional goal of “speedy justice” by such a departure in the “time-tested” procedure?

THE STATUTORY DEVIATION MADE BY SECTION 223 (2) OF BNSS IN THE CASE OF A COMPLAINT AGAINST A “PUBLIC SERVANT”

35. As in the case of an ordinary accused person who is attempted to be given an opportunity of being heard before taking cognizance of the offence under Section 223 (1) BNSS, a similar but larger right is given under Section 223 (2) BNSS in cases where the accused is a “public servant” who allegedly committed the offence in the course of discharge of his official functions or duties. Under Section 223 (2) BNSS there is an embargo against taking cognizance of an offence against such a “public servant” unless he has been given an opportunity to make assertions as to the situations which lead to the alleged incidents. That apart the Magistrate is obliged to receive a report from the official superior of the accused public servant containing the facts and circumstances of the incident. Both the above requirements are impracticable besides consuming inordinate delay. The settled legal position followed for more than 2 centuries is that cognizance of an offence is taken at the pre-process stage and the accused has absolutely no say or role to play in the said curial process of taking cognizance of an offence. If at the threshold stage of a case itself the Magistrate is directed to conduct an inquiry with the participation of the accused, it is bound to dislocate and delay the very process of “initiation of proceeding” which is rendered meaningless by the framers of BNSS. The accused public servant may come out with 101 explanations and his official superior if having the same wavelength as that of the public servant, may, as he pleases, come out with similar or conflicting story. On the contrary, if such official superior were antagonistic towards the “public servant” his version would be diametrically opposed to that of the “public servant”. Nobody can predict the final view which the Magistrate may take in the matter. If the Magistrate were to uphold the story given by the accused “public servant”, he may refuse to take cognizance of the offence and this may lead to further proceedings between the parties before the superior forums. Likewise, if the Magistrate were to reject the version given by the accused “public servant” and takes cognizance of the offence, this again may lead to further proceedings between the parties before the superior forums. This is certainly not subservient to the smooth progress of a criminal prosecution. In the case of a “public servant” he has the additional insulation by way of prosecution sanction before he is prosecuted for an offence. If participation of the accused in the proceedings before Court at the pre-process stage is permitted, then it amounts to a mockery of trial and the pre-trial proceedings itself will become a never ending process thereby violating the concept of “speedy trial” which emanates from Article 21 of the Constitution of India.

COMMENCEMENT OF PROCEEDINGS

36. “Commencement of proceedings” under Chapter XVII BNSS (Chapter XVI Cr.P.C.) comes after “initiation of proceedings”. We have already seen what is “initiation of proceedings”.

Without “initiation of proceedings” under Chapter XV BNSS (Chapter XIV Cr.P.C.), there cannot be “commencement of proceedings” under Chapter XVII BNSS (Chapter XVI Cr.P.C.) (Vide para 24 of Chief Enforcement Officer v. Videocon International (2008) 2 SCC 492 – C. K. Thakker, P. P. Naolekar – JJ). On the appearance or production of the accused, the Magistrate will comply with Section 230 of BNSS (S. 207 Cr.P.C) by supplying the accused with all the prosecution records.

37. After the presence of the accused before Court on receipt of summons or warrant, as the case may be, depending on the question whether the trial should be a “summons trial” or a “warrant trial” the Magistrate may either try the case himself or proceed to commit the case to the Court of Session under Section 232 of BNSS (S.209 Cr.P.C ).

I AM SUMMING UP

38. In my humble opinion, there was absolutely no need to tinker with the statutory scheme under the Cr.P.C. by –

• adding the word “while” without any purpose or tangible change in Section 223 (1) BNSS.
• making a preposterous deviation in Section 223 (1) of BNSS by incorporating the “first proviso” therein.
• again making a self-defeating deviation in Section 223 BNSS by inserting sub-section (2) thereto.

The above changes brought about in Section 223 BNSS will only add to the delay and will undoubtedly visit the parties to the prosecution with untold hardship in the smooth progression of trials before the Criminal Courts.

However, the words “Magistrate having jurisdiction” in Section 223 (1) BNSS, are, in my opinion, capable of surmounting the interpretation given in Trisuns Chemical Industry (Supra – AIR 1999 SC 3499).

Author is Former Judge, High Court of Kerala. 

Views Are Personal.