taking cognizance
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS……………OF 2023
(@ SPECIAL LEAVE PETITION (CRL.) NOS. 2849-2854 OF 2022)
CARDINAL MAR GEORGE ALENCHERRY ...APPELLANT
Versus
STATE OF KERALA & ANR. …RESPONDENTS
WITH
SPECIAL LEAVE PETITION (CRL.) NOS. 1487-1493 OF 2022
EPARCHY OF BATHERY, REP. THROUGH
MOST REV. DR. JOSEPH MAR THOMAS ... PETITIONER
Versus
STATE Of KERALA & ORS. ETC. ... RESPONDENTS
WITH
SPECIAL LEAVE PETITION (CRL.) NO(S). ……… OF 2023
ARISING OUT OF DIARY NO. 7364 OF 2022)
CATHOLIC DIOCESE OF THAMARASSERY … PETITIONER
REP. THROUGH MAR REMEGIOSE INCHANAYIL
Versus
STATE OF KERALA & ORS. ETC. …RESPONDENT(S)
1
J U D G M E N T
BELA M. TRIVEDI, J.
10. It cannot be gainsaid that the cognizance is taken of an offence
and not of the offender. As such the phrase “taking cognizance”
has nowhere been defined in the Cr.PC, however has been
interpreted by this Court to mean “become aware of” or “to take
notice of judicially”. In S.K. Sinha, Chief Enforcement Officer
Vs. Videocon International Ltd. and Others1
, this Court while
explaining the scope of the enquiry under Section 202 Cr.PC,
observed as under:-
“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
1 (2008) 2 SCC 492
12
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.
21. Chapter XIV (Sections 190-199) of the Code deals with
“Conditions requisite for initiation of proceedings”. Section
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:
“190. Cognizance of offences by Magistrates.—(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.”
22. …….
23. Then comes Chapter XVI (Commencement of
proceedings before Magistrates). This Chapter will apply only
after cognizance of an offence has been taken by a
Magistrate under Chapter XIV. Section 204, whereunder
process can be issued, is another material provision which
reads as under:
“204. Issue of process.—(1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be—
(a) a summons case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks fit,
a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the
accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
13
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section
(1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any processfees or other fees are payable, no process shall be issued
until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of Section 87.”
24. From the above scheme of the Code, in our judgment, it
is clear that “Initiation of proceedings”, dealt with in Chapter
XIV, is different from “Commencement of proceedings”
covered by Chapter XVI. For commencement of
proceedings, there must be initiation of proceedings. In other
words, initiation of proceedings must precede
commencement of proceedings. Without initiation of
proceedings under Chapter XIV, there cannot be
commencement of proceedings before a Magistrate under
Chapter XVI. The High Court, in our considered view, was
not right in equating initiation of proceedings under Chapter
XIV with commencement of proceedings under Chapter XVI.”