Navigating Cognizance of Offenses Under the Criminal Procedure Code

Every criminal case in India begins with a single, pivotal moment – the moment a magistrate decides to formally take notice of an alleged offence. This moment, known in legal parlance as taking cognizance, is not a mere formality. It is the threshold at which the judicial machinery starts moving. Before this happens, no trial can validly proceed. Understanding how this works – who can do it, on what basis, and what it means – is essential for anyone studying criminal law or simply trying to understand how the Indian justice system operates.

What does “taking cognizance” actually mean? 🔗

The term cognizance is not defined anywhere in India’s procedural law, yet it is foundational. Courts have repeatedly clarified its meaning over decades. Taking cognizance generally means taking notice of an offence that has occurred. It does not involve any formal procedure laid down by law; a magistrate is said to take cognizance when he applies his mind to the offence before the accused is sent for trial.

The Supreme Court laid this out clearly in the landmark case of Darshan Singh Ram Kishan v. State of Maharashtra (AIR 1971 SC 2372), where it held that taking cognizance does not involve any formal action of any kind but occurs as soon as a magistrate applies his mind to the suspected commission of an offence.

Critically, an offence is taken into cognizance, not an offender. For a trial to be legitimate, taking cognizance is a required condition prior to it. The magistrate is considered to have taken cognizance whenever he becomes fully informed of the charges and decides to move forward with the investigation or trial.

The legal provision: Section 190 CrPC and Section 210 BNSS 🔗

The power to take cognizance is governed by Section 190 of the Code of Criminal Procedure, 1973 (CrPC). With the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – which replaces the CrPC – this provision has been re-enacted as Section 210 with some notable upgrades. Both provisions follow the same structure and empower magistrates to take cognizance through three distinct channels.

Any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf, may take cognizance of any offence upon receiving a complaint of facts constituting such offence, upon a police report of such facts, or upon information received otherwise. The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance of offences within their competence.

Who can take cognizance? 🔗

A first-class magistrate can give a sentence of up to three years in jail and impose a fine of up to ₹5,000. A second-class magistrate can pass a sentence of up to one year and impose a fine of up to ₹1,000. A Judicial Magistrate of the first class can take cognizance of an offence directly. Second-class magistrates can do so only when specifically empowered by the Chief Judicial Magistrate for particular categories of offences.

The three modes of taking cognizance 🔗

1. On a complaint [Section 190(1)(a) CrPC / Section 210(1)(a) BNSS] 🔗

This provision allows a magistrate to take cognizance of any offence upon receiving a complaint – defined as an allegation made orally or in writing to a magistrate, with the intention of seeking legal action, that some person whether known or unknown has committed an offence. A police report does not constitute a complaint.

Under the BNSS, this mode has been expanded: Section 210(1)(a) now covers receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such an offence. This is particularly significant for regulatory bodies and enforcement authorities operating under special legislation.

Once a complaint is received, the magistrate does not automatically issue process. The Magistrate may order a police investigation under Section 156(3) of the CrPC if he does not immediately take note of the offence. By taking such a step, the Magistrate is spared from spending time examining a subject that may not warrant judicial proceedings. If the magistrate does proceed, the next steps involve examining the complainant under Section 200 and potentially ordering an inquiry under Section 202.

2. On a police report [Section 190(1)(b) CrPC / Section 210(1)(b) BNSS] 🔗

Under this provision, a magistrate takes cognizance based on a police report – also known as a charge sheet – which is a document prepared by the police after completing an investigation, detailing the evidence and conclusions reached. It is important to remember that a First Information Report (FIR) is not the same as a police report; only the charge sheet filed after investigation triggers this mode of cognizance.

A key principle here is that the magistrate’s power is broader than just the four corners of the charge sheet. When a magistrate takes cognizance on a police report, he takes cognizance of the offence and not merely of a particular person charged in the report. He can therefore issue process against others who appear, on the basis of the report and other material before him, to be concerned in the commission of the offence.

The BNSS adds a significant update: Section 210(1)(b) now explicitly permits a police report submitted in any mode, including electronic mode, to trigger cognizance. This modernisation reflects India’s push toward digital governance in its justice system.

3. On information or own knowledge [Section 190(1)(c) CrPC / Section 210(1)(c) BNSS] 🔗

This is the most expansive mode. This provision grants a magistrate the authority to take cognizance of an offence upon receiving information from any source other than a police officer, or upon his own knowledge, that such an offence has been committed. This is sometimes called suo motu cognizance and is a powerful tool that allows courts to respond to pressing situations even in the absence of a formal complaint or police report.

When cognizance is taken under this mode, the law provides a specific safeguard. When a magistrate takes cognizance under clause (c), the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another magistrate. If the accused objects to further proceedings before that magistrate, the case shall be transferred to another magistrate as specified by the Chief Judicial Magistrate. This provision protects accused persons from potential bias in cases where the magistrate himself triggered proceedings.

A recent judicial clarification from the Punjab and Haryana High Court further defined the scope of this mode: under Section 210(1)(c) of the BNSS, a magistrate is not obligated to record the statement of any witness or call the aggrieved party before taking cognizance of an offence or issuing process – the provision is entirely based upon the satisfaction of the magistrate.

The magistrate’s duty to apply judicial mind 🔗

Taking cognizance is not automatic or rubber-stamp in nature. It requires genuine application of judicial mind. The Supreme Court has emphasised in several landmark judgments that magistrates must apply their mind independently and not merely rely on the police report or complaint. The process of taking cognizance should not be used to harass individuals but must be based on a genuine belief that an offence has been committed.

This judicial discretion extends to who gets summoned as well. In a significant ruling, the Supreme Court held that a magistrate has the power under Section 190 CrPC to issue summons against persons not mentioned in the chargesheet or the FIR. Taking cognizance implies the application of judicial mind to the facts and circumstances of the case. The Court affirmed that the magistrate’s duty includes identifying all offenders – not just those named by the police.

Complaints against public servants: a special procedure 🔗

The BNSS introduces an important procedural addition that did not exist as clearly under the CrPC. Under Section 210(3) BNSS, when a magistrate receives a complaint against a public servant arising from the discharge of official duties, the magistrate must take cognizance subject to receiving a report containing facts and circumstances from the officer superior to such public servant, and after considering the assertions made by the public servant about the situation that led to the incident.

This provision balances accountability with protection – it ensures public servants are not subjected to frivolous complaints while also preventing any cover-up by superior officers.

What happens after cognizance is taken? 🔗

Once a magistrate takes cognizance, the case enters the formal judicial process. Taking cognizance happens when a magistrate examines the alleged commission of an offence with a critical eye in order to take further action under Sections 200, 202, or 204 of the CrPC toward investigation and trial. The purpose of the inquiry under Section 202 is solely to allow the magistrate to ascertain whether the claim in the complaint is true or false in order to decide whether process should be issued.

It is equally important to note what cognizance is not. The magistrate’s use of judgment to take any other action – such as ordering a police investigation or issuing a search warrant – cannot be interpreted as taking cognizance of the offence. These are preliminary steps that precede, not constitute, formal cognizance.

Additionally, any Chief Judicial Magistrate may, after taking cognizance of an offence, transfer the case for inquiry or trial to any competent magistrate subordinate to him. This power of transfer ensures that cases are handled by courts with appropriate jurisdiction and resources.

Restrictions on taking cognizance: sanction requirements 🔗

Not every offence can be brought to a court’s attention without prior approval. When any person who is or was a judge, magistrate, or a public servant not removable from office without government sanction is accused of any offence allegedly committed while acting in the discharge of official duty, no court shall take cognizance of such offence except with the previous sanction of the Central Government (for Union employees) or the State Government (for State employees).

This requirement serves to prevent vexatious prosecutions against officials while performing their lawful duties. It is a safeguard, not a shield for misconduct – courts have consistently held that sanction must be granted fairly and cannot be withheld arbitrarily where a genuine case exists.

CrPC vs. BNSS: what has changed? 🔗

The transition from CrPC to BNSS brings three meaningful changes to the cognizance framework. First, the BNSS under Section 210(1) now permits a magistrate to take cognizance of any offence in relation to a complaint filed by a person authorised under any special law. Second, electronic submission of police reports is now explicitly recognised. Third, a new procedural safeguard has been introduced specifically for complaints against public servants, requiring inputs from a superior officer before cognizance is taken. These changes modernise the framework while preserving its foundational principles.

What do you think? Given that taking cognizance is the starting point for all criminal proceedings, should there be stricter procedural guidelines to prevent frivolous complaints from reaching this stage? And with the BNSS now allowing electronic police reports, do you think digital submissions could raise new questions about authenticity and judicial scrutiny?

References

1. https://indiankanoon.org/doc/686759/
2. https://www.indiacode.nic.in/handle/123456789/20099
3. https://www.thelawadvice.com/articles/cognizance-by-magistrate-section-190-of-crpc-and-210-bnss-2023-new-crpc