Vikas Yadav and 3 Ors. vs State of U.P.& Another

Heard Mr.Virendra Bhatia, learned Senior Advocate assisted by Mr.Ashwani Kumar Singh, learned counsel for the petitioners as well as Mr.R.P.Shukla, learned Additional Government Advocate.

The petitioners have challenged the order dated 25th of June, 2008, passed by the I Judicial Magistrate, Faizabad in a case arising out of Case Crime No.973 of 2007, under Sections 147, 148, 149, 363, 364, 307, 506 and 7 Criminal Law Amendment Act, Police Station Raunahi, district Faizabad, on the ground that by the order impugned the Magistrate has summoned the petitioners for trial under Sections 147, 148, 149, 307, 363, 364, 366, 506 IPC and 7 Criminal Law Amendment Act, Police Station Raunahi, district Faizabad without taking cognizance of offence, which is not permissible under the law. In support of his contentions the learned Senior Advocate drew the attention of this court towards Sections 190 and 204 of the Code of Criminal Procedure, which are reproduced hereunder:

"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 subsection (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:

(2)The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try."

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 summonscase, he shall issue his summons for the attendance of the accused, or

(b) a warrantcase, 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 subsection (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under subsection (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."

In the light of the aforesaid provisions he submits that first under Section 190 of the Code of Criminal Procedure, the learned Magistrate has to take cognizance of an offence and after taking cognizance of an offence, if he is under opinion that there is sufficient ground for proceeding, he can issue summons or warrant under Section 204, but before taking cognizance of an offence he cannot proceed to issue summons or warrant as the case may be. He further invited the attention of this court towards the order impugned, which according to him does not speak so, rather he submits that without taking cognizance directly he has issued summons which is an error of law, therefore, under the erroneous order the petitioners cannot be compelled to appear before the learned Magistrate.

On the other hand the learned Additional Government Advocate submitted that even no provision of the Criminal Procedure Code requires any specific observation of the court for taking cognizance, but once the summons have been issued, that means that the Magistrate has taken cognizance of an offence. In support of his contentions he placed the meaning of cognizance defined in the different dictionaries, which are as under:

In Black''s Law Dictionary the word "cognizance" has been defined as under:

"Cognizance /ko(g)nezens/. Jurisdiction, or the exercise of jurisdiction, or power to try and determine causes; judicial examination of a matter, or power and authority to make it. Judicial notice or knowledge; the judicial hearing of a cause; acknowledgement; confession; recognition.

In Oxford Dictionary the word "cognizance" has been defined as under:

"Cognizance /ko(g)niz(e)ns/ (also cognisance) * n.1. Formal knowledge or awareness. Law the action of taking judicial notice. 2. Heraldry a distinctive device or mark, especially as formerly worn by retainers of a noble house. PHRASES take cognizance of formal attend to; take account of."

In the New Lexicon Webster''s Dictionary of the English Language the word "cognizance" has been defined as under:

"cognizance (kognizens, konizens) n. the range of mental observation or awareness / the fact of being aware, knowledge / (law) the power given to a court to deal with a given matter, jurisdiction / (heraldry) a distinguishing device beyond one''s cognizance not one''s concern, outside one''s terms of reference to have cognizance of to take into one''s reckoning cognizant adj.cognize (kognaiz) pres. Part. Cog.niz.ing past and past part, cog.nized v.t. To make (something) an object of cognition (O.F. connoissance, knowledge)"

He also cited a decision of the Hon''ble Supreme Court rendered in the case of S.K.Sinha, Chief Enforcement Officer versus Videocon International Ltd. and others reported in (2008) 2 SCC 492, in which the Hon''ble Supreme Court was called to decide the correctness or otherwise of the proposition of law by the High Court of Judicature at Bombay whether issuance of process in a criminal case is one and the same thing or can be equated with taking cognizance by a criminal court? And if the period of initiation of criminal proceedings should be quashed as barred by limitation? To appreciate the controversy raised in the appeal the Hon''ble Supreme Court discussed the expression "cognizance" in the following manner:

"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 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.

"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. Cognisance 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."

Again in the case of Narayandas Bhagwandas Madhavdas v.State of W.B. Reported in AIR 1959 SC 1118, the Hon''ble Supreme Court has observed that it is only when a Magistrate applies his mind for proceeding under Section 200 and subsequent sections of Chapter XV or under Section 204 of Chapter XVI of the Code that it can be positively stated that he had applied his mind and thereby had taken cognizance of an offence.

In the case of Darshan Singh Ram Kishan v. State of Maharashtra reported in 1971 (2) SCC 654 the Hon''ble Supreme Court held that under Section 190 of the Code, a Magistrate may take cognizance of an offence either (a) upon receiving a complaint, or (b) upon a police report, or (C) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been said, taking cognizance does not involve any formal action or indeed action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, thus, takes place at a point when a Magistrate first takes judicial notice of an offence.

Further in the case of Devarapalli Lakshminarayan Reddy v. V.Narayana Reddy reported in 1976 (3) SCC 252, the Hon''ble Supreme Court has held that whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.

The Hon''ble Supreme Court has further followed the aforesaid principle in the case of Narsingh Das Tapadia versus Goverdhan Das Partani and another reported in AIR 2000 Supreme Court 2946.

In the case of Anil Saran versus State of Bihar and another 1995 Supreme Court Cases (Cri) 1051, the question for consideration was whether the complainantsecond respondent made a prima facie case to take cognizance of the offence and issue process to the appellant and others. It was contended by the appellant that the Chief Judicial Magistrate, having entertained the complaint, was required to examine other witnesses, take cognizance and then could have transferred the case, if he so desired, to a competent Magistrate subordinate to him as envisaged by Section 192(1) of the Code. But, in this case without taking cognizance, the Chief Judicial Magistrate committed manifest jurisdictional error in transferring the complaint to the Magistrate who took further action therein. The Hon''ble Supreme Court held that we find no force in the contention. Though the Code defines "cognizable offence" and "noncognizable offence", the word ''cognizance'' has not been defined in the Code. But it is now settled law that the court takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc. cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence. Whether the Magistrate has taken cognizance of offence on a complaint or on a police report or upon information of a person other than the police officer, depends upon further action taken pursuant thereto and the attending circumstances of the particular case including the mode in which case is sought to be dealt with or the nature of the action taken by the Magistrate. Under subsection (1) of Section 190 of the Code, any Magistrate may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and ( c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

In the case of C.R.E.F. Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and another reported in 2005(3) ACR 2797 (SC), the High Court remitted the matter to the Magistrate on a finding that the Magistrate had issued process against the respondents without taking cognizance of the offence, and since taking of cognizance was a condition precedent, the issuance of process was bad. The correctness of the order passed by the High Court was challenged before the Hon''ble Supreme Court. The Hon''ble Supreme Court held that even if we assume, though that is not the case, that the words "cognizance taken" were not to be found in the order recorded by him on that date, in our view, that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence.

In the light of the aforesaid decision of the Hon''ble Supreme court, when I go through the order impugned, I find that before issuing summons to the petitioners the learned Magistrate has discussed regarding the offence in detail and having been dissatisfied with the final report submitted by the police, as not acceptable, felt appropriate and proper to issue summons to the petitioners for the said offence, he issued the summons, therefore, only missing the particular word "that he has taken cognizance" does not vitiate the proceeding as the learned Magistrate has issued summons only after being satisfied that the offence has been committed, for which the petitioners are liable to be summoned for trial. Therefore, in the light of the several decisions of the Hon''ble Supreme Court as has been discussed, hereinabove, I do not find any illegality in the order impugned. The petition is dismissed.