INTRODUCTION: –
The meaning of the word ‘cognizance’ is to “provide legal notice” or “to became aware of.” It indicates to the point where a Magistrate or a Judge first takes judicial notice of an offense. It is the line where the investigation is completed and the initial trial begins. In other words, we can say that this is the line from where the investigation and proceeding are differentiated. The provisions related to the cognizance of a magistrate have been provided in the code of criminal procedure under chapter XIV as ‘Conditions requisite for initiation of proceedings. This chapter contains sections 190 to section 199 of the Code of criminal procedure.
FACTS OF THE CASE:-
The case complainant Yashwant Sahkari Glucose Karkhana filed a complaint before the judicial magistrate first class at Shirala against the petitioner of the case on 26th February 2009. After that, the learned magistrate passed the order that the complainant has to give his statement on oath and the statement of any other witness. On the next hearing date, 22nd July 2010, the magistrate stated that the nature of the offense mentioned in this case shall be investigated in a detailed manner under section 156(3) of the code of criminal procedure. And, therefore the investigative officer of the case has been directed to conduct a detailed investigation and submits his report before the court. After, that the investigation was set in motion for the offense alleged under sections 406, 420, 422,463, and 464 of the Indian penal code. The accused in the case approached the court of session for pre-arrest bail but the court of session rejected the application. Then, the accused approached the Hon’ble High Court under section 438 of the code of criminal procedure. On 25th August 2011, the high court granted the pre-arrest bail by observing that the facts and the circumferences, it appears to be pure and a simple civil matter.
The investigation of the police has been completed and on 10th October 2011 the Charge-sheet was filed against the accused and on 20th October 2011 the concerned Magistrate, first class issued a process against the accused. On 20th January 2012, the accused was not present at the concerned court, and on that, the court issued a show cause notice to his surety suhas Kadam. Then, the accused filed for revision application before the Addl. Sessions court at Islampur. On 26th February 2013, the court dismissed the application of the accused and confirmed the order of the magistrate. After that, the accused filed a writ petition before the Hon’ble High Court.
ISSUE OF THE CASE: –
1. Whether the issuing of the process against the accused by the judicial magistrate first class is valid by nature?
2. Is this case’s concerned Magistrate competent to take cognizance?
3. Whether the investigation ordered by the concerned magistrate of the case is in his inherent power?
CONTENTIONS OF PETITIONER: –
The representative of the petitioner has submitted that the concerned magistrate has not fulfilled all the conditions to take cognizance of the case and further the order passed the magistrate, first class in this case was not reasonable. He further submitted the reason for the absence of the accused on the provided date. The representative of the petitioner has also cited the case of Devarapalli Lakshminarayana Reddy v. Narayana Reddy, (1976) 3 SCC 252. In this case, Hon’ble Apex Court has held that conditions to take cognizance by the magistrate depend upon the facts and circumstances of the 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.
CONTENTIONS OF THE RESPONDENT:
According to the respondent’s representative, the learned Magistrate had issued an order instructing the complainant to give his statement under oath as well as the statement of any other witness in this case. This would simply indicate that there had been an application of mind to the allegations leveled against the accused in the complaint, and as a result, the matter had been posted for the purpose of taking cognizance. The representative of the respondent has made the following assertions: That was the reasoning behind the court’s subsequent order to the police to conduct a thorough investigation of the case. The code of criminal procedure contains all of the court’s orders. They have additionally referred to the instance of R.R Chari v. Territory of Uttar Pradesh, 1961 SCC 250, in which the court expressed that taking perception includes no conventional activity or for sure activity of any sort yet happens when a Justice as such applies his brain to the associated commission with an offense.
JUDGEMENT:
The court stated that, in this case, after the completion of the investigation, the Investigating officer had filed a charge sheet and the case was registered. The learned Judicial Magistrate then issued the process against the accused under Sections 406, 420, 422, 463, and 464 of IPC. Hence, the process was issued after the completion of the investigation. After the filing of the charge sheet, the very next stage would be Section 239 of the Code of criminal procedure which is to consider whether the charge framed against the accused is logical or groundless and if Magistrate found the charge to be groundless then he shall discharge the accused and also record his reason for doing so. The Code of Criminal Procedure does not contemplate the issuance of the process after filing the charge sheet against the accused. Therefore, the filed application by the accused for seeking discharge on the ground that the conclusion of the investigating officer has not taken a logical end which no conviction could be made, on the basis of the report submitted on the investigation. But, the accused had instead challenged the order of issuance of the process without filing an application seeking discharge. Court has further stated that the order has no meaning in this case as the court fails to comply the section 204(4) of the code of criminal procedure which states that by any law for the time being in force any process fees 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. Section 204 of the code of Criminal procedure only applies to private complaints. The main question was whether the applicant has furnished bail after filing for the charge sheet. In the case, the order passed under Section 156(3) itself was not maintainable since the Magistrate had applied his mind and had taken steps to take cognizance of the complaint. Court has further observed that a Magistrate would not be empowered to issue a process on the basis of a private complaint that has resulted in the submission of a report under Section 173 and of consequence of a direction passed under Section 156(3) of the code of criminal procedure. By considering the facts of the case, the complaint would point out that the complainant had prayed for the action taken under Section 156(3) of Code of criminal procedure. But, on the date of logging of the complaint, the learned Magistrate had directed verification of the complaint and also has recorded the statement of witnesses. But this Court has already held that the Magistrate cannot take cognizance under Section 204 of Code of criminal procedure after filing the charge-sheet in order of issuance of process deserves to be quashed and set aside. Therefore, Writ Petition is granted in terms of the prayer clauses. The order passed by the Revisional Court is being quashed and set aside and the order of the Judicial magistrate, first class is also been quashed and set aside. However, the prosecution is at liberty to prosecute the report filed by the Investigating officer under Section 173 of Co.de of criminal procedure. It has been made clear that this Court has only quashed the order of “Issue Process” after filing the charge sheet. The applicant is free to file an application seeking discharge from the court. The concerned Court shall not be influenced or bothered by the observations made mentioned in this court but they are restricted to the challenge of issuance of process.
CONCLUSION:
In the code of criminal procedure, the word ‘Cognizance’ has not been defined because it is meant to apply the Judicial mind in a suspected commission of an offense. The conditions to take cognizance of the case by the magistrate depends upon the facts and the circumstances of the case. In this case, the Hon’ble High Court has stated some of the features and main objective of the cognizance and also about the issue of the process. The scope of this chapter “Cognizance of the Case” is not limited but it develops with time and from case to case. Therefore, the stage of taking cognizance by the magistrate or judge is an important ‘judicial check’ or ‘safeguard’ on the powers of the police. And, it must be followed by the rule of law.
written by RISHU ANAND , LAW COLLEGE DEHRADUN, DEHRADUN (VIII SEMESTER)
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