Author Archives: sajikoduvath

Cognizance is ‘application of judicial mind’.

It is actually application of judicial mind to “proceed with” the further legal step under Sec. 200 or 204 (on the contents of a Complaint or a Police Report). Therefore, it is not mere ‘application of judicial mind‘ (as conveyed literally).

Jojy George Koduvath.

Abstract

•➧ Plain meaning of ‘cognisance’ is – to take notice of something. •➧ In law, it is ‘taking judicial notice’ on a cause or offence. •➧ ‘Judicial notice’ is taken by the Magistrate by ‘applying his judicial mind’. •➧ Taking cognizance does not involve any formal action. •➧ Unless cognizance is barred by a statute, anyone can file a civil suit. •➧ Magistrate has a discretion not to take Cognizance (of a criminal case). •➧ For taking cognizance, the offence must be one punishable under law. •➧ Cognizance is taken against the suspected commission of offence; not offender. •➧ It is the application of mind by the Magistrate “to the suspected commission of offence”. •➧ ‘Application of judicial mind‘ is not what is conveyed literally; cognizance is ‘application of judicial mind‘ (on the contents of the Complaint or Report, as to the offence) “to proceed with” the further legal step under Sec. 200 or 204. Because, cognizance is not taken – if the Magistrate orders investigation under section 156(3), or issues a search warrant, (That is, in such circumstance, the Magistrate is not applying his mind “to proceed” under Sec. 200 or 204.) •➧ Cognizance can be taken by a Magistrate by 3 ways (S. 190 Cr PC) . They are –                • (a) upon a complaint;                • (b) upon a police report – in both, ‘offence-made-out’ and ‘refer-charge’ (If the Magistrate decides to proceed against the accused disregarding the opinion in the police report to ‘refer’);                • (c) upon information from any person or upon his own knowledge. •➧ The Magistrate Prima Facie satisfied on the final report (S. 173 Cr PC) has to take cognizance and issue Process (summons/warrant) to the accused. •➧ If cognizance is wrongly taken (without Prima Facie essential ingredients of the alleged offence) it will be QUASHED by the High Court.

What is Cognizance or Application of Mind by a Magistrate?

In law, cognizance is – ‘taking judicial notice’ by ‘applying the judicial mind’ of the Magistrate on a cause or offence. It is not possible to precisely define what is ‘cognizance’.

It is also difficult to pinpoint – when cognizance is taken (of an offence) by a Magistrate.

According to Black’s Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance, it means taking notice of. (State of U.P. v. Paras Nath Singh, 2009-6 SCC 372)

‘Cognizance’ can be explained from following elucidations.

• 1. No cognizance is taken when the Magistrate (who receives the complaint, or the information, under Sec. 190) applies his mind for ordering investigation under section 156(3) CrPC, or when a search warrant is issued for the purpose of the investigation.
• 2. Cognisance is taken when the Magistrate applies his mind to proceed with the further legal step such as to proceed under Sec. 200 CrPC _{(that is, in case of a complaint – examine the complainant)} or under Sec. 204 CrPC _{(that is, in case of a police report or other information, issue process – summons/warrant – to accused)}.  For that matter, the magistrate must have
  • (i) applied his mind to the contents of the complaint, or the police report, or the information, and
  • (ii) decided to proceed under Sec. 200, 204 CrPC .

“A Magistrate taking Cognizance”

It is definite from the above – taking cognizance is not the same thing as issuance of process; for, in case of judicial action on police report or other information, Cognizance is taken first, and process (summons/warrant) is issued subsequently.

Taking cognizance does not involve any formal action or a formal order that ‘cognizance is taken’. It is clear from the words “a Magistrate taking cognizance” in Sec. 200 and 204.

• Sec. 200 reads: “A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant …”
• Sec. 204 reads: “If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, … issue his summons …. or …. warrant ….

Cognizance – Judicial Process for determining whether a Legal Action be Initiated

From the above, it is clear that ‘cognisance’ is actually application of judicial mind to “proceed with” the further legal step under Sec. 200 or 204 (on the contents of a Complaint or a Police Report). Therefore, it is not mere ‘application of judicial mind’ (as conveyed literally).

In other words, Cognizance is the judicial process made by a court for arriving at a conclusion whether a legal action be initiated against an offence by a process of reasoning, analysing facts in the light of the law applicable.

• In simple terms, it is a fact finding process at the beginning stage of proceedings – to see whether, Prima Facie, an offence has been committed.

Taking cognizance does not involve any formal action  

In Emperor v. Sourindra Mohan Chuckerbutty, (1910) ILR 37 Cal. 412, 14 CWN 512-6 IC 8, 11 Cr LJ 217, it is observed as under:

• “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 an offence.” (Reiterated in R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207; Ajit Kumat Palit v. State of West Bengal, AIR 1963 SC 765; Darshan Singh Ram Kishan v. State of Maharashtra, (1972) 1 SCR 571.

At the stage of issue of summons, detailed reasoning as to why a Magistrate is issuing summons, however, is not necessary. (See: Sachin Garg v. State of U. P., 30 Jan 2024 (Aniruddha Bose, Sanjay Kumar, JJ.), 2024 INSC 72 (SC)

Taking cognizance is not the same thing as issuance of process

In State of W.B. v. Mohd. Khalid, 1995-1 SCC 684, it is observed as under:

• “13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a Prima Facie case is made out.” (Quoted in: Anil Kumar v. M.K. Aiyappa, 2013–10 SCC 705; Jayant v. State of Madhya Pradesh, 2021 AIRSC496; 2021–2 SCC 670)

Cognizance & Prima Facie Case

If there is a prima facie case (that is, sufficient ground for proceeding) the Magistrate has to take cognizance and issue summons to the accused.

• Jagdish Ram v. State of Rajasthan, 2004-4 SCC 432,
• Pepsi Foods Ltd. v. Special Judicial Magistrate 1998-5 SCC 749,
•  Sachin Garg v. State of U. P., 30 Jan 2024 (Aniruddha Bose, Sanjay Kumar, JJ.), 2024 INSC 72 (SC)

The Magistrate satisfied on the basis of the consideration of the final (S. 173) report (the statements under Section 161 of the Code) that Prima Facie case is made out, the Magistrate has to take cognizance and issue Process (summons/warrant) to the accused (Mukhtar Zaidi v. State of Uttar Pradesh, 2024 INSC 316).

Procedure on receipt of a (Private) Complaint by a Magistrate

From India Carat Pvt. Ltd. v. State of Karnataka, 1989 (2) SCC 132, it is clear –

• On receipt of a (private) Complaint a Magistrate has to either –
  • order investigation by the police under Sec. 156(3)
  • or, take cognizance and procced under Sec. 200 – and record evidence of the complainant.

