Courtesy Mr.Ravit Khanna. COGNIZANCE AND COMMITAL IN CASES EXCLUSIVELY TRIABLE BY COURT OF SESSION. Word Cognizance has not been defined in the Criminal procedure code. However, word being of an integral import has been interpreted in Catena of Supreme court cases. Cognizance proceedings have been interpreted to be a stage when the Magistrate applies his judicial mind upon the facts before him to deduce as to whether there are sufficient grounds for proceeding further/or whether prima facie case is made out or not. If positive conclusion is reached complimented with an action of proceeding further then it can be said that the Magistrate has taken cognizance of the offence. In offences notified through a complaint under section 2(d)"proceeding further" can be evidenced by Magistrate examining the complainant and his witnesses on oath or fixing the date for the same(compliance of proceeding under section 190 (a) read with section 200 of chapter XV where the word "taking cognizance" is used denoting a post cognizance stage. However, if the magistrate concerned merely makes an endorsement on the aforesaid complaint directing a police officer to investigate the case either under section 156(3) or 155(2) he cannot be said to have applied his judicial mind to proceed further, rather he has reverted to exercise powers under section 190(b) at a later stage when police report will be under under section 173(2) . Case law on the point:- AIR 1976 SC 1672 : (1976) Suppl. SCR 524 : (1976) 3 SCC 252 : (1976) CriLJ SC 1361 (SUPREME COURT OF INDIA) Devarapalli Lakshminarayana Reddy and others Appellant Versus V. Narayana Reddy and others Respondent (Before : R. S. Sarkaria, P. N. Shinghal And Jaswant Singh, JJ.) Criminal Appeal No. 219 of 1975, Decided on : 04-05-1976. "This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes COGNIZANCE of the offence alleged therein. The ways in which such COGNIZANCE can be taken are set out in clauses (a), (b) and (c) of Section 190(1). 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" POINT 2 Word Cognizance under Criminal procedure code has been incorporated in provisions such as 190, 193,195-200,204 etc. Careful reading of the said sections succinctly give a clear sense of dispensation of criminal justice system and the specific sphere of activities conferred upon the courts. Section 193 bars court of session from taking direct cognizance of any offence" except otherwise provided". Exception mainly provided under section 199 (2) read with section 237 of the Code(Defamation cases where the matters can be directly agitated before the court of session by way of filing a complaint That being the only exception provided under the code, we are left with a few questions reproduced below that in other cases:- (1)When does a matter reach before the court of session? (2)Scope of magisterial courts (3)Can matter which is not exclusively triable by court of session be still sent to the court of session. Answer to 1 and 2. Schedule first of the Criminal Procedure code provides for certain offences exclusively triable by court of session. Meaning thereby that in order to set criminal law into motion case can be brought before the magistrate either in the form of complaint (Section 2d) read with 190(a) or police report under section 190(b) or Magistrate can take suo-moto action under section 190(c). In complaint proceeding (Section 2d) read with 190(a). The magistrate will first have to ascertain whether there are sufficient grounds for proceeding? If yes, whether the case is exclusively triable by the court of session? If the answer is in affirmative he must take cognizance and comply with the proceedings of 200 and (202,if he deems necessary) . When proceedings under section 202 are followed then various exceptions have been laid down in cases triable exclusively by court of session they are:- (1)Investigation cannot be ordered under section 202 (2)If inquiry ordered then the court must examine all the witnesses of complainant. Now, the magistrate again has an option to dismiss the complaint under section 203 of the code, but if he proceeds further with issuing of process under 204, then from thereon he has no power and authority to conduct further inquiry, he must and must commit the case to court of session under section 209 read with 208 of the code. Cognizance taken upon police report under section 173(2) read with 190(b). Here the magistrate has an option to examine the police report, statement of witnesses, and other documents on record to deduce if prima facie case is made out or not ,if he then takes cognizance upon a case triable by court of session and issues process, thereafter he has no further scope to conduct any inquiry whatsoever or conduct the discharge proceedings, and the matter shall be sent the court of session under section 209.(Sanjay Gandhi case) SECTION 319: Though cognizance of offence by court of session is barred under the code, another exception to this rule finds place under section 319 of the code. According to section 319 if in the course of the same inquiry or trial it is found in “evidence”(must be a formal evidence unlike supplementary chargesheet etc) the court may proceed against such person. Here, additional cognizance can be taken against such person without the committal proceedings, and doctrine of relating back applies from the stage of original cognizance under section 319 (4) b. (4)Can matter which is not exclusively triable by court of session be still sent to the court of session? Please refer to section 323 of the criminal procedure code. It states to the effect that even when the matter which is not exclusively triable by court of session but if the lower court feel that such matter “ought to be tried” then again the matter can be sent to the court of session for trial. CASE LAW ON THE POINT(SCOPE MAGISTERIAL COURTS) (SUPREME COURT OF INDIA) sanjay gandhi Appellant Versus Union of India and others Respondent AND Amrit Nahata Appellant Versus Union of India Respondent (Before : V. R. Krishna Iyer And Jaswant Singh, JJ.) Civil Misc. Petns. Nos. 3185-3188 of 1978, Decided on : 14-02-1978 "Committing Magistrate is such cases has no power to discharge the accused. Nor has he power to take oral evidence save where a specific provision like Section 306 enjoins. From this it follows that the argument that the accused has to cross-examine is out of bounds for the Magistrate, save in the case of approvers. No examination-in-chief, No examination-in-chief, no cross-examination. Secondly, it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Expedition was intended by this change and this will be defeated successfully, if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the police report, if the offence is plainly one under Section 201 I.P.C. the Magistrate has simply to commit for trial before the Court of Session. If made-up facts unsupported by any material are reported by the police and a Sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227 Cr.P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused."
Posted on: Mon, 01 Jul 2013 09:33:11 +0000
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