Magistrate Not Empowered To Take Recognisance Of Offence U/S 358 BNSS: Delhi High Court

The Delhi High Court has made it clear that Section 358 of the Bhartiya Nagarika Suraksha Sanhita (~319 CrPC) does not empower a Magistrate to take re-cognisance of an offence.Section 358 BNSS empowers the Court to issue a summons to any person who is not an accused, but appears to be guilty of an offence from the evidence.However, Justice Amit Mahajan has clarified that the provision can be invoked only during inquiry or trial (not at cognizance stage).In the case at hand, the complainant had filed a protest petition as the Magistrate had taken cognizance of her cruelty FIR only against her husband and not her in-laws. Following this, the Magistrate Court issued summons to the in-laws also.It is challenging this order that the in-laws moved the present petition.The High Court found fault in this procedure, stating that,“Cognizance can only be taken once and…it is not open to the learned Magistrate to take re-cognizance upon filing of protest petition as the same would amount to review of the prior order.”So far as Section 358 BNSS is concerned, the High Court said it only comes into play in the course of any inquiry into or trial of an offence.“After taking cognizance, in a case such as this one where no further investigation was directed and no supplementary chargesheet came to be filed on any new material coming forth, the Court will have to wait till the stage of Section 358 of BNSS for summoning a person as an accused who has not been charge sheeted,” it held.The complainant submitted that when the matter was first taken up by the Magistrate on 21.06.2021, only notice was issued to the accused and not summons. Thus it was sought to be contended that no formal order was passed for taking cognizance and the orders on her protest petition were valid.Disagreeing, the High Court said merely because the Magistrate did not explicitly use the word “cognizance”, the same cannot be deemed to mean that no cognizance was taken at all, especially since notice was issued.“It is well settled that taking cognizance does not involve any formal action and the Magistrate is not even required to pass a speaking order at the stage of taking cognizance,” it said.The Court further explained that when a Magistrate takes cognizance of an offence upon a police report, he does so of the offence, and the order of Court issuing notice signifies that the Court had perused the report and taken note of the same. Coming to whether the Magistrate could have entertained the protest petition to take cognizance against the in-laws after already taking cognizance of the offence against the husband, the Court relied on Ramakant Singh & Ors. v. State of Jharkhand & Ors. (2023), where the Supreme Court held that after taking cognizance of the chargesheet, it is not open to the Magistrate to entertain a protest petition against the order taking cognizance.In the present case, the Court said, “the protest petition was filed almost an year after filing of the chargesheet and more than eight months after cognizance was taken. The order dated 10.10.2023 whereby summons were issued to the petitioners was passed more than two years after notice was issued to their son after filing of the chargesheet. As the learned Magistrate cannot review its own order, it could not have acted upon the protest petition in such circumstances, except by treating the petition as a complaint which has not been done in the present case.”As such, the petition was allowed and the impugned order taking re-cognizance was set aside.Appearance: For the Petitioners : Mr. Arunav Choudhary, Senior Advocate with Mr. Seraj Ahmad, Mr. Mobin Akhtar, Advocates. For the Respondents : Mr. Sunil Kumar Gautam, APP for the State with SI Yogesh Poonia, PS Rajinder Nagar. Mr. Peeyoosh Kalra, and Mr. Yashwant Singh Baghel, Advocates for R2.Case title: Amrita Jain v. StateCitation: 2025 LiveLaw (Del) 1117Case no.: CRL.M.C. 80/2025Click here to read order

Magistrate Not Empowered To Take Recognisance Of Offence U/S 358 BNSS: Delhi High Court

LIVELAW NEWS NETWORK

Tags