After taking evidence under Sec. 200, the Magistrate

• could issue process at once under s. 204 o
• or could dismiss the complaint under s. 203
• or, to take evidence/enquiry under s. 202.

Section 202 Enquiry

The Sec. 202 enquiry can be by –

• the Magistrate himself – who takes cognisance of an offence
  • (upon a complaint or
  • police report or
  • upon his own knowledge)
• or any Magistrate subordinate to him,
• or by a police officer,
• or by such other person as he thinks fit.

Purpose of Sec. 202 enquiry is extremely limited

• The purpose is – “deciding whether or not there is sufficient ground for proceeding”.

The Supreme Court in Fiona Shrikhande v. State of Maharashtra,  2013-14 SCC 44, observed as under:

• “At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to “Prima Facie satisfy” whether there are “sufficient grounds to proceed” against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint.”

In Suresh Chand Jain v. State of M.P., 2001(2) S.C.C. 628, the Supreme Court observed as under:

• “Section 156, falling within Chapter XII, deals with powers of the Police Officers to investigate cognizable offences. Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a Police Officer”. But the investigation envisaged in section 202 is different from the investigation contemplated in section 156 of the Code. The significant point to be noticed is that when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.
• A Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of section 202(1) Cri.P.C. would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a Police Officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further.
• This can be discerned from the culminating words in Section 202(1) i.e. “or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding”.
• This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.”

The legal position has been summarized in Suresh Chand Jain thus:

• “10. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”

Suresh Chand Jain v. State of M.P., 2001(2) S.C.C. 628, is quoted in:

• Supreme Bhiwandi Wada Manor Infrastructure Pvt.  Ltd.  v. State of Maharashtra, AIR 2021 SC 3580; 2021-8 SCC 753.
• Dilawar Singh v. State of Delhi, (2007) 12 SCC 641

In Mohd. Yousuf v. Afaq Jahan, 2006-1 SCC (Cri.) 460 laid down the relevant principles under Sec. 202 as under:

• “9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. “or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.”
• 10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.”

In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, it is observed as under:

• “.. . when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under s. 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari v. State of U. P. and again in Gopal Das v. State of, Assam In the case before us the Magistrate after receipt of Bhadai Sah’s complaint proceeded to examine him under s. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under s. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by s. 200 the Magistrate could have issued process at once under s. 204 of the Code of Criminal Procedure or could have dismissed the complaint under s. 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under s. 202 of the Code of Criminal Procedure.

Scope of 202 Enquiry -“Ascertaining the truth or falsehood of the complaint”

In Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113, our Apex Court has observed that the purpose of Section 202 of CrPC was to ascertain the truth or falsehood of the complaint for ascertaining whether there was a sufficient evidence available in support of issuance of the summoning order.

In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, it is observed as under:

• “That section (s. 202) empowers the Magistrate to “postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.”

Not Proper to Order to “File Charge Sheet”, under Sec. 202 (Only Investigation)

In  Tula Ram v. Kishore Singh,  1977- 4 SCC 459, it was held that the Magistrate can order the police to investigate the complaint, but it has no power to compel the police to submit a charge sheet on a final report being submitted by the police.

In Abdul Rahim v. Abdul Muktadin, ILR (1952) 4 Assam 273 : AIR 1953 Assam 112 a Division Bench of the Assam High court held as under:

• “There is no provisions of law by which a Magistrate is empowered to direct the police to send up a charge sheet against an accused person whom an information has been lodged. A magistrate is empowered to take cognizance of the case in accordance with S. 190 code of criminal Procedure.”

In Anand Kumar Pandey v. State of U. P. , 2020-1 All.CR 899, it is found as under:

• If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under s. 203 of the Code of Criminal Procedure.
• We find that in the case before us the Magistrate after completing the examination under s. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words :–
  • “Examined the complaint on s.a. The offence is cognizable one. To S.I. Bakunthpur for instituting a case and report by 12.12.56.”
• If the learned Magistrate had used the words “for investigation” instead of the words “for instituting a case” the order would clearly be under s. 202(1) the Code of Criminal Procedure. We do not think that the fact that he used the words “for instituting a case” makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under s. 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under s. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words “for instituting a case” in this order of November 22, 1956 he was actually taking action under s. 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act.”

Police investigation u/Sec. 156(3) & 202(1) – Two operate in distinct spheres;

Section 202 is Not to initiate a Fresh Case on Police Report – Only to see “Sufficient Ground to proceed“

In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy,  1976-3 SCC 252: AIR 1976 SC 1672, it is pointed out as under:

• “17. Section 156(3) occurs in Chapter XII, under the caption:
• “Information to the Police and their powers to investigate”;
• while Section 202 is in Chapter XV which bears the heading:
• “Of complaints to Magistrates”.
• The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub- section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”.
• Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.” (Followed in Tula Ram v. Kishore Singh (1977) 4 SCC 459; and Quoted in Anand Kumar Pandey v. State Of U. P. , 2020-1 All.CR 899)

Sec. 156(3) exercised, if complaint discloses a “cognizable offence“

In Tilak Nagar Industries Limited v. State of Andhra Pradesh(2011) 15 SCC 571, it is held as under:

• “12…power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence.” (Quoted in: Supreme Bhiwandi Wada Manor Infrastructure Pvt.  Ltd.  v. State of Maharashtra, AIR 2021 SC 3580; 2021-8 SCC 753.)

Sec. 156(3) is a “preemptory intimation” to the police

In Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, it is said as under:

• “35. Investigation into commission of a crime can be commenced by two different modes. First, where the police officer registers an FIR in relation to commission of a cognizable offence and commences investigation in terms of Chapter XII of the Code, the other is when a Magistrate competent to take cognizance in terms of Section 190 may order an investigation into commission of a crime as per the provisions of that Chapter XIV. Section 156 primarily deals with the powers of a police office to investigate a cognizable case. While dealing with the application or passing an order under Section 156(3), the Magistrate does not take cognizance of an offence. When the Magistrate had applied his mind only for order an investigation under Section 156(3) of the Code or issued a warrant for the said purpose, he is not said to have taken cognizance. It is an order in the nature of a preemptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the Code.”

Investigation commences by (i) FIR and (ii) Magistrate-order

In Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, it is said as under:

• “35. Investigation into commission of a crime can be commenced by two different modes. First, where the police officer registers an FIR in relation to commission of a cognizable offence and commences investigation in terms of Chapter XII of the Code, the other is when a Magistrate competent to take cognizance in terms of Section 190 may order an investigation into commission of a crime as per the provisions of that Chapter XIV. Section 156 primarily deals with the powers of a police office to investigate a cognizable case. While dealing with the application or passing an order under Section 156(3), the Magistrate does not take cognizance of an offence. When the Magistrate had applied his mind only for order an investigation under Section 156(3) of the Code or issued a warrant for the said purpose, he is not said to have taken cognizance. It is an order in the nature of a preemptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the Code.

