Random Thoughts On “Taking Cognizance Of An Offence”

C O N T E N T S

RANDOM THOUGHTS ON “TAKING COGNIZANCE OF AN OFFENCE”

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 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”.

WHAT IS MEANT BY “TAKING COGNIZANCE OF AN OFFENCE”

2. 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

3. Section 210 of BNSS and the corresponding Section 190 Cr.P.C dealing with “cognizance of offences by Magistrates” read as follows –

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

4. 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 take cognizance of an offence who can conduct an “inquiry” or “trial” as provided under Chapter XIII Cr.P.C. The chapter corresponding to Chapter XIII of Cr.P.C is Chapter XIV of BNSS.

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

5. 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

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” PRECEDES “INITIATION OF PROCEEDINGS”

6. “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; 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). “Taking cognizance of an offence” under Section 190 Cr.P.C and “issuing process” under Section 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”

7. 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 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.)

POWER TO TAKE COGNIZANCE ALSO INCLUDES POWER TO SUMMON THE OFFENDER

8. 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).

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

9. 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

10. 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

11. 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. ) of Where such a contingency arises in a “private complaint”, the Magistrate, however, has the discretion to postpone the issue of process and to conduct an “inquiry” under Section 225 BNSS (S.202 Cr.P.C). After such “inquiry” 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).

TAKING COGNIZANCE OF AN OFFENCE ON A “POLICE REPORT”

12. 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 190 Cr.P.C. would be applicable. Section 190, inter alia, 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 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 MAGISTRATE ON RECEIVING A “POLICE REPORT”

13. 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 country 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 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”

14. 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 )

15. 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. (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) (In para 9 Chief Justice Kania has bodily extracted and approved the observation made by Das Gupta – J in AIR 1950 Cal.437) ;

(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 – (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. (Vide end of para 8);

3. Gopal Das Sindhi v. State of Assam - AIR 1961 SC 986 (3 Judges – S. J. Imam, K. Subba Rao, Raghubar Dayal – JJ – Para 7);

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

4. Jamuna Singh v. Bhadai Shah – AIR 1964 SC 1541 (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);

(Jamuna Singh approved in Sarah Mathew (supra – AIR 2014 SC 448).

5. 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 – (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.);

6. Nirmaljit Singh Hoon v. State of West Bengal - (1973) 3 SCC 753 = AIR 1972 SC 3629 - 3 Judges – J. M. Shelat, I. D. Dua, H. R. Khanna – JJ (H.R. Khanna – J, dissenting on merits) (Para 22 (Majority) – Holds that after taking cognizance of the offence on a “complaint” the purpose of examination of the complainant and his witnesses is to find out whether there is sufficient ground for proceeding by ascertaining whether there is a prima facie case against the person accused of the offence and if not, to prevent the issue of process on the complaint which is either false or vexatious or intended to harass such person. The purpose of postponing the issue of process and conducting an inquiry under Section 202 Cr.P.C. is also to find out whether there is sufficient ground for proceeding which phrase is used also in Section 203 and Section 209.)

Para 35 relies on R. R. Chari (Supra – 1951 SC 207) and Jamuna Singh (Supra – AIR 1964 SC 1541).

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.;

7. 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;

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

9. 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).

10. CREF Finance Ltd V. Shree Shanti Homes (P) Ltd- (2005) 7 SCC 467 – B. P. Singh, S. H. Kapadia – JJ - Paras 10 and 11 - There is a misconceived notion that it is only when the Magistrate issues process under Section 204 Cr.P.C that he can be said to have taken cognizance of the offence. This is an erroneous understanding of the law. The issue of process is at a subsequent case after taking cognizance of the offence;

11. 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.

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

13. S.K. Sinha, Chief Enforcement Officer v. Video Con International Limited - (2008) 2 SCC 492 = AIR 2008 SC 1213 – C. K. Thakker, P. P. Naolekar – JJ - Paras 21 to 37;

14. Fakhruddin Ahmad v. State of Uttaranchal (2008) 17 SCC 157 = 2008 Cri.L.J. 4377 SC – C. K. Thakker, D. K. Jain – JJ – Paras 13 to 17;

15. 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 – Paras 9;

16. Subramanian Swamy v. Manmohan Singh and Another (2012) 3 SCC 64 – G. S. Singhvi, A. K. Ganguly - J – Para 35;

17. 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 – Para 36 - 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;

18. 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 46 and 47;

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

20. 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.

THE DIFFERENCE BETWEEN SECTIONS 200 Cr.P.C. AND 223 BNSS

(The highlighted portions are new)

16. 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", 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”

17. 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 Gena 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 Prsad, 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

18. Interpreting the statutory scheme which was in vogue under the Cr.P.C. the Supreme Court of India had 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

19. 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 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 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 ?

If after giving such opportunity (which process itself is preposterous and entails delay) 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 discontinued 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 ?

20. 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.

21. 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.

22. 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”.

23. 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?

COMMENCEMENT OF PROCEEDINGS

24. “Commencement of proceedings” under Chapter XVII BNSS (Chapter XVI Cr.P.C.) comes after “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.

25. After the presence of the accused before Court, 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 ).

26. In my humble opinion, there was absolutely no need to tinker with the statutory scheme under the Cr.P.C. and come out with a preposterous deviation by inserting the “first proviso” to Section 223 (1) of BNSS which will only add to the delay and visit the parties with untold hardship in the smooth progression of the trial.

Author is a Former Judge, High Court of Kerala. Views Are Personal.