Download Cognizance of Offences- Section 190- 199 PDF

TitleCognizance of Offences- Section 190- 199
TagsCrime & Justice Crimes Complaint Criminal Procedure In South Africa Magistrate
File Size119.9 KB
Total Pages14
Table of Contents
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Page 1

One of the basic steps in any criminal case is taking cognizance of such actions. Only
after taking the cognizance of offences, the judiciary comes into picture. If we apply the
dictionary meaning it simply refers to becoming aware or getting the knowledge of any
such offences. This was also enunciated by the apex court, in the case of R.R.Chari v.
State of U.P were it defined it as the application of judicial mind. Section 190- 199 of the
Code of Criminal Procedure, 1973 describe the methods by which, and the limitations
subject to which, various criminal courts are entitled to take cognizance of offences.
Section 190 (1) states about the powers and conditions under which any magistrate of
first and second class specifically empowered in this behalf can take cognizance.
However if a magistrate in good faith erroneously take cognizance of offence, such
proceeding would not become void per se subject to the condition that it was done upon
information received or upon his own knowledge. Section 191 also gives the power to
transfer the case. This has been broadly given to the accused, Chief Judicial Magistrate
and the magistrate. But there are certain cases which are exclusively triable by 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. And lastly section 195-199 puts
the limitation on taking cognizance by magistrate. Thus we conclude that this power has
been delicately balanced between the hands of judiciary and the common man.’

Criminal law has always been most effective branch of the law which has helped in
dealing with most brutal of the crimes and has been there to protect the society from
falling in the state of anarchy. It consists of two branches known as substantive law and
procedural law. While substantive law defines the various kinds of offences and the
punishment to be given to the offenders, the procedural law is intended to provide a
mechanism for the enforcement of the substantive criminal law. In the absence of such
a procedural law, the substantive law will be rendered worthless as nobody would be
able to chart out the way of prosecuting the offenders and they will be let off. So it can
be concluded that both the laws complement each other.

The core purpose of criminal procedure is to provide the accused a full and fair trial in
accordance with the principles of natural justice. There are various steps which should
be followed in order to dispense justice and bring the guilty to the book. These include
pre-trial procedures such as information, arrests, search and seizures etc; determining

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jurisdiction of police and courts regarding investigation and trial; bail; trial procedure
including cognizance of offences, initiation of proceedings etc; review procedures and
finally the execution of final decision. Though the word ‘cognizance’ (rooting from Old
French “conoisance”, based on Latin “cognoscere”) or the words ‘taking cognizance’
have not been deciphered and defined in the procedural law, the same derive definite
connotation from plethora of precedents and gain perceptive explanation and incisive
exegesis from judicial pronouncements. While plain and dictionary meaning thereof is
‘taking note of’, ‘taking account of’, ‘to know about’, ‘to gain knowledge about’,
‘awareness about certain things’ etc. – and in Tamil “(transliteration:- “gavanikkapada
vendiya vishayam”. “gavanam”), in law, the common understanding of the term
‘cognizance’ is “taking judicial notice by a court of law, possessing jurisdiction, on a
cause or matter presented before it so as to decide whether there is any basis for
initiating proceedings and determination of the cause or matter ‘judicially'”. Thus, legal
sense of taking judicial notice by a court of law or a Magistrate is altogether different
from the view and idea a layman has for it; however, a broad and general
comprehension is ‘judicial notice by a court of law on a crime which, according to such
court, has been committed against the complainant, to take further action if facts and
circumstances so warrant’ – in Tamil, (transliteration:- “Sattapadi nadavadikkai edukka
thakka kutram thodarpana vazhakkai koapil eduppadhu kurithu aaraidhal”).

In the language of the Hon’ble Apex Court employed in its earliest decision (Ref:
R.R.Chari v. State of U.P [1], “taking cognizance does not involve any formal action or
indeed action of any kind but occurs as soon as a Magistrate as such applies his mind
to the suspected commission of offence”.

In India, the procedure to be followed for criminal proceedings is determined by the
Code of Criminal Procedure, 1973. It has a full section dedicated to the cognizance of
offences by the Magistrates and has also dealt with the restrictions placed on his power
of cognizance regarding certain offences. These sections explain in detail the persons
who are authorized to make a complaint with regard to any offence against marriage
and a Magistrate can take cognizance of the offence only if those certified persons are
the complainants. He is not empowered to take suo moto cognizance of these offences
unless there is a grave and sudden need to take action.In this project, researcher will be
discussing about various the power of Magistrate to take cognizance of various offences
and then he will be discussing about the restrictions placed on him under S. 198 & 198A
of the code. Then he will be dealing with to the viability of these restrictions and will be
analyzing if these restrictions have been useful and have served their purpose or have

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Purshottam Jethanand v. State of Kutch [9]: If a magistrate takes cognizance of an
offence and proceeds with a trial though he is not empowered in that behalf and
convicts the accused, the accused cannot avail himself of the defect and cannot
demand that his conviction be set aside merely on the ground of such irregularity, unless
there is something on the record to show that the magistrate had assumed the power,
not erroneously and in good faith, but purposely having knowledge that he did not have
any such power. On the other hand if a magistrate who is not empowered to take
cognizance of an offence takes cognizance upon information received or upon his own
knowledge under S. 190(1)(c) his proceeding shall be void and of no effect. In such a
case it is immaterial whether he was acting erroneously in good faith or otherwise.


This includes Transfer on application of the accused under S.191, Power of the Chief
Judicial Magistrate to transfer a case under S.192 (1) and Magistrate empowered to
transfer a case under S. 192(2) of Code of Criminal Procedure.

1. Transfer on application of the accused- when a magistrate takes cognizance
of an offence under clause (c) of subsection (1) of S. 190, 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, and if the accused or any of the
accused, if there be more than one, objects to further proceedings before the
magistrate taking cognizance, the case shall be transferred to such other
magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

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

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