[Criminal Trial] From "Taking Cognizance" To "Framing Of Charge"By Justice V Ramkumar [76 Questions And Answers][Video]

INTRODUCTION The curial act of "taking cognizance of an offence" has baffled the Bench and the Bar alike mainly due to the fact that the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) has not chosen to define the said expression although we find the said expression used in various provisions in the Cr.P.C. such as Sections 169, 170, 173, 186, 190 to 193, 195 to 198, 198-A, 198-B, 199 to 202, 204, 237, 265-A, 306, 309, 343, 460, 461, 468 etc. An apt definition of the said complex phenomenon is also difficult. Even though judicial pronouncements on the process of taking cognizance of an offence are legion, some of them have presented problems in the dispensation of justice. We have come across loose expressions such as "the Magistrate applies his mind to the suspected commission of the offence" (2004) 4 SCC 432; (2004) 11 SCC 622; "the Magistrate taking notice of the accusations and applying his mind to the allegations" (1993) 2 SCC 16, "the Magistrate judicially applying his mind to the facts with a view to taking further action" (1977) 4 SCC 459, "the Magistrate becoming aware of the offence" or "Magistrate taking judicial notice of an offence" (1995) 1 SCC 684; (2011) 3 SCC 496; (2012) 2 SCC 188), or "the Magistrate taking notice of the complaint or the FIR or the information that an offence has been committed" (2012) 10 SCC 517; "the Magistrate recording the sworn statement of the complainant and the witnesses" or "the Magistrate issuing process to the accused" and so on and so forth. A judicial functionary and a legal practitioner on the criminal side cannot afford to remain blissfully ignorant of the curial act of taking cognizance of an offence and its legal implications. Equally important is the curial act of discharging the accused or framing a charge against him. There is confusing case-law on this aspect. In warrant and sessions trial, all that the Court need consider for framing a charge is whether there is "sufficient ground for presuming that the accused has committed an offence". Likewise for discharging an accused in Sessions trial the only question germane for consideration is whether there is "sufficient ground for proceeding against the accused". In warrant trial, for discharging the accused, the Court need consider "whether the charge against the accused is groundless". These statutory yardsticks have been unnecessarily complicated through judicial pronouncements with the result that we have conflicting judgments on almost all the above yardsticks. SOURCES OF TAKING COGNIZANCE OF AN OFFENCE 2. Before delving deep into the mechanics of the process of taking cognizance of an offence it is relevant to note "the sources of taking cognizance". Which are the sources of taking cognizance of an offence? Section 190 (1) Cr.P.C. enumerates the different sources on which a Magistrate is empowered to take cognizance of any offence. They are:- a Upon receiving a complaint of facts constituting the offence. (such a complaint is defined under Sec 2(d) Cr.P.C.) b Upon a police report (as defined under Section 2 I Cr.P.C.) of such facts. Sec.190 C (i) Upon information from a non-police officer. (such as an accused person voicing a grievance of assault or torture by the Police, information from the media or internet etc). (ii) Upon the own knowledge of the Magistrate. (Where an offence is committed right in the presence of a Magistrate). In actual practice, the main sources are "Police Report" and "Complaint". What is the distinction between cognizable and non-cognizable offences? COGNIZABLE AND NON-COGNIZABLE OFFENCES What is a "cognizable offence"? The expression "cognizable offence" has been defined under Section 2(c) Cr.P.C as follows:- "(c) "Cognizable offence" means an offence for which and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant." In contradistinction to the above, Section 2 (l) Cr.P.C. defines a "non- cognizable offence" as follows:- "(l) "Non-cognizable offence" means an offence for which, and "non- cognizable case" means a case in which, a Police Officer has no authority to arrest without warrant". While cognizable offences are relatively graver offences, non-cognizable offences are not so grave and this justifies the fact that a Police Officer is enabled to arrest without a warrant an offender committing a cognizable offence only. To find out whether an offence under the IPC is "cognizable" or "non-cognizable" one has to ascertain the same from Column 4 of the table given in Part-I of the First Schedule to the Cr.P.C. showing the...

[Criminal Trial] From "Taking Cognizance" To "Framing Of Charge"By Justice V Ramkumar [76 Questions And Answers][Video]

Justice V. Ramkumar

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