Magistrate has no power to compel police to submit a charge sheet

Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, proceeded as under:

• 36. Caution in this process had been introduced by this Court vide its judgment in the case of Tula Ram & Ors. v. Kishore Singh [1977) 4 SCC 459] where it was held that the Magistrate can order the police to investigate the complaint, but it has no power to compel the police to submit a charge sheet on a final report being submitted by the police.

Sec. 156(3), 200 and 202

Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, proceeded further:

• 37. Still another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders under Section 156(3), but where it takes cognizance, there it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling under Chapter XV of the Code. There also the Magistrate is vested with the power to direct investigation to be made by a police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. This power is restricted and is not as wide as the power vested under Section 156(3) of the Code. The power of the Magistrate under Section 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation under Section 156(3) of the Code. These cases would fall in different class. This view was also taken by a Bench of this Court in the case of Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185]. The distinction between these two powers had also been finally stated in the judgment of this Court in the case of Srinivas Gundluri & Ors. v. SEPCO Electric Power Construction Corporation & Ors. [(2010) 8 SCC 206] where the Court stated that to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. But where it takes cognizance and decides as to whether or not there exists a ground for proceeding any further, then it is a case squarely falling under Chapter XV of the Code.

Sec. 156(3) – Power of Magistrate Limited

Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, proceeded further as under:

• 38. Thus, the Magistrate exercises a very limited power under Section 156(3) and so is its discretion. It does not travel into the arena of merit of the case if such case was fit to proceed further. This distinction has to be kept in mind by the court in different kinds of cases.
• In the present case, the learned Magistrate while passing the order dated 29th July, 2008, had not dealt with the case on merits, but on a legal assumption that it was not a case to direct investigation because investigation was already going on under FIR No. 45/2007. Once it is held as done by us above, there were two different and distinct offences committed by different persons and there was no commonality of transaction between the two. We do not find any error of jurisdiction in the order of the High Court requiring the learned Magistrate to deal with the cases afresh and pass an order under Section 156(3) of the Code.

Final Report under Sec. 173 and Cognizance by the Magistrate

• On getting the 156(3) Order, the police will register an FIR and investigate the matter.
• Finally, the police submits a report under Section 173(2).
• On receiving the police report the Magistrate –
  • (a) takes cognizance of the offence under Section 190(1)(c) and issue process to the accused – even if the police report is to the effect that no case is made out. [Note: Magistrate takes cognizance, not because he is bound by the Sec. 173 Police Report; but, because – on ‘application of judicial mind‘ on the Report, the Magistrate finds it proper “to proceed” under 204.]
  • (b) proceeds to act under Section 200, by taking cognizance of the offence on the basis of the complaint originally submitted to him, and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.
  • (c) drops the proceedings if it is satisfied (on applying his judicial mind – without regard to the opinion on the police officer as to grounds to ‘proceed’ against the accused) that there is no sufficient material to take cognizance of the offence.

In India Carat Pvt. Ltd. vs. State of Karnataka, 1989 (2) SCC 132, it is observed as under:

• “13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him…..  …… … …Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.”

Magistrate has to independently apply his mind on a Final Report

A Magistrate can, independently apply his mind to a police report. He is not bound to follow the procedure under Sections 200 and 202 of the Code for taking cognizance. (It is, however, open to the Magistrate to do so: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27). It is held in Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768as under:

• “6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows (SCC p. 542, para 4):
• “There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.” (Quoted in: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27)

Magistrate can take cognizance even if police report is – no case made out

In Jitender Mehta v. Shivani Mehta, (M.K. Hanjura, J.), AIR OnLine 2018 J & K 546;  2018 Kash LJ 918, it is held as under:

• “23. The position is, thus, clear that when a Magistrate receives police report under Section 173(2), he is entitled to take cognizance of an offence even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and other material collected during investigation and form his own opinion independently without being bound by the conclusions arrived at by the investigating agency and take cognizance under Section 190(1)(b) of the Code and direct the issue of process to the accused.”

Magistrate cannot use any material other than Police investigation records; Magistrate to follow the Procedure under Sec. 200 and 202

In Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546;  2018 Kash LJ 918, it is also held as under:

• “However, the Magistrate cannot make use of any material or evidence other than the investigation records while acting under Section 190(1)(b) of the Code. If he chooses to make use of any materials other than the investigation records, he will have to follow the procedure laid down in relation to complaint cases, on the basis of original complaint or application moved under Section 156(3) Cr.P.C. which otherwise tantamount to complaint or the Protest petition filed against acceptance of final report treating the same as complaint.
• This proposition would be in consonance with the provision of Section 207 which inter-alia provides for supply of copy of statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses and any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.”

Standard of Proof of Evidence at Sec. 202-Stage

• The complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a Prima Facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage. [Ponnal @ Kalaiyarasi v. Rajamanickam, 1998 Cri LJ 4333; 1998 (4) Crimes 543 (Mad)]

Accused has no right of hearing until Issuance of Process

In Manharibhai Mujlibhai Kakadia v. Shaileshbhai Mohanbhai Patel, 2012-10 SCC 517, it is observed as under:

• “46. The legal position is fairly well-settled that in the proceedings Under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process Under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.”
• See:Contra view below.

Contra View – Once a Final Report (favourable to Accused), Accused be heard before rejecting it

Though accused has no right of hearing until Issue of Process, as shown above, in Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546;  2018 Kash LJ 918, it is held as under:

• “25. The learned counsel for the petitioner has energetically argued that the impugned order dated 25th November 2006 was passed without giving opportunity of hearing to the petitioner. His submission is that once there is a Final Report, then, before the Magistrate rejects the same, he must hear the accused. In this connection it may be mentioned that the Supreme Court in Bhagwant v. Commissioner, AIR. 1985 SC 1285, has held that prior to accepting the Final Report, a notice must be given to the first informant or a person aggrieved and such a person must be heard. The ratio of the said decision will be applicable to a contrary case as well, like the present one. In the present case, the petitioner is an accused in a case in which a Final Report has been submitted. His grievance, and rightly so, is that before rejecting the Final Report he should have been heard. It is true that there is no statutory provision that before rejecting the Final Report the Magistrate must hear the accused but there is also no statutory requirement that before accepting the Final Report the complainant should be heard. If it is held that before accepting the Final Report the complainant must be heard, then it cannot be understood by what logic the accused should be denied a right of hearing before the Final Report is rejected. The same principle should apply to the complainant and the accused alike.”
• 26. The Supreme Court in recent years has been steadily widening the scope of Articles 14 and 21 of the Constitution.
• In Maneka Gandhi v. Union of India, AIR 1978 SC 597 (which is a Seven Judge Constitution Bench decision) the Supreme Court has emphasised that even where there is no specific statutory requirement the principles of natural justice may apply. It has been also held that the procedure for depriving a man of his life and liberty must be fair, reasonable and just. Similarly, in Bachan Singh v. State of Punjab, AIR 1982 SC 1825 it was held by the Supreme Court that “every facet of the law which deprives a person of life or personal liberty would therefore have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21”. Having said so, once a Final Report is submitted, then before its rejection the accused should be heard, for, it may be that he may be able to persuade the Magistrate that the Final Report was justified and no case is made out against him. It will be unfair to hear only the person filing the protest petition but not the accused. Where a protest petition is filed against a Final Report, both the parties should be heard as that procedure would be fair to the accused and the complainant and hence in accordance with the trend of the decisions of the Supreme Court (from Maneka Gandhi’s case onwards) in which the scope of Articles 14 and 21 of the Constitution has been greatly expanded and it has been laid down that the procedure should be just, fair and reasonable. Once a final report is filed it is only fair and reasonable that the accused should be heard before rejecting the Final Report and taking cognizance. I do not mean to say that cognizance cannot be taken on the basis of the final report. The Supreme Court in M/s India Carat Pvt. Ltd. case (supra) has held that this can be done. But fairness demands that this should be done only after hearing the accused, otherwise the accused may be put to unnecessary harassment.

Magistrate takes a judicial decision on the Final Report

Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546;  2018 Kash LJ 918, continued as under:

• “27. It may not be out of place to mention here that the Constitution of the India is the supreme law of the land and the provisions in the criminal statutes must be read and interpreted not in isolation but in the light of the constitutional provisions as interpreted by the Supreme Court. If upon an investigation, it appears to the officer-in-charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him and the Final Report can be filed before the Magistrate. It is true that the Final Report is not binding on the Magistrate and if the Magistrate differs from the opinion of the I.O., he can take the cognizance or order for the further investigation, but that action of the Magistrate is a judicial action and at that stage while taking decision on the Final Report the Magistrate has to act judicially as a Court. The Magistrate is required to weigh the prima facie evidence and take a judicial decision.”

Complaint can be dismissed under Section 203 Cr.P.C.

The complaint filed by a private party can be dismissed by the Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding.

If cognizance is (wrongly) taken, it will be QUASHED by the High Court

On the contrary if, on the basis of the consideration of the final report (the statements under Section 161 of the Code), that the  essential ingredients of the alleged offence is not, Prima Facie, made out, certainly the Magistrate could not take cognizance; and if cognizance is (wrongly) taken, it will be quashed by the High Court. (Anil Ritolla v. State of Bihar, 2007-10 SCC 110)

‘No court shall take cognizance’, except with the previous sanction u./S. 197

The Three-Judge Bench of our Apex Court, in State of U.P. v. Paras Nath Singh, 2009-6 SCC 372, explained Sec. 197 of the CrPC to point out that a court ‘is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty’. It is held as under:

• “And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words ‘no’ and ‘shall’ makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of.” (Quoted in: Anil Kumar v. M.K. Aiyappa, 2013–10 SCC 705; Jayant v. State of Madhya Pradesh, 2021 AIRSC496; 2021–2 SCC 670)

Protest Complaint on a Police Charge- Cognisance can be taken

In Kishore Kumar Gyanchandani v. G.D. Mehrotra, (2011) 15 SCC 513, it is held as under:

• “6. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha [(1982) 3 SCC 510 : 1983 SCC (Cri) 110] whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding.” (Quoted in: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27).

No Meticulous Evaluation; Even GRAVE SUSPICION Sufficient to Frame CHARGE.

In Shashikant Sharma v. State Of Uttar Pradesh, 2024 AIR SC  193 It is observed as under:

At the stage of framing of charges, the Court is not required to undertake a meticulous evaluation of evidence and even grave suspicion is sufficient to frame charge. Nevertheless, there is also a long line of precedents that from the admitted evidence of the prosecution as reflected in the documents filed by the Investigating Officer in the report under Section 173 CrPC, if the necessary ingredients of an offence are not made out then the Court is not obligated to frame charge for such offence against the accused.

Prima Facie Case, Strong Suspicion and Higher Standard

In Sarabjit Singh v. State of Punjab, 2009-16 SCC 46, it is held as under:

• “22. ……. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence, at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
• 23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied.” (Quoted in: Hardeep Singh VS State of Punjab, AIR 2014 SC 1400; 2014-3 SCC 92; Sunil Kumar Gupta v. State Of Uttar Pradesh, AIR  2019 SC 1174; 2019-4 SCC 556)

Trailblazing decision on ‘Cognizance‘

Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal. 437, held as follows:

• “What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that 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.“

This finding is approved by the Apex Court in R.R. Chari vs. the State of Uttar Pradesh reported in AIR 1951 SC 207, saying as under:

• “In our opinion that is the correct approach to the question before the court.”

Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee is the trailblazing decision on ‘cognizance‘. It is consistently followed as seen in the following decisions:

• Jayant v. State of Madhya Pradesh, 2021 AIR SC 496; 2021-2 SCC 670
• Prasad Shrikant Purohit v. State of Maharashtra, AIR 2015 SC 2514; 2015-7 SCC 440
• Mehmood Ul Rehman v. Khazir Mohammad Tunda, AIR 2015 SC 2195; 2015-12 SCC 420;
• Fakhruddin Ahmad v.  State of Uttaranchal, 2008-17 SCC 157
• Cref Finance LTD.  v. Shree Shanthi Homes Pvt. LTD., AIR 2005  SC 4284; 2005-7 SCC 467
• State of WB v. Bejoy Kumar Bose, 1978 AIR SC 188; 1978–1 SCC 173
• Ajit Kumar Palit v. State of W.B., AIR 1963 SC 765
• R.R. Chari v. The State of Uttar Pradesh,  AIR 1951 SC 207.

Supreme Court Decisions on Cognizance

If cognizance on police report not to examine complainant or his witnesses

In Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27, it is pointed out as under:

• If cognizance is taken on basis of the police report and not on the complaint, question of examining the complainant or his witnesses would not arise.

After final report cognizance can be on a protest/complaint

In Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27, it is also found –

• Acceptance of final report by police would not preclude taking cognizance on a protest/complaint petition.  Protest petition if satisfying requirements of a complaint should be dealt with as complaint
• See also: Mahesh Chand v. B. Janardhan Reddy, (2003) 1 SCC 734,

When investigation under Section 156(3) of Cr.P.C. is ordered, no cognizance taken.

• When a Magistrate applies his mind for taking action of some other kind, such as directing an investigation under Section 156(3) of Cr.P.C. or issuing a search warrant or a warrant of arrest for the purpose of investigation, he cannot be said to have taken cognizance of the offence. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.

Section 202 of the Code is invoked after cognizance is taken

• The powers under Section 156(3) to direct a police investigation can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process.
  • Tula Ram v. Kishore Singh, AIR 1977 SC 2401;
• • Narayandas Bhagwandas Madhavdas v. West Bengal, AIR 1959 SC 1118;
• • Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy,  1976-3 SCC 252: AIR 1976 SC 1672
  • Suresh Chand Jain v. State of MP, (2001) 2 SCC 628;AIR 2001 SC 571;
  • Dharmeshbhai Vasudevbhai case, (2009) 6 SCC 576;
  • Dilawar Singh v. State of Delhi, (2007) 12 SCC 641.

Object of Section 200 is to prevent false or vexatious steps

• The object of Section 200 of the Code requiring the complainant and the witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused.
  • In  Small Industries Corporation Limited v. State (NCT of Delhi), 2009-1 SCC 407:
  • Nirmaljit Singh Hoon v. State of W.B., AIR 1972 SC 2639
  • Dayle De’souza v. Government of India, AIR 2021 SC 5626

Court of Session not take cognizance as a court of original jurisdiction

• Court of Session has no jurisdiction to take cognizance of an offence as a court of original jurisdiction.  But, on committal, Sessions Court gets jurisdiction, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record.  Hence on committal under S. 209, Sessions Judge may summon, without recording evidence, the appellants not named in police report under S. 173 to stand trial along with those already named therein.
  • Kishun Sing v. State of Bihar, (1993) 2 SCC 16.

Court considers only averments in the charge-sheet; Not to appreciate evidence

• At the time of taking cognizance of the offence, the Court considers only the averments made in the complaint or in the charge-sheet filed under Section 173. It is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no Prima Facie case is made out for proceeding further in the matter.
  • State of Bihar V. Rajendra Agarwall (1996 (8) SCC 164);  
  • Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
• It is open to the Court, before issuing the process, to record the evidence, and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters.
  • Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.

Cognizance is taken first; Process issued thereafter

• Taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a Prima Facie case is made out.
  • State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728.

S. 156(3) – a bare reading of the complaint – if a cognizable offence disclosed, then may direct the police for investigation

• To proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation.
  • Srinivas Gundluri v. SEPCO Electric Power Construction Corporation, (2010) 8 SCC 206,
  • Anju Chaudhary v. State of U.P., (2013) 6 SCC 384.

Magistrate is not required to record reasons.

• Based on the allegations made in the complaint or the evidence led in support of the same, at the stage of issuing the process to the accused,the Magistrate is to be Prima Facie satisfied that there are sufficient grounds for proceeding against the accused (and not whether there is sufficient ground for conviction; it is determined only at the trial). At this stage, the Magistrate is not required to record reasons. Though speaking or elaborate reasoned orders are not required at this stage, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. And the Magistrate is not to act as a post office in taking cognizance of the complaint.
  • Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420,
  • Birla Corporation Ltd. v. Adventz Investments and Holdings, (2019) 16 SCC 610.R.R. Chari v. State of U.P. AIR 1951 SC 207.

Narayandas Bhagwandas Madhavdas v. West Bengal, AIR 1959 SC 1118, held as under:

• “As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under s. 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under s. 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.”

Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy,  1976-3 SCC 252: AIR 1976 SC 1672, held as under:

• “What is meant by “taking cognizance of an offence`’ by a Magistrate within the contemplation of s. 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The was in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190(l)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under s. 156(3), he cannot be said to have taken cognizance of any offence”
• xxxxx
• “Section 156(3) occurs in Chapter XII, under the caption :
• “Information to the Police and their powers to investigate”;
• while Section 202 is in Chapter XV which bears the heading:
• “Of complaints to Magistrates”.
• The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the postcognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under subsection (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.”

Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285, explained as under:

• “Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise.
• The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things:
• (1) he may accept the report and take cognizance of the offence and issue process or
• (2) he may disagree with the report and drop the proceeding or
• (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report.
• The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses:
• (1) he may accept the report and drop the proceeding or
• (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or
• (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156.
• … There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. …”
• “The position may however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. …. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. … We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative of or relatives the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report.”

In Kishun Sing v. State of Bihar, (1993) 2 SCC 16, “the question which arises for consideration” was “whether the learned Sessions Judge was justified in law in invoking Section 319 of the Code at the stage at which the proceedings were pending before him solely on the basis of the documents including statements recorded under Section 161 of the Code during investigation without commencing trial and recording evidence therein?

This decision (A.M. Ahmadi, N.P Singh) answered several questions including (i)  Whether the Sessions Court takes Cognisance on committal (ii) can the sessions court add more accused before taking evidence etc. It is held as under:

• “…. Now as pointed out earlier Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial. Once the purport of Section 319 is so understood it is obvious that the scope of its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the Inquiry or trial. Thus the Section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court. ….
• We have already indicated earlier from the ratio of this Court’s decisions in the cases of  Raghubans Dubey v. State of Bihar, 1967-2 SCR 423: AIR 1967 SC 1167, and Hariram Satpathy v. Tikaram Agarwala, 1979-1 SCR 349: AIR 1978 SC 1568, that once the court takes cognizance of the offence (not the offender) it becomes the court’s duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court’s duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance.
• We have also pointed out the difference in the language of section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a Court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of section 193 as it presently stands once the case is committed to the Court of Session by a magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the magistrate committing the case under section 209 to the Court of Session the bar of section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the Summoning of the person or persons whose complicity in the commission of the crime can Prima Facie be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in section 193 of the Code from that under the old Code in the case of S.K Laytfur Rahman v. The State, 1985 PLJR 640: 1985 Crl LJ 1238, as under:
• “Therefore, what the law under section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are Prima Facie guilty of the crime as well…. … Once the case has been committed, the bar of section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon and individual accused of the crime.”
• We are in respectful agreement with the distinction brought out between the old section 193 and the provision as it now stands.
• For the reasons stated above while as are in agreement with the submission of the learned counsel for the appellants that the stage for the exercise of power under section 319 of the Code had not reached, inasmuch as, the trial had not commenced and evidence was not led, since the Court of Session had the power under section 193 of the Code to summon the appellants as their involvement in the commission of the crime Prima Facie appeared from the record of the case, we see no reason to interfere with the impugned order as it is well-settled that once under it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. We, therefore, dismiss this appeal.”

Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415, referred to earlier decision of the Apex Court (State of Bihar v. Rajendra Agrawalla, 1996-8 SCC 164) and observed as under:

• It was held in State of Bihar v. Rajendra Agrawalla, 1996-8 SCC 164, that it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no Prima Facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charge-sheet filed under Section 173 of the Code, 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 cognisance would be taken by the court to proceed further in the matter. 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 offence has been made out or not. The learned Judge, therefore, was clearly in error in attempting to sift the evidence with reference to the averments made by the respondent in the counter-affidavit to find out whether or not offence punishable under Section 406, IPC had been made out.”

In Anil Kumar v. M.K. Aiyappa, 2013-10 SCC 705, it is observed as under:

• “15. The judgments referred to hereinabove clearly indicate that the word “cognizance” has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202 CrPC. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.” (Quoted in: Jayant v. State of Madhya Pradesh, 2021 AIR SC 496; 2021-2 SCC 670)

Magistrate can direct a Proper Investigation and Monitor the same

In Sakiri Vasu v. State of U.P., 2008-2 SCC 409 (Markandey Katju, J.), while dealing with the scope of Section 156(3) Cr.P.C., held that the Magistrate can monitor the investigation of police; and it can direct a proper investigation if an application under Section 156(3) is filed. It is held as under:

• “11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
• 12. Thus in Mohd. Yousuf v. Afaq Jahan this Court observed: (SCC p. 631, para 11) …….
• 13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC. Criminal Appeal No. 102 of 2011 Page 4 of 8 14. Section 156(3) states:
  • “156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.”
• The words “as abovementioned” obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.
• 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
• 16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC : AIR para 19).
• 17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
• xxxx
• 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself).”

Sakiri Vasu v. State of U.P. is quoted in:

• XYZ v. State of Madhya Pradesh, 2022 AIR SC 3957; 2023-9 SCC 705,
• M.  Subramaniam v S.  Janaki, 2020-16 SCC 728,
• Vinubhai Haribhai Malaviya v. State of Gujarat, AIR 2019 SC  5233,
• Hamant Yashwant Dhage v. State of Maharashtra, AIR 2016 SC 814.

By the Implied Power, Magistrate is the Whole Sole Authority to Monitor

In Dr. Kuldeep Kaushik v. State of U.P. , 2016 SCC OnLine All. 722, it is found – by the implied power the magistrate is the Whole Sole Authority to Monitor the Investigation. An instance of monitoring is pointed out in this decision. It held as under:

• “It can be inferred that there is no express power to the magistrate regarding the monitoring of the investigation but under section 156 of the Cr.P.C., that implied power is there and magistrate is having whole sole authority to monitor the investigation and in case investigation is not going on proper or in fair manner in that case, magistrate is even having authority to interfere in the investigation.
• Xxxxxx
• This court is certainly of the view that magistrate is all empowered to monitor the investigation and in case it is required then proper direction may also be issued and if in view of the Code certain papers that are being filed by the accused to be sent to the Investigating Officer, that right can very well be given to the accused, although magistrate will refrain from expressing any opinion regarding the papers and further accused can also not claim that papers may be taken into consideration by the Investigating Officer and after taking all those papers, opinion should be found by the Investigating Officer and only then the wanting report be submitted.
• xxxxxx
• Had applicant tried to submit the papers before the Investigating Officer and had he refused for taking the papers into consideration, only then the right of accused could have accrued for praying the magistrate to direct the Investigating Officer for a proper investigation under Section 156 Cr.P.C.”

Further investigation by Police – under Sec.173(8) Cr PC

Under 173(8) of the CrPC, a police officer can carry on further investigation. (It does not authorise the Magistrate to make such an order.) Police should seek formal permission from the Court for such further investigation, as held in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762.

In Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC  5233, it is observed as under:

• “When Section 156(3) of CrPC states that a Magistrate empowered under Section 190 of CrPC may order such an investigation, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of investigation contained in Section 2(h).”

In Union Public Service Commission v. S. Papaiah,  1997-7 SCC 614, it was observed as under:

• “The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to ‘further investigate’ the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the ‘new’ report to be submitted by the investigating officer would be governed by sub- sections (2) to (6) of Section 173 CrPC.”
• (Quoted in: Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC  5233; Central Bureau of India v. Hemendhra Reddy  (J.B. Pardiwala, JJ.)

Criticism – The Magistrate, u/s 156(3) CrPC, cannot– (i) monitor or (ii) direct investigation. Similarly, Magistrate cannot Order further investigation under Section 173(8) also.

It is definite –

• The CrPC does not specifically say it.
• ‘Investigation’ is particularly destined to Police; and inquiry is assigned to Magistrate.

Sec. 156(3) reads as under:

• “(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.”

Sec. 173(8) reads as under:

• (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-Section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding, such evidence in the form prescribed; and the provisions of Sub-Sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-Section (2).

It appears –

• The logic given in Sakiri Vasu [on “such an investigation“] does not seem convincing. Sec. 156 deals with a lone act of requiring investigation; and no further direction is contemplated (till a final report is filed by the Police).
• The CrPC does not give a power to the Magistrate to “monitor” the investigation. (If it was really intended to convey, or the scheme was, a ‘wide power’ to the Magistrate, including monitoring, it would have been stated in the Code itself.)
• The power of Magistrate to order ‘further investigation’ is only in Sec. 202 CrPC. It cannot be made under Sec. 156(3) or Sec. 173(8).
  • Note: Sec. 156(3) deals with the power of Magistrate to direct investigation of cognizable offences by police.
  • Sec. 173(8) does not authorise the Magistrate to make an order for further investigation. (It authorises the the police officer alone.)
• The power for ‘Ordering Proper Investigation’ (by police) may be a matter for the High Court under Article 226 of the Constitution. The ‘grievance’ on investigation cannot be slipped-down to a magistrate, as laid down in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhages (supra) as an ‘alternate remedy’.
• The Magistrate derives powers to deal with (or take cognizance of) the facts which constitute an offence, under Clauses (a) to (c) of Sec. 190(1) of the CrPC. It is on the following –
  • (a) upon receiving a complaint of facts which constitute such offence;
  • (b) upon a police report of such facts;
  • (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
• Under Sec. 202, the Magistrate is required to act upon “receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192“; and he can exercise following powers –
  • “enquire into the case himself or
  • ordering further investigation, through police or any other person”
• That is, once a Final Report is filed, the Magistrate has to apply his mind (under Sec. 204) – whether to proceed with it or not.
• Once a Final Report is filed, the Magistrate has to apply his mind – to decide whether to proceed with it (that is, to issue summons/warrant under Sec. 204) or not. At this stage, if the Magistrate finds it proper to take further evidence or conduct further investigation, he has to invoke Sec. 202 (and, he cannot go back to Sec. 156).
  It is for the following –
  (i) after getting the police report, the magistrate has to take cognizance of offences, under Sec. 190, if he decides to proceed.
  (ii) after taking cognizance on a police report, if the Magistrate finds it proper to take further evidence or conduct further investigation (to decide whether there is sufficient ground to proceed against accused), only enabling provision in the CrPC is Sec. 202.
  (iii) after taking cognizance, the Magistrate cannot go back to the pre-cognisance stage, Sec. 156(3).
  (iv) Sec. 202 expressly provides for taking further evidence or conducting further investigation by the Magistrate, after taking cognizance on a police report also.**
  _{[** Note: It is not confined to “Complaint”. The term used is not mere “complaint”. It can also be a ‘complaint of an offence’ in a Charge also. It is clear from the words in Sec. 202 – “on receipt of a complaint of an offence of which he is authorised to take cognizance the Magistrate can ‘either inquire into the case himself or direct an investigation to be made by a police officer'” ]}
• A ‘complaint of an offence of which he is authorised to take cognizance‘ “made over to him under section 192“, stated in Sec. 202 definitely refers to a Police Report (on which cognizance is taken) also. It too shows – “complaint of an offence” [in Sec. 202] is used in a wider sense; and not confined to “complaint”.
• In short, Magistrate can ‘enquire into the case himself’ or ‘order further investigation’, upon a police report [Refer Report or Charge], which refers to “complaint of an offence of which he is authorised to take cognizance” (without accepting the Police Report, as such) under Sec. 202.
• Power of Magistrate under S. 156(3) is Limited, for he cannot travel into the arena of merit of the case (it is to be done in trial).  Similarly, the scope of S 202 is also limited for it is only for helping the Magistrate to decide whether or not there is sufficient ground to proceed – that is, if ‘prima facie’ ground, the Magistrate has to proceed.
• There is no specific provision that allows the Magistrate to give specific directions as to investigation (to police) in ‘further investigation‘ also.
• Concisely, the Code does not allow or direct the Magistrate to “give directions” or to “monitor” the investigation (while it is done by the police).

The above views can be supported by Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.

• (Note: This decision is not followed in subsequent decisions – Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC  5233, Union Public Service Commission v. S. Papaiah,  1997-7 SCC 614, etc., to observe that Magistrate could, under Section 173(8) CrPC, direct ‘further investigation’.

Sec. 156(3) – Power of Magistrate, Limited

The above propositions are supported by Anju Chaudhary v. State of U.P., 2013 (6) SCC 384 (Madan B. Lokur, Swatanter Kumar JJ.), which pointed out –

• “38. Thus, the Magistrate exercises a very limited power under Section 156(3) and so is its discretion. It does not travel into the arena of merit of the case if such case was fit to proceed further.” (Quoted in: Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023-2 Crimes(SC) 384.)

New Code, BNSS, 2023

It is noticeable that the new Code, BNSS, does not make any change to the aforesaid provisions of the CrPC – inspite of the aforestated Supreme Court decesions. It bespeaks the legislative intent clear.

‘Alternate remedy’ to approach the Magistrate

In Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhages, (2016) 6 SCC 277, it is observed as under:

• “2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
• 3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
• 4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.”

Cognizance In Civil Suits

Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa, AIR 2009 SC 1857; 2009-4 SCC 299, it is held as under:

• “Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus Ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by statute, either expressly or by necessary implication.”

‘Cognizable Offence’ and ‘Non-Cognizable Offence’– Definitions

‘Cognizable offence’ is defined in Section 2 (c) of the CrPC as under:

• “Cognizable offence means an offence for which, and ‘cognizable case’ means a case in which a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant “.

Section 2(l) defines ‘non-cognizable offence’ as under:

• “Non-Cognizable offence means an offence for which and ‘non cognizbale case’ means a case in which a police officer has no authority to arrest without warrant.

Subsequent proceedings after taking Cognizance

It is clear that under Sec. 200, in case of a (private) complaint, magistrate can examine the complainant only if he had taken cognizance in the matter.

Subsequent proceedings after taking cognizance (Chapter XVI: Sections 204 to 208)

On getting police report, the Magistrate may resort to one of the following three steps:

• (i) accept the report and take cognizance of the offence and issue process;
• (ii) disagree with the report and drop the proceedings or
• (iii) direct further investigation under Section 156(3).

Where the report of the police states that no offence appears to have been committed, then the Magistrate may resort to one of the following three steps:

• (a) accept the (refer) report and drop the proceedings;
• (b) disagree with the report and take cognizance of the case and issue process or
• (c) direct further investigation to be made by the police under Section 156(3).

If the Magistrate decides not to take cognizance of offence or drop proceedings against some persons mentioned in F.I.R., he must give notice and hear first the informant. Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.

• Similarly, where the Magistrate decides not to take cognizance of the offence in spite of Report under sub-sec.(2) of S.173 and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant (not to the injured or to a relative of the deceased, unless such person is the informant) and provide him an opportunity to be heard at the time of consideration of the report. (However, such injured or to a relative of the deceased can appear before the Magistrate and make his submissions when the report is considered by the Magistrate.) Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.

Further investigation by Police and Magistrate – 173(8)

Under Section 156(3) the Magistrate has power to order further investigation (reopening of the investigation). Under 173(8) of the CrPC, a police officer can carry on further investigation. Police should seek formal permission from the Court as held in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, for further investigation.

No conflict with the power of the police to investigate further in light of Section 173(8) of the CrPC, and the Magistrate’s power to order further investigation under Section 156(3) of the CrPC and therefore the Magistrate can order reopening of the investigation.

Magistrate has three options under Sec. 202 CrPC – on receipt of a final report under Section 173 –  

• either to accept the report and close the case,
• to disagree with the report and proceed with the case or
• to order further investigation [obviously under Section 202 of the CrPC).

In Union Public Service Commission v. S. Papaiah, (1997) 7 SCC 614, it was held that the Magistrate could direct “further investigation” under Section 173(8) CrPC also.

Further investigation under 173 (8) possible

In Union Public Service Commission v. S. Papaiah, (1997) 7 SCC 614, it was held as under:

• “The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to “further investigate” the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the “new” report to be submitted by the investigating officer would be governed by sub-sections (2) to (6) of Section 173 CrPC.”. (quoted in: Central Bureau Of India v. Hemendhra Reddy  (Surya Kant, J.B. Pardiwala, jj.)

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End Notes

Section 156:

• Police Officer’s power to investigate cognisable case.
• (1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognisable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
• (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
• (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

Section 190:

• Cognizance of offences by Magistrates: 
• (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-
• (a) upon receiving a complaint of facts which constitute such offence;
• (b) upon a police report of such facts;
• (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
• (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.

Section 191:

• Transfer on application of the accused:
• When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 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.

Section 192:

• Making over of cases to Magistrates: 
• (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate subordinate to him.
  (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry 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.

Section 200

• Examination of complainant:
• A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;
• Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
• Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Section 202

• Postponement of issue of process.
• (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192
  • may, if he thinks fit,
  • and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction
• postpone the issue of process against the accused, and
  • either inquire into the case himself or
  • direct an investigation to be made by a police officer or by such other person as he thinks fit,
• for the purpose of deciding whether or not there is sufficient ground for proceeding:
• Provided that no such direction for investigation shall be made, –
  • (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
  • (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
• (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
• Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
• (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer-in-charge of a police station except the power to arrest without warrant.

Section 204

• Issue of process.
• (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be –
• (a) a summons case, he shall issue his summons for the attendance of the accused, or
• (b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
• (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
• (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
• (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
• (5) Nothing in this section shall be deemed to affect the provisions of section 87.

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

• Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar
• Replication, Rejoinder and Amendment of Pleadings
• Does Registration of a Document give Notice to the Whole World?
• Suit under Sec. 6, Specific Relief Act – Is it a ‘Summary Suit’ under Order XXXVII CPC?
• Is it Mandatory to Lift the Attachment on Dismissal of the Suit? Will the Attachment Orders Get Revived on Restoration of Suit?
• Will Interlocutory Orders and Applications Get Revived on Restoration of Suit?
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• Previous Owner is Not a Necessary Party in a Recovery Suit
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?
• Withholding Evidence and Adverse Inference
• Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
• Family Settlement or Family Arrangement in Law
• ‘Possessory Title’ in Indian Law
• Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
• Relevancy of Civil Case Judgments in Criminal Cases
• Waiver and Promissory Estoppel
• Can a Christian Adopt? Will an adopted child get share in the property of adoptive parents?
• Principles of Equity in Indian Law
• Thangam v.  Navamani Ammal: Did the Supreme Court lay down – Written Statements which deal with each allegation specifically, but not “para-wise”, are vitiated?

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Notary-Attested Documents and Presumptions
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Should a Power of Attorney for Sale must have been Registered –
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Title, ownership and Possession

• ‘Nemo Dat Quod Non Habet’
• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
• Sale Deeds Without Consideration – Void
• Tenancy at Sufferance in Indian Law
• Recovery of Possession Based on Title and on Earlier Possession
• Title and Ownership in Indian Law
• Admission by itself Cannot Confer Title
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• 22nd Law Commission  Report on ‘Law on Adverse Possession’
• Adverse Possession Against Government
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• Family Settlement or Family Arrangement in Law
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• ‘Possessory Title’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?
• Grant in Law

Adverse Possession

• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession Against Government
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• ‘Possessory Title’ in Indian Law
• Admission by itself Cannot Confer Title
• Ouster and Dispossession in Adverse Possession

Principles and Procedure

• Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Will – Probate and Letters of Administration
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Admission by itself Cannot Confer Title
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Admission, Relevancy and Proof

• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Admission by itself Cannot Confer Title
• Modes of Proof of Documents
• Proof of Documents & Objections To Admissibility – How & When?
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Production, Admissibility & Proof Of Documents
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Relevancy of Civil Case Judgments in Criminal Cases

Land Laws/ Transfer of Property Act

• Tenancy at Sufferance in Indian Law
• Freehold Property in Law
• What is Patta or Pattayam?
• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Previous Owner is Not a Necessary Party in a Recovery Suit
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Marumakkathayam – A System of Law and Way of Life Prevailed in Kerala
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Sale Deeds Without Consideration – Void
• Law on Acquisition of Private Plantation Land in KeralaLaw on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
• Grant in Law

Evidence Act – General

• Newspaper Reports are ‘Hearsay Secondary Evidence’
• Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023
• Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023
• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Withholding Evidence and Adverse Inference
• Best Evidence Rule in Indian Law
• What is Collateral Purpose?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Admission by itself Cannot Confer Title
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Pictorial Testimony Theory and Silent Witnesses Theory
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Sec. 65B

• Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023
• Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate forms
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?

Law on Documents

• Does Registration of a Document give Notice to the Whole World?
• Production, Admissibility & Proof Of Documents
• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Are RTI Documents Admissible in Evidence as ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Effect of Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents and Presumptions
• What is Collateral Purpose?
• No Application Needed for Filing or Admitting Copy
• Presumptions on Documents and Truth of Contents
• Presumptions on Registered Documents & Truth of Contents
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Modes of Proof of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Adjudication as to Proper Stamp under Stamp Act
• Marking Documents Without Objection – Do Contents Proved
• Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• How to Contradict a Witness under Sec. 145, Evidence Act
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Pictorial Testimony Theory and Silent Witnesses Theory
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Interpretation

• Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Wills
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• Can an Unregistered Sale Agreement be Used for Specific Performance

Law on Damages

• Law on Damages
• Who has to fix Damages in Tort and Contract?
• Law on Damages in Defamation Cases
• Pleadings in Defamation Suits

Easement

• Easement Simplified
• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Easement of Necessity and Prescriptive Easement are Mutually Destructive; But, Easement of Necessity and Implied Grant Can be Claimed Alternatively
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Law
• Right of Private Way Beyond (Other Than) Easement
• Easement – Should Date of Beginning of 20 Years be pleaded?
• One Year Interruption or Obstruction will not affect Prescriptive Easement

Stamp Act & Registration

• Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
• Time-Limit For Adjudication of Unstamped Documents, before Collector
• Time Limit for Registration of Documents
• Presumptions on Registered Documents & Truth of Contents
• Registration of Documents Executed out of India
• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration

Will

• Witnesses to the Will Need Not See the Execution of the Will
• Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• How to Write a Will? Requirements of a Valid Will
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?
• A Witness to Hindu-Will will not Lose Benefit

Arbitration

• Seesaw of Supreme Court in NN Global Mercantile v. Indo Unique Flame
• N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. and Ground Realities of Indian Situation
• What are Non-Arbitrable Disputes? When a Dispute is Not Referred to Arbitration in spite of Arbitration Clause
• Termination or Nullity of Contract Will Not Cease Efficacy of the Arbitration Clause
• No Valid Arbitration Agreement ‘Exists’ – Can Arbitration Clause be Invoked?

Divorce/Marriage

• Presumption of Valid Marriage – If lived together for Long Spell
• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Negotiable Instruments Act

• Does Cheque-Case under Sec. 138, NI Act Lie Against a Trust?
• Sec. 138 NI Act (Cheque) Cases: Presumption of Consideration u/s. 118
• Even if ‘Signed-Blank-Cheque’, No Burden on Complainant to Prove Consideration; Rebuttal can be by a Probable Defence
• “Otherwise Through an Account” in Section 142, NI Act
• Where to file Cheque Bounce Cases (Jurisdiction of Court – to file NI Act Complaint)?
• Cheque Dishonour Case against a Company, Firm or Society
• What is ‘Cognizance’ in Law

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Doctrines on Ultra Vires and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur v. Union of India)
• Dr. Jaya Thakur v. Union of India – Mandamus (Given in a Case) Cannot be Annulled by Changing the Law
• Art. 370 – Turns the Constitution on Its Head

Religious issues

• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

Book No. 3: Common Law of CLUBS and SOCIETIES in India

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
  • Charitable and Religious Trusts Act, 1920: Provisions as regards opinion, advice or direction of the Court.
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
  • Does Cheque-Case under Sec. 138, NI Act Lie Against a Trust?
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions