Criminal Procedure Code: Pre Cognizance vs Post Cognizance

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  • Post published:February 18, 2021
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An Overview:

A primary duty to register First Information Report (F.I.R) regarding cognizable offence is of the Station House Officer of the concerned Police Station, if the Police Officer/Incharge does not register the F.I.R. then the Magistrate having jurisdiction to hear criminal case of the police station concerned has been empowered to issue directions under section 156(3) Cr.P.C to register and investigate the fact and circumstances narrated in the complaint. The relevant provisions defining the complaint and the procedure adopted by the concerned Magistrate is provided under the various provisions of the Cr.P.C. At a post cognizance stage, the Magistrate is empowered to take cognizance on the complaint and may adopt procedure provided under section 200, 202 of Cr.P.C.

Relevant Provision of Cr.P.C. regarding written complaint instituted in the court of Magistrate.

Provision of Sec. 2(d) of Cr.P.C defines complaint and Section 154 of Cr.P.C provides procedure for recording of First Information Report at Police Station.

Section 2(d) of Cr.P.C.: “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

Section 154 in the Code of Criminal Procedure, 1973
Information in cognizable cases:
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

Section 156 of the Code of Criminal Procedure, 1973
Police officer’s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.

Section 190 of the Code of Criminal Procedure, 1973
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.

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

The word ‘Cognizance’ is nowhere defined in the Code, however, the following observations of Mr Justice Das Gupta in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v.Abani Kumar Banerjee [AIR 1950 Cal 437] are apt to mention in this regard:

“What is taking cognizance has not been defined in the Code of Criminal Procedure and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) of the Cr PC, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

It would be clear from the observations of Mr Justice Das Gupta that when a Magistrate applies his mind not for the purpose of proceeding under the various sections of Chapter XVI but for taking action of some other kind, e.g. ordering investigation under Section 156(3) or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.

Powers of Magistrate at a Pre-Cognizance and Post Cognizance stage:

Let’s understand these provisions in light of a judgment passed by the Lucknow bench of the Allahabad High Court in a case titled Ram Khelawan vs State of UP & Ors.

In this case, an appeal was filed before the Hon’ble High Court against the impugned order passed by the Special Judge (SC/ST) Act by which the complaint instituted by the appellant under Section 156(3) has been dismissed at pre-cognizance stage and discretion has not been exercised in favour of the complainant.

The Court observed the following;

A Magistrate on institution of written complaint regarding commission of cognizable offence has the following two options:

(i) At the pre-cognizance stage- he may direct to concerned police station to register F.I.R. on the basis of facts narrated in the complaint if commission of cognizable offence disclosed prima facie and Investigating officer would conduct the investigation.

Thus, the Magistrate exercises a very limited power under section 156(3) Cr.P.C. and so is it’s discretion. It does not travel into the arena of merit of the case, if such case was fit to proceed further.

(ii) At the post cognizance- after taking cognizance, he may adopt procedure of complaint cases provided under Section 200 and 202 Cr.P.C. If the Magistrate is not satisfied with the conclusions arrived at by the Investigating Officer in report submitted under section 173 Cr.P.C. then the Magistrate may take cognizance upon original complaint sent to S.H.O. at pre-cognizance stage and proceed further to examine the complaint under section 200 Cr.P.C. and his witnesses under section 202 Cr.P.C.

Rejection of complaint at the pre-cognizance stage under section 156(3) Cr.P.C. does not debar institution of second regular complaint. It would be post-cognizance stage, if the Magistrate takes cognizance on the original complaint or after rejection at pre-cognizance stage, if second complaint is filed by the complainant. In genuine cases, if averments of the complainant are true and trustworthy or these are found so after preliminary inquiry, then the Magistrate under section 156(3) Cr.P.C. may direct the S.H.O. to register F.I.R. and conduct investigation on the basis of averments of the complaint.

The Magistrate may dismiss the complaint under section 156(3) Cr.P.C. if by way of instituting complaint, defence version is created to absolve the complainant from the case registered earlier or on the basis of allegations made in the complainant, if dispute is purely of civil nature or the Magistrate considers that the complaint is false and frivolous. The Magistrate has to power to test the truth and veracity of the allegations levelled against the proposed accused persons and if there is no substance in the averments of the complainant then at pre-cognizance stage, the complaint may be dismissed under section 156(3) Cr.P.C.

The Hon’ble Court while dismissing the appeal held that the Learned Magistrate has discretion at pre-cognizance stage to direct the concerned S.H.O. for registration of F.I.R. on the basis complaint instituted under Section 156(3) and investigate the matter.

The Court further held that the learned Special Judge (S.C./S.T. Act), Sitapur has considered the facts, in which complaint under Section 156(3) Cr.P.C. was instituted by the complainant. At post cognizance stage the complainant may institute regular complaint on the basis, of which, the learned Special Judge (S.C./S.T. Act), Sitapur may record a statement of complainant under Section 200 Cr.P.C. and the evidence under Section 202 Cr.P.C. and proceed according to law on the basis of regular complaint if instituted by the complainant.

The Court also issued a guide to the discretion of Magistrate with regard to the following conditions at para 21:

1. Why should a magistrate grants the relief of registration of a case and its investigation by the police under Section 156(3) Cr. P.C.:

The scheme of Cr. P.C. requires that the option to direct the registration of the case and its investigation by the police should be exercised where some “investigation” is required, which is of a nature that is not possible for the private complainant, and which can only be done by the police upon whom statute has conferred the powers essential for investigation, for example (1) where the full details of the accused are not known to the complainant and the same can be determined only as a result of investigation, or (2) where recovery of abducted person or stolen property is required to be made by conducting raids or searches of suspected places or persons, or (3) where for the purpose of launching a successful prosecution of the accused evidence is required to be collected and preserved. To illustrate by example cases may be visualised where for production before the Court at the trial (a) sample of blood soaked soil is to be taken and kept sealed for fixing the place of incident; or (b) recovery of case property is to be made and kept sealed; or (c) recovery under Section 27 of the Evidence Act; or (d) preparation of inquest report; or (e) witnesses are not known and have to be found out or discovered through the process of investigation.

But where the complainant is in possession of the complete details of all the accused as well as the witnesses who have to be examined and neither recovery is needed nor any such material evidence is required to be collected which can be done only by the police, no “investigation” would normally be required and the procedure of complaint case should be adopted.

Besides, even after taking cognizance and proceeding under Chapter XV the Magistrate can still under Section 202(1) Cr. P.C. order investigation, even thought of a limited nature.

In the case of Chandrika Singh v. State of U.P., reported as 2007 SCC OnLine All 1022, the Allahabad High Court has held as under-

In view of this observations of Hon’ble Apex Court on receipt of an application u/S. 156(3) Cr.P.C. the Magistrate may pass an order out right for taking cognizance in the offencc and then proceed in view of the procedure laid down in Chapter XV Cr.P.C. But if the Magistrate is not intending to take cognizance of the offence then he may pass an order for register and investigation of the offence by the police. On receipt of an application u/S. 156(3) Cr.P.C. both the options are open to the Magistrate and if the Magistrate in its discretion adopted any of the course then it cannot be said that the Magistrate has illegally applied his discretion.

In Vinay Pandey v. State of U.P. Reported in U.P. Cr.R. Page 670 the same law has been followed and it has also been held that in an application u/S. 156(3) Cr.P.C. it is not mandatory for the Magistrate to allow every application

2. When should a magistrate treat the application as a complaint and follow the procedure of Chapter XV of Cr. P.C.:

The Court in Ram Khelawan (Supra) observed that

This controversy must come to an end that an application u/S. 156(3) Cr.P.C. can only be treated as an application for passing an order for registration of the case and investigation and cannot be treated as complaint case.

The Magistrate is not bound in each and every case to pass an order to register a case and investigate if cognizable offence is made out. The Magistrate is fully competent to use his judicial discretion in the matter. This is wrong notion that if an application has been moved u/S. 156(3) Cr.P.C. that the only order can be passed for registration in the matter. The Magistrate has got discretion u/S. 190 Cr.P.C. to take the cognizance directly or to pass an order that the police to investigate and then take cognizance on submissions of a report u/S. 173 Cr.P.C.

The Magistrate is also expected to act under some guidelines and it should not be let at the arbitrary discretion of the Magistrate to pass an order or not to pass an order to register the case and investigation u/S. 156(3) Cr.P.C.

The Court further observed that in case of Gulab Chand Upadhyaya v. State of U.P., (2002 All LJ 1225) Hon’ble Single Judge of this court had laid down the guidelines for the guidance of Magistrate while deciding the application moved u/S. 156(3) Cr.P.C. and these guidelines cannot be said against any provision of law or check on the judicial discretion of the Magistrate Even Hon’ble Apex Court also held that the Magistrate has got a discretion to pass an order to register the case and investigation u/S. 156(3) Cr.P.C. Or to treat an application as a complaint case.”

It is clear from the judgment of the Supreme Court in the case Suresh Chandra Jain v. State of Madhya Pradesh, 2001 (42) ACC 459 : ((2001) 2 SCC 628 : AIR 2001 SC 571), that a Magistrate has the authority to treat an application under Section 156(3) Cr.P.C. as a complaint.

In case of Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986, the following observations were made in para 7:

“If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word ”may’ in Section 190 to mean ”must’. The reason is obvious. A complaint disclosing cognizable offences may well justify police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. On the other hand, there may be occasions when the Magistrate may exercise his discretion and ”Take’ cognizance of a cognizable offence.”

Nature of the powers exercised by the magistrate under section 156(3):

A three-Judge Bench in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252: 1976 SCC (Cri) 380] observed in para 17:

“It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173.”

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