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.

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(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.”