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 shift 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)]