COGNIZANCE OF OFFENCE.

[Mr. M. GOVINDARAJAN]

                        In  a criminal case the following preliminary steps are taken:

• To take cognizance of the offence;
• To ascertain whether any prima facie case exists against the accused person;
• To issue process against the accused person in order to secure his presence at the time of his trial;
• To supply to the accused person the copies of police statements;
• To consolidate different proceedings pertaining to the same case; and
• If the case is exclusively triable by a court of session, to commit the case to that court.

In this article the cognizance of offence will be discussed.

                        The terms ‘Cognizance of offence’ has not been defined by the Code.  However the meaning of the terms is well settled by the Courts.  Taking cognisance is the first and foremost steps towards trial.  Cognisance literally means knowledge or notice, and taking cognizance of offence means taking notice, or becoming aware of the alleged commission of an offence.  The Judicial Officer will have to take cognizance of the offence before he could proceed to conduct a trial.

                        Any Magistrate of the first class may take cognizance of any offence.  Any Magistrate of the second class, if specially so empowered by the Chief Judicial Magistrate, may take cognizance of such offences as are within his competence to inquire into or try.   Except as otherwise expressly provided by the Code or by any other law, a Court of session is not to take cognisance of any offence as a court or original jurisdiction unless the case has been committed to it by a magistrate.   It has been specifically provided that a Court of Session may directly take cognizance of an offence of defamation of any of the high dignitaries like the President of India, Governor of a State etc., if a complaint in writing is made by the Public Prosecutor within six months from the date on which the offence is alleged to have been committed.   In such a case the Court of Session can directly take cognisance of such an offence without the case being committed to it by a Magistrate.

                        Cognizance may be taken of any offence-

• Upon receiving a complaint of facts which constitute such offence;
• Upon a police report of such facts;
• Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

The Magistrate can take cognizance of an offence upon his own knowledge or information.   But in such a case it  requires that the accused must be informed before the taking of any evidence that he is entitled to have the case inquired in to or tried by another Magistrate; and if the accused objects to the proceedings being conducted before the Magistrate taking cognizance of the offence, the case will have to be transferred to such other magistrate as may be specified by the Chief Judicial Magistrate.  Failure to tell the accused of his right to be tried by another magistrate vitiates the trial and this illegality would not be cured.

                        A Magistrate can take cognizance of an offence only within the time limits prescribed by the law for this purpose.   Any person may set the criminal law in motion by filing a complaint, even though he is not personally affected.    The following are the restrictions on taking cognisance:

• No Court shall take cognizance of any offence punishable under Sections 172 – 188 of IPC or of any abetment of, or attempt to commit, such offence, or of any criminal conspiracy to commit such offence except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively sub ordinate;
• No Court shall take cognizance –
  • Of any offence punishable under Sections 193 – 196, 200, 205-211and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any court; or
  • Of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of IPC when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court; or
  • Of any criminal conspiracy to commit or attempt to commit, or the abetment, or the abetment of, any offence specified in above two

except on the complaint in writing of that court, or of some other court to which that court is subordinate.

• No Court shall take cognizance of-
  • Any offence punishable under Chapter VI or under Section 153-A, 153-B, Section 153-A, 153-B or Section 505 of IPC; or
  • A criminal conspiracy to commit such offence;
  • Any such abetment, as is described in Section108A of IPC

Except with the previous sanction of the Central Government or the State Government.

• No Court shall take cognisance of the offence of criminal conspiracy punishable under Section 120-B of IPC, other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of 2 years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings.
• No Court shall take cognisance of any offence alleged to have been committed by a person who is or was a Judge or magistrate or a public servant, except with the previous sanction of the appropriate State or Central Government;
• No Court shall take cognisance of any offence alleged to have been committed by any member of the Armed forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government;
• No Court shall take cognisance of any offence punishable under Chapter XX of IPC except upon a complaint by some person aggrieved by the offence