Under the Code of Criminal Procedure, an aggrieved person has at his disposal two ways for the redressal of his grievances. He may either approach the police or may file a complaint with a Magistrate for the redressal of his grievances.
Complaint
The term ‘complaint ‘ has been defined in Section 2(d) of the Code of Criminal Procedure. Section 2(d) defines it as an allegation made in writing or orally to a Magistrate with a view to his taking action that some person has committed an offence, but does not include a police report.
Cognizance by Magistrate
The term ‘‘Cognizance” refers to notice or knowledge. To take cognizance means to notice or to be aware of or to gain knowledge of a matter. The meaning ascribed to the term by a dictionary refers to the judicial hearing of a matter. It is a prerequisite for a judicial officer to apply his mind before he starts conducting the trial. Taking cognizance of a matter does not require the taking of any action. It solely suggests the application of mind. Where a cognizance is taken of any matter, it refers to the fact that the judicial officer has applied his mind to the matter.
Taking cognizance of a matter refers to the application of mind to ascertain whether the contents of an offence are present. By taking cognizance of an offence a court satisfies itself as to the basis on which a trial should proceed.
If a magistrate applies his mind to take action of any other kind, for instance an investigation, ordered under Section 156(3) or a search warrant issued for the purpose of the investigation, and not for the reason of proceeding cannot be understood as having taken cognizance of offence.
The Code of Criminal Procedure nowhere defines the term ‘cognizance’. Sections 190-199 deals with the methods by which various criminal courts take cognizance of offences. It also enlists the limitations subject to which the provision needs to be understood. However, the Courts have played a vital role in interpreting the term. The foremost step before conducting a trial, is taking cognizance of a matter. A judicial officer can not conduct a trial without taking cognizance of an offence.
Under Section 190, cognizance of any offence may be taken by any magistrate of the first class and the second class under the following circumstances:
- Upon receiving a complaint of facts related to offences.
- Upon police reports of facts.
- Upon information received from a person (other than a police officer), or
- Upon his own knowledge.
Sections 200-203 deals with complaints to the magistrate.
Section 200
Section 200 deals with the examination of a complainant. It states that a Magistrate taking cognizance of an offence on a complaint shall examine the complainant upon oath. The same shall also be done with witnesses. Thereafter, the substance of the complaint shall be reduced to writing. After that, the complainant and the witnesses shall affix their signatures. The provision has carved out two exceptions with regard to the examination of a complainant when the complaint is in writing. The first exception provides that a Magistrate need not examine a complainant and witnesses where the complainant has been made by a public servant discharging public duties or when the complaint has been made by a court. The second exception grants exemption from examination when the Magistrate transfers the case for inquiry or trial to another Magistrate under Section 192. Where the Magistrate transfers the complaint to another Magistrate under Section 192 after having examined the complainant and the witnesses, the code exempts the latter Magistrate from re examining the complainant and the witnesses.
In Gurudas Balkrishna v. Chief Judicial Magistrate Goa [1], complaint was filed on 31st July 1992, but the statement was not even recorded for the verification of the complainant by the Magistrate for several months. It was held that the Magistrate is duty bound to record the evidence for the complainant and the witnesses, if any, within a week from the date of its order. A delay by several months in verification is not permitted.
Section 201
Section 201 deals with the procedure to be adopted by a Magistrate not competent to take a complaint. The provision can be divided into two parts. The first part discusses the procedure to be adopted where a complaint is in writing. Where the complaint is in writing, the Magistrate must return the complaint for presentation to the proper court. It must bear an endorsement to that effect. The second part of the provision enlists the procedure to be adopted wherein the complaint is not made in writing. Where the complaint is not made in writing, the complainant must be directed to the proper court.
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Section 202
Section 202 of the Code of Criminal Procedure describes a condition of postponement of issue of process.
- Postponement of issue of process
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
The Criminal Procedure (Amendment) Act,2005 has amended Section 202(1) to make it obligatory on the Magistrate to ascertain whether there lies reasonable grounds for proceeding against an accused, before the accused who resides in an area beyond the jurisdiction of the Magistrate is summoned. The enquiry into the case might be done by the Magistrate himself or a police officer might be directed to conduct an investigation or by such other person as the Magistrate thinks fit. The object behind the amendment was to protect the innocent from unscrupulous persons. The provision requires the Magistrate to form an opinion as to whether there is sufficient evidence in support of the allegation of the complainant. It does not require him to satisfy himself with regard to the availability of evidence to warrant a conviction.
Section 202 enables the Magistrate to form a sound opinion as to whether the process should be issued. It affords an opportunity to the Magistrate to eliminate from his mind any hesitation that might have crept in while the complaint was being made or while considering the complainant’s evidence on oath. The words “as he thinks fit” confer a discretion on a Magistrate to direct an investigation or to direct to make an enquiry. However, where the accused is staying in a place beyond the jurisdiction of the Magistrate, it is mandatory for the Magistrate to postpone the issue of process. An investigation might be directed or the Magistrate might inquire into the case himself.
The provision does not mandate a thorough investigation. No investigation is required where the complaint had been made by the Sessions Court. Where an enquiry is conducted by the Magistrate himself, he has been conferred with a discretion to take or to not take evidence on oath but where the offence complained of is exclusively triable by the Court of Sessions, the Magistrate shall call upon the complainant and the witnesses to examine them. The rationale behind the thin line of difference between the former and the latter situation is that where an offence is such that it is triable exclusively by the Court of Sessions, it is preferred that the enquiry be broad based.
When the Magistrate has already issued a process of postponement, a further inquiry by a Magistrate can not be directed. He shall either direct an investigation into the offence or shall inquire into the case himself.
It was held in D.L. Reddy v. Narayan Reddy[2] that assisting the Magistrate to complete the proceedings already issued upon a complaint by the complainant is the real objective behind an investigation as opposed to the belief that it is to initiate a fresh case on police report.
Section 203
Section 203 states that after the statements on oath of the witness and the complainant have been considered and the Magistrate finds no sufficient ground to initiate proceedings against the accused, he shall dismiss the case[3]. The dismissal of the case shall be accompanied with a recording of the reasons for doing so.
The aforementioned provisions act as a guiding light where the cognizance is taken on a complaint.
REFERENCES
[1]1994 Cr. C.J. 444 (Maharashtra).
[2](1976) 3 SCC 252.
[3] Gaurav Mehta, Universal’s Guide to LL.M. Examination 222-224 (Lexis Nexis, Gurgaon-122002, Haryana, India, 7th Edition, 2018).
BY ANINDITA DEB | NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM