Month: February 2013

Cognizance: Meaning and Definition in CrPC.

What is ‘taking of cognizance’?

Meaning and Definition of ‘Cognizance’:

Cognizance has not been defined in the Criminal Procedure Code but it connotation is a matter of acronym debates. ‘When does a Magistrate takes cognizance’ is an important issue for determining many things. For example the question of limitation, to see if prosecution is time barred.

Before it can be said that any magistrate has taken cognizance of any offence under section 190(1)(a), Criminal Procedure Code, 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.

[Source: Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee (by Calcutta High Court) approved by Supreme Court in R. R. Chari v. State of U.P.(1951) SCR 312]

Scope of enquiry at the stage of cognizance:

At the time of taking cognizance of the offence the Court is required to consider the averments made in the complaint or the charge sheet filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it that it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter.

If it is a charge-sheet filed under Section 173 CrPC, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and sift the evidence to come to the conclusion whether or not an offence has been made out.

[Source: Subramanium Swamy v. Manmohan Singh. (Supreme Court of India)]

Public Interest Litigation (PIL) in United Kingdom.

Public Interest Litigation travels to United Kingdom.

Public Interest Litigation is a creation of Supreme Court of India which in 1970’s taking notice of various wrongs, especially the matters of illegal detention of prisoners in prisons in all over India. Later the Public Interest Litigation expanded to all other aspects of administration as well which hitherto-before were the matters in the exclusive domains of executive of Indian Government. It appears the erstwhile colonial masters could not resist the temptation of Public Interest Litigation, as well.

Public Interest Litigation, is a relaxation of rule of Locus Standi where by,
the absence of personal interest by the petitioner is over looked by Court.

It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney General, although he occasionally applies for prerogative orders against public authorities that do not form part of central government, in practice never does so against government departments. It is not, in my view, a sufficient “answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge.

[Source: R v Inland Revenue Commissioners, ex parte National Federation of Self Employed and Small Businesses Ltd [1982] AC 617 (by Lord Diplock at 644E G,)]

“The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re applied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant’s interest is one of the factors to be weighed in the balance.”

[Source: (Sir John Donaldson in R v Monopolies and Mergers Commission, ex parte Argyll Group Plc [1986] 1 WLR 763. At 773H) which was followed in R v Secretary of State for Foreign and Commonwealth Affairs, (1995) 1 WLR 386]