COGNIZANCE

2. Power of the Chief Judicial Magistrate to transfer a case– S. 192(1) provides that
any chief judicial magistrate may after taking cognizance of offence, make over the
case for inquiry or trial to any competent magistrate subordinate to him. The section
enables the chief judicial magistrate to distribute the work for administrative
convenience. This section has conferred special power on the CJM as normally the
magistrate taking cognizance of the offence has himself to proceed further as enjoined
by the Code. But an exception has been made in the case of CJM, may be because he
has some administrative functions also to perform. The transfer can be ordered only
after taking cognizance by the transferring magistrate. The object of this section is
that senior magistrate may find it convenient to when a magistrate transfers a case
under S.192, it is not an administrative order. It is judicial order in as much as there
should be application of mind by the magistrate before he passes the order look at
most of the cases in the first instance but after taking cognizance send them for
disposal to their subordinates.
3. Magistrate empowered to transfer a case– According to S. 192(2) “Any Magistrate
of the first class empowered in this behalf by the Chief Judicial Magistrate may, after
taking cognizance of an offence, make over the case for inquiry or trial to such other
competent Magistrate as the Chief Judicial Magistrate may, by general or special
order, specify, and thereupon such Magistrate may hold the inquiry or trial.” This
subsection enables the CJM to clothe a first class magistrate with powers like his own
under S. 192(1). This again is useful in order to relieve the CJM of unnecessary
burden.

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CHAPTER 4

COGNIZANCE OF IFFENCE BY COURT OF SESSION

No court of session shall take cognizance of any offence as a court of original jurisdiction
unless the case has been committed to it by a magistrate under S. 193 of the Code. When an
offence is exclusively triable by a court of session according to S.26 read with the First
Schedule the Magistrate taking cognizance of such offence is required to commit the case for
trial to the Court of Session after completing certain preliminary formality. Sometimes the
posts of CJM and ADJ are held by one individual. In such a case the CJM was required to
take cognizance and try economic offences. It was ruled that S. 193 did not apply to that case.
For proper distribution of the work in the court of session and for administrative convenience,
it has been provided that an Additional Session Judge or Assistant Session Judge shall try
such cases as the Sessions Judge of the division may, by general or special order, make over
to him for trial or as the High Court may, by special order, direct him to try under S.194 of
the Code.

CHAPTER 5

LIMITATION ON THE POWER TO TAKE COGNIZANCE

Sections 195-199 are exceptions to the general rule that any person having knowledge of the
commission of an offence, may set the law in motion by a complaint, even though he is not
personally interested or affected by the offence. The general rule is that any person having
knowledge of the commission of an offence may set the law in motion by a complaint even
though he is not personally interested in, or affected by the offence. To this general rule,
Sections 195 to 199 of Cr. P.C. provide exceptions, for they forbid cognizance being taken of
the offences referred to therein except where there is a complaint by the Court or the public
servant concerned. The provisions of these sections are mandatory and a Court has no
jurisdiction to take cognizance of any of the offences mentioned therein unless there is a
complaint in writing as required by the section concerned. There is absolute bar against the
Court taking cognizance of the case under Section 182 of IPC except in the manner provided

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in Section 195 of Cr.P.C. Where the complaint is not in conformity with the provisions of this
section, the Court has no power even to examine the complainant on oath because such
examination could be made only where the Court has taken cognizance of the case. The
absence of complaint as required by the section is fatal to the prosecution and it is an
illegality which vitiates the trial and conviction.

The Supreme Court, in Bashir-ul-Haq v. State12, held that Section 195 of Cr.P.C. requires
that without a written complaint of the public servant concerned no prosecution for an
offence under Section 182, IPC can be launched nor any cognizance of the case taken by the
Court.

Since Section 195 and the succeeding four sections i.e., Sections 196, 197, 198 & 199 impose
restrictions on the power of Magistrate to take cognizance of offence under Section 190,
therefore, at the stage of taking cognizance of an offence, the Magistrate should make sure
whether his power of taking cognizance of the offence has or has not been taken away by any
of the clauses of Sections 195-199 of the Code. Any person may set the criminal law in
motion by filing a complaint even if he is not personally affected by the offence committed.
However, certain restrictions or limitations have been imposed on the wider powers of the
magistrate’s power to take cognizance under S. 190 of the code and these restrictions have
been placed under S. 195-199 of CrPC. Sub-section 1(a) of Section 195 provides that no
Court shall take cognizance of any offence punishable under Sections 172 to 188, IPC or of
abetment or attempt or criminal conspiracy to commit such offence. Sections 172-188, IPC
relate to offence of contempt of lawful authority of public servants, for example absconding
to avoid service of summons, preventing service of summons, not producing a document
when so required by a public servant, knowingly furnishing false information, refusing to
take oath etc.

The provision of Section 195(1)(a) being mandatory, any private prosecution in respect of the
said offences is totally barred. Only the concerned public servants can make a complaint and
initiate proceedings in respect of these offences. The power to make the complaint can be
exercised only by the public servant who is for the time being holding the office or is a
successor-in-office of the public servant whose order is disobeyed or lawful authority
disregarded and thus an offence under Sections 172 to 188, IPC has been committed. The bar

12
1953 AIR 293, 1953 SCR 836

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or limitation imposed by sub-section 1(a) of Section 195 equally extends to both cognizable
as well as non-cognizable offences. It may be noted that all the offences covered by Sections
172 to 188 of IPC except the one under Section 188, are non-cognizable offences. It may be
noted that Section 195 being mandatory taking cognizance of any offence referred to therein
without a proper complaint by the concerned public servant would be an illegality which
cannot be cured by Section 465 of Cr.P.C. Clause (b) of Section 195(1) relates to prosecution
for offences against public justice. No Court shall take cognizance of any such offence or of
attempt or abetment or of any criminal conspiracy to commit any such offence, when such
offence is alleged to have been committed in, or relation to, any proceeding in any Court,
except on a complaint in writing of that Court or of some other Court to which that Court is
subordinate.

In the case of Mahesh Chand Sharma v. State of U.P13., the appellant filed a complaint
alleging that the respondents (accused persons) had fraudulently mutated their names in the
land record. The land in question was purchased by the appellant under a registered sale deed.
The accused persons had colluded with the Area Lekhpal and acted behind the back of the
appellant. Held, the offence committed did not relate to Court proceedings which is the
essential requirement for applicability of Section 195(1)(b) (ii). The appellant had lodged the
complaint as soon as he came to know about the evil designs of accused persons. The Apex
Court ruled that the impugned order quashing taking of cognizance against accused by
wrongly applying provision of Section 195 and resorting to Section 340 (which relates to
procedure in cases mentioned in Section 195) was not proper.

As provided in sub-section (3); term ‘Court’ for this purpose means a civil, revenue or
criminal Court and includes a tribunal constituted by Central or State Act. But it does not
include a commission appointed under the Commission of Inquiry Act, 1952.

The Supreme Court, in Santosh Singh v. Izhar Hussain14, observed that every incorrect or
false statement does not make it incumbent upon the Court to order prosecution. The Court
should exercise judicial discretion taking into consideration all the relevant facts and
circumstances. It should order prosecution in the larger interest of justice and not gratify the
feelings of personal revenge or vindictiveness or serve the ends of a private party.
13
Crl.A.@ S.L.P.(Crl.)No.8077 of 08
14
1973 AIR 2190

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In the case of R. Ruthinam v. Kamla Vaiduriam15, a minor girl was in the custody of a
person who was asked to produce the girl before the Madras High Court. The person
produced a substitute girl identifying her and asserting her to the same girl. Therefore, the
High Court was justified in lodging a complaint against that person for giving false evidence
and misleading the Court. Where a forged agreement of sale was filed before the Deputy
Registrar Cooperative Societies (Housing) at Hyderabad, a private complaint for an offence
under Section 467, IPC was held to be maintainable, as the cooperative Registrar is not a
Court within the meaning of Section 195 of the Code. In a case where the accused were
alleged to have forged certain documents and filed a civil suit on the basis of those forged
documents, it was held that procedure contemplated in Section 195 (2)(b) must necessarily be
followed because offences under Sections 474 and 474-A of IPC are integral parts of the
offences covered by Section 195 of the Code and form the same transaction.

A document is said to be ‘produced in Court’ when it is placed before the Court for the
purposes of being tendered in evidence or for some other purpose. Prosecution of a person for
giving false statements, by and large, depends upon the gravity of the false statement and the
circumstances under which such statement was made, also the object of making it and the
impact it has on administration of justice. It has been held that a person cannot be prosecuted
for the offence of perjury unless he has stated on oath, facts on which his first statement was
based and then denied those facts on oath subsequently. There cannot be a prosecution for
alleged forgery under Section 195 (1)(b)(ii) where a document alleged to be forged was not
itself produced in Court but a copy only of such document was produced.

The Supreme Court in Sachidanand Singh v. State of Bihar16, has clarified that a
prosecution for the offence of forgery would be possible under Section 195 (1) (b) (ii) only
where the forgery was committed while the document was in custody of Court, i.e., custodia
legis, but mere production of the document would not attract the bar of this section and in that
case prosecution may be launched by any person.

Section 195 (4) deals with the subordination of Courts. It is different from the subordination
of Courts generally for the purpose of Cr.P.C. which is dealt with in Sections 15 and 23 of the
Code. Under this section, the Court to which appeal ordinarily lies from the appealable
decrees or sentences of the Court, is the Court to which such Court is subordinate and in case

15
1964 AIR 1385, 1964 SCR (6) 321
16
Criminal Miscellaneous No.49340 of 2014

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of Civil Court from whose decrees no appeal lies, it is subordinate to the principal Court
having ordinarily original Civil jurisdiction, within whose local jurisdiction such Civil Court
is situate. It has been held that the Court of single Judge of the High Court is subordinate to
the Division Bench of the High Court which hears appeals from such Court in certain cases.

The two provisos to sub-section (4) deal with (1) subordination of Court whose appeal to
more than one Court lies; and (2) subordination when there is dual jurisdiction i.e. where
appeals from a Court may in certain cases go to a Civil Court and in other cases to revenue
Court. In such cases the subordination must be decided according to the nature of the case in
connection with which the offence is alleged to have been committed.

These restrictions have been placed on sound policy considerations and have been considered
important for faster disposal of cases. S. 198 lays down an exception to the general rule that a
complaint can be filed by anybody even if not connected to the victim and modifies this by
saying that only aggrieved person or person specified under the section can file a complaint
relating to offences relating to marriage. The object of this section is to prevent a Magistrate
of his own motion inquiring into cases of marriage, unless the husband or other authorized
person complains so, but once a case has been placed before him, a Magistrate is free to
proceed against any person implicated. It must be understood that this section neither confer
any power of cognizance on the court nor a right to complain on the aggrieved person.

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CHAPTER 6

CONCLUSION AND SUGGESTION

The researcher concludes that Section 190 of the Code empowers the magistrate to take
cognizance of an offence in cases where the victim does not lodge an FIR in the police station
due to any reason or in cases where the police refuse to admit FIR reported by any victim.
Thus, this provision is meant to safeguard the interests of the victims while keeping a check
on the unfettered powers of the police. The clause is divided in three exclusive parts which
empower the magistrate to take cognizance upon receiving a complaint of facts or upon a
police report of such facts or upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been committed.

The real distinction between sub-clause (c) and sub-clauses (a) and (b) of section 190(1) is
that, in the two latter cases an application is made to the Magistrate to take cognizance of the
offence either by a complaint or by the police, while in the former case the Magistrate takes
cognizance suo motu either on his own knowledge or on information received from some
person who will not take the responsibility of setting the law in motion. In this case, the law
partly out of regard for the susceptibilities of the accused and partly to inspire confidence in
the administration of justice allows the accused right to claim to be tried before another
Magistrate.

And that these restrictions under S. 195-199 of CrPC, were put in place so as to maintain the
dignity of affected families and also to solve the matters within the family members. Had
everyone been allowed to file a complaint, then it would have resulted in chaos in the
families and loads of cases would have been registered which might be out of spite to show
that family in bad repute. Though magistrate can take cognizance of the complaint filed by
the persons as mentioned under this section, he can also grant other person’s leave to file a
complaint. By these sections, only the most affected persons are given right to file a
complaint as they are considered to be aggrieved at most. Though the thinking of legislature
was noble while enacting the legislation, there seems to be some gaping holes in the code,
mostly with regard to remedies asserted to women, by which many husbands have been set

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free. It is to be understood that the object of CrPC is not let an accused go but to punish him
for his deeds. So the government must introduce some amendment so as to make these
provisions effective.

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BIBLIOGRAPHY
 Criminal Procedure Code, 1973
 Batuk Lal's Commentary On The Code Of Criminal Procedure, 2 Vol Set,1973 (Act
No.2 of 1974), 6th Edition
 COGNIZANCE – A BIRD'S EYE VIEW by The Hon'ble Mr. Justice R.Regupathi,
Judge, High Court, Madras.
 http://www.livelaw.in/taking-cognizance-offence-disillusionment-still-continues/
 https://lawmystery.com/2013/02/28/cognizance-meaning-definition-crpc/